San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

 Fitness for duty exams are not popular with the workforce.  They can be very stigmatizing.  But, employers want to know if an employee has issues that could affect business.  Most caselaw says fitness for duty exams for unspecified reasons are not justified - they are perceived s a backdoor to discriminate based on disability.  But, the 9h Circuit found in Brownfield v. City of Yakima that sometimes they are appropiate.  See decision.  In this case, a police officer exhibited erratic behavior a few years after he sustained a head injury.  He was complaining over a period of years about a supervisor who Brownfield believed was keeping him from  promotion.  After exhibiting some erratic behavior, his employer required him to see a doctor and provide a report.  Brownfield cooperated at first and then refused to follow through.  The first doctor did find a mental diagnosis.  

The court found that in a workplace where the employer is engaged in dangerous work, preventive fitness for duty exams might be appropriate where there is a business necessity.  The court cautioned that they should not be used as a means to harass an employee or to fish for non-work related medical issues.  The business necessity standard is "quite high" and should not be confused with mere expediency, said the court.  The court then concluded: 

         "Nevertheless, we hold that the business necessity standard
         may be met even before an employee’s work performance
         declines if the employer is faced with significant evidence
         that could cause a reasonable person to inquire as to whether
         an employee is still capable of performing his job. An employee’s
          behavior cannot be merely annoying or inefficient to
         justify an examination; rather, there must be genuine
         reason to doubt whether that employee can perform
         job-related functions."

This ruling may not provide the clearest guidance, but it is a start.    

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How much accommodation is enough?  There is surprisingly little caselaw on the subject.  Most issues arising under the old ADA concerned whether a person was truly a person with disability.Now that the ADA hs been substantially amended, we will surely start seeing more accommodation issues.  In EEOC v. UPS Supply Chain Solutions, we see a case addressing the issue of how much accommodation is "reasonable."  In this case, the employee had been deaf since birth.  His first and primary language was American Sign Language.  He reads and writes at the 4th grade level.  That is not unusual for people who have been deaf since birth.  Many ASL signs do not correlate to written words, and vice versa.  

In this case, UPS used an ASL translator sometimes but often relied on written communication. When the employee would not know a written word, they would tell him to look it up in the dictionary.  When that did not help, UPS provided nothing further.  The employer held weekly and monthly meetings - the employer relied on written agendas, notes and emails to convey the information in these meetings to the employee, Mauricio Centeno.  The company refused to provide an interpreter for meetings that lasted less than two hours.  That level of accommodation is not enough, according to regulation.  Lack of a translator at key meetings is the same as no translator at all.  Centeno said he could not understand what was in some of the written communications.  UPS would not hire a translator for the weekly and monthly meetings and trainings.  

The EEOC advised Centeno that he did not need to attend meetings without an interpreter. Centeno missed some meetings.  The employer then told him he had to attend all meetings.  Later, he was counseled in writing for his behavior in the lunch room.  The EEOC later filed suit based on the employer's failure to accommodate. 

The 9th Circuit reversed the summary judgment in favor of the employer. The appellate court said at the least, there is a fact question whether this accommodation was "reasonable."  The employer never claimed the obvious defense that the translator was too expensive.  Translators in the San Antonio area charge anywhere from $75-100 per hour.  The appellate court wrote:

“In summary, an employer has discretion to choose among effective modifications, and need not provide the employee with the accommodation he or she requests or prefers, but an employer cannot satisfy its obligations under the ADA by providing an ineffective modification. Where, as here, there is a disputed issue of fact regarding whether the modifications the employer selected were effective, and where the trier of fact could reasonably conclude that the employer was aware or should have been aware that those modifications were not effective, summary judgment is not appropriate.

See decision.  Frankly, I am surprised the lower court granted summary judgment.  As Workplace Prof says, this is one the employer should settle.  If the employer wishes to fire or discipline an employee for violating policy, the employer must make certain the employee understood that policy. 

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 People with disabilities have a much higher rate of unemployment.  See Wall Street Journal report.  The unemployment rate last year was 14% for persons with disabilities.  As of July, 2010, the rate has risen to 16.4%.  

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To most people, your job is your life or a very significant part of your life.  Survey after survey supports that view.  Common sense tells us it must be true.  We see that in the case of Shirley Sherrod.  Fired for no good reason as part of  a huge misunderstanding.  Her employer, the US Department of Agriculture, offered a different job doing something that would appeal to her.  Today, she turned them down.  See CBS news report.  She said she could not go back "with all that has happened."  

