Sunday, April 30, 2006

English Only

www.matkovsalzman.com/law_update_1_04.pdf


On the first and second page of this journal you will find an employment law issue I have been looking for all week. As some of you know, the controversy caused by the translation into Spanish and singing of the National Anthem has been a hot topic this week, which inspired me to discuss English-only rules. English-only has primarily been, in most states, ruled unconstitutional and/or discriminatory. Only in Arizona has it recently been ruled an acceptable procedure. The main reason for this is that English is not the official language of the United States, as well as the fact that hispanic immigrants and those immigrants who have become citizens make up an extremely significant portion of the United States labor force - therefore, English-only laws in the workplace and imposed by government severely disadvantage people who are strongly affected by whichever entity's policies. In New York City (where I'm from), policymakers, including Republic mayor Michael Bloomberg, would not dream of instituting English-only laws like they have in Arizona, out of respect for the large hispanic population that deserves the right to be able to educate themselves on state policies. The underlying question is; what are the costs of English-only and what are the benefits? From a utilitarian approach, do the benefits outweigh the costs? I think you would be hard pressed to find such a situation - at worst, the right to translate policies provides some hispanic residents of this country with jobs that would be taken away with the institution of English-only. What do you think?

Thursday, April 27, 2006

Norris, Floyd. "With That Longer Life Expectancy Expect a Life of Working Longer." The New York Times. October 29, 2005. (You can find it on Lexis-Nexis)

Years of life expectancy after average retirement age
MEN
U.S.: 17
Britain: 18
France: 21
Germany: 19
Italy: 21
Japan: 15
S. Korea: 12

WOMEN
U.S.: 21
Britain: 22
France: 26
Germany: 24
Italy: 24
Japan: 22
S. Korea: 17


"There are major differences among countries. Asians tend to work the longest, which may be crucial in the future, because the estimate is that by 2050 more than a third of the population of Japan and South Korea will be over 65. Americans work longer than most Europeans and do not face as severe a burden from a population growing older."

Intrigued by the presentation regarding age discrimination abroad, I wanted to investigate the correlation between longer life expectancy and longer work-life, as well as the problems that will result for a government should its older citizens continue to stop working at the current retirement age instead of one that reflects the upward trend in life-expectancy. This article first addresses the problem in general , citing examples of discrepency from european countries, but then goes on to explore why some people work later into life than others. Key factors ahve been found to contribute to the retirement age in a country: relative wealth, national lawas (i.e. anti-discrimination laws), and the generosity of retirement, disability and unemployment plans. The author suggests that the fiscal pressure to support those who currently benefit from, or will soon benefit from, retirement pensions and social security will induce a change in the concept of appropriate "retirement age." I agree with the presenters that current law reflects the social values of the country, but how do we ammend those laws to accomodate for upcoming social values or even predict the ammendments needed before the impact of the change is too great to recover from? It seems that the current ant-discrimination laws regarding age aren't hindering the need for a longer work-life, so what is preventing the change in retirement age from reflecting the change in life expectancy?

Wednesday, April 26, 2006

--

http://uk.biz.yahoo.com/23032006/325/macho-banks-risk-flood-anti-gay-claims.html

""Stereotypically, private banking was historically very open to gay people, while trading floors were not," said one gay employee of a leading investment bank.
Graduate recruits, for example, who were openly gay at university may not necessarily feel comfortable being "out" when they go into banking.
And as banks become increasingly globalised, they also need to watch their step in countries, such as India for example, where many of them now have big operations and where homosexuality is still a crime."

The article discusses England's increasing protection of discrimination against homosexuals, particularly in the investment banking industry and the private sector. The part of this article that caught my attention has nothing to with this though. I was very intrigued by the last sentence, where it talks about globalized companies need to watch their steps. This brings me to my topic of discussion; what responsibilities do globalized corporations have in maintaining the policies of their societies and laws of their countries in foreign countries with different customs and laws? If an investment bank from America or England were indeed to install a branch in India where homosexuality is outlawed, does the company still have a responsibility to prevent discrimination against homosexuals? Or, for instance, in countries where there are no age discrimination laws, do (and more importantly, should) globalized companies still have the responsibility to safeguard against discrimination of older employees? I think that as a more legally progressive country in terms of employment law, our companies, when branched overseas, should possibly be required to still apply the policies that we use hear to the extent that it does not violate that country's law. What do you think?

More Scandal on Wall St.

http://www.nypost.com/business/64031.htm
(You may have to fill out a free registration to get access to thestory.)

After reading Antilla's Tales from the Boom-Boom Room, it is not surprising to hear that sex scandals continue to plague the big firms of Wall St. This time, Morgan Stanley is the target of the allegations, but this time there is a twist, the sexual harassers are females! Allow me to set the scene:
-2004 Morgan Stanley settles sexual harassment claims for $54 million.
- Shorlty after setlling, Morgan Stanley takes a proactive approach and delegates the responsibility of keyword searching e-mails for "sexually graphic" terms.

This is where our protagonist, Arthur Riel, enters the scene. Riel was a tech-executive for the firm and this new responsibility soon fell under his official duties. Riel, in one of these now routine searches, stumbled upon a thread between "X-rated e-mail chats between his boss, information technology director Moira Kilcoyne, and executive director Rora Tanaka," in which, among other comments, were comments which could be considered offensive to male employees. 13 months later, after Kilcoyne got word of his discovery, Morgan Stanley terminated him for "violating the privacy of his colleagues." Riel is suing for wrongful termination and seeks to recover $30 million dollars in lost wages and damages. Morgan stanley has responded with the following comment:
"It was reprehensible for Mr. Riel to intercept, misappropriate and share personal e-mail between two co-workers. It was conduct of this nature and other abuses of his position that rightfully led to his termination."

It seems there are a number of employment law issues to be discussed with regard to the circumstances surrounding the termination of Riel. One of these being that these routine searches were a task he was not only delegated to conduct, but also mandated. The company has asked their employee to carryout such searches and report such "sexual-harrassmently" suspicious conduct. It would seem that this then is a violation of privacy mandated by the company and it is not the intent of the employee to whom the task was delegated. If in fact these searches were to be used as a proactive means by which to prevent future sexual harassment claims, is that not what Mr. Riel has reported? Can we really hold an employee mandated to carry out an action by his employer responsible for the outcome of the action? Granted this story does not include all of the facts of the case, but "all-things-considered," I would have to side with Mr. Riel. Whose side do you take?

