The $1 Million-Dollar Spanking

Posted on April 28, 2006 by Christopher McKinney
Janet Orlando quit her job at the home security company Alarm One Inc. and sued, alleging discrimination, assault, battery and infliction of emotional distress. Closing arguments were held this week in the case in which the plaintiff is seeking $1.2 million in damages for workplace spankings. According to the story at CNN, employees were paddled with rival companies' yard signs as part of a contest that pitted sales teams against each other, according to court documents. The winners poked fun at the losers, throwing pies at them, feeding them baby food, making them wear diapers and swatting their buttocks. According to the article, Ms. Orlando's lawyer said the following in closing arguments:

"No reasonable middle-aged woman would want to be put up there before a group of young men, turned around to show her buttocks, get spanked and called abusive names, and told it was to increase sales and motivate employees."

In response, the company's lawyers (and at least one other HR Blogger I read regularly) questioned how this case could ever get to a jury b/c the company treated both sexes the same (i.e. forced both men and women to show their buttocks and be spanked, etc.). Frankly I don't think that is going to work as an automic defense in harassment cases.
While I don't know all of the facts of this particular case, I can certainly see how similar conduct applied equally to both genders might impact the genders differently. Do we really think company-wide "Topless Fridays" would fly even though it treats both genders equally?
Bottom line is this, these types of games just don't belong in the modern workplace. I personally guarantee this company will discontinue its spanking fun regardless of whether or not it gets tagged by the jury in this case. With litigation expenses and lost time costs considered, a win in court is really only slightly better than a loss. The only true victory for a company in the employment law setting is to avoid litigation in the first place.
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SexualHarassment

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Feds Cracking Down on Illegal Workers and Their Employers

Posted on April 25, 2006 by Christopher McKinney
The government is pledging to crack down harder than ever on employers who harbor and hire illegal immigrants, pursuing companies that ignore the law so they can exploit cheap labor."We are going to move beyond the current level of activity to a higher level in each month and year to come," Homeland Security Secretary Michael Chertoff said Thursday. He pledged to "come down as hard as possible" on violators. In raids that set a record for workplace-enforcement arrests in a single day, immigration officials announced this past Thursday that they had taken 1,187 illegal immigrants into custody at wood products plants in 26 states and had charged seven company managers with crimes that can carry long prison terms.

The operation targeted about 40 plants operated by IFCO Systems North America, a Dutch company based in Houston that is the largest manufacturer of wooden pallets in the country. Two California facilities were hit, with eight arrests in Bakersfield and 29 in San Bernardino.

Stories from the Associated Press and the L.A. Times.Categories:

HRPolicies

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Argument Update: Burlington Northern v. White

Posted on April 20, 2006 by Christopher McKinney

Nina Totenberg always does a great job of reenacting Supreme Court arguments. Hear her report on Monday's argument in Burlington Northern Santa Fe Railway Co. v. White here.Categories:

WrongfulTermination

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Supreme Court to Decide What is Actionable Retaliation

Posted on April 19, 2006 by Christopher McKinney

On Monday the U.S. Supreme Court heard arguments in Burlington Northern Santa Fe Railway Co. v. White. The Court will decide whether Title VII's anti-retaliation provision prohibits an employer from (1) suspending a complaining employee without pay for a month, so long as the employee is reinstated with back pay, or (2) reassigning the employee from her position operating a forklift to a less desirable position in the railyard.

