Hospitals Must Prove That Female Patients Are Modest, February 27, 2004
In the early years of sex discrimination laws, some employers justified their refusal to place blacks or women in certain jobs by pointing to their customers' attitudes. "We're not prejudiced," employers would say, "but our customers are, and they won't stand for this type of person serving them." Such attempted justifications were quickly rejected by the courts, on the premise that getting rid of such customer prejudices was part of the thinking behind Title VII of the Civil Rights Act of 1964.
Nevertheless, discrimination is still permitted where sex is a bona fide occupational qualification (BFOQ). An acting company, for example, can lawfully refuse to cast a male in the role of Juliet. In addition, courts have recognized so-called safety-based BFOQs, such as a male-only hiring policy by a residential facility for violently aggressive, emotionally disturbed adolescent males.
In a recent case, West Virginia's highest court recognized a privacy-based BFOQ under its state sex-discrimination statute, based on the idea that customers sometimes have legitimate privacy concerns that justify sex discrimination. In that case, a male registered nurse sued a hospital that refused to hire him for its obstetrical unit. The court declared that the hospital had not met its burden of proving that female patients are actually bothered by the presence of a male nurse. "Personal conduct issues such as modesty are not universally defined and are ever-changing in our society," the court said, "making it all the more important to avoid assumptions and speculations when dealing with such issues."
So, the matter was sent back to the trial court for further fact-finding. This decision was taken over the dissent of Chief Justice Maynard, who wrote: "...I believe that the legitimate privacy interests of female patients in not having strange men constantly examine, poke, prod, and stroke their genitalia are crystal clear."
Slivka v. Camden-Clark Mem. Hosp., No. 31404, W. Va. (Feb. 19, 2004).
Two-Faced Settlement Invites Treble Damages, February 25, 2004
Most lawsuits are settled before they reach the courtroom, often on the basis of an agreement hashed out through phone calls, faxes, and letters. But what if one of the settling parties does not intend to keep its end of the bargain? That party is inviting another lawsuit, this time for mail and wire fraud.
A recent case involved an employee who, upon leaving to work for a competitor, was sued by his former employer for allegedly using proprietary trade secrets. The employee filed a counterclaim against the former employer. After exchanging letters and faxes, they reached a settlement. In exchange for dropping his counterclaim, the employee would receive $35,000 in five instalments over the next four years.
Here's the catch: before agreeing to the settlement, the former employer had hatched a scheme to slowly drain all the assets from the corporate entity, leaving the employee high and dry. When the final two instalments (amounting to $15,000) went unpaid, the employee filed a civil suit under RICO, the Racketeer Influenced and Corrupt Organizations Act, seeking treble damages.
An appellate court found that when the former employer offered to make instalment payments while scheming to drain the company's assets, it committed wire fraud and mail fraud, which are so-called "predicate acts" allowing RICO liability. In addition, the court held that the employee's lawsuit (the one that was settled) was a "property interest" that satisfied RICO requirements. So, the case was sent back to the trial court for further proceedings on the employee's RICO claim.
Deck v. Engineered Laminates, 20 IER Cases 1138 (10th Cir. 2003).
"Age" Discrimination Means "Old Age" Discrimination, February 25, 2004
Since 1967, the Age Discrimination in Employment Act has outlawed discrimination "because of [an] individual's age." Typically, older workers use this Act to sue their employers, alleging that younger employees have received better treatment because they are younger. But does the Act work the other way? Can younger employees win in court, on a theory that older workers received preferential treatment?
The Supreme Court has answered "no," explaining that the ADEA was enacted to combat widespread prejudice against older workers; no such prejudice existed against younger workers. According to the Supreme Court, Congress's intent was "to protect a relatively old worker from discrimination that works to the advantage of the relatively young."
The Supreme Court's 6-3 decision ended a lawsuit filed by workers in their 40s who argued that a collective bargaining agreement favored older workers. The agreement gave retiree health benefits only to workers age 50 or over by July 1, 1997. Approximately 200 workers who were too young to qualify by the trigger date were left out in the cold. They sued, hoping the ADEA would protect them. It didn't.
General Dynamics Land Sys. Inc. v. Cline, U.S. No. 02-1080, Feb. 24, 2004.
