Jottings By An Employer's Lawyer

Monday, February 26, 2007

Is This the Year Title VII Is Expanded to Cover Sexual Orientation?

I was caught off guard by the Associated Press article that was being widely reported this week end concerning two "likely" Congressional enactments concerning gay rights this year — one a hate crimes bill and the other adding sexual orientation and gender identity to the categories protected against workplace discrimination. See the article as reported at, Breakthrough year seen for gay rights bills. Favorable comments on the likelihood of passage come from both a supporter, Congressman Barney Frank, (D.MA.) and an opponent, Matt Barber, a policy director with the conservative group Concerned Women for America.

I wonder if the author may not be jumping the gun, as I don't find a current bill pending in either the House or Senate that would accomplish the workplace goals (I didn't check for the hate crime one) and the acronym used in the article, ENDA (Employment Non-Discrimination Law), was used for legislation introduced in prior sessions. Although it is not out of the realm of possibility that this legislation will be introduced and make progress, I think this article may be a little, and perhaps considerably, ahead of the bandwagon.

Much sooner on the horizon are bills banning genetic discrimination and the Employee Free Choice Act, the latter which may well pass the House this week.


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Wednesday, February 14, 2007

New OSHA Electrical Standard on August 13

If you are in the shipyard employment, longshoring, and marine terminals you might want to know that OSHA has specifically mentioned your industry as being affected by its new rule for electrical installations. It will ultimately be found at 29 C.F.R. § 1910.302 through 1910.308, with definitions in § 1910.399. But if you just cant' wait to see what is in store, you can check it out in today's Federal Register at FR Doc E7-1360.

Although OSHA mentioned the three specific industries, the standard just like the ones it will be replacing applies to all OSHA regulated employers.


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Happy 30th to Ogletree Deakins

Although I have only been here for 1/10 of the firm's history, I still am quite proud of where I show up every day to practice law. I hope our managing shareholder, Gray Geddie, won't mind me sharing with the world a portion of his email to the firm today:

Thirty years ago today, sixteen lawyers and our support staff began what has become our firm today. ... We opened with two offices---ten of the sixteen were in Greenville and six were in Atlanta. Of the original sixteen, nine are still with the firm. Those "long of tooth" survivors are Homer Deakins, Lewis Smoak, Jimmie Stewart, Bob King, Fred Suggs, Baker Wyche, John Burgin, Eric Schweitzer and me. We have survived and prospered because of our own efforts, but also because of the efforts of every person who has ever worked here. For that we and all of the shareholders thank you.

Sometime during the day, either literally or figuratively, hoist a glass of something you enjoy and toast yourself and those that you work with. We have a wonderful firm and that is because of those who come to work here every day. .... Lastly, please remember that as good as the past has been, the best is yet to come! Gray

That venture of 16 attorneys in two offices is today more than 350 lawyers in 28 offices spread from Los Angeles to the Virgin Islands (with 4 here in Texas, including Austin where I hang my hat).

My thanks to the founders who have let the rest of us 'latecomers' tag along for the ride.

And of course since as I was told early on by one of my former law partners — you can be the greatest legal scholar in the world, but without a client, you can't really call yourself a lawyer — all of our thanks to the thousands of employers, past, present and those still to come, who have allowed us at Ogletree Deakins the opportunity to work with them.

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Tuesday, February 13, 2007

Employer's Burden to Show "Direct Threat" in 8th Circuit

The 8th Circuit today reversed a summary judgment for Wal-mart in an ADA case. EEOC v. Wal-mart Stores (8th Cir. 2/13/07) [pdf]. Most of the disability aspect of the opinion deals with a factual dispute over whether or not an applicant with cerebral palsy could be accommodated as a greeter or a cashier. In a battle of dueling experts, the Court not surprisingly concluded — fact issue, remand for trial.

The Court also held that there was sufficient evidence of pretext to justify trial, given that the hiring manager's explanation that she knew of several short time jobs that he had failed to list as one of the reasons he was not hired, were all things that occurred after he had been turned down.

Before sending it back to the trial court, it also decided a case of first impression in the 8th Circuit, holding that on the issue of "direct threat" the burden lies with the employer as it is an affirmative defense.


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Windy City MDV - $6 Million for Age/Disability Case

I have been woefully remiss in noting MDV's going back over the last several months. I have several stuck in the draft stage that hopefully at some point I will clean up. But that doesn't mean that juries are not still showing the ability to be upset, beyond what most would consider the point of reason, when faced with facts that perhaps hit too close to home.

The latest example as reported in the Chicago Sun-Times, Woman awarded $6 million in bias suit against Abbott. An extra twist to this case, which is a particularly good message for employers to remember in this day of alternative work arrangments, was that Carol Tomao, the successful plaintiff, had worked as a contract employee for several years at Abbott. According to Tomao she had long been promised to be converted to a regular employee.

That plan went aside according to her attorney, Noelle Brennan, when:

During an interview for the position, a job that entails physical activity, Abbott's manager told Tomao that "we're all getting older and can't do things we used to" and asked her if she could still "get out there and climb around anymore."