At the heart of the issue is the question of what degree of injury an employer's action must inflict to pass the threshold of "adverse employment action" in a retaliation case. For more than 40 years, federal law has prohibited employers from retaliating against employees who complain about discrimination on the job. But neither Congress, which included the anti-retaliation protection in the Civil Rights Act of 1964, nor the Supreme Court has ever defined "retaliation."This case began in a Memphis rail yard when the only woman working in the maintenance department there complained about sexual harassment by her supervisor. Within 10 days, the woman, Sheila White, was transferred from her assignment operating a forklift to the less desirable position, within the same job classification, of working outdoors on the tracks.Three months later, after she filed a formal complaint with the federal Equal Employment Opportunity Commission, her employer, the Burlington Northern & Santa Fe Railway Company, suspended her without pay. After a union grievance, she was restored to the payroll with back pay after 37 days.The question for the court is whether the United States Court of Appeals for the Sixth Circuit, in Cincinnati, correctly concluded that those events amounted to the type of retaliation that Title VII of the Civil Rights Act of 1964 prohibits. The appeals court upheld a jury award of $43,250 in compensatory damages to Ms. White. Currently, the various circuits are split on this issue. The most conservative position is that held by the Fifth Circuit. It holds that only retaliatory "ultimate employment actions" constitute retaliation under the statute, meaning things like termination, demotions, etc. This position is so misguided that not even the employer is arguing for its adoption.Interestingly, Burlington is arguing in favor of adoption of the "adverse employment action" test, which is the test utilized by the Sixth Circuit in ruling against the company. (Obviously, the company believes the Sixth Circuit misapplied the test). Under this framework, Title VII prohibits only the retaliatory creation of hostile work environments (not at issue here) and the imposition of "tangible employment actions."Having won under the Sixth Circuit's test, White has decided to swing for the fences at the Supreme Court level. She is encouraging the Court to adopt a rule that there is no minimum threshold at all for actionable retaliation under Section 703 -- so long as the action is adverse to the employee and is because of the employee's protected conduct, it is actionable.Here is the Sixth Circuit's Opinion.Here are the parties' briefs to the Supreme Court.Interesting notes from other sources: Scotusblog has an excellent review of the parties arguments and the odd position of the Solicitor General, who argues against both parties in this case and against the EEOC's position as well. The Washington Post has some notes regarding what was said during arguments Monday.Categories:

WrongfulTermination

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Pregnancy Discrimination Suits on the Rise

Posted on April 16, 2006 by Christopher McKinney
Law.com has an article out discussing the fact that pregnancy discrimination lawsuits are on the rise in corporate America, particularly among high-level female executives who claim that they are being knocked off the corporate ladder because of maternity issues.According to the Equal Employment Opportunity Commission, pregnancy discrimination complaints have increased by 31 percent over the last decade, from 3,385 complaints in 1992 to 4,449 in 2005. During that same time period, prelitigation settlements have tripled, from $3.7 million to $11.6 million. The EEOC also is litigating more pregnancy discrimination complaints, filing 30 such lawsuits in 2005, compared with just six or fewer per year in the mid 1990s.The article notes that pregnancy discrimination cases can be extraordinarily dangerous if they make it to a jury. "If a case survives summary judgment and makes it to a jury, the chance of success are very high."
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SexualHarassment

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Developing Issue: Firing Employees for Participation in Immigration Rallies

Posted on April 14, 2006 by Christopher McKinney
Work/Life/Law Blog has an entry on an issue that is like to be developing further in the coming weeks and months. Companies firing employees because they participated in an immigration-related marches. In this case an Indianapolis company fired two employees who participated in the local rally for "absenteeism." Perhaps this is so...but no one will believe it.

Of course it remains to be seen if a viable cause of action could be made out of such terminations in any event as most states do not protect employees from political retribution (at least at private employers). The article notes however that at least one group is already considering suing the companies "or taking other action" against companies that engage in such practices.

Categories:RaceDiscrimination

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C.H. Robinson Worldwide Will Pay $15 Million to Settle Sex Discrimination Suit

Posted on April 13, 2006 by Christopher McKinney
C.H. Robinson Worldwide, a transportation and logistics company, has reached a tentative $15 million dollar settlement with former and current women employees over allegations of gender discrimination in pay and promotion. The company disclosed the proposed settlement in a Securities and Exchange Commission filing Wednesday. The plaintiff's lawsuit alleged that the company was rife with sexual discrimination and that women were subject to a hostile work environment. The lawsuit also charged gender discrimination in pay and promotion.Categories:SexualHarassment
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EEOC: Reach Out and Sue Someone.

