Friday, December 7, 2007

Inaugural Blog

After having spent substantial time over the past few years reading the many blogs related to employment law, I have fearlessly decided to join the discussion. So, this is my inaugural blog. I welcome comments.

Come January, I will have been practicing exclusively employment law for 40 years, starting in Mississippi in the late '60s with the Lawyers Committee for Civil Rights Under Law, litigating some of the very first Title VII class actions, and then in the early 70s doing a brief stint in the office of the General Counsel of the EEOC before going into private practice, headquartered in Washington, DC.

For today's inaugural blog, I have chosen to comment on the Sprint "me-too" case which was argued this week before the Supreme Court, and then to summarize some interesting cases that have drawn attention in the last week or so. For now, I will attempt to blog daily. So, here goes.

Me-Too Evidence - Admissibility

Sprint/United Management Co. v. Mendelsohn, 06-1221
I try to look at the issue in terms of fairness and practicalities. It seems perfectly fair in many circumstances and practical to allow the plaintiff to put on evidence of co-workers "me-too" discrimination claims against the same supervisors that plaintiff says discriminated against him or her. When a complaint is raised internally or a demand letter comes in, corporate counsel and their outside counsel are now on notice of the plaintiff's claim and when they are framing a litigation hold directive regarding record retention and doing their due diligence/internal investigation, it would seem to be common sensical that they preserve records of other people supervised by the same alleged "black hat", and at an appropriate time interview those individuals to see whether they have similar complaints about the alleged discriminating official.
Where I have fairness and practicality difficulties is me-too testimony from people not supervised by the same alleged discriminating official. When corporate counsel put in place a litigation hold re: records (and in this day and age we are talking about electronic records), how can they possibly anticipate whose files and records, other than those who have been supervised by the ADO, they ought to preserve and maybe interview. It seems like there is a fairness and practicality issue here. I assume this was raised in the briefs and at oral argument. It will be interesting to see how that sorts out.


Is The ADA An Affirmative Action Statute?

Huber v. Wal-Mart Stores, 07-480
The Supreme Court today accepted cert. in this ADA case. The issue is the so-called affirmative action issue. The employee who was found to be disabled and entitled to a reasonable accommodation, insisted that the employer's duty to reasonable accommodate overrides the employer's policy of filling vacancies with those individuals whom the employer deems to be best qualified. The employee argued that the duty to accommodate trumps the employer's policy, and that the job vacancy had to be filled by the disabled individual so long as, with accommodation, the disabled individual could perform even though the disabled individual was not the best qualified. The Eighth Circuit had opined that the ADA is not "an affirmative action" statute, and rejected the employee's argument. Now, the Court will presumably resolve this issue once and for all. More later.

Religion In Workplace - Creationists

Abraham v. Woods Hole Oceanographic Institution, #07 CA 12237 (D. Mass.)
Another interesting case that pits creationists against their employers, this one in an academic setting. The plaintiff, Nathaniel Abraham (certainly, an apt name for this plaintiff), a biologist, has filed against Woods Hole Oceanographic Institution in federal court in Boston, alleging that he was fired because of his religious beliefs after he refused to work on the "evolutionary aspects" of an NIH research grant because he is a "creationist."

Sex Harassment

Moser v. MCC Outdoor LLC, 2007 U.S. App. LEXIS 28252 (4th Cir. Dec. 5 2007)
The Fourth Circuit, in a per curium opinion not released for publication in F.3d, reversed the lower court to the extent that it had granted summary judgment in a hostile work environment case. The court stated that while it is difficult to draw the line between a merely unpleasant working environment and a hostile or deeply repugnant one, here the court determined that a reasonable jury could determine that the male supervisor's conduct made the plaintiff reasonable feel that she was "his sexual prey." After reviewing the evidence re: a hostile work environment that plaintiff had forecasted, the court concluded that "a jury could reasonably conclude from the evidence forecasted that Jones was unyielding in his sexual treatment of Moser, crippling her ability to have a healthy working relationship with him, and causing her significant personal anguish as she attempted to avoid his sexual behavior and deal with the antagonism that he directed toward her.

Arbitration - Continued Employment As Consideration

Seawright v. American General Financial Services, Inc. 2007 U.S. App. LEXIS 26328 (6th Cir. Nov. 13, 2007)
In yet another compulsory arbitration case, the employee of 26 years unsuccessfully argued that the employer's announcement during her twentieth year to all employees that disputes would henceforth be resolved in arbitration was a contract of adhesion. The majority, Chief Judge Boggs and Judge Sutton, with Judge Martin dissenting, held that plaintiff's continuation of employment after the effective date of the arbitration program constituted acceptance.

Sex Harassment - Pornography In Workplace

Patane v. Clark, 2007 U.S. App. LEXIS 27391 (2nd Cir. Nov. 28, 2007)
In a per curium opinion, the Second Circuit reversed the lower court's rejection of hostile work environment and retaliation claims. The district court had concluded that plaintiff's complaint did not assert that the work environment was objective hostile. Relying on the fact that the plaintiff, a secretary in Fordham University's Classics Department, had never seen the pornographic videos that a professor in the department had brought to work, the district court dismissed the complaint. Plaintiff alleged that the professor, behind closed doors, spent one to two hours every day viewing "hardcore pornographic" videotapes, and that she was aware of this habit because the flickering from his TV screen was visible through the glass partition of his office and because she once saw pornographic videotapes scattered on the floor of his office when she knocked on the door to announce a visitor.

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