In addition, as it seems is almost always present in these cases, Tomao alleged that when she complained when the job went to someone in their twenties, that she was terminated within a few days.

Some may wonder why in a "management" employment law blog, I track million dollar verdicts since clearly a verdict often never makes it even to an initial judgment, and even less frequently makes it to a paid judgment. My goal as with a lot of this blog is mostly personal — to remind me, and all of us who work on this side of the docket, employers and the lawyers who represent them — that in the heart and mind of every potential jury is the possibility of seeing things far differently from the "reality" of what we "know" actually happened.

I have long maintained that employment law trials are "different." Knowing that does not mean every employment case should be settled, far from it; but it does mean that once a case is to be tried, it is important to remember how protective of their "fellow employees" jurors can be, and make sure that your case is tried with that perspective in mind. Seeing how often jurors can be incited to hit seven figures is a good way of making sure it remains clear in at least my mind.


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Monday, February 12, 2007

State Court Suit Can Bar EEOC's Suit for Monetary Relief - 5th Circuit

A private sector employer got a rare opportunity to have a denial of summary judgment tested by the 5th Circuit Court of Appeals, and came away not with a total victory, but with one that is likely to make it happy.

Anyone who has had to deal with a federal case brought by the EEOC under Title VII and a companion state court suit brought by the same individuals on whose behalf the EEOC is suing, knows how frustrating it can be. In the case decided today, the attorneys for the EEOC had gone so far as to attend the state court mediation and trial, even assisting the plaintiffs' private attorneys in selecting the jury and passing notes during the trial.

When the result of the state court favored the defendant, it tried to trump the EEOC's federal suit by arguing res judicata. Although the district court didn't buy the legal argument, it did note the inherent unfairness in giving the plaintiffs two bites at the apple, so it allowed an interlocutory appeal.

And today, in EEOC v. Jefferson Dental Clinics (5th Cir. 2/12/07) [pdf] the Court held that while the EEOC's entire suit was not barred by res judicata, the claim for make whole (monetary) relief was. The EEOC can continue its suit, but only for injunctive relief. Not the whole enchilada, but nevertheless a satisfying meal for Jefferson Dental.

It also rounded out the 5th Circuit's look at the other side of the coin, where it had held that when the EEOC brings suit on behalf of individuals and loses, their subsequent state court claim should be barred by res judicata. See EEOC Suit Binding on Named Individuals, And A Poke in the Eye to the Louisiana State Courts.

Update: The DLR has a good story on the Jefferson Dental case, EEOC Suit OK Despite Loss of State Case,But Court Says No Second Chance for Money ($), and mentions a key fact I didn't know when I wrote my post. The lawyer handling the case for Jefferson Dental was Ron Chapman, who with a number of my other colleagues in our Dallas office handled not only the federal action, but were the trial team for the successful state court lawsuit that was the basis for the res judicata defense upheld by the 5th Circuit.


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Deceptive Advertising - The Employee Free Choice Act

How else can you describe a proposed statute whose principal, although not only, significant restructuring of the National Labor Relations Act is to eliminate secret elections to determine if employees want to be represented for purposes of collective bargaining by a labor organization. But that is precisely what Section 2 of the inappropriately named Employee Free Choice Act (H.R. 800) does.

In the modestly entitled "Streamlining Union Certification" section, the key language to undo the cornerstone of free elections in the workplace is the following:

If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

It is with some irony that more than 230 members of the U.S. House of Representatives elected by secret ballot are rushing to remove that right in the workplace from the voters who elected them. How many do you think would vote to abolish elections for their own Congressional seat if another candidate could produce a petition signed by a majority of voters?
The Employee Free Choice Act was introduced in this Congress on February 5th, will be adopted by the House Committee on Education and Labor this Wednesday and probably pass the House by the end of February, no later than mid-March. (The bill already has more sponsors than is required for passage in the House.)

The real battle will be in the Senate, and if it should make it through the Senate, the Administration. If ever there were a time for the "cooling saucer" of the Senate — this is it.

Let there be no mistake, this portion of the bill exists for one reason only — unions have been spectacularly unsuccessful in convincing voters, i.e. the employees they seek to represent in collective bargaining, that the employees would be better off with a union than without it.

Anyone who has ever done any work, I dare say on either side, of a union organizing drive, knows that employees sign union authorization cards for a variety of reasons, only one of which is that they want the union to represent them. And almost always the cards will be signed having heard only the union side of the pitch. In non-right to work states, many will not know that signing an authorization card means that they may have to join the union, including paying union dues, in order to keep their jobs.

Now labor and its supporters, have and will argue the change is necessary because employers don't play fair in campaigns. There is no doubt that happens, but it works both ways; there are unions who don't play fair either. But that is not a valid reason to disenfranchise those who must live with the results if a union takes over the right to speak for them. Those arguments might make more sense for the discussion of other changes, some of which are proposed in other sections of the bill, but not, for all practical purposes, doing away with secret elections.