Posted on April 12, 2006 by Christopher McKinney
The Equal Employment Opportunity Commission has been busy going after discrimination in the telecom industry this year. This week alone they settled one case and filed another. Today, the agency announced that Quest has agreed to pay $400,000 to settle a job-promotion discrimination suit filed by the agency involving a group of Hispanic employees in Oregon between 1998-2001.Monday, the agency filed a new suit against Lucent Technologies Inc., claiming the telecommunications equipment company violated the Age Discrimination Employment Act.Categories:

AgeDiscriminationRaceDiscrimination

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Update: More on Slowing Down

Posted on April 6, 2006 by Christopher McKinney

Following our article yesterday on the importance of slowing down, today I ran across an entry along the same lines on one of my very favorite HR bogs, Stratgic HR Lawyer. Diane 's article, "The End of a Typical Workday" laments that the end often seems like it will never come. She also notes that fewer than half of working Americans work a normal 40-hour work week.Categories:

HRPolicies

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Glass Ceiling or Sticky Floor?

Posted on April 6, 2006 by Christopher McKinney

The web continues to be abuzz with analysis of the issues associated with women in the workplace. We have recently posted on the subject here.

Now a column by Amy Joyce at the Washinton Post argues that since we have done quite alot to break the glass ceilings of the corporate world, perhaps we need to turn our concentration to the "sticky floor." By "sticky floor" she means the "unconscious behaviors that keep them in middle management rather than the executive suite."The article cites to consultant Rebecca Shambaugh, who argues that 50 percent or more of the things holding women back are behavioral traits and "assumptions about themselves" rather than intentional or institutional discrimination in the workplace.

It is an interesting article.CategoriesHRPoliciesSexualHarassment

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The importance of . . . slowing down.

Posted on April 5, 2006 by Christopher McKinney
National Public Radio's website has an interesting feature that identifies the most e-mailed stories are from the previous day. Today I noted that at the top of the list was an essay on the importance of slowing down and keeping a reasonable pace in life.

The fact that it was the most popular story of the day on the website tells me that I am not alone in feeling constantly dragged along faster and faster by the demands of work and life in our modern society. The art of slowing down and living deliberately has become something of an avocation for me. I have become something of an evangelist on the subject with friends and clients and highly recommend that everyone look for ways to scale back their work and other obligations to manageable levels that allow time for enjoying the simpler things at a slower pace. That is enough preaching on the topic for now I guess...

I would talk your ear off about the subject but . . . I simply haven't got the time.

Back to the NPR essay. The essayist, Phil Powers, is a mountaint climber. In his profession, it pays to be deliberate. He writes:

"I believe in the importance of pace. I grew up in a frenetic household, both parents working jobs that demanded their attention 24/7. I was little and fast and rushed around, and I still have that person inside me, always at risk of moving too quickly, missing the connection, making mistakes....

When I was 19, I learned something called the "rest step" from an old mountain climber named Paul Petzoldt. He advised me to rest in the middle of each step completely, but briefly. ... The awareness of pace I owe to my teacher has served me whether I am seeking the world's highest summits, sharing my love for the mountains with others or kneeling to look my son, Gus, in the eye when he has a question....

There is magic in any faith. Every once in a while, rushing about, my belief in pace rises up, slows me down and grants me a view of a sunset, a smile from a stranger or a conversation with a child. I owe these moments to what I learned from an old mountain climber and have practiced ever since."

Well said. Here is the audio of the entire essay.

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Have you Been to the Blawg Review Lately?

Posted on April 4, 2006 by Christopher McKinney

If you are new to blogs (or blawgs) or are interested on what new and interesting legal blogs are out there today, give a look at this week's Blawg Review.

For those that don't know, Blawg Review is a weekly roundup of interesting entries from around the legal blogosphere put together by a different blog author each week. This week's host is the Declarations and Exclusions Website.

Enjoy.Categories:

LegalTech

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