When that trust is gone, it is hard to put it back together.  i hear from clients all the time that they do not want to go back to their employer.  Usually, they mean no way will they go back so long as "so-and-so" is still working there.  When a person is fired, they see their employer in a new light.  At first, they cannot believe "it" happened.  Some find later that they are relieved to be away from a terrible place to work.  Many more miss their former place and the relationships they used to have.  

Bobby Bowden, former coach of Florida State, knows this.  In his new book, he tells how someone to whom he had ben close essentially fired him.  "I doubt I'll have a relationship" with him any longer, he said.  See report.  Coach Bowden and TK Wetherell had been friends for decades.  A termination for the wrong reasons can change all that.  

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There was a time when I enjoyed Dr. Laura and her "tough love" advice.  On my long drives to Reserve duty, there was often not much else available on the radio.  Her no-nonsense style appealed to me for a time.  Now, she is quitting after 30 years, apparently due to her use of the n- word.  See report.  I heard a brief snippet of her advice to a woman complaining about being called a n- by certain white relatives. Dr. Laura used the word over and over trying to make the point that if the word is used on HBO and other places, then it cannot be too offensive.  

Say what?  That is the point of the shows, HBO and others, that use the epithet, to demonstrate the offensive capabilities of the word.  Some people just do not get it.  She has apologized.  But, I have to say, what is so hard about understanding that the n- word is very, very offensive in certain situations.  Why is this such a revelation?

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The Older Workers' Benefit Protection Act (OWBPA) was passed in 1990 as an amendment to the Age Discrimination in Employment Act.  The OWBPA provides that for an older worker to sign a binding waiver of claims, the employer must include a provision that the worker has 21 days in which to sign the waiver and 7 days after signing in which the worker can reconsider his signature. The waiver must be legible and specifically refer to waiving any ADEA rights.  See EEOC Fact Paper.  The employer must tell the potential age claimant that he has a right to speak with a lawyer before signing the waiver. 

What if the worker accepts severance pay at the time he signs the release?  Must the worker return the severance pay in order to rescind his signature?  Not under the terms of Oubre v. Entergy Operations, 522 US 422 (1998).  If the release does not comply with the OWBPA, then the worker need not return or "tender back" the severance pay in order to still file suit for age discrimination.  See EEOC Guidance, Note 13.  

Passage of the OWBPA was based in part on the recognition that when an older worker is terminated, they may be leaving employment with no resources on which to live.  That is why Oubre provides they need not return a severance payment related to the waiver.  Most workers who are terminated leave with little resources.  But, Oubre only applies to age claims.  If you sign a waiver releasing several claims, such as age claims, ethnic origin claims and race claims, then you could possibly rescind only the signature related to the age claim.  Your signature remains valid in regard to the race and ethnic origin claims, whether you return the severance pay or not.  

Some plaintiffs have tried to argue that when they signed a waiver releasing multiple claims, then the waiver as a whole is not valid because it failed to meet the OWBPA requirements.  Wrong,  The failure to meet the requirements of the OWBPA only applies to any potential age claim.  Your race claim would remain barred or waived.  The waiver is effective in regard to other non-age related claims.  Same waiver, same provisions.  But, age claimants get a break, while others do not.  

The reality is that most people who are fired are extremely upset at the time.  Even if they do not shed tears, they are are still too disturbed to think clearly.  They do sometimes sign things they should not and accept payments they should not accept.  Age claimants can undo such agreements. The others cannot. 

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Two northwest Texas nurses were fired after they reported improper medical treatment by a doctor at the hospital where the two worked.  They reported the improprieties to the Texas Medical Board, which agency oversees doctors.  The two nurses were later charged with felonies by the local prosecutor, reflecting local support for the doctor. One nurse was acquitted while charges against the second nurse were later dropped.  

Their situation garnered a lot of attention by whistle blower groups around the country. The nurses initially had sent in their complaint anonymously.  The doctor complained to his friend, the Sheriff.  The Sheriff discovered these two nurses, Anne Mitchell and Vickilyn Galle, who had submitted the complaint.  

The nurses later filed suit under the state whistle blowing statute.  And, now they have settled with the hospital, their former employer.  See NY Times report.  It was unprecedented, said some, that they would be prosecuted for making the sort of report they felt required to make.  They resolved their claims against Winkler County, Texas for $750,000.  

The doctor was reportedly committing errors in treatment and simple errors of judgment in 2008 and 2009.  He prescribed olive oil for a patient who seemed resistant to anti-bacterial medicine, failed to diagnose appendicitis, accidentally sutured a rubber scissor to a finger tip, and attempted to sell a nutrition supplements to various patients. See report.   It is difficult to recruit doctors for some rural areas of Texas.  Dr. Arafiles still works at the hospital in Kermit, Texas, but is awaiting hearing on charges by the state medical board. 