Tuesday, April 25, 2006

The Ten Percent Plan

http://www.washingtonpost.com/wp-srv/politics/special/affirm/stories/aaop121997.htm

If you take a second to look at this article, you might something particularly interesting. Texas' Clinton-backed Ten Percent plan is a very interesting new way of trying to balance the demands of proponents of affirmative action with the fears of the combatants of affirmative action. For thoses uninterested in reading the article, it proposes, in Texas, automatically admitting the top ten percent of each school into UT or another state-run texas university. Keep in mind this discussion is from 1997 and I am just speaking of the idea behind the plan and its possible repercussions. The law acts as a way to fairly promote equality in admissions practices while still encouraging diversity, just not in the way UT was doing it before to have it be ruled unconstitutional (using "quotas" and adding "values of preference"). However, I agree it does not fully achieve its purpose. In areas where there are mostly caucasian kids and one african-american student, the chances of him making it to that top 10 are smaller than in other areas, and then he may be out of luck as far as affirmative action goes. Also, many minority students are deprived of appropriate education before the high school level, leaving them helpless in the face of the ten percent plan which bases its merit of high school graduation rank. I think it is an interesting idea, but I would sooner revise the way UT handles affirmative action instead of replacing it with this. What do you think about the ten percent plan?

Monday, April 24, 2006

Workplace bias complaints drop: Most cases involve race discrimination or boss' retaliation

"Overall, the commission said complaints dropped 5 percent to 75,428 in the 2005 fiscal year ending Sept. 30, compared with 79,432 complaints in the previous year. This continues a downward trend in complaints that began in 2003. "

"Employers' efforts to eliminate workplace discrimination are working, she said, because "companies are communicating to their employees better that the company doesn't tolerate discrimination." "

"Many companies have also set up in-house systems to handle complaints, Reesman said.
William Anthony, a management professor emeritus at Florida State University in Tallahassee, who specializes in workplace discrimination, said high-profile class-action lawsuits with big monetary settlements have also been a deterrent."

""One reason employers are doing a better job is because they see these very visible lawsuits that are filed and they don't want to be sued," he said. "

""Employers, more progressive employers at least, believe in diversity and can see that diversity can provide them with a better qualified workforce," Anthony said. "They can see that it is better to have that kind of workforce than an all-white-male workforce." "

I found this article particularly interesting. Although it does not seem that the problem of race discrimination is a negligible one at this point in our society, it is pretty undisputable that it is on the decline. I like this article because it points to alot of reasons why such discrimination is decreasing. Most importantly, I thought, was when it commented that the reason for the decrease in discrimination is in part because employers are making it clear that they will not tolerate discrimination. What I'm wondering is: Do we give employers too little credit? Many times, supervisors are the ones who discriminate; supervisors who are important enough to the employer to defend. It would appear that now, however, employers are valuing more diversity in the workplace and are doing more to enforce anti-discrimination rules and policies as well as providing more outlets for employee relief within the company. Therefore, it seems fair to say that employers attitudes are changing for the better and that there is less of a focus on protecting supervisors and executives.

French Employment Law

The Article can be found here....


In a spirit of international law, this article talks about the reforms occuring in France. For those of you who are unaware, France has recently been experiencing extremely high levels of unemployment (roughly 22%) and the government has been facing enormous social unrest regarding the employment situation. If my understanding of french employment is correct, a French employer is unable to fire an employee 'at-will' and must have a reason to do so. This propsed law was to enact a probation period for young employees, where they could be fired if deemed necessary. Discrimination of younger workers was feared by te laws opponents.

"She said that most employers were against the CPE, as they believed it would have led to a two-tier recruitment market where young people would have been stigmatised and treated unfairly."


"The sticking point in the proposed contract was the clause that would have allowed French employers to dismiss workers under the age of 26 without the need for explanation within a two-year probation period."


This article may have fit a little bit nicer earlier in the semester, I think it is still important to realize that countries outside of the United States do not share nearly the same protectoin in the workplace that we do here. Although there may be problems in the United States, I believe we are much better off than many of our European counterparts.

  • What do you think?
  • As the French cannot fire an employer without 'real and seroius reasons' without the fear of legal reprocussoins, how do you think American employers or employees would react if our at-will policy of employment was taken away from us?
  • What reasons might the French government have to keep a policy like this and is there anything that the US can learn from it?

Age discrimination revision?

Older workers get a new tool to fight age discrimination
A Supreme Court ruling Wednesday opens the door to lawsuits regarding age bias that may be unintentional.

Older workers don't necessarily have to prove an employer intentionally favored younger employees in order to sue under a federal age discrimination law.
In an important ruling expanding the scope of the Age Discrimination in Employment Act (ADEA), the US Supreme Court on Wednesday said workplace policies that disadvantage older workers - even if not directly caused by age bias - can be a form of illegal age discrimination.

Despite that decision, the justices ruled against a group of 30 members of the Jackson, Miss., police force who had filed an age discrimination suit based on a city pay plan that granted more lucrative benefits to younger workers than older ones.
The high court said that while so-called "disparate impact" claims are permitted under the ADEA, the Jackson police officers had not demonstrated enough of a claim to survive dismissal.
Justice John Paul Stevens wrote the majority opinion, which was joined in full by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Justice Antonin Scalia provided the key fifth vote on the disparate-impact issue, but said he reached the same result by deferring to a government agency's interpretation that the ADEA permits disparate-impact claims.
Justice Sandra Day O'Connor dissented on the disparate-impact issue, joined by Justices Anthony Kennedy and Clarence Thomas. Chief Justice William Rehnquist did not participate.
The 1967 ADEA protects all workers aged 40 and older. Roughly half of America's civilian workforce is over 40, and the proportion of older workers is growing. Wednesday's ruling in Smith v. City of Jackson puts employers on notice that it may not be enough to avoid policies and practices that use age as a proxy in employment decisions.
In addition to outlawing discriminatory treatment, the ADEA also bars certain actions that result in a discriminatory impact on protected individuals aged 40 and older, the majority justices said. But the majority was careful to limit the potential scope of that holding, saying that a plaintiff must show more than mere disparate impact to prevail.
The ruling comes as a result of a 2001 lawsuit challenging an effort by the City of Jackson to bring its salaries up to regional standards. In carrying out the salary plan, officers and police dispatchers with five or fewer years of tenure received proportionately greater raises than employees with more than five years experience.
Most of those with five or more years of experience were over 40 years of age and thus covered by the age discrimination law. They sued under the ADEA, claiming that giving younger workers disproportionately higher raises than older workers is a form of age discrimination.
Lawyers for the city and police department countered that the ADEA prohibits only acts of intentional age discrimination - not every instance where policies may disadvantage members of the protected class of workers.
The majority justices disagreed, but ultimately ruled in favor of the city. The court said the older employees had not done enough to prove their case and that the city's salary plan was based on reasonable factors other than age.
"Petitioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers," Justice Stevens writes. "They have not identified any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers." He says: "It is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact."
The court says employees must be able to isolate and identify the specific employment practices that are allegedly responsible for any observed statistical disparities.
Stevens says unless specific employment practices are isolated and identified by older workers, it could result in employers being held liable for innocent causes that lead to statistical imbalances. He says it was reasonable for the City of Jackson to rely on seniority and position to determine raises.
In her dissent, Justice O'Connor says there is nothing in the wording of the law or the intent of Congress at the time the law was passed to suggest the ADEA permits disparate-impact claims.
She says comparisons with Title VII of the Civil Rights Act are misleading. The Supreme Court ruled in 1971 in a case called Griggs v. Duke Power Co. that the similarly worded Title VII authorizes disparate-impact lawsuits.
"This argument would be a great deal more convincing had Griggs been decided before the ADEA was enacted," O'Connor writes. "Griggs was decided four years after the ADEA's enactment."
A federal judge and a federal appeals court panel ruled City of Jackson case that mere disparate impact was not enough to sustain a lawsuit under the ADEA. There must be evidence of intentional discrimination based on age, they ruled.
The issue has resulted in a sharp split among the nation's federal judges in recent years. Appeals courts based in New York, St. Louis, and San Francisco have held that disparate-impact claims may be brought under the ADEA. Appeals courts based in Boston, New Orleans, Chicago, Denver, and Atlanta have ruled that such claims are not covered.


