Frontiers of age discrimination: Marian P. Opala, a justice of the Oklahoma Supreme Court, has gone to federal court to sue all eight of his colleagues charging age bias. Members of the court select one of their number to serve as chief justice, and for years the seat has rotated automatically among members, but lately, as Opala’s turn was drawing near, the court voted to change the rules to adopt a different selection method. Eugene Volokh called the justice’s equal protection claim “very, very weak” and said it was annoying to see an official of a state court seek the intervention of a federal court against the authority of his own. (Adam Liptak, “Oklahoma Judge, 83, Files Bias Suit Against Colleagues”, New York Times, Jan. 5).
Posts Tagged ‘workplace’
Cheated workers
Ohio workers who got their jobs through a welfare program are suing the state for improper compensation. Example: As part of his welfare benefits, Bruce Smith stripped floors in Youngstown when his knee snapped as he bent to pick up a bucket of water. His attorneys argue he should have received worker’s compensation based on his pre-welfare salary, not on his food stamp allowance, according to a state supreme court decision. The state says the ruling “applied to death benefits, not regular workers comp claims.”
The welfare program is a tiny part of overall claims. The workers compensation bureau has paid about $6 million for 3,200 successful welfare worker claims to date, compared to about $2 billion last year alone in regular claims, Hicks said.
The Equal Justice Foundation says the number of potential claims is much higher. In court filings accompanying the lawsuit, foundation attorneys say the figure is over 5,000, citing workers’ compensation bureau e-mails.
Smith, 59, went on welfare after he was laid off from his job making bumpers for a General Motors parts supplier. He was injured in April 2003 on a job he received in Mahoning County as a condition of getting $139 in food stamps weekly.
Associated Press, “Lawsuit Alleges Workers Hurt On Welfare Jobs Cheated,” Jan 4.
Canadian court: co. to blame for unionist’s bomb
A Canadian employer has now been held partly to blame for a murderous onslaught by one of its adversaries in a labor dispute:
A court has awarded $10.7 million in damages to the widows of nine men killed by a bomb during a labour dispute at Yellowknife’s Giant Mine, blaming the mining company and the union almost as much as the man who laid the explosives….
Justice Arthur Lutz ruled that none of the involved parties did enough to control the relentless and escalating violence on the picket line that summer. He assigned almost equal blame to the union, Royal Oak Mines and Roger Warren, who was convicted of the murders. Lutz also assigned a share of the damages to Pinkerton’s security, two union activists and the N.W.T. government….
Royal Oak had argued that it couldn’t have predicted the deaths, but Lutz scorned the reasoning. … The judge said violence and threats were rampant during the 18-month strike, including physical injuries, property damage and sabotage. Strikers staked out the houses of replacement workers and stole explosives from the mine, setting off one blast that cut off power to a hospital.
(“Giant Mine widows awarded $10.7M”, CBC, Dec. 16).
“Workplace bullying” legislation
Michael Fox of Jottings by an Employer’s Lawyer sees a resurfacing of this campaign, about whose merits he’s skeptical (Dec. 20). For the schools context, see Feb. 14-15, 2001. More: Point of Law, Apr. 18, 2005 (jury award in Indiana on the theory). More: Mar. 2, 2007.
Mandatory lunch
Are you an hourly employee in California who wants to work through lunch so you can leave early to beat traffic? Under California law, your employer can’t let you do that without paying you for an extra hour’s salary: they risk suit, and there have been dozens of such suits in California this year. The Schwarzenegger administration is proposing administrative rule-changes to make meal breaks a voluntary option of employees, and unions are attacking him for “chipping away at workers’ rights” for trying to give the California rule the same flexibility as the federal rule. (Rachel Osterman, “Clash over new rules for lunch breaks”, Sacramento Bee, Dec. 15). More: NLJ, Jan. 31.
The New Highlanders?
