New York City: “A judge has dismissed a lawsuit that claimed the union representing the city’s bus and subway workers was responsible for an accident that left a firefighter critically injured because workers went on strike. Matthew Long, 39, was run over by a private bus while he was bicycling to work during the December walkout. He sued the Transport Workers Union Local 100 in February, arguing the accident would not have happened had the union not gone on strike.” (“Judge dismisses firefighter’s lawsuit claiming strike responsible for injury”, AP/CourtTV, Jul. 7). For more on the lawsuit, see “Firefighter wants transit union to pay”, Gothamist, Feb. 14.
Posts Tagged ‘workplace’
Employers win two in court
Each year Gerald Skoning, a prominent employment lawyer at Chicago’s Seyfarth Shaw, assembles his pick of the ten most bizarre employment cases of the previous year, and each year the National Law Journal publishes the roundup but omits to put it online. So I’ll just quote my two personal favorites from the latest list (“Last year’s bizarre cases”, Mar. 20):
…A federal district court in Oklahoma has dismissed a 70-year-old office worker’s claim that her employer discriminated against her because she was not fired. Mary Wyatt, who had worked for Occidental Petroleum for more than 24 years, argued that she should have been fired and awarded a severance package. The court disagreed, reasoning that, “Plaintiff has not suffered an adverse employment action by the continuation of her employment.” I commend the court for its eminently sensible recognition that the continued opportunity to earn a living isn’t discrimination.
…A federal court in Pennsylvania has ruled that a weight loss center did not violate the Americans with Disabilities Act by refusing to hire a salesman who weighed 350 pounds because it was concerned his appearance was inconsistent with the sale of its products. The court dismissed Bob Goodman’s claim, stating: “The mere fact that Defendant was aware of Plaintiff’s weight and rejected [him] for fear that his appearance did not accord with the company image was not improper.” I salute this weighty contribution to commonsense jurisprudence.
For another you-should-have-fired-me case, see May 11, 2004. For coverage of previous Skoning roundups, see May 12, 2005 and links from there.
A License To Complain
Last Thursday, the Supreme Court ruled that a worker alleging retaliation for complaining about discrimination may sue even if she has not suffered a tangible loss, like a firing or denial of a promotion. In its decision in Burlington Northern v. White, the Supreme Court ruled that under Title VII of the Civil Rights Act, “retaliation” includes any act that “well might have dissuaded a reasonable worker” worker from complaining. The court upheld a $43,500 judgment in favor of an employee who was reassigned to different tasks and then suspended for a month before being reinstated with full backpay.
The court’s low bar for what constitutes retaliation turns many mistaken complaints of discrimination into future lawsuits. Under federal court rulings, even groundless complaints are often protected against retaliation. Complaints to an employer are protected as long as the complainant reasonably believes that discrimination or harassment occurred, even if it didn’t. And complaints to the EEOC are protected even if they are plainly unreasonable, intemperate, and false. So an employee who has never been discriminated against can sue over deteriorating relationships with co-workers whom the employee has falsely accused of discrimination, claiming that the bad relationships constitute a “hostile environment” in retaliation for claiming discrimination.
In an attempt to forestall some such suits, the Supreme Court added a caveat to its test. It declared that “snubbing by supervisors or co-workers” or “petty slights” in response to a claim of discrimination do not rise to the level of retaliation, since they would not be sufficiently “materially adverse” to dissuade someone from complaining of discrimination. Whether or not that caveat is consistent with the court’s general test, it is welcome from a First Amendment perspective. As Judge Kozinski observed in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), banning all criticism or ostracism in response to a discrimination charge may well violate the First Amendment freedoms of speech and association.
But the Supreme Court’s caveat may not be enough to protect First Amendment rights. For example, in Bain v. City of Springfield, 678 N.E.2d 155 (Mass. 1997), a mayor publicly denounced as unfounded a sexual harassment complaint against him. It is easy to see how such a public denial might dissuade a publicity-shy complainant from bringing an accusation. But as the Massachusetts Supreme Court observed, defining his speech as unlawful retaliation would clash with the First Amendment. Retaliation prohibitions are “subject to constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech.” Since the Supreme Court has set the bar so low, the courts may need to exempt speech about the merits of discrimination claims to prevent censorship.
But some judges will probably refuse to do so. Judge Myron Thompson held an employer liable for retaliation for publicly criticizing a discrimination complaint, rejecting a First Amendment defense on the ground that since sexual harassment law supposedly trumps the First Amendment, so do laws against retaliation.