While the Supreme Court made possible lawsuits that do not necessarily prove intentional discrimination, it did not particularly do much in the way of broadening the scope of the ADEA. This article seems a bit off-base and overzealous in its interpretation of the case and its proceedings. What is interesting, however, is the court's decision regarding the specific case. Should completely unintentional discrimination be punishable or at least correctable? The employees failed to provide a strong argument being that there is nothing clearly discriminatory in providing younger or newer employees more benefits than were already given to the older employees. The policy has no affect on the terms or conditions of the older employees' benefits. Does this mean, however, that the ADEA needs to be revised? The new plan does not seem fair, but does the ADEA protect against what's "fair" or what's "discriminatory"? Isn't it kind of like giving a boy a cookie and then having his sister sue you for sexual discrimination because she didn't get one? What do you all think?

Saturday, April 22, 2006

More on work-life balance

Here's an article about working moms. A study done in UK shows that working women usually have less than an hour to themselves each day. Apart from working 8 hours a day, they may still have to take care thier kids and do the chores, so basically that leaves no time for themselves. It is not easy to be a working mom !!

And, here's a quiz to check if you have work-life balance.

http://money.guardian.co.uk/quiz/questions/0,,1029620,00.html

Thursday, April 20, 2006

MLB Receives C+ in Annual Diversity Report

At espn.com, this article details an annual diversity report conducted throughout professional and collegiate sports by the University of Central Florida's Center For Diversity and Ethics. Specifically, this study assess the availability of employment opportunities for women and racial minorities. Since the inception of the study, the levels of diversity in Major League Baseball have generally improved. Richard Lapchick, the author of the study, praised commissioner Bud Selig for his efforts. However, Lapchick noted that MLB needs to work on its levels of diversity at the club level, where only a handful of women hold executive leadership positions.

What alternative, internal means of diversity regulation could be employed to achieve similar results as this study?

What employment law issues are relevant and/or applicable?

Bloomington enacts protections for transgender people

According to the Indianapolis Star, Bloomington passed the proposal last night to protect transgender people.

Under the amendment, gender identity is defined as "a person's actual or perceived gender-related attributes, self-image, appearance, expression or behavior, whether or not such characteristics differ from those traditionally associated with the person's assigned sex at birth."

It may be interesting to see it there is any reaction from other groups across the country but apparently there was only one person at the meeing who voiced opposition before the vote this week. While some people may have a problem with the ordinance it doesn't seem like it should effect the majority of the residents of Bloomington. I can't imagine that this is a very large problem, and the thought is really to treat every one equally. It is really designed to add protection to those people who may not be covered under the gender protections.

http://www.indystar.com/apps/pbcs.dll/article?AID=/20060420/LOCAL/604200491

Minimum Wage Continued...

One more quick thought I wanted to add. I just came across an interesting quote from an article that says "90 percent of economists agreed that 'a minimum wage increases unemployment among young and unskilled workers.'" So thinking about this excerpt, answer the next questions and then explain how the increase in the minimum wage is a beneficial thing. It should be painfully obvious as to what conclusion I am getting at here I just thought it was an interesting dilemma.

Who would the increasing of the minimum wage be aimed at helping?
And, who would be negatively affected by the increase of the minimum wage?

The link:
http://www.econlib.org/library/Enc/bios/CEEPreface.html

More on the Minimum Wage Controversy

So, in response to our class discussion the other day on the pros and cons of raising the minimum wage, I thought it would be good to look at the issue from an economic perspective as economics are the real issue in question with this topic.

Here is the link to the article:
http://www.econlib.org/library/Enc/MinimumWages.html

This article basically goes into detail about the negative effects of raising the minimum wage and, although it would have been nice to see some of economic charts and graphs, it does present some actual cases of the effects of raising the minimum wage. The article agreed with what Professor Prenkert said in class about the largest targetted class being unskilled teenage workers. But if that is only the case then I really don't think it sounds justifiable to keep the wages of so many people so low so that some teenagers can keep their part time jobs. As one may assume though, the government is not THAT concerned with part time jobs for teenagers and there are some other real cons to raising the minimum wage that the article brings up.
The first example given was from Australia:

“when, in 1921, the federal court institutionalized a real minimum wage for unskilled men. The court set the wage by estimating what employees needed, while ignoring what employers could afford to pay. As a result unskilled workers were priced out of the market. These laborers could find work only in occupations not covered by the law or with employers willing to break it. Aggressive reporting of violations by vigilant unions made evasion difficult, and the historical record shows that unemployment remained a particular problem for unskilled laborers throughout the rest of the decade.”

The next example is pretty interesting because it relates to the law where “In 1923 the U.S. Supreme Court, in Adkins v. Children's Hospital, ruled that the minimum wage law was simple price-fixing and an unreasonable infringement on individuals' freedom to determine the price at which they would sell their services.” This actually found the institution of the minimum wage not reasonable in the eyes of the law and seems to suggest that this law has been in effect, without adherence, up to the present day. This case is interesting because the employees who were to increase their wages because of the new law were actually the ones who sued to stop the law because they were fired when the hospital couldn’t afford to keep them employed. A similar case happened in 1990 with the Salvation Army.

One more thing I wanted to point out from the article because the point was also brought up in class and was a very good one, was the effect of different areas (in class compared was Chicago and some arbitrary southern Illinois town) with the flat increase of a minimum wage:

“Estimates of the overall effect of minimum wage increases also tend to blur the regional and sectoral shifts that average together to produce the national result. A federal minimum wage of $4.25 an hour may have little effect in a large city where almost everyone earns more. But it may cause greater unemployment in a rural area where it substantially exceeds the prevailing wage. Regional and sectoral studies leave little doubt that substantial increases in the minimum in areas with lower wages can cause industries to shrink and can inhibit job creation. The growth of the textile industry in the South, for example, was propelled by low wages. Had the federal minimum wage been set at the wage earned by northern workers, the expansion might never have occurred.”

Wednesday, April 19, 2006

Child Labor Problem

Do you know it is possible that the Nike shoes your wear, the Nestle chocolate you eat, the Disney soft toys that you sleep with are the final products of the hard work of children who were as young as 12 ? Do you know that they may earn only USD$2 for working up to 10 hours a day ? We are lucky to live in a developed country where children's rights are protected by law. In U.S., the FLSA law protects children from taking up jobs which interfere their health and education. Children under 14 are allowed to work are allowed to work in non-manufacturing or non-hazardous places for a certain amount of hours outside school, and there are less restrictions and limitations on working hours and types of jobs for teenagers.

