Saturday Night in the Office

It's Saturday night, and I came into the office about 3 hours ago to work. Instead of holding my loved one close, I am consoled by her picture on my desk, knowing she is sleeping in London, England tonight. Instead of choosing which music or wine, I was confronted with the scintillating choice of doing taxes or working on an overdue client project. Occasionally, I do exactly the disciplined thing, without hesitation. Tonight, I chose the easier and less noble alternative: I cleaned up my blog site a bit, and whined for all the world to see. To justify this, I reminded myself that the underdog Xavier (which happens to be my middle name)lost tonight to U.C.L.A. in the NCAA battle among the Elite 8. I typically represent the underdog, and so find myself invariably rooting for teams like Xavier who repeatedly get their shots blocked, their rebounds knocked away, and their dribbles stolen for a fast break and dunk, yet somehow keep fighting, and just maybe creating an upset. It seems to me that life is measured against overly simplistic standards: you win or you lose. I have run 2 marathons and 3 half marathons, two of the halves this year. When I run, I invariably see the young and strong achieve the best times, and by ranking, the glory. Yet, it seems to me, the improbable grandmother who takes up running late in life, and gives it everything she's got, is just as worthy of applause, yet she must be her own source of accolades. She did not "win", and so receives no glory. So I, coming into work tonight and again tomorrow, receive no glory, and need none. I have run against my own time, and am content.



"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.


Link

Good God It's Morning or Good Morning God?

Most employers think any support of a spiritual or religious activity at work is prohibited. Not so. What is prohibited is partiality of one employee or group because of religion. What does that mean? It means that if the employer sets the rules of a religiously motivated meeting, such as a scripture study group, to insure no discrimination, then the meeting is permitted by law. So, if an employee declines to attend, that decision is not to be met with threats of either human or divine retribution. Finally, if a group of wiccans want equal treatment in access and use of facilities, or allocation of time for a meeting, they are to be given equal treatment with any other group, including traditional Christian mainstream believers.

To state the obvious, the employer can set reasonable limits to assure such meetings do not interfere with normal work operations and productivity. Why would an employer allow these employee meetings? The result is often employee appreciation, and greater productivity.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Crazy for Love -- UCLA Psychiatrists in Litigation

He's handsome, he's charming, and maybe he's sexually harassed. Currently on file with L.A. Superior Court is a sexual harassment case by a UCLA male resident against his female supervising physician. He claims he lost a coveted position because he broke off sexual relations with her. He was to be the chief resident of his supervisor's clinic, he alleges, but she denied him that opportunity when he broke it off. Her defense is that he is obsessed with sex, and that the liaison never occurred. [I assume the defense attorney thought the "obsessed with sex" defense was a pretty safe position to take regarding a healthy intelligent male in his 30s.]

To add to the drama, she has filed a separate sexual harassment suit against another UCLA psychiatrist, and she claims UCLA administrators retaliated against her when she complained of his sexual harassment.

Now back to the first drama, the one of him vs. her. In that one, UCLA states it did not allow him to become a chief resident because of the "appearance" that if you sleep around with the supervising physician, you will be more likely to get promoted. This defense, you will note, does not admit the "sex for jobs" relation exists, just that there is a feared appearance--something like a "ghost" of a chance.

Now, as a lawyer, I think resolving these convoluted allegations is best done in a public court of law, so that everyone becomes a public spectacle, and people can "act out" through their lawyers, which is much safer than acting out directly. On the other hand, these folks know the power of medication, and perhaps a little sedation would work just as well, while keeping things more private. The problem seems to be that old adage: "Physician, heal thyself".

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

U.S. Supreme Court decides for the little guy

California Courts interpreting California anti-discrimination laws often look to federal court decisions interpreting federal anti-discrimination laws under “Title VII”. A recent U.S. Supreme Court case, Burlington Northern & Santa Fe Railway Co. v. White (Decided June 22, 2006) is positive for employees who claim they have been injured by employer retaliation because they protested discriminatory employer actions.