In April, 2010, state Department of Health Services later fined the hospital for failing to supervise the doctor and for firing the two nurses.  

The two former nursing administrators remain unemployed. 

Texas has several whistle blowing statutes.  The one most commonly used applies to any government worker.  Govt Code Sec. 554 applies to any state or local government worker.  State whistle blowing laws only apply to state or local government employees.  Texas has no whistle blowing statutes for employees at private businesses. 

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 The Hewlitt Packard CEO, Mark Hurd, resigns in the middle of a sex harassment investigation.  The investigation found other violations of other company policies.  See report.  It turns out that his expense reports were not accurate.  Mr. Hurd admitted to integrity issues.  Yet, the sex harassment probe supposedly found no infraction by Mr. Hurd. 

All too often, folks who violate discrimination laws also violate other laws.   

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 According to the ABA Bar Journal, the EEOC settled a case against a temp agency in Ohio.  The agency used code words to describe the racial background of potential employees.  "Chocolate cupcake" referred to young female African Americans.  "Hockey players" described young white males. 

The case settled for $650,000.  The case was pretty egregious, said the EEOC Field Director.  

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Many times, an employee comes to see me and asks me how strong his/her case is.  Often, i do not know.  It is hard to gauge the strength of a case until we know the reasons used by an employer for a questionable adverse personnel action.  Indeed, sometimes those reasons change over time.  

In a reent case, the 8th Circuit Court of Appeals has confirmed that yes, shifting reasons over time do help show pretext.  See report.  In Jones v. National American University, the plaintiff employee was turned down for a promotion to the Director of Admissions.  The plaintiff was in her mid-50's.  The plaintiff had spoken with one of the decision-makers about another applicant who was in his mid-50's also.  This particular decision-maker had mentioned that he was not sure he would want a "grandpa" working with high school students.  The school later picked a 34 year old woman for the position.  

The plaintiff quit when she was not picked for the position.  When she quit, the same decision-maker told her that the person picked was simply the better choice long-term.  

The plaintiff filed with the EEOC.  She claimed she was not hired due to her age.  The employer responded to the EEOC that Ms. Jones was not picked because of her poor work performance.  But, at trial, the employer claimed no, it was actually because she lacked management experience. Indeed, at trial, the testimony about the plaintiff's work performance was all positive.  And, none of the job postings listed management experience as a requirement.  Ms. Jones also introduced evidence showing that she was more qualified for the position than the younger person who was picked.  So, the employer's case essentially fell apart at trial. 

The reasons for the selection changed at trial significantly.  Shifting reasons suggests pretext. 

We have known since the decision in Reeves v. Plumbing Products, Inc., 530 US 133 (2000), that the US Supreme Court accepts changing reasons as proof of discriminatory bias.  That decision found that a jury can infer discriminatory bias if the employer's proffered reason for a discharge is shown to be false.  The jury is not required to draw such a conclusion, but it may draw such a conclusion.  So, the decision in Jones should not be surprising.  But, too many courts still do not follow the Reeves reasoning and give enough weight to shifting reasons.  

It helps that the employer made the statement showing age bias.  But, proof of falsity should be enough.  People do not discriminate and then admit it.  They almost always deny any discriminatory bias. 

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Shirley Sherrod, the former Department of Agriculture official,  will sue the blogger who posted her comments out of context.  See report.  Good for her.  The report does not explain what the suit will be based on.  But, I would expect she could sue him for defamation or "false light" defemation.  The blogger, Andrew Breitbart, is said to be supported by the Washington Times.  

Key to a defamation suit would be whether Ms. Sherrod is considered to be a "public figure."  Since she spoke at the NAACP convention in Georgia, she might qualify as a public figure.  If she is a public figure, then she would have to show actual malice on the part of the blogger.  Proving actual malice is difficult. 

Everyone from the administration to Bill O'Reilly have now apologized for what they said about Ms. Sherrod.  See story.  Ms. Sherrod believes we can heal our racial differences, but we need to confront those differences.  

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 Novartis Pharmaceuticals settled the class action case against them for $175 million.  See report.  The case was based on gender discrimination.  I discussed this case earlier.  See post here and here.  You will recall this was the case where a jury came back with a verdict for $250 million in punitive damages for some egregious statements made by many managers over the years.  