In some developing countries, the law concerns about child labor is not as strict as FLSA, because children usually takes up the largest part of the workforce population, and the counties need human resources. For example Asian countries like China and Thai, and in some undeveloped parts of Africa, children are forced to work in farms, mines or take up other dangerous jobs because they live under poverty line.

Recent news on child labor:
Slave Chocolate?

Tuesday, April 18, 2006

Employment Law is Too Complex ?

Here's an article I found when I was doing the research paper for this class. This is an article printed in an UK newspaper, but I think the U.S. employers may face similar situiation.

Small businesses are finding it very difficult to cope with increasing amounts of employment legislation, according to the Federation of Small Businesses. The trade group says that calls to its free legal helpline on employment issues grew by 30% last year.
There were 70,943 calls to the helpline in 2005, up from 55,036 in 2004. Most calls related to disciplinary procedures.
Of these, the largest increases were seen in calls on dismissal, up to 7,583 calls from 2,771 (an increase of 174%) and grievances, which were up 118% to 2,442.
Queries on paternity and adoption leave grew 100% in 2005, while calls on employers' liability were up 96% to 736 and calls on flexible working grew 93%. Conversely, calls concerning unfair dismissal dropped 71% between 2004 and 2005, while calls on wrongful dismissal fell 76%.
“There are at least 26 Acts of Parliament on employment issues and it is tough for small firms to deal with all their requirements, as these figures show,” said Sandy Harris, FSB Members' Services Chairman.
He continued: “We do not want to repeal or reduce all legal safeguards for employees. But without a simplification of employment law small firms’ growth will continue to be stifled. If the Government wishes to achieve its aims for future economic prosperity then it should take its foot off the pedal on employment legislation.”

In my opinion, the figures show that employees are more educated nowadays; they know about their rights, and they know where to ask for help. But at the same time, as most employment laws are structured to protect employees, therefore some small businesses find some laws are difficult to cope with. I guess most employers may want to protect the rights of their employees, which are their most important assets, just that they may get confused because the laws are complicated. As far as I know, Australia, HK and UK government provides free or affordable ( depends on the size and financial background of the companies ) legal consultations on employment law issues. I do know know if the U.S government offers similar services for both employers and employees, but I am sure that kind of services can definitely help them to know more about their rights and responsibilities at workplace.

Working 9 to 5 = Slacker ?

As most of us will be entering the real world after this semester, so I guess most of us have started job hunting already. Do you guys know that most of the U.S. workforce now work more than 55 hours per week, and they regularly work on Saturdays, or even Sundays ?

Here are two articles about overtime work.
A 9-to-5 job? Dream On
The Workplace: Overworked? You Have Options

I still remember when I worked as a finance trainee in a train corporation in HK one summer, I had to work from 8am to 6pm on weekdays, and half day on Saturdays. Since I had a part-time job teaching little kids Maths on weekday evenings and Sundays at the same time; literally I left 0 hours for myself and I was nothing more than a working zombie.

And I realized a weird situation. I have worked in HK and Japan before, and people just won't leave the office until they saw someone leaving. Anyone have similar experience before ? Or that is just an Asian culture ?

Is Race a Factor in the Sale of the Washington Nationals?

Since the 2001 sale of the Montreal Expos to the other 29 MLB owners, the franchise has been under the control of the league. Not coincidentally, as pointed out in this Washington Post sports column, MLB chose to hire two competent minorities to operate the team, a Latino and an African-American in general manager Omar Minaya and manager Frank Robinson, respectively. Since then, MLB moved the club from Montreal to Washington, DC in 2004 and renamed them the Nationals in an effort to penetrate a superior baseball market and with the intention of eventually selling them and turning a profit.

Two years later, the Nationals remain under the control of MLB in spite of the fact that a lease is firmly in place for a new stadium, something commissioner Bud Selig claimed was mandatory before the team could be sold. Yet, several weeks after the fact, a decision has not been made largely because, as recent reports claim, frontrunner Ted Lerner's bidding group does not have a sufficient minority presence. Accordingly, similar reports have also stated that groups are "scrambling" to find and/or supplement their minority partners as the sale nears its conclusion.

Is there something wrong with "scrambling" to add minorities just for the sake of adding minorities?

How should MLB address the sale of the Nationals and the need for further integration of minority stakeholders?

How should the ownership groups seek to add minority partners?

What, if any, legal issues pertain to these circumstances?

Saturday, April 15, 2006

Supreme Court to Hear Employment Law Case Monday (UPDATED)

UPDATE: Nina Totenberg of NPR provides a "blow-by-blow" analysis of the argument here.

On Monday, the Supreme Court will hear arguments in Burlington Northern Sante Fe Railway Co. v. White. The issue in the case is what sort of action taken by an employer in retaliation against an employee after that employee has protested employer conduct that is allegedly unlawful under Title VII or has participated in any proceeding in which conduct that is unlawful under Title VII has been alleged against the employer. There is wide disagreement among the lower federal courts on what the standard should be.

In this particular case, White was suspended without pay for a month and then reinstated with backpay and transferred from her position as a forklift operator to a less desirable position. There are several standards among which the Court may choose (or it may fashion a standard of its own).

This post on SCOTUSblog does a great job of outlining the facts and issues, including the several cmopeting standards.

This is the most important employment discrimination case before the Court this year. The Court's decision is likely to be issued in June.

Jespersen Revisited

Remember the Jespersen case we discussed in class and described in the text in which the female bar tender at Harrah's casino, Darlene Jespersen, sued the casino for sex discrimination becuase its dress/appearance code required her -- in very specific regulations that didn't also apply to men -- to wear makeup?

Well, after a three-judge panel of the U.S. Court of Appeals for the 9th Circuit held in favor of Harrah's last year, Jespersen asked a larger panel of judges to hear the case. (This new hearing is "en banc." In some circuits, this means all of the judges sit for the rehearing; but, because there are so many judges in the 9th Circuit, eleven of them sit for the rehearing. This step is an alternative to simply giving up or trying to appeal to the Supreme Court.)

The en banc panel's opinion in the case was issued yesterday. The court majority of seven judges affirmed the grant of summary judgment for Harrah's, but with slightly different reasoning than the earlier panel. There were also a couple of dissents that are interesting.

Great discussion of the en banc opinion can be found here and here. I encourage you to read those posts. (Especially Lauren whose research paper was on this very topic!!)

University of Michigan & Affirmative Action

The Supreme Court ruled that race can be a factor for universities shaping their admissions programs, saying a broad social value may be gained from diversity in the classroom. (See this article for details.)

But race cannot be an overriding factor for schools' admissions programs, the court ruled, saying that such plans can lead to unconstitutional policies.

A high point system was struck down by the high court but another policy was approved that gives race less prominence in the decision making process.

At the University the issue was whether racial preference programs unconstitutionally discriminate against white students. Since you cannot establish point policies for minorities, you have to be more creative and less definitive.