In Burlington, plaintiff Sheila White was the only woman working in her department as a forklift operator at Burlington Northern & Santa Fe Railway Co. After White complained internally that her supervisor had remarked several times that women should not be working in such a department, Burlington removed White from her forklift duties and assigned her to perform laborer tasks. Burlington explained that the reassignment reflected co-worker’s complaints that a “more senior man” should have the “less arduous and cleaner job” of forklift operator.

White then filed an EEOC complaint based on unlawful gender discrimination and retaliation. A few days after the filing of her complaint, Burlington suspended White without pay after an alleged disagreement with her supervisor, who claimed that White was insubordinate. White invoked internal grievance procedures. Burlington concluded at the end of the grievance investigation that White had not been subordinate. Burlington therefore reinstated White and gave her back-pay for the 37 days she was suspended.White then filed a claim in federal court alleging that Burlington’s corrective actions were insufficient. She argued successfully that reinstatement and back-pay did not address the full measure of her losses, including her emotional injury.

Burlington argued that White wasn’t harmed enough to justify a lawsuit. The Supreme Court focused on just how much employment harm must occur for an employee to prove “adverse employment action”. Requiring an employee to have extreme or obvious economic harm would operate to limit the number of cases that would succeed. On the other hand, requiring little injury would operate to put employer’s on notice that retaliation, even if mild, could result in liability. The test adopted by the U.S. Supreme Court was whether, from the viewpoint of a reasonable employee, the actions taken against the employee were sufficient to deter the employee (and others like her) from complaining about illegal discrimination. The Court found that being without pay for 37 days would deter a reasonable employee from exercising her rights to complain internally of discrimination, even if she had access to a grievance procedure.

The California Supreme Court in Yanowitz v. L’Oreal (2005) addressed much the same question as the U.S. Supreme Court in Burlington, but reached its decision some months before the federal court. The Yanowitz Court held that an employee suing for retaliation under California’s anti-discrimination law must demonstrate that the employer's retaliation caused a "material affect" on the "terms, conditions, or privileges of employment". The State Supreme Court explained that a “material affect” was one that 1) detracted the employee from her job performance, 2) discouraged her from remaining on the job, and 3) kept her from advancing in her career.

The two Courts, while using different standards of “deterrence” [Burlington] or “material affect” [Yanowitz] actually are quite close in how they define “adverse employment action”. Therefore it is likely that California Courts will rely on the analysis of the Burlington Court to decide future State discrimination/retaliation cases. Employee attorneys would be wise to cite the Burlington case as a source of guidance, if not precedent, when presenting proof of "adverse employment action".

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Putting your money where your mouth is

In California, abusive language can cost about $3195.17 per word. Hope v. California Youth Authority, 134 Cal. App. 4th 577 (2005)

The jury awarded Bruce Hope $917,104 in economic damages and $1 million in emotional damages after he was repeatedly called demeaning names and his employer did nothing to stop the abuse.

While Hope worked as a cook at a youth correctional facility, he was subjected to several derogatory remarks based on his sexual orientation. Many of these remarks were made by his immediate supervisor, Marcellino, and a security officer assigned to the kitchen named Ortiz. Hope estimated that Ortiz called him a “faggot ass mother f****r”around 150 times.

Ortiz disliked Hope, in part because Hope had once reported Ortiz for giving an unknown substance to one of Nelles's youthful offenders, or wards. Hope believed that Ortiz's "whole attitude" toward him changed after this incident.

Ortiz called Hope a “faggot ass mother f****r” in front of the wards while they were serving dinner. Thereafter, the wards began treating Hope differently, calling him a "faggot" and ignoring his instructions.

Hope claimed that Ortiz "would take trash and throw it all over my area." Ortiz once threw a trash can in an area Hope had just cleaned. At other times, other individuals threw food or trash in a cleaned area. Each time, Hope had to clean the area without help.

Hope approached one of his supervisors, Hedgepath, who had witnessed the harassment against Hope. When his supervisor advised Ortiz to stop, Ortiz refused. Hedgepath, from then on, merely ignored Ortiz’s harassment. Although Hedgepath believed that Ortiz did not like Hope because of Hope's sexual orientation, Hedgepath did not report any of this to his superiors and told Hope he could not control the perceptions of others.