Although I hope that I am never put to the test, and if I do, that I am wrong — I strongly believe that the unintended consequences of this legislation if enacted would far outweigh the benefits to employees.

There are three groups who will benefit from the passage of this legislation: organized labor officials, the politicians they support, and people like me, who make our living representing employers. The short term benefit to those three groups will be tremendous; just I fear, as the long term detriment to all of us will be.


Calling this legislation the "Employee Free Choice Act" is positively Orwellian -- in the "1984" sense that "War is Peace" and "Freedom is Slavery."
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Sunday, February 11, 2007

Intersection of Two Hot Buttons - Religion & the Transgender Employee

Last year I noted there had been a spate of cases focusing on the intersection between religion and Title VII. See, Ministerial Exemption Covers Organist, But Not Chaplain? and The Words of the Gospel Set to Messiah or to 3 Blind Mice? Now add a transgendered employee, represented by the attorney who has had success making claims on behalf of transgendered employees (Randi Barnabee) in the Circuit (6th) which has been the most receptive to such claims, to what was already a volatile mix and you are headed for a barn burner of a case. Or at least the potential for one is brewing at Spring Arbor University which has dismissed Professor Julie Marie Nemecek, formerly John Nemecek, allegedly for not modeling behavior consistent with Christian beliefs.

Thanks to Professor Jillian Todd Weiss, who specializes in transgender research (and is transgendered herself) for the heads up. Complete details can be found at University firing transgender prof, at her blog, Transgender Workplace Diversity. Her view is that the University is unlikely to succeed with its bfoq argument.

A slightly different opinion comes from Robert Tuttle, a professor of law and religion at George Washington University in Washington, quoted in an article on the case at Inside HigherEd, thinks the University may have a stronger claim on removing her as a dean than as a faculty member. Two other points he makes are unlikely to be subject to much challenge:
  • “It’s a really messy area of law,” and
  • "It’ll be interesting to watch.”


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Saturday, February 10, 2007

Those Good Blogs Just Keep Coming - Working Immigrants

I am so behind on even knowing about, much less recognizing, a lot of the wonderful blogs that are being written in employment related fields. In a year where immigration is the one of the most important issues, how I could have missed Working Immigrants by Peter Rousmaniere is beyond me, (not to mention embarrassing).

And if it hadn't been for the good folks at Workers' Comp Insider, I still wouldn't know about it. In any event, I couldn't agree more with Peter's premise —
Most developed nations owe enormous debts of gratitude to yesterday’s, today’s and tomorrow’s immigrants. Their physical and mental labors are often taken for granted, undervalued, excluded from collective memory.
To get a sense for what Peter has been up to his first year, check out his Tidbits from the first year of this blog.

Thanks much for the nice comment on the next year should be interesting - for immigration reform. -- Peter Rousmaniere
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Wednesday, February 07, 2007

NASA Should Have Had A No Fraternization Rule - Wrong, Would Say the DC Circuit

Workplace romance gone bad is an employer's nightmare. Throw in a high profile (not many much higher than folks who literally fly in space) position and what was a problem, becomes a disaster.

Although by now you would think we might have realized that controlling sexual/romantic desires, particularly when individuals spend tons of intense work related time together is impossible, the desire for a silver bullet solution remains.

Ironically one of the possibilities —a no fraternization rule — just took a hit last week at the D.C. Circuit Court of Appeals. In Guardsmark, LLC v. NLRB (D.C. Cir. 2/2/07) [pdf] a security company had three rules that were challenged by the Board as violating employees' Section 7 rights to engage in mutual aid or protection. Interestingly the decision on the rules was in the abstract, not based on an application.

The Board had found two of the rules in violation, but had okayed the no fraternization rule. The rule read:
you must NOT . . . fraternize on duty or off duty, date or become overly friendly with the client’s employees or with coemployees.
While NASA officials probably wished they had something similar and that Captain Nowak and Commander Oefelein had obeyed it, if they had, the DC Circuit would have called them up short.

To be fair to the DC Circuit, their objection was technical — and they would have allowed the rule with a little redrafting:
Even if Guardsmark has a legitimate interest in a twenty-four-hour ban, it had an obligation to demonstrate its inability to achieve that goal with a more narrowly tailored rule that would not interfere with protected activity. ....

Ever helpful, the court even suggested some alternatives:

  • Since dating and becoming overly friendly include personal entanglements, it could have removed the word “fraternize” from the rule altogether; or
  • It could have either defined the term to encompass romantic relationships only;
  • or made an exception for protected activity.

As with all rules, it is unlikely even having had a perfectly legal one would have prevented the problem — it would only give a reason for taking action afterwards — which at least in the astronaut love triangle debacle is probably not necessary. The bottom line — as long as we have humans for employees, issues like this, but hopefully less publicized, lie in store for all employers.

If everything goes well, I will be talking about this dilemma for employers on a brief CNBC segment during the noon (CST) hour today.


The idea that a company could prevent employees from engaging in a consensual relationship after hours just comes across as plain silly.
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