The university has used race as a factor in admissions, but out of 5,000 accepted to the program a year African Americans only make up 9%, Latinos 6%, and Native Americans 2%, which still leaves a predominately white majority.

The court agreed with the university's arguments that the law school policy "promotes 'cross-racial understanding,' helps to break down racial stereotypes, and 'enables [students] to better understand persons of different races,'"

I believe that race should be a factor in deciding admissions because of this argument. I think that most people may have this idea that these policies fill the universities with minorities, when, in reality the numbers of minorities enrolled are still quite small. Perhaps an actual point system should not be used to apply a specific number to the applicant because of their race, however, other creative systems should. What I mean by this is, it should be factored into the equation, but not so strictly with numbers. I don't feel there is any room when numbers are involved. I think race should be considered, but only in relation to everything else.

Friday, April 14, 2006

Will We See Increased Use of Mediation in Employment Cases?

I thought that this article (titled “EEOC using mediation”) was quite interesting although it deviates a little from what we have been talking about it class lately. The article says:

“Companies facing charges of employment discrimination often panic when faced with the possibility of spending thousands of dollars in legal fees to defend themselves.

But that doesn't have to be the case.

The U.S. Equal Employment Opportunity Commission — the agency responsible for enforcing federal anti-discrimination laws — is encouraging employers to consider mediation as an alternative to the traditional method of investigating charges of employment discrimination.”

The article goes on to say that:

“EEOC officials say it can resolve complaints in half the time using mediation and at a lower cost to the employer and employee.

‘A lot of companies don't want to spend the time and money to go through the mediation process because they would rather pay an attorney the billable hours to defend them in a lawsuit,’ said Cherry-Marie D. Rojas, coordinator for the EEOC's alternative dispute resolution division in Los Angeles. ‘But the great thing about our program is that it is free, and it works.’

Of the companies that have gone through mediation, 96% would agree to it again, Rojas said.

The agency's Los Angeles district office, which oversees Fresno, would like to see more companies sign an agreement obligating them to mediate employment discrimination complaints when they arise.

Nearly 50 companies, including McDonalds, Roadway Express and Con Agra Foods, have signed the EEOC's National Universal Agreements to Mediate.

‘I think there was a fear from companies that signing these agreements might lead to more charges,’ said Santos Albarran, an EEOC spokesman. ‘But that has really been unfounded.’”

I would certainly be a little weary of using mediation too much if I was an employer getting sued. I would be worried about the above quote, that basically says that if mediation is so much quicker and easier employees might try to bring more charges up because they know they could be awarded money by going through a much simpler process. The article says this thought is unfounded but I think that is just natural instinct. I guess it comes down to a cost-benefit situation for the employer. If they would greatly benefit from the decreased costs of using mediation (probably because they don’t have many employees), then they should use it. However, I feel that bigger companies could start getting more claims filed against them if they use mediation.

Thursday, April 13, 2006

At least 2 workers fired after Indy's immigration rally

The Indianapolis Star is reporting that two individuals were fired after attending the immigration march that occured the other day.

An executive with an Indianapolis company that fired two workers this week said his firm followed its policies on attendance.

Delta Services is an environmental hazards removal and demolition company that requires 24-hour notice if an employee is going to miss work, Vice President Mike Horan said. He later said Delta has a written absenteeism and tardiness policy but declined to explain its specific requirements.

"I don't know the entire policy front to back," said Horan. "I'm not in charge of the enforcement of this policy."


Olga Aguilar said that if she'd known she'd lose her job at Delta over marching, she probably would have skipped the protest. She said she is a legal resident of Indianapolis. Aguilar, 36, called her supervisor at Delta Services on Monday to ask for permission to attend the rally. She said her supervisor told her she would be given a warning if she missed her evening shift.

Tuesday, she and another co-worker who attended the rally were fired.

"We were the only two that went, out of the entire group," Aguilar said in Spanish. "If they told us they would fire us, we probably would not have gone, but they told us we'd get a warning."

Horan said her explanation is "totally fabricated."

This is likely a story that is going to be around for a little while longer. There are most likely other employees who have not come foward yet.

Today, members of the Indiana Justice for Immigrants Coalition will go on the city's two Spanish-language radio stations to urge anyone who thinks they were wrongly terminated to come forward. Tedd Cain, an organizer with the coalition, said the group may sue the companies or take other action.


Link to article http://www.indystar.com/apps/pbcs.dll/article?AID=/20060413/NEWS01/604130468

Is Affirmative Action Still Working the Way We Intended It to?

The following excerpts come from an October 2005 article in the La Prensa San Diego:

"For many years, Affirmative Action has assisted many minorities to get to where they are today. In fact, it’s fair to say our country would be a different place if Affirmative Action had not been there. But now that we’ve arrived at the point where our government and institutions are nowhere near where it was when the law was derived, do we still need Affirmative Action? Perhaps with some alterations –kinks ironed out—, Affirmative Action could mean something entirely different today than its origination. With a change in Affirmative Action, is there a possibility the results will mean sliding back to square one?

Today, many believe the Affirmative Action laws are not doing what they were set out to do; that is, create equality. It is the demanding quotas and tax-reduction incentives that have taken over the original purpose of the law. When two candidates, one being a minority, are eligible for a position within a company, the minority may be hired to meet the apparent quotas set in place. The quotas were originally formed to ensure compliance with diversity amongst all. But as a result, some are now finding the non-minority candidates are being rejected so the company abides by the laws."

While the author of the article takes no real stance on the issue, it does a good job of bringing up the point. Just as I casually talk about the issue with people, I find that there are mixed feeling towards the subject.

I feel that affirmative action is indeed a good thing as long as it follows the appropriate guidelines, such as that it is used for the right reasons which include:
-to give underrepresented minorities a better chance to become a part of a certain educational institution or workplace, and
-that it does not adversely affect non minorities (reverse discrimination).

Eventually I believe it should be phased out as our country gets more and more diverse but I think we are still years away from that point.

Age Discrimination

Are Some Industries Harder on Older Workers Than Others?
http://news.com.com/Exec+sues+Oracle+for+age+discrimination/2100-1017_3-240479.html

This article states, "The tech industry has a reputation for favoring younger workers. "The amount of age discrimination is absolutely outrageous," he said. "In the high-tech industry, if you're over 35, you're over the hill."

The executive vice president, at age 55, was fired and is now suing for age discrimination. He claims that this was preceded by many derogatory comments regarding older workers. Following our discussion on Tuesday, I believe that this man may have difficulty proving that the comments lead to his dissmissal. Bill Payson, an advocate who heads Serniortechs.com, says, "Proving age discrimination is extremely difficult." Payson also continues to say that the tech industry has a reputation of favoring young workers. One reason these jobs may discriminate more than others is because, ""The Internet changes very rapidly. This affects youngsters and oldsters. You can be outdated long before you're old…just because technology is changing a lot faster than you are."