From the ridiculous end of the sublime-to-ridiculous spectrum comes Curtis Blaine Storey, a man who lost his job and sued his employer for discriminating against him on the basis of national origin and religion. His employer gave him the sack for constantly displaying his Confederate flag at the workplace in violation of workplace rules.
Storey’s claimed national origin: Confederate Southern-American. His religion? The same. His lawyer’s rather inapt comparison, according to this article in the Legal Intelligencer, is that
Confederate Southern-Americans “endured a persecution similar to that suffered by the Highland Scots under English rule after the Jacobite uprising of 1745, or the Acadians of Canada.”
The district judge who heard this claim tossed it out. The Third Circuit agreed, upheld the dismissal but had a split vote.
Workers get $211K, lawyers bag $2.57 M?
Speaking of class actions against Wal-Mart: “Six lawyers who represented Oregon workers in their fight for overtime pay from Wal-Mart say that the world’s largest retailer should pay them $2.57 million for the time and money they spent trying the case. Wal-Mart opposes the request, saying that it would be an exorbitant payday for a case that had a relatively small judgment. In September, a U.S. District Court judge in Portland awarded 83 Wal-Mart workers back wages, penalties and interest totaling $211,000, an average of $2,542 each.” (“Lawyers want $2.57 million from Wal-Mart”, Salem Statesman-Journal, Dec. 9)
Update: store’s refusal to permit display of facial jewelry not unlawful
West Springfield, Mass.: despite support for her position from the federal Equal Employment Opportunity Commission (EEOC), Kimberly Cloutier has failed to convince the First Circuit federal appeals court that she suffered unlawful religious discrimination when her employer, the Costco discount chain, fired her for refusing to remove or mask the jewelry in her various facial piercings. Cloutier said she was a member of the Church of Body Modification which ascribes religious significance to piercings. We covered the case Oct. 18-20, 2002. (decision, Cloutier v. Costco, Dec. 1) (via Michael Fox, Jottings By an Employer’s Lawyer, who comments). More: Appellate Law & Practice‘s apparently anonymous “S. COTUS” considers the original headline of this posting (“Update: facial jewelry not religiously protected”) misleading, since the circuit did not rule out religiously based protection for facial jewelry as a general matter but instead rested its decision on the grounds that “the only accommodation Cloutier considers reasonable would impose an undue hardship on Costco”. Headline accordingly fixed.
Update: San Diego v. Roe
We earlier covered the ridiculous decision in Roe v. San Diego (Jan. 29), where a police officer claimed to have a first-amendment right to sell both homemade porn videos using his official uniform and his official uniform–and the Ninth Circuit actually agreed that this was a triable claim. The Supreme Court thought otherwise in a short 9-0 decision yesterday, throwing out the case without oral argument in a stern rebuke of the lower court. (Onell R. Soto, “High court backs firing of officer in San Diego”, San Diego Union-Tribune, Dec. 7; David Savage, “High Court Upholds Firing of San Diego Police Officer”, Los Angeles Times, Dec. 7; see also Catherine Seipp, “Coffee, Tea, or Fired for Blogging?”, NRO, Nov. 24).
Blonds not protected class
Not sure exactly how this one escaped our notice last year: a Pennsylvania federal judge has ruled (or, really, observed) that whatever other advantages blonds may enjoy, they are not a protected class under Title VII federal employment discrimination law. Brigitte Shramban had sued Aetna claiming that her boss had made various tasteless and disparaging remarks which belittled her on account of her sex, race, national origin, religion and blondness. Aside from noting that the last-named flower could not properly be included in the Title VII bouquet, the judge dismissed the case as a whole because the improper remarks were not sufficiently severe, pervasive, or bothersome to a reasonable listener. (Shannon P. Duffy, “Offensive Behavior Not Necessarily Harassment”, The Legal Intelligencer, May 23, 2003). It seems doubtful that a case could be made out that discrimination against those with fair tresses operates as a “proxy” for bias against those of certain ethnic origins; thanks to modern technology, blonds (as the Census says of Hispanics) “may be of any race”.