Hey Employers!
Want to guarantee yourself a jury trial in an age-discrimination case? Just mention the word “younger” to any employee age forty or above right around the time you fire him.
[Editor’s Note: Calling that employee an “old man,” “old fart,” “pops,” and “grandpa” will also do the trick — except, of course, in Texas]
Image credit: atom.smasher.org, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.
When a male employee texted his female co-worker and former girlfriend that she was a “whore” and later ignored two protective orders that the female co-worker had taken out against him, I wonder if he was thinking, “Maybe, I’ll get fired and parlay that into a winning reverse-gender-discrimination claim.”
Indeed, the guy’s actions violated a number of work rules and, ultimately, resulted in his termination. But a winning reverse-gender-discrimination claim? Not so much according to the Third Circuit Court of Appeals (opinion here):
Yep, someone — represented by a licensed, practicing attorney — brought this lawsuit.
***Shakes head // Smiles // Kisses statuette of Blogga-Blogga, the goddess of HR blogging fodder. Love you, boo.***
Bagel party — whoop! whoop! — after the jump…
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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.”
So captivating that, at 35 pages long, it held my attention for 24 of them. Winning!
I’ll whet your whistle with the opening paragraph of EEOC v. The McPherson Cos., Inc.:
This Title VII case revolves around repeated churlish, childish, gross, sordid, vulgar, foul, disgusting, profane utterances in the workplace. The question in the case, however, is not how vile and obnoxious this workplace language was. It was vile and obnoxious enough to score nine on a scale of ten. This will become apparent as the story unfolds. The question for the court is rather whether this verbal mayhem morphed from a competition to see who could beat whom in the foul-mouth game into a cause of action under Title VII by an offended employee for same-sex sexual harassment.
After jump, I’ll keep my babbling to a minimum and, instead, highlight the matter-of-fact prose of Judge William M. Acker, Jr. from the Northern District of Alabama. And we’ll answer the question: Does the reach of Title VII preclude same-sex sexual harassment where offensive workplace language is not directed at a man because he’s a man?
Helene Tyrrell worked as a line chef at a jockey club in Arkansas during the Winter of 2010. She claimed that immediately after she started working, and pretty much throughout her employment, the n-word was bandied about like you and I would say “hello” and “goodbye.” However, only once was the “n”-word hurled in her direction.
But it wasn’t the n-word. No, that’s discriminatory.
Rather, according to the court in Tyrell v. Oaklawn Jockey Club, the “comment directed at Plaintiff and one other co-worker happened after the kitchen crew nearly mused getting breakfast out one Sunday. The comment, was according to Plaintiff, ‘I told you niggas we could get this done. I told you we could do this. Y’all my niggas.'”
Welcome everyone to the Employment Law Blog Carnival: Hollywood Casting Call Edition.
[Editor’s Note: The original theme for this post was the “Employment Law Blog Carnival: Sex, Drugs, and Rock & Roll Edition.” I had this bright idea to begin by cutting and pasting the lyrics to Guns N’ Roses’ “My Michelle,” and, let’s just say I bailed after the first line.]
So that leaves us with Plan B, where, after the jump, I have aggregated some of the best, recent posts from around the employment-law blogosphere and fit them together into a single theme: an open casting call.
Because just the other day, this theme came to me after waking from a Codeine/Claritin-D/Mucinex DM-induced slumber, in which I dreamt about casting a recent post of mine — the one where an employee lost out on an FMLA retaliation claim when her employer fired her after finding Facebook photos of her drinking at a local festival — while on FMLA. My movie will star Kim Kardashian, in her silver screen debut, as the employee. And Alan Thicke, who played Dr. Jason Seaver on “Growing Pains,” could play the company decision-maker. We’ll call it “FML Aye Yai Yai!“
[Editor’s Note: I’m throwing Thicke a bone here. Don’t you think? According to IMDB.com, he just finished production on “Fugget About It“, in which ex New York mobster Jimmy Falcone joins the Witness Protection Program and is relocated, with his family, to Regina, Saskatchewan, Canada. Fugget about it, indeed.]
So that’s the idea. More great posts and imaginative casting decisions, after the jump…
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To all the haters of social-media policies:
If nothing less, the social-media policy reminds employees that if they act the fool online, it may impact their standing in the workplace, and, ultimately, cost them their jobs.
Some employees, however, are just so ignorant. Thus, I doubt that any employer policy will impact how they behave online.
Two despicable examples from this past week follow after the jump…
Today we have a guest blogger at The Employer Handbook. It’s Mary Ellen Ellis. May Ellen writes for Paralegal 411, a career resource for individuals interested in starting a career in the paralegal field.
(Want to guest blog at The Employer Handbook? Email me).
Notwithstanding three social media advice memoranda, and another ruling from the National Labor Relations Board slamming Costco’s social media policy, you’d think employers would have a better idea how to revise their social media policies so as not to risk violating the National Labor Relations Act.
Well, not so much.
Except, the Board has recently issued guidance which attempts to clarify certain policy issues for employers. Does it? Well, sort of. It’s worth a read. Click through…
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The Employer Handbook Blog