This potentially means that certain fields of employment may be losing a lot of skilled workers. Just because people assume that older people can't, "get with the program," or that they are, "behind the times," does not mean that they aren't capable of working in fast paced and changing environments. I believe that only after it is clear that the age gap is causing an actual tangible problem, clear of any stereotypes, should firing even become an option. Furthermore, instead of just letting go of the older workers as the technology changes, companies should develop programs to make sure the entire staff is up to date and on the same page. This could be in the form of workshops or weekly meetings. Just because the internet is always rapidly changing does not mean that older workers cannot keep up. (And on a side note...since when was 55 old?!)

Wednesday, April 12, 2006

French Students & Youth Protest New Employment Law

Here is an interesting employment law that is being instituted right now in France. Some excerpts from the article are below.

“French youth have been up in arms protesting the CPE, a new youth employment law that would make it easier for workers under the age of 26 to be fired by their employers.

The hope is that by decreasing companies' responsibilities to young workers, these companies will actually have a greater incentive to hire them in the first place. However, many in Paris, where in some neighborhoods youth unemployment is at 26-50%, don't quite see it that way.”
Basically, this new CPE is a law that gives employers the “right to fire French workers under the age of 26 without offering a reason or motivation. If terminated employees go to court, it is up to them to show they were unjustly fired.”

This law is basically the same thing as our employment-at-will law. As we all know from class readings and discussions, anyone can be forced for any reason or no reason at all as EXCEPT if the firing relates to a protected characteristic.

The big question here appears to be if this new law really will reduce unemployment. That is the underlying goal of the CPE. “It is hoped that lowering the risks associated with hiring new employees will encourage businesses to hire young workers in the first place.”

I personally think that if French employers are not hiring youth employees because they are worried they will not be able to fire them in the future, then this new law will work. Some could argue that the employer will just fire them once they don’t want them anymore though, and France will just get back to a high unemployment level. But of you look at the U.S. that does not happen here. I have held many jobs as a teenager and I never got fired even, if demand for workers was not real great. There was always something I could have been doing to better the company I was working for and I also formed a bond with management, so I think they felt that keeping me around was kind of an obligation as well, even if they didn’t really need all of their employees.

I would guess that a similar type situation would be the case in France. If they employers feel better about getting youth employees in the door, then I think the CPE law will work because the employer will not want to want to fire a good worker. The employer will keep that worker around and find some way to use their service

Monday, April 10, 2006

Court Case Regarding the ABA

The following case directly relates to the Americans with Disabilities Act. . . in JAIL. Check it out.

Raymond W. Aswegan v. John Emmett
U.S. 8th Circuit Court of Appeals
Decided: May 2nd, 1997

Background (as cited from the case):

Raymond W. Aswegan, a life sentence inmate at the Iowa State Penitentiary (ISP), brought this lawsuit contending his prison infirmary cell lacks cable television reception in violation of the Americans with Disabilities Act of 1990 (ADA). Although general population inmates are permitted to purchase television sets that can be connected to the cable television outlets in their cells, infirmary inmates who own televisions lack this amenity because the infirmary cells were designed without cable television hookups. Instead, infirmary inmates entertain themselves by watching television in the infirmary's community room where two cable-equipped televisions (with ample headphones) are available on a daily basis. As the court understood the situation, "cable service is necessary for adequate television reception at the ISP." Under the ADA, no qualified individual with a disability can be denied "the benefits of the services, programs, or activities of a public entity." Aswegan is ambulatory and his cell is hardly fifty feet from the infirmary's communal television room.

The district court decided Aswegan was a qualified disabled person who was denied the benefits of cable television because he routinely lost petty disputes about channel selections with the other infirmary inmates. Believing the ADA applies to the ISP and entitles Aswegan to have unlimited access to the television programs of his choice, the district court ordered the installation of a cable television outlet in Aswegan's cell. Emmett appealed, claiming that cable television is not a basic right.

The verdict:The appeals court ruled that, contrary to the district court's view, Aswegan has no viable claim for relief because the cable television sought by Aswegan is not a public service, program, or activity within the contemplation of the ADA. Accordingly, the appeals court reversed the district court's holding that Aswegan was entitled to access to cable television beyond that already provided in the infirmary's television room. Because the relief Aswegan sought was not covered by the ADA, the court did not have to decide, and the district court should not have decided, whether correctional facilities are subject to the ADA.

Work/Life/Law

Are Employers Recognizing Obesity as a Problem?

Check out this story.

As obesity becomes a national threat, research continues to show the health-risks involved with being overweight. The article states, "Being overweight increases the risk for diseases such as type 2 diabetes, heart diseases, stroke, sleep apnea, respiratory problems and some cancers. Being obese poses the greatest health risks." As the population is becoming increasingly overweight, employers struggle to offer health plans that cover illnesses and diseases caused by obesity. As discussed in class, more employers are beginning to offer health advice in the workplace, and some are enforcing healthier policies for employees to abide by. Do you think that employers should be required to go along with these policies? This may mean that employees must keep a certain Body Mass Index to stay employed, or smoking breaks are not allowed. The reason the employers want to do this, is to provide intervention to reduce health insurance costs to the company; but is this fair to the employer? I believe that since money will be saved through these preventative measures, that they should be taken. Although obesity will not be eliminated throughout the population, enforcing stricter habits in the workplace can help to eliminate some of it.

Does New Harassment Policy Give Managing Partner too Much Power?

In an article that actually came out last summer, a Tampa law office called Holland & Knight decided to change their sexual harassment policy to give the managing partner of the firm sole discretion in determining the accused’s guilt or innocence, and imposing penalties on them. Here is an excerpt from the article

The women, all young lawyers in the Tampa office of Holland & Knight,
were irate.

An internal committee investigating their claim against Tampa partner
Douglas A. Wright found he had violated the law firm's sexual harassment policy.
But managing partner Howell Melton Jr. disputed some of the committee's findings
and chose not to impose the toughest punishments it recommended.

The resulting clash eventually helped push Holland & Knight into a
public controversy and Melton into the thick of a leadership crisis.

It's a scenario that's unlikely to happen again.

Shortly after Holland's internal committee completed the Wright case last
summer, the firm's director's committee revised the sexual harassment policy to
give the managing partner sole discretion in the outcome of such cases. Under
the new policy, the Fair Employment Practices Committee serves only a
fact-finding role, no longer reaching conclusions or recommending penalties.
Instead, the managing partner alone determines the accused's guilt or innocence
and what punishment, if any, is appropriate.


I believe that this new policy gives too much power to the managing partner of the firm. The article does say that this new change in policy is supposed to bring the sexual harassment policy in lines with current legal trends, and other outside experts see this change as for the better.

But I just can not see how this is the case. It seems to me that giving the managing partner sole discretion could be a risky move. Melton has already let one of his fellow partners go (Wright) with an easier punishment for his sexually harassing behavior. Melton even promoted Wright to be the firm’s third ranking officer just months after reprimanding him for sexual harassment! I think giving one person all the power in situations like that is a bad idea. But if that person runs the company I guess they can do so however they want anyway.