Apparently, the employer reasoned that the risk of appeal was too great and they should settle their claims.  That is probably a wise move.  Many times, after a high verdict, it is simply better business to pay an agreed upon amount and report the business loss than to risk the results of an appeal. 

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Minnesota Labor & Employment Law Blog discusses how an employer can mess up an employment case.  In Hamm v. Minnesota, the state eventually agreed to pay Hamm $250,000 to settle her claims. The law firm at Minnseota Labor & Employment Law discusses the things the employer did wrong: accusing Hamm of transgressions that by their own policy were not Hamm's responsibility; the state disciplined Hamm alone out of 150 other attendees at a particular conference; and the list goes on.

The author's point is that better review would have prevented handing over a strong case to the plaintiff employee.  The author generally represents the employer.  Someone should have reviewed these claims to make sure they made sense.  The employer's case always gets better when they hire a lawyer.  As Minnesota Labor & Employment Law mentions, fresh eyes do make a difference.  

But, it is alsp true that the worst offenders often have too much hubris to seek out a fresh pair of eyes. The worst offenders get into trouble, in part because they think they do not need help. 

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 Racism is often just below the surface in our society.  A black woman admits that she felt some antipathy toward a white farmer.  She learned from her own racism and grew from it.  Yet, her story is used to fan the flames of white fear.  See story.  Shirley Sherrod discussed her first case working with a white farmer when she worked for a non-profit agency assisting poor farmers.  It was some 20 years ago.  She explained how she learned from her initial reaction and grew as a person.  But, a conservative website posted a video of her talk, excised the part about learning from her initial mistake and claimed the then USDA employee was biased against white farmers.  The NAACP condemned her supposed remarks, taken out of context.  Ms. Sherrod was then fired.  The USDA said it has zero tolerance for racism. 

Now, the USDA, realizing it mis-understood her remarks, will apparently ask her to come back.  The NAACP has also apologized.  Yes, it does pay to take the time to listen to the whole context, not just a few snippets.  In any event, Ms. Sherrod is not sure she would want to go back to the USDA.  That would be a pity.  Few of us, perhaps none, are truly free of bias and prejudice.  We need more public servants who recognize their weaknesses and learn from them.  

Ironically, her talk was at a NAACP banquet in Georgia last March discussing racism.  Her father was killed by white men in rural Georgia in 1965.  In her entire talk, she discusses how she had planned to leave Georgia after his death.  But, she stayed and committed herself to helping blacks. But, she concluded, God will put things in your path to teach you and you learn that your real commitment is to poor people, white or black.  

We all have a journey in life.  I think we need a few more like Shirley Sherrod in public service.  

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A Dallas jury returned a verdict in favor of the plaintiff in US district court.  In an age discrimination case, the jury awarded the plaintiff employee lost pay and benefits of $500,000, liquidated damages of $500,000, mental anguish damages of $1,000,000, punitive damages of $15,00,000, front pay and attorney's fees to be determined later by the judge.  Under Title VII and the Age Discrimination in Employment Act, punitive damages are capped at $300,000.  So, the punitive damages will be reduced probably to $300,000. But, this large amount of punitive damages is still remarkable.  

When a jury becomes angry, they will award large amounts.  The McDonald's spilled coffee case is often referred to as a "runaway jury." But, in that case, the McDonald's executive who testified came across as arrogant.  And, there was evidence that McDonald's knew their coffee posed significant risk, yet the corporation had taken no precautions.  When a jury becomes angry, they will award large amounts. 

Same thing apparently occurred here in Miller v. Raytheon, No. 3:09-CV-0440 (N.D. Texas 2010). The defendant changed their reasons for the adverse personnel action several times.  The employer claimed for the first time at trial that it had offered the employee two jobs that had never been disclosed before.

Perhaps more damaging, however, was Raytheon's claims to the EEOC that it had offered the employee several job openings before selecting him for a RIF.  There was no evidence to support Raytheon's claim and the employee denied he had been offered any such positions.  The company also claimed the employee refused to look for new jobs, despite knowing that claim was false.  There had actually been several discussions between Mr. Miller and Human Resources regarding possible other jobs.  

Juries do not like being lied to.  Once an employer makes statements to the EEOC, those statements become part of the record and cannot be withdrawn.  Fortunately for Raytheon, Title VII punitive damages are capped at $300,000.  Otherwise, they would be looking at a huge judgment, a judgment caused not by some legal technicality, but by plain fabrication.  