When Hope complained to the food manager, Yamamoto, she informed Hope that she believed the harassment was due to his sexual orientation. When Hope’s supervisor Marcellino referred to Hope as a "faggot" in front of other employees, Yamamoto made no effort to correct his behavior. She would simply tell Marcellino to "calm down."

Hope was promoted to a new position but then four days later, his promotion was revoked.

Hope complained to Yamamoto that "on many occasions" Ortiz had caused him problems, resulting in "an ongoing harassment problem." The memo concluded, "I would like some kind of resolution to these matters. I have exhausted all of my efforts to resolve these matters myself with no success. I am requesting assistance from you. This ongoing harassment ... by Mr. Ortiz needs to be addressed by higher authority."

No action was taken against Ortiz.

Hope began missing work because of stress. Hope’s psychiatrist testified at trial that the stress on Hope caused him to lose vision in one eye. Hope complained again, and this time got warned for sleeping in the bathroom, which Hope claimed was due to HIV medication he was taking.

The harassment towards Hope never stopped. Hope was placed on a medical leave of absence, but never returned to work

The Court of Appeals concluded that Hope believed that the work environment was hostile and offensive, and there was substantial evidence that Hope was subjected to harassment that was sufficiently severe or pervasive to create a hostile work environment.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Monkey Business

The Gorilla Foundation in San Francisco recently settled claims by two former employees, Nancy Alperin and Kendra Keller, who were allegedly sexual harassed when forced to show a gorilla their bare breasts.

Apparently, the foundation president Francine Patterson interpreted the sign language of Koko the gorilla and determined that Koko was curious about the breasts and nipples of Alperin and Keller. The plaintiffs claimed that Patterson told them that "if [they] did not indulge Koko's nipple fetish, their employment with the Gorilla Foundation would suffer."

The plaintiffs believed that they were never informed prior to accepting their job offers that they would be required to take off their clothes to bond in a more personal way with Koko.

Both women claimed they refused to show Koko their nipples.

The Gorilla Foundation had denied that Patterson ever translated Koko's communications into sexual requests: "There are no allegations that Dr. Patterson's translations were sexual advances of any type, that the statements involved 'sex,' or that they resulted in any adverse consequences to Keller or Alperin," its response said. "There are no facts suggesting any discrimination based on conduct of a sexual nature."

Alperin and Keller asked for more than $1 million in damages in their sexual discrimination and wrongful termination suit. However, attorneys on both sides declined to comment on the terms of the settlement agreement.

Incidentally, Koko's first words, "eat," "drink" and "more," evolved into a vocabulary of some 1,000 signs, including such abstract concepts as "love," "jealous," and "shame." Koko actually had a live inter-species internet chat in 1998.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Shuttling back and forth

Have you ever wondered whether you should be compensated for your travel time to and from work because, well, you're being forced to travel? A man named Bobby Overton attempted to be compensated by his employer for his travel time, and lost! He claimed that Disney should compensate its employees for the required mile long journey on the shuttle headed to the Happiest Place on Earth.

Of course, the Court was quick to point out that the shuttle was not the only way Disney employees could get to work. For example, some employees arrived in buses, some in trains, some were dropped off by friends and family, and some came in vanpools. The fact that these individuals did not take the shuttle indicated that the shuttle was not required.

The Court distinguished Overton's case from a claim brought by certain agricultural employees who were forced by their employer to park and group at the Disneyland parking lot, travel in the Disneyland shuttle that the employer paid for, and arrive at the fields where they worked. In this case, the employees were forced to take the shuttle by their employer, were subject to the control of the employer, and thus had to be compensated for their shuttle ride.

Overton's ingenuous solution of moving the time clock from the main entrance to the shuttle departure area in the Disneyland parking lot did not sit well with the Court. The Court noted that many employees could take advantage of this solution by walking (very slowly) to work instead of taking the shuttle, or having a hearty meal in between punching in and showing up for work. Also, with this solution, Disney would have to redirect employees who took other forms of transportation to the parking lot just so that they could punch in! Obviously, the Court decided not to force Disney to take such drastic measures and instead slapped Overton with the costs of Disney's appeal.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.