Friday, April 07, 2006

Disability Discrimination

After class discussion yesterday, it became apparent that most of us thought Gabrielle Hamilton article "Eat, Memory: Line of Sight" appeared to be rather arrogant and socially inept regarding persons with disabilities. For the past two years, I have volunteered with Stone Belt which serves a great majority of people with disabilities in the Bloomington community. These individuals work, play and enjoy life like the rest of us, but just happen to be a bit more special.

I came across this article posting when I was searching for some relevant information I could use on our class blog. Alan R. Theriault lives with her disability everyday and she gives a commentary on how her class reacted to a comment she made about disabilities.

"It hadn't occurred to them that a character in a story might incidentally
have a disability, much like she could have red hair, brown skin or a
mother-in-law who's allergic to cats. While all of these characteristics,
including a disability, are significant in certain situations some of the time
in both fiction and real life, they do not always carry a weighty metaphor. They
just are. "

Alana's point was met with "averted eyes" and in my belief she felt her disability and the lack of understanding from her peers. The point I see here is that this type of discrimination and fear filters past the university stage into the workplace. The use of the Disability Discrimination Act is to prevent the rest of us from using our ignorance and fear to dictate what we believe a person's limitations are. My buddy from Stone Belt has a job and can carry on a decent conversation, but it took me venturing to talk to her for me to understand that my misgivings were my own fault.

It will be interesting to hear other stories from classmates about their experiences with people with disabilities. I also have learned not to say disabled people because it has such a negative connotation.
  • Would you hire someone with disabilities? What would expect of their performance?
  • Do you have any experiences with disabilities?
  • How would you go about improving other's opinions concerning disabilities?

Pregnancy Discrimination on the Rise?

Thanks to Workplace Prof Blog, I was directed to this interesting segment from last Friday's NBC Nightly News, reporting on pregnancy discrimination. Watch the short segment to hear from a woman who is currently claiming pregnancy discrimination, an attorney from the EEOC, and a women's rights attorney.

While pregnancy discrimination is on the rise, according to Cynthia Calvert, the deputy director of The Center for Worklife Law at UC Hastings College of the Law, in a comment she left on the above-referenced Workplace Prof Blog entry, notes that claims of "Family Responsibility Discrimination" have seen a dramatic increase, especially since 2000. FRD discrimination, Calvert explains, includes "claims by pregnant women, parents of young children, and employees who have aging parents or sick spouses/partners."

Calvert lists a number of forms that this FRD takes, ranging from straightforward pregnancy disparate treatment discrimination to giving parents and caregivers work schedules that the employer knows the employee cannot fulfill (basically manufacturing a conflict between the work and the caregiving responsibilities) to developing hiring criteria with the intention that the criteria will exclude working mothers with young children.

Jessica researched the shortcomings of the Pregnancy Discrimination Act, but note that the laws of many jurisdictions, including federal laws, do not protect a person's status as a parent or caregiver at all.

Tuesday, April 04, 2006

In class today, a few students mentioned that their research papers cover the issue of transgender in employment law. I think it is really interesting to not only read about what transgenders go through psychologically, but also how the rest of society reacts to their physical changes. The article, Law Prohibits 'transgender' Discrimination, mentions the story of Teena Brandon and her violent end after being discovered as a woman living/pretending to be a man. It is a clear reflection of how many people view those who are transgender.
"The term "transgender" encompasses a wide range of sexual behaviors,
including cross-dressers, drag queens, transsexuals (those seeking sex change
operations), and even "she-males," hybrids who choose to go only halfway through
a sex change operation. They remain partially female and partially male in their
anatomy."

I do not know what experiences each of us have with transgender people, but personally I do know one person who now lives as a woman, sex change and all. I have a very liberal background and I believe this person is a female now, yet this is my personal belief and is not meant to sway others in believing as I do. What is important to me concerns how employers view transgenders. The article states that "three counties, twenty cities, and the state of Minnesota" prohibit transgender discrimination.

Groups such as High Risk Project Society stress the importance that transgenders do not want to be judged by the patriarchal views of what is male and female. Their own identity is determined by self aculization. In 1993 an International Bill of Gender Rights suggested the following:
"The individual's sense of self is not determined by chromosomal sex,
genitalia, assigned birth sex, or initial gender role. ... It is fundamental
that individuals have the right to define, and to redefine as their lives
unfold, their own gender identity, without regard to chromosomal sex, genitalia,
assigned birth sex, or initial gender role," said the document.

The "bill of rights" also demands that transgenders be free from
psychiatric diagnosis or treatment based on their chosen gender identities, and
it calls for the right of transgenders to marry and to adopt children.

The importance in employment is that these transgender people want the same rights afforded to any other person in a work environment.
How do you feel?
  • Would you considering transgenders deserving of equal protection in employment opportunities?
  • Should legislation be adopted federally so that transgenders can be covered by Title VII?

Monday, April 03, 2006

Who do you prefer?

Many of us will be entering the work force after this semester and we hope that our intelligence, diligence or use of skills will determine how we fair in the market. After reading an article entitled "Legal: Hey Good Lookin': Sex Discrimination in Hiring Reps," a different type of fear begins to arise: am I pretty enough to succeed. Although this seems like a ridiculous standard for many of us, those in the rep business say that being attractive is a key component to sales.

The issue that arises is whether or not businesses can get away with appearance discrimination. The article opens with the case of Marks v. National Communications Association.

" [A] 270-pound telemarketer sued after she failed to obtain a
promotion to an outside sales representative. One of her supervisors told her:
"I've told you, [in] outside sales, presentation is extremely important. Lose
the weight and you will get promoted." The court threw out the case. It observed
that "discrimination based on weight alone, or on any other physical
characteristic for that matter, does not violate Title VII of the Civil Rights
Act of 1964 unless issues of race, religion, sex, or national origin are
intertwined." The court found that the plaintiff failed to prove her case
because she could not identify any overweight men who were working as outside
sales representatives."

Who would of thought that those applying for jobs must realize that they could be at a disadvantage not based on their college academics but because they are not what that company deems as attractive. There are new rumbling in California for discrimination based on appearance. Yet, a reasonable question arises in appearance discrimination cases: who determines attractiveness? Is it enough to have a judge deem someone unattractive or do we need expert panels including movie stars and plastic surgeons. Determining beauty in a courtroom seems rather far fetched and open to debauchery.

The article also mentions employers using "bona fida occupational qualifications" in order to discriminate based on appearance.

"Under such a standard, a drug company would have to show that a sales rep would
be unable to perform the job of selling drugs unless he or she was physically
attractive."


It is rather interesting that the final section of this article almost helps formulate a plan for pharmaceutical sales companies to avoid being liable for appearance discrimination. The author lists points such as both men and women need to be attractive and that other skills should be documented in hiring cases.

I feel that the class could have a lot to say about this especially since most of us have been through interviews and some have even looked into sale rep jobs. Think about the following questions.
  1. How would you feel going into an interview wondering about your physical attractiveness instead of your portfolio?
  2. Who should determine beauty if appearance based discrimination cases start to appear in the courts?
  3. Do you feel attractiveness should be something that employers use to decide your worth in hiring?

Saturday, April 01, 2006

This gourd looks like a…: Claims of sexual harassment in the Bloomington mayor’s office.