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Discrimination against persons with disabilities still occurs.  Read a humorous take on one person's experience as the handicapped person at Harvard law School and her years afterward.  Carrie Griffin Basas was tempted to offer her cane to law partners staring at her with mouths open as she showed up for on-campus interviews.  One professor kept the class late, so they could "celebrate" the handicapped girl who helps the handicapped and who will one day be on the Supreme Court."  Well, that girl is still waiting for her Supreme Court nomination.....

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 Ohio Employer's Law blog writes another good post on what to do if the boss is the harasser.  See post. Jon Hyman refers to a specific case, EEOC v. Fairbrook Medical Clinic, (4th Cir. 6/18/10), a sex harassment case.  In this case, the harasser was accused of several harassing incidents:

• repeatedly showing an x-ray of his penis, calling it "Mr. Happy"
• referring to his wife's "nice, tight p----y" during a staff meeting
• telling dirty jokes, including imitations of him kissing a woman's breast
• frequently talking to staff about oral sex and women's breasts
• referring to female staff as "slut" and "c---" routinely
• asking a female doctor if he could help her pump milk from her breast, if he could see her breast and could he lick up some spilled milk

This is pretty repulsive stuff.  Many courts would consider this to be mere bad manners.  But, the 4th Circuit, not an employee friendly court, found this went beyond mere incivility in the workplace. Telling off color jokes is one thing.  But, the court found this case involved more than crudities.  The business owner targeted the employee with very personal comments designed to humiliate and demean her. 

The harasser was the owner of the business.  As Ohio Employer's Law noted, what do you do when the harasser is the business owner?  Jon provides some guidelines.  The problem for him, an employer's lawyer, is that employers will be immune from liability if they have a viable procedure in place for victims of harassment to complain.  The problem for all small business owners is that this immunity just will not work for them.  How can a small business provide a means to submit a complaint about the owner?

Jon suggests the employer provide more than one avenue for the a victim to complain, presumably an office manager or a human resources professional.  But, it would be extremely difficult for an employer to establish that an office manager would "buck" the owner in the interests of providing remedies to the victim of harassment.  And, the case this immunity stems from provides that this defense (ie, having a viable procedure to make complaints about harassment) is not available when the harassment culminates in an adverse employment action, such as termination.  Ellerth v. City of Boca Raton, 524 U.S. 775 (2998).  So, even if there is a way to provide an avenue for complaints, the process means nothing if the aggrieved employee is fired or demoted. 

The other lesson to learn from Fairbrook Medical Clinic is that harassment must be pretty bad to constitute "actionable" harassment.  One or two off-color jokes is not enough.  Constant discussions about sex comes closer to actionable harassment.  As this case shows, it is important that the harassment be directed toward one person in particular. 

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Sigh, our Texas Supreme Court is at it again.  In a recent decision, the Court conflated personal injury claims with sexual harassment and other froms of discrimination.  See Waffle House, Inc. v. Williams.  The Court found that claims based on assault and negligent supervision are preempted by the Texas Commission on Human Rights Act.  The TCHRA is the state version of Title VII of the Civil Rights Act of 1964.  The TCHRA prohibits discrimination based on sex, race, national origin and other classifications.  The Court found that the TCHRA provided the exclusive remedy for all conduct related to discrimination.  Formerly, tort claims or personal injury claims would be in addition to, not in lieu of discrimination claims.  

As the dissent points out, this means that if Joe repeatedly slams Mary up against the wall at work, then Mary can sue Joe for assault and battery.  But, if Joe also gropes Mary while repeatedly slamming her against the wall, then Mary can only sue for discrimination.  One major difference is that the TCHRA is limited to $300,000 in emotional damages and punitive damages. But, a claim based on assault and battery would have limited or no dollar limit.  See dissent.  

The $300,000 cap suffices for many claims.  The $300,000 cap applies to the largest employers.  It includes punitive damages and compensatory damages.  Compensatory damages are intended to compensate a victim for emotional suffering.  But, the cap is not enough for some claims.  For example, would $300,000 be enough in a discrimination case also involving rape? Money never truly compensates for the worst abuses.  But, $300,000 would not be enough damages for some cases.  In the case of Jones v. KBR, the victim was raped repeatedly and then confined in Iraq by her employer.  Would $300,000 be enough for the Jones case?

Or, if the employer has less than 100 employees, the punitive damages and compensatory damages would be capped at $50,000.  Would $50,000 suffice for the worst claims involving rape or assault?

The ruling suggests judicial activism.  The issue was not even addressed by the parties.  The Supreme Court refers to a tangential reference by the employer before the lower court.  But, the issue was not presented before the Supreme Court itself.  

