Jottings By An Employer's Lawyer

Tuesday, November 05, 2013

Two Names You May Not Know and May Never Hear Much About

But if you are at all interested in what may be coming out of new NLRB General Counsel Richard Griffin's office, and if you are an employer you should be, then you should at least know of Jennifer Abruzzo and Rachel Lennie, the new deputy general counsel and assistant general counsel respectively.  See Corporate Counsel's, New NLRB GC Begins Building Labor Legal Team.

Because the GC controls what cases are initiated the legal judgments as to what kinds of cases and the theories on which they will be brought will rest primarily in the hands of these three for the next four years.

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The Things People Say and Do

One of the many changes that have happened since I first started practicing law in 1975, is the appearance of services which monitor the filings of new lawsuits and send summaries to law firms. One such excellent service is Courthouse News Service, which actually does a lot more than just prepare summaries of new lawsuits. In the first paragraph of their "about us" they note:

Courthouse News Service is a nationwide news service for lawyers and the news media. Based in Pasadena, California, Courthouse News focuses on civil litigation, from the date of filing through the appellate level. Unlike other Internet-based publishers that simply aggregate information prepared by other content providers, Courthouse News publishes its own original news content prepared by its staff of reporters and editors based across the country.

In any event, one of their recent reports of a filing of a lawsuit by a pro se plaintiff in Harris County, Texas was the following:
Plaintiff points to  ...  an executive assistant, as the source of such office hostility that plaintiff gave her an article titled "De-clawing cattiness at work." She was fired the next day. She wants $600,000 damages.
And just in case you are wondering, it is at least theoretically possible that this did happen as a Google search reveals a 2005 article by Executive Coach Kay Cannon, De-clawing Cattiness in the Workplace.

Apparently, no matter how good the advice, it was not appreciated.

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Monday, November 04, 2013

ENDA Half-way Home?

For the first time ever the United States Senate seems poised to pass legislation that would prevent discrimination against gays, lesbians and transgendered individuals appears to have obtained the 60 votes that would allow it to pass. See, Bill on Workplace Bias Appears Set to Clear Senate Hurdle.

However, with Speaker John Boehner in opposition, it seems unlikely that the bill will be put to a vote, much less pass the House. Although this is one issue on which big business is generally neutral, so stranger things have happened.

In a speech last month, I predicted ENDA as one of the first pieces of employment legislation I expected, if the legislative gridlock ever melted.

I will stick with the prediction, but I would be surprised if this were an issue that made gridlock disappear, even temporarily.

Back in the mid 80’s, at the height of the AIDS epidemic breakout, an employee in a Woolworth store filed a claim with the NYC Human Rights Commission alleging that he was gay and had been discriminated against on a perceived handicap as the store thought he had AIDS because of his orientation. (He was fired for refusing to obey the directives of his black supervisor, saying he "won’t work for N#%&*%s!”)
Undaunted the Commission set the matter for a hearing, and invited the local TV stations to video the hearing.
Before the hearing, I had filed an answer that, inter alia, denied having knowledge sufficient to form a belief for the allegation that the CP was gay. You’d have thought it was the day a cake of Ivory Soap sank at P & G!
When pressured as to why I would not admit the obvious, my reply was Gay discrimination was one area of the law where the plaintiff can self identify his or herself as a member of the protected class without actually being Gay, and it should be incumbent upon the CP to prove his or her orientation as a condition of proceeding further. No one had an answer to my contention, nor have they given me one since.
As to the case, discretion being the better part of valor, I settled the case for $2500.00 with a non admission and, more important, a gag order on the CP and the Commission as to publicity.
I have often wondered how the hearing would have been had it gone forward.
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