The Employer Handbook Blog

Maetta Vance, the only African-American working in her department at Ball State University, claimed that she was subjected to both race discrimination and retaliation. Vance later sued and lost because she could not establish employer liability, which, in turn, depended on whether the alleged harassment was perpetrated by supervisors or coworkers. 

Employers have an affirmative defense when the supervisor harassment does not result in a tangible employment action. If, however, the harassing supervisor fires, suspends, or takes some other similar action against the victim, it's check mate. 

In instances of co-worker harassment, where tangible employment actions wouldn't be at issue (because the harassing co-worker wouldn't have that power), to prevail on a discrimination claim, the plaintiff must show, among other things, that the employer has "been negligent either in discovering or remedying the harassment."

Concluding that the harassment in the Vance case was perpetrated by coworkers, the Seventh Circuit Court of Appeals opined (here) that a Title VII "supervisor" must do more than direct and oversee the victim's daily work. Rather, the supervisor must also have the power to take formal employment actions against victim (i.e., hire, fire, demote, promote, transfer, or discipline).

Subsequently, Vance appealed and, Monday, the U.S. Supreme Court heard oral argument. You can get a copy of the transcript here. Also, be sure to check out Lyle Denniston's argument recap at SCOTUSblog here. Based on oral argument, it appears that the more conservative justices are leaning towards adopting the Seventh Circuit's approach. The liberal judges may favor a case-by-case factual analysis to determine who is a Title VII supervisor.

Meyer's prediction: Supreme Court adopts the Seventh Circuit's test.

Image credit: atom.smasher.org, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

I'm gearing up to host the Employment Law Blog Carnival on Wednesday, so I'm mailing it in today with a quick shout out to Venkat Balasubramani posting over at Eric Goldman's Technology and Marketing Law Blog.

Admittedly, I have fallen behind on updating you, my loyal readers, on the world of social media and discovery. Mostly, because the most recent jurisprudence has been from outside of the Pennsylvania and everything pales in comparison to this great Commonwealth. Except, most recently, for the Philadelphia Eagles.

Speaking of which, have you heard this one?

At divorce court, a family is eagerly waiting for the judge to grant custody of little Johnny. The judge asks Johnny, "Do you want to live with your dad?" Johnny replies, "No, he beats me!" So, the judge asks, "Johnny, do you want to live with your mommy?" Johnny says, "No, she beats me too!" Exasperated, the judge asks, "Then with whom do you want to live?" To which Johnny replies, "The Philadelphia Eagles. They don't beat anyone!"

Boy, do I have a tendency to get sidetracked. Anyway, to get my attorney-readers caught up on how to get access to litigant social media pages, check out Venkat's article here.

As evidenced by the nature of this blog post and the picture on the right, it's best not to leave me in the office alone, unsupervised, with an iPhone, and App Store credits, as I punch this out at 10:52 at night on a Thursday. (And yet, somehow, the Wall Street Journal deems me quotable).

Rest assured, everything I do, I do it for you. And, best of all, it's all employment-law related. Love my job!

(My wife has to be cool with me using our wedding song for this blog post, right? Love ya, baby! "Take me as I am....")

• Evan Brown at Internet Cases reports that an alleged voyeur boss cannot pursue his Computer Fraud and Abuse Act claim.
  
  
• At FindLaw's Legally Weird, Stephanie Rabiner blogs about a reporter fired for stripping after work who has sued her newspaper-employer for discrimination.
  
  
• And over at the Social Media Employment Law Blog, in what he writes in nothing short of "naked ambition," Michael Schmidt discusses a social-media discovery battle in a wage-and-hour lawsuit filed by a group of former "entertainers in the Penthouse Executive Club". Click through to find out how this got resolved. [Note: I used all of my will power -- all of it -- not to resort to a dirty pun in the preceding sentence]. Winning!

And that's what they said...

Now, you'll have to excuse me as I try to beat the locksmith to my house (kidding...)

Cool image, huh? I drawed it myself. The fact that I took the time to do that suggests that I am in no condition to blog intelligently. Plus, Pandora is on the fritz, so I am all sorts of pissy. Therefore, before I turn out the lights and lock the door at the office, how about some Slipknot -- anger issues, Eric? -- and "That's what he said" after the jump...

Continue reading "That's what he said: "Oktoberfest" & "No OT for you!"" »

If only I had a nickel for every time someone asked me, "How do you have time to blog every day?" The answer is simple: Jolt Cola Juleps and rogue Keebler Elves I just enjoy writing. But even so, it can get tiring sometimes.

I was discussing this with a few HR blogger friends over dinner a few Fridays ago. They empathized. And then, I smiled, as whatever the opposite of writer's block is overtook me faster than a fat kid at a cake buffet:

I'll just do a post called "That's what she said."

Boom! Plagiarism! Double entendre + less work for me = one happy blogger dork.

I've struck gold...after the jump...

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Continue reading "That's what she said: A hairy religious discrimination claim is settled" »