The TCHRA is supposed to track the federal equivalent, Title VII, but this ruling directly contradicts Title VII precedent. 

And, ultimately, in this case, the jury had awarded $3.46 million in punitive damages.  The trial court then converted that award into an award of $425,000 for past compensatory damages and $425,000 in punitive damages, due the cap for personal injury claims.  The Texas Supreme Court once against trumps a jury decision.  

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 It was significant news when a class action lawsuit against Wal-Mart was certified a few weeks ago.  Class action lawsuits are always significant, but especially so when the employer is Wal-Mart.  I talked previously about the court ruling allowing the class certification.  See blog post.  

Now, someone at Wal-Mart leaked a report to the NY Times regarding an investigation made into Wal-Mart's potential bias against women in the mid-90's.  See NY Times report.  At Wal-Mart's request,  prominent law firm, Akin, Gump Hauer and Feld looked into possible gender issues at Wal-Mart's request.   The firm found wide-spread disparities in how women were hired and how they were paid.  The law firm, a well-known defense firm, urged the company to take several steps to make the system more fair, to avoid possible liability.  The report was released internally in 1995. The class action lawsuit was filed in 2001 by seven women.  The class action suit is styled Dukes v. Wal-Mart.  

This report could upset the balance.  Contrary to the NY Times report, such evidence could be admissible.  There are many cases holding that evidence of past bias is admissible, even if that past evidence was intended for internal review.  In this instance, portions of the report describing pay disparities might be admissible to show knowledge or intent on the part of Wal-Mart regarding gender discrimination.  The only hiccup is the fact that Akin, Gump performed the investigation.  So, the current defense law firm can argue this was attorney work product or attorney-client privileged.  Law professor thinks the report will not be admissible in court.   

I mentioned several weeks ago that Wal-Mart is one of the more difficult employers to sue.  They are known for obstreperous litigation tactics.  This report may well set the stage for a large settlement against a difficult to sue employer. 

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 A woman in New York filed suit alleging she was fired essentially because she was too attractive.  See report.  According to the lawsuit allegations, the former employee at Citibank was criticized by male co-workers because her curvaceous figure was too distracting in standard business attire and high heels.  The plaintiff claimed in the lawsuit that other women dressed more provocatively than she did but suffered no ill treatment.  The plaintiff brought that to management's attention.  But, according to the suit, the plaintiff, Debrahlee Lorenzana, was told that the general unattractiveness of the other other women rendered their attire moot.  This treatment and her termination amounted to sex discrimination, said the plaintiff. 

A friend of Ms. Lorenzana praises her work at Citibank.  She said Ms. Lorenzana does indeed turn men's heads and some men turn into "complete idiots around her."  But, that's not her problem and should not be her problem, notes the friend.  

Ms. Lorenzana's lawsuit is moving to arbitration due to an employment agreement.  

Actually, it would be hard to show sex discrimination if you cannot show how men are treated better.  On the other hand, this sort of treatment would not occur were she not female.  It is not particularly fair to treat anyone differently because of the way they look.  But, Title VII is not about being fair.  It is about treating one gender differently than another gender.  Arbitration hearings are secret.  So, we may never know the result. 

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Every so often someone will claim that discrimination is gone or mostly gone.  Yet, evidence of bias pops up everywhere.  In a recent trial in a patent infringement case in Marshall, Texas, a witness from Israel was testifying.  The defense lawyer was cross examining the Israeli witness.  Asking about the witness' lunch meeting at Bodacious Barbacue, the defense lawyer asked what he ate.  "I bet not pork," he offered.  Apparently, the defense lawyer thought this comment was humorous. 

The lawyer later apologized for the remark to the jury.  

The jury eventually found in favor of the plaintiff and awarded $3.7 million against Cisco Systems. But, because of the remark by the defense lawyer, the federal magistrate who heard the case offered to consider a motion for new trial.  See report.  That is, after he dismissed the jury, he told the lawyers he would was troubled by the remark, no matter how innocent the lawyers intentions may have been.  He said he would consider a motion for new trial if the plaintiff wished to file one.  The verdict was large, but the plaintiff had sought $53 million.  Commill USA v. Cisco Systems, Inc., Et Al.

Most people, lawyers especially, are on their best behavior in court.  If this is the defense lawyer's best behavior, one must wonder what he will utter in more casual settings.  As I tell my managers and employers, ethnic jokes are the path to lawsuits and trouble.   The only "safe" joke these days is a good ole fashioned Aggie joke.....