In January, former safe and civil city director Marsha Bradford filed a discrimination charge with the EEOC against the City of Bloomington, alleging sexual harassment, retaliation and offensive conduct. This story is being followed by the Herald Times, and is available here (password protected; available through the IU library website in the Main or Journalism libraries). In her claim, Bradford listed several incidences of pranks and jokes of a sexual nature that she felt to be offensive and inappropriate for the workplace. One incident, which has been cited several times in reports about this claim, occurred when the mayor, Mark Kruzan, placed two large gourds on his desk in what Bradford believed to be suggestive of a penis. According to Kruzan, the gourds were not a joke, but were a gift from a vendor at the farmers market. When he was told that someone had made a joke about the gourds, he removed them the same day.

The city’s official response, which was released to the HT on March 18th, addresses several incidents raised by Bradford:

They include the following:

• “At a staff meeting, an employee announced that his wife was expecting their second child. According to Ms. Bradford, the Mayor said something along the lines of, ‘and I thought he spent the last year solely dedicated to his job.’”

• “Employees in the Mayor’s office hid a stuffed toy in various places for co-workers to discover as a running joke. Ms. Bradford said the toy was placed in an office chair (not in her office) in a suggestive manner.”

• “Someone placed gourds that had been dropped off as a gift by a vendor from the City’s Farmers’ Market in the Deputy Mayor’s chair. Ms. Bradford was offended by the employees laughing at and calling attention to the shape of the gourds.”

• “At a staff meeting at which the Deputy Mayor had his dog, someone commented on the dog’s collar. The Deputy Mayor made a joke about the collar.”

Attorney for the city, Elizabeth Russell stated,

“Statutory and case law do not support Ms. Bradford’s attempts to turn trivial incidents into a federal employment case. Her charge, unsupported by law or facts, does an injustice to employees with legitimate, fair employment law complaints.”

Further, the city said:

“The number of incidents Ms. Bradford has brought to the City’s attention is quite small and spread over many months. None of them involved improper touching. They were in the nature of pranks or joking comments and not in any reasonable person’s view ‘severe.’ None of them were targeted at Ms. Bradford. Courts have said that indirect harassment has less of an impact on the plaintiff than direct harassment, and that the conduct has to be even more severe and pervasive to be actionable.”

The original story published on this matter, states that Bradford first issued a written complaint on April 7, 2005.

“According to the city’s response, Grundmann found that her allegations of such incidents did not constitute a “hostile environment,” but he met with Kruzan and his two chiefs of staff to let them know an employee had raised concerns.

“They made it absolutely clear that no offense was intended, and that they would see to it that any behavior that could even potentially be considered inappropriate or offensive was discontinued. None of them asked Mr. Grundmann who had made the allegations and he did not volunteer the information,” the statement reads.”

Bradford resigned on July 25th.

The city claims that these charges are really just the retaliatory actions of a disgruntled employee who was unhappy about her salary. (She made $43,000, with other salaries in the mayor’s office ranging from $48,500 to the mayor’s earnings of $79,745. Bradford also charges that her salary is the result of gender and age discrimination, but I will not discuss this portion of her claim here.)

Based on the excerpts I posted (if you were unable to access the original articles), does it sound to you like Bradford has a case for hostile environment sexual harassment?

If so, do you think that Bradford will be successful in going up against the mayor, or will his status make it difficult for her to win her claim?

If you do not think Bradford has a legitimate claim, do you think that there is still potential for this to damage Mayor Kruzan’s career? Do you think that this ever plays into individual’s reasoning when bringing frivolous claims to the EEOC?

Based on the information we have, do you think you would feel uncomfortable in the work environment described above?

Unique Religion, Part Two

Thanks, Aldo, for posting this really interesting blog about the Church of Body Modification. I would like to elaborate on this issue, but decided instead of posting an overly long comment, I would just add my own new post.

Also, I unfortunately had to miss class on Thursday, so if you’ve already talked about everything I am discussing, I apologize!

After Tuesday’s class, I left still feeling a little uneasy about Title VII and the EEOC’s definitions of religion. I found it fascinating that a sandwich shop employee who didn’t eat meat due to his religious beliefs should be accommodated by having peanut butter or pasta available for him to eat during break, but that a vegetarian with the same food preferences (held just as strongly), would not necessarily be eligible for such accommodation. I imagined a hypothetical situation in which a vegetarian employee worked at a job site all day, where the food was catered in, and where there were no other food options available…employees could not bring their own food in or leave the premises. The catered food never had vegetarian or vegan options available. For this employee, the job was otherwise great for him: the money was good, the position stable, and the employee was confident that he would have trouble finding another job if he left this one.

Do you think that it is fair that the employee should be forced to starve, eat meat, or quit, just because his diet is based on ethical, moral, or preferential reasons and not religious ones?

Situations such as this are worrisome because they sometimes lead to argument about what constitutes a religion. As we saw in class, the EEOC Guidelines state that “the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” (1605.1) I fear that instead of protecting actual religious practices, Title VII may actually be encouraging people with strong ethical viewpoints to try to force their lifestyle under the umbrella of a religion. In other words, instead of saying “I am a vegan because I have a strong moral opposition to the use of animals for consumption,” a vegan might feel obligated to claim that their veganism is itself their religion.

An interesting overview of cases involving veganism as a religion is given here, in an article by Baltimore attorney Darrell VanDeusen.

Similarly, after perusing the Church of Body Modification website (with no offense intended to modifiers), I got the impression that one of the main purposes of the church was to develop some legal clout in cases of workplace discrimination. Five of the FAQ’s on the website relate to legal issues, and a huge portion of the messageboard is used for counseling members with related problems. I am in no way denying that body modification is for members a hugely spiritual act in their life, but I am not yet convinced that this is different from other activities that people might find to be spiritual, such as meditation, using drugs, exercising, or painting, but do not consider to be religious.

Because modifiers’ spiritual expression is so visible to the general public, I feel that in trying to garner respect and accommodation for their practices, they are stretching the definition of a religious church to be what for them is more of an activist group. However, although it may sound like I am harping on the modifiers, in fact, I blame the law. By giving preferential treatment to individuals who can cite a religious reason for their behavior (even, as we saw in the Guidelines, if “no religious group espouses such beliefs or…the religious group to which the individual professes to belong may not accept such belief”), the law encourages everyone with a strong conviction about some matter to claim a religious reason. Like we saw in the textbook case about the woman who wore the pro-life button, it is not about whether the action or belief is truly a tenet of Catholicism, it is whether she can convince the courts that she believes that it is.

What if the law was changed to prevent discrimination on the basis of “religion, spirituality, or ethical or moral convictions?” I feel that by spending so much energy trying to separate religion from spirituality from morals we are degrading all of these concepts. Following Ginger’s comment, does religion under Title VII encompass a “valid spiritual path?” Instead of trying to nitpick apart all of these issues, what do you think would be the implications of allowing all convictions the opportunity for protection? As we have already seen, if accommodating this belief would cause undue hardship, the employer is not required to do so.

What do you think?