“Federal Judge Tosses $240,000 Verdict in Age Bias Lawsuit”
Sears says it fired 50-year-old Gunnar Steward because of poor performance. Steward claims it was age discrimination, and sued. Sears noted that Steward’s job tasks were split amongst a 60-year-old, 45-year-old, 35-year-old, and 33-year-old. Notwithstanding a jury verdict of $241,000, Judge Rueter threw out the case because the 43.25 year age average was less than seven years younger than Steward, insufficiently younger to constitute discrimination based on age. (Rueter also noted the lack of evidence that Sears’s reason for firing Steward was pretextual.) Plaintiff’s attorney Carmen R. Matos suggests there will be an appeal; the Third Circuit has previously held nine-year and eight-year age differences to constitute possible discrimination. (Shannon P. Duffy, Legal Intelligencer, Jun. 20). Such hair-splitting demonstrates a general problem with the age discrimination laws.
RICO for illegal-alien-hiring? Not so fast
The Supreme Court’s decisions earlier this month on the Racketeer Influenced and Corrupt Organizations Act are generally good news for business defendants that have been seeking to narrow the statute’s application, reports Marcia Coyle at the NLJ. The Court stuck to its previous position that plaintiffs must prove that a defendant’s RICO violation was the proximate cause of their injury, and it sent the Mohawk case (see here, here and here), alleging that a manufacturer’s use of illegal immigrant workers amounted to racketeering, back to the 11th Circuit with instructions to apply that test, vacating the existing judgment against the company (cross-posted from Point of Law).
Computer game design overtime claims
Electronic Arts has agreed to pay $15 million to settle a lawsuit brought on behalf of software engineers alleging that they should have been classified as hourly workers for purposes of paying overtime, but the “victory” is of a double-edged nature since the beneficiaries will lose access to stock options as well as bonuses. Earlier, EA agreed to pay $16 million to settle overtime claims on behalf of graphic artists. (Nicole C. Wong, A&E Interactive (Mercury News), Apr. 25). See Mar. 29, 2000; also various Point of Law posts.
“Nine years of litigation for 3.5 miles of fence”
David Frum expresses skepticism over the short-term efficacy of fence-building—and prints an email pointing out the impossible position employers are in if employer sanctions are enforced.
Meanwhile, Robert Novak reports that the Senate immigration bill gives guest farm workers the civil-service-style right not to be fired except for just cause and puts them under Davis-Bacon, opening up whole new possibilities in employment litigation. What precisely makes this Congress Republican? As an Instapundit reader notes, the Davis-Bacon language might be a poison-pill provision to de facto end immigration hiring, since immigrants would cease to have a wage advantage. Then again, Title VII wouldn’t be half as broad as it is today if Southerners hadn’t inserted poison-pill provisions they mistakenly thought would crater the Civil Rights Act of 1964.
Blawg Review #56 at Point of Law
Ted and I join with Jim Copland, Larry Ribstein, Tom Kirkendall, and Sam Munson this morning as co-hosts of the week’s traveling carnival of law-related blogs, Blawg Review, over at Point of Law. A very few highlights:
* Ted comments on the self-unmasking of pseudonymous blogger “Juan Non-Volokh”, on various matters connected with Joe DiMaggio. and on Howard Bashman’s Stakhanovite work pace.
* Jim discusses the tax consequences for plaintiffs of confidentiality agreements in settlements, via Evan Schaeffer’s other weblog; a new way for the plaintiff’s securities bar to get around PSLRA; and a Court TV reality show set in New York City’s real-life night court.
* Larry, Tom and Sam round up posts on corporate law, on the Enron trial and other prosecutorial matters, and on a variety of subjects including law review style.
* And I discuss an on-the-job love triangle that eventuated in a Title VII lawsuit alleging sex discrimination; liability headaches for online enterprises and software manufacturers; the case in which the Cleveland bar association is trying to get a dad penalized for unauthorized practice of law after he successfully represented his own son in special-ed proceedings; Long Island legislator Jeffrey Toback’s demagogic suit against Google for allegedly interfering with children, as dissected by Eric Goldman; and the fast-rising number of cases filed under ERISA, the federal pension and employee-benefits statute.
It’s all here. Next week’s Blawg Review will be hosted by Lawyerlike.
Update: Wonder Bread dough
First came the mixing up of allegations of racial discrimination against Interstate Bakeries, producer of Wonder Bread and Hostess Twinkies (Jul. 3, 2000). Then came the baking of juror sentiment to a tasty turn by San Francisco plaintiff’s lawyer Angela Alioto’s team, resulting in a $132 million award to 21 workers (Aug. 4, 2000). Then came some deflation of the spongy loaf, as a judge lopped $97 million off the award (Oct. 10, 2000). Now, six years later, the case having settled for maybe $25 million, a lawyer who worked with Alioto continues to battle her in court for a share of the mouth-watering fees (Mike McKee, “Lawyer Still Seeks Slice of Wonder Bread Fees”, The Recorder/Law.com, Apr. 28).
Update: spanking bill is $1.7 million
Updating our Apr. 27 story, the jury awarded $500,000 “compensatory” and $1.2 million punitives. (AP, May 1). It’s that compensatory damages number that gets me: does anyone doubt that if plaintiff Janet Orlando collects that money, she’s better off than if she had never been paddled at all? Orlando had requested $1.2 million in compensatory damages plus punitives.