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A Dallas jury awarded $3.6 million to an Egyptian-American doctor who sued for race and religious discrimination.  See report.  It all started when the employer, UT Southwestern, asked Dr. Nassar to commit billing fraud.  Dr. Nassar refused.  He then felt constant discrimination and harassment and resigned in 2006.  

It took the jury in US district court only about an hour to reach a verdict and assess $3.6 in total.  

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 Houston added gender identity and sexual orientation as protected classes to its anti-discrimination policies.  The policy prohibits discrimination, retaliation or harassment based on gender identity or sexual orientation in contracting, the City's hiring practices and in City vending activities.  Houston, of course, just recently elected its first openly gay mayor.  See report.  

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 The jury returned an award of punitive damages in the amount of $250 million against Novartis Pharmaceuticals.  See report.  I discussed this case the other day.  This is the case where a manager told a female applicant, apparently when discussing flex time, "First comes love, then comes marriage, then comes flex time and a baby carriage."  According to this report, the entire class of 5600 women will share the punitive damage award.  

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 Progressive discipline.  I wish I had a nickel for every potential client who told me the employer did not follow the progressive discipline policy and, instead, fired the potential client after only one (or none) write-ups.  Well, as I have mentioned elsewhere on this blog, the employee handbooks are not binding on the employer.  Many handbooks provide that an employee will be disciplined in writing three times before termination.  

But, the reader should keep in mind the result in Berube v. Great Atlantic & Pacific Co. (2d Cir. 2009).    In this case, the second circuit overturned summary judgment for the employer.  The court found that evidence that the employer did not follow its progressive discipline policy in regard to an older worker showed there was enough evidence to justify a jury trial.  The key was that the employer could not explain why it deviated from its progressive discipline in the case of this one older worker.   

The older employee pointed to other employees who were charged with offenses of "comparable seriousness," yet who were not terminated.  The court found that when the employee compared his discipline to that of other workers, the worker need not show identical supervisors or even identical infractions.   It was enough to show that the infractions were of equal seriousness.  The alleged infractions should be of "comparable seriousness," said the court.  

So, the case will proceed to trial.  As one commentator pointed out, employers need to apply their progressive discipline consistently across the board.  One can debate the utility of progressive discipline policies.  But, if the employer uses them, the employer needs to make sure they are applied evenly. 

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A case arising out of New York demonstrates what not to say when a woman applies for a job.  One male manager reportedly responded in an interview with a female applicant, "First comes love, then comes marriage, then comes flex time and a baby carriage."  This comment and others helped provide good evidence for a class action sex discrimination lawsuit against Novartis Pharmaceuticals.  The class includes some 5600 women.  See NY Times report.   

Delaware Employment Law Blog is generally defense minded, but they understand, as we all should, that forming presumptions about gender roles based on caring for a family member is sex discrimination.  There is a line of cases alleging so-called Family Caregiver Responsibility discrimination. Such duties often fall on a woman.  This is a growing area of litigation.  

The May, 2010 issue of the ABA Bar Journal says suits alleging bias asgainst workers caring for children or parents have increased 400% in the last decade.  Employees prevail about half the time, which is much higher than other types of discrimination cases.  A recent study on this topic found that in caregiver cases, 67% were related to pregnancy and maternity leave; 9.6% were related to elder care; 7% concerned sick children; 4% were related to caring for ill spouses and 2.4% were related to caring for a family member with a disability.  88% of such cases were filed by women.  

On May 17, 2010, the jury returned a verdict in favor the women plaintiffs.  See report.  The jury awarded several million dollars in compensatory damages.  The jury has yet to decide punitive damages, but indicated that it would assess punitive damages.    Novartis, which has been included in one of the top 100 places for women to work may lose its ranking.....

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Its an issue that strikes home with me.  Do gays belong in the military?  One law school prof discusses his view, based on the harm sometimes done by the "Don't Ask, Don't Tell" policy.  See discussion.  Having served 28 years in the Army National Guard and Army Reserve, I look at the issue through the prism of my own experience.  I think the real question is why not?  In every unit I was in, we never had enough good soldiers.  I would hate to automatically exclude any soldier until we see how s/he performs.  Soldiering is a subjective profession.  The ability to get along and foster teamwork is crucial.  Many soldiers, straight or gay, cannot hack it.  

The most important trait of a good soldier is simple desire.  They "gotta want it."  I am sure many gay soldiers have done very well in the soldiering business.  As a former company and battalion commander, I would be happy to have any productive soldier, regardless of background.  