Arbitration Award Against Non-Signer to CBA Still Could Be Upheld, February 20, 2004
Do you think that your company actually has to be a party to a collective bargaining agreement for an aggressive union to drag you into arbitration? Think again. In New York, the Sheet Metal Workers' Union pursued a Section 301 claim through arbitration not only against the employer with which the union had a contract, but also against a non-signatory company that the union claimed was an "alter ego" of the employer. Absurd? Think yet again. The union won at arbitration against both companies. Although the United States Court of Appeals for the Second Circuit recently vacated the judgment and remanded the case to the federal District Court, it did so only for a formal determination of whether the non-signer was, indeed, an "alter ego" of the employer. SMW Local 38 v. Custom Air Systems, 174 LRRM 2187 (2nd Cir. 2004). If the non-signer is found to be an "alter ego," it will be deemed to be a party to the contract even though it never signed the agreement. Will companies now have to consult with their attorneys before they don't enter into a union agreement?
Winter Warning: Watch those Walkways! February 11, 2004
The Missouri Court of Appeals affirmed a jury verdict for a locomotive engineer who was injured when he slipped on "black ice" on the locomotive deck in January, 2001. In Ramsey v. Burlington N. And Santa Fe Ry. Co., 2004 WL 193099 (Mo. App. E.D.), the court held that Burlington knew or had reason to know of the hazardous condition.
Black ice forms after the melting and re-freezing of precipitation; the court held that it was reasonable for the jury to infer that visible ice or snow had at one time been present and the employer could have remedied that condition with ordinary caution. The court further emphasized that since Burlington "had instituted a program to equip locomotives with calcium chloride and that they had a rule requiring walkways to be free of slipping hazards demonstrates that it knew that ice was a hazard on locomotives."
The jury awarded Ramsey $1.4 million dollars; the court held, however, that under the Federal Employers' Liability Act, the award must be reduced by the amount of health and welfare benefits Ramsey received from the railroad. The case was remanded with instructions to reduce the jury award. For that amount of money, it's worth stocking up on salt for the sidewalks.
Age Bias Case Can Proceed when Doctor is Fired Before His Pledged Retirement Date, February 10, 2004
Gerald O. Strauch, M.D., a 69-year old physician, was the Director of the American College of Surgeons' trauma and assembly departments. The arrival of new Executive Director, Dr. Thomas Russell in January 2000 brought with it a Reorganization plan which included splitting the duties of Dr. Strauch. Around the same time that this Reorganization was announced, Strauch told Russell of his intention to retire after his 15th anniversary in November 2002. His pension would then be fully vested.
Russell began looking for replacements for Strauch, found them and transitioned them into their duties with significant assistance from Strauch. The new employees having found their way, Russell told Strauch he was no longer needed. Strauch reminded Russell of his intent to retire in November and after trying, but failing, to agree to a way that would allow Strauch to continue working so that his pension would vest, Strauch was terminated on December 31, 2001. Strauch sued the College alleging violations of the ADEA.
In Strauch v. American College of Surgeons, 2004 WL 231440 (N.D. Ill.), the court denied the partial summary judgment motion of the College. The court noted the College's assertion that Strauch's "age discrimination fails because the employment decision at issue does not concern the termination of his employment but rather the timing of his termination." The court rejected this contention calling it a non sequitur and commenting, "After all, if the timing of an employee's termination is motivated in whole or in part by the employee's age, that is just as age discriminatory (and hence just as actionable) as if the employee's age motivated the act of termination." The lesson here: just because an employee is ready to retire doesn't mean the employer gets to push him out the door.
Court Rules That Employee Home-Made Porn Protected By First Amendment, February 4, 2004
John Roe (not his real name for reasons which will become obvious) worked as a police officer for the San Diego Police Department. In an apparent attempt to add some excitement to his life, Roe decided to make homemade videos of himself. One of the videos he made showed him alone, with his face partially masked, taking off a generic police uniform and masturbating. In another, he is seen issuing another man a citation and then doing the same thing. He evidently liked the videos so much that he decided to sell them through the adults-only section of eBay, using yet another fictitious name and a Northern California address. Although the videos did not reveal his connection with the police department, Roe was unmasked when one of his supervisors just happened to discover the videos online and recognized Roe's picture. Remember, we're talking California.
Needless to say, police department was not pleased with Roe's off-duty ventures. After Roe readily admitted making and selling the videos, the police department fired him. Roe was apparently so proud of the videos that he was not going down without a fight. He sued the police department, the City of San Diego and his supervisors in federal district court, claiming that his off-duty, non-work-related "activities" constituted free speech protected by the First Amendment, and therefore could not be grounds for terminating his employment. The district court threw out Roe's lawsuit, concluding that the videos did not address a matter of "public concern".
Undaunted (and unembarrassed), Roe appealed the case to the Ninth Circuit Court of Appeals, a court regarded to be one of the most liberal in the country. In noting that public sector employees have a right to free speech, the appeals court ruled that the district court should not have thrown out the case for the reason that it did. The appeals court ruled that because Roe's activities were addressed to a public audience, were made outside the work-place, and involved content largely unrelated to his government employment, his videos did in fact address matters of "public concern" protected by the First Amendment. It then sent the case back to the district court for further proceedings. Roe v. City of San Diego, No. 02-55164 (9th Cir. Jan.29,2004).
Obviously, the Ninth Circuit did not tarnish its reputation by its holding in this case. Fortunately, only public sector employees have a right to free speech under the First Amendment. In any event, it may now be time to buy stock in e-Bay.
No Damages and No Jury Trial Available for ADA Retaliation Claim, February 4, 2004
In a case of first impression among federal appellate courts, the Seventh Circuit has held that a retaliation claim under the ADA provides for only equitable, not legal (punitive or compensatory) damages, and therefore does not entitle a plaintiff to jury trial. Kramer v. Banc of America Sec. LLC, No. 02-3662 (7th Cir. January 20, 2004).
The remedies available to an ADA plaintiff alleging retaliation are found in 42 U.S.C. § 12117, which directs the reader to the remedial provisions of Title VII (42 U.S.C. §§ 2000e-4 – 2000e-9) . Before the Civil Rights Act of 1991, Section 2000e-5(g)(1) limited the available relief to certain equitable remedies, including back pay. The 1991 Act made compensatory and punitive damages available in some cases. (See 42 U.S.C. § 1981a(a)(2)). Whether Section 1981a(a)(2) applies to ADA retaliation claims, however, has not been addressed by the federal circuit courts.
The Second, Eighth and Tenth circuits have affirmed jury verdicts where compensatory and punitive damages were awarded on ADA retaliation claims, but the Court noted that "none examined the legal question of whether such damages were authorized for an ADA retaliation claim." Instead, the Court looked to district court decisions that have addressed the issue, and found that the decisions have been split. The Court found the decision of Brown v. City of Lee's Summit, 1999 WL 827768, 9 AD Cases 1337 (W.D. Mo. 1999) to be persuasive, and adopted its reasoning.
This decision will undoubtedly result in controversy, with a differing decisions coming from appellate courts in the future.
Lack of Notice of Serious Health Condition Defeats FMLA Claim, February 3, 2004
An employee denied leave to care for her grandchildren while their father was on assignment in the Navy could not show that her employer violated the FMLA, because she did not provide sufficient notice that the children had a serious health condition to implicate the FMLA. Cool v. BorgWarner Diversified Transmission Products Inc., No. IP02-0960-C-B/S (S. D. Ind., January 12, 2004) (unpublished opinion).
Cool worked in Indiana for BorgWarner as a nurse. Her son, who was in the Navy, asked her to come to Georgia to care for his two young children while he was at sea. Cool asked for three months’ personal emergency leave and FMLA leave. She suggested that she might need up to one year off. Her request was denied. Cool resigned in order to care for the children.
Unknown to BorgWarner when it denied the leave request, Cool's son had filed for divorce from the children's mother, an alcoholic whom he claimed was an inappropriate caretaker for the children. Nor did Cool mention that the children had exhibited symptoms of stress, probably related to their father's deployment, their mother's alcoholism, and their parents' recent divorce.
While the Company noted Cool's resignation, it also considered her FMLA request. A Company physician called the children's doctor and found out that the children were receiving counseling twice a week but were not incapacitated. They were not on medication, and they were able to attend school and perform other daily activities. BorgWarner concluded, they did not have a serious health condition covered by the FMLA.
Cool sued for an alleged violation of the FMLA. Borg Warner moved for summary judgment, and prevailed. The Court found that Cool requested leave three times before she resigned, but at no time did she mention the children's health. Without knowledge that a serious medical condition might be involved, the company had no notice that the leave might be FMLA qualifying.
The Court also noted that the FMLA permits parents, not grandparents, to take leave to care for a child's serious health condition. Here, Cool's son had signed a special power of attorney that gave her the authority to care for his children while he was away. The court declined to decide whether in this case Cool was acting "in loco parentis," a circumstance under which she could qualify for FMLA leave.
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