Of course, as with any soldier, I would expect that soldier to manage his/her personal issue or background.  But, isn't that what leadership is all about?  Some soldiers, for example, suffer from weight problems.  Weight control and physical conditioning are big issues in the Army.   Many soldiers are discharged every year because they cannot get their weight down to the Army norm. But, if a soldier does successfully manage a weight problem, aren't they a better soldier because of it?  That is what leadership is all about.  

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 The Ninth Circuit granted class certification in a lawsuit against Wal-Mart alleging gender based discrimination against some 2 million women.  See report.  It was a close 6-5 decision at the court.  The Ninth Circuit heard the arguments en banc, which means the that the Ninth Circuit issued an initial decision.  One of the parties did not like the initial decision, so they asked  for the entire Ninth Circuit (en banc) to hear the case.  The en banc court then granted the class certification. 

It is a big win for employees.  Wal-Mart commits its share of violations of employment statutes.  The class will be for current and former female employees who have been passed over for promotion. 

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 The state appeals court in Austin looks at what is sexual harassment and what is not.  Sex harassment refers to the situation in which a woman (or a man) is harassed without explicit requirement of a sexual relationship.  Sex harassment simply refers to harassment short of an explicit  relationship.  in Twigland Fashions, Ltd. v. Miller, the state Third Court of Appeals looked at a 49 day period in which a regional manager focused his attentions on a female store manager.  He hugged her twice - two "full body hugs." He told he loved her.  He told her she had to kiss him whenever she made a mistake.  Mike Mslanka discusses the case in his recent post.  The supervisor came up behind the female employee and wrapped his arms around her and pressed his body against hers.  She was fired after she spent two weeks avoiding the regional manager. 

But, the employee also testified that she could perform her work just fine when the regional manager was gone.  He only came to the store once or twice a month.  To constitute sexual harassment under Title VII or Texas Labor Code Art. 21, the harassment must rise to the level such that it affects the terms and conditions of her employment.  The court said the harassment must be so extreme and abusive that it deprives the victim of an equal opportunity in the workplace.  The court found that since the employee could perform her tasks well in the absence of the male supervisor, then her work conditions were not affected.  

Mike Maslanka describes this court decision in positive terms.  Of course, I represent employees mostly and find the decision troubling.  If the woman must fear every visit from this supervisor, are not her working conditions affected?  If she must work so hard to avoid him when he is present in the store, are not her working conditions affected?  Mike does not mention that the victim, a store manager who had been promoted by the regional manager, believed that the supervisor was suggesting that she cooperate with him if she wanted continued promotions.  See court decision. 

As Mike points out, this standard should be the same standard for racial victims, too.  He is right.  It should be.  But, we know that the standard used in this Miller case is not the same standard.  In a race or national origin case, it would be enough that the supervisor made disparaging comments about a man's race or national origin.  It would be enough if the supervisor suggested a deal with an employee, cooperate with him outside the office and promotions would continue.  But, because this case is sexual harassment, these facts are not enough.  The Miller court is applying a higher standard.  If this were not a sex harassment case, most courts would find the working conditions have been adversely affected in this work environment.  

The jury apparently agreed with me.  In this case, the appeals court took away the jury verdict.  As I have mentioned before, many juries understand the realities of the workplace better than many judges. 

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Department of Labor has released a Disability Nondiscrimination Law Adviser.  Once the reader answers some general questions, the adviser will provide some a customized list of statutes that apply to the reader's particular business and the requirements of those statutes.  See DOL website.  The stated purpose of the Adviser is to allow employers to identify which disability nondiscrimination laws apply to their business.  

This Adviser is one in a series of electronic advisers regarding various employment statutes. 

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 This issue arises every so often.  An employee has a serious illness and is warned by her doctor that stress at work worsens the illness.  Is that a disability?  Not according to caselaw under the old (ie, pre-amendment) Americans with Disabilities Act.  In one case, the client was warned that her hypertension would worsen if her stress was not ameliorated.  She could suffer a severe heart attack, the note warned.  The stress was largely from work.  So, the doctor gave her a note to give to her employer with suggestions on how to reduce stress at work.  The employer ignored the note.  The employee filed suit and lost on summary judgment.  Caselaw interpreting the old ADA simply does not provide protection for a potential disability.  

A severe heart attack, said the judge, was a not a disability, yet.  Hypertension did not yet affect her daily life, said the court.   So far, the employee functions normally, other than loss of sleep.  So, she lost her lawsuit.

Another employee suffers from a rare genetic defect causing her spinal issues.  She has herniations in her neck and spine.  She has to stay home every so often and take medication.  She misses work, apparently without warning and her employer complains.  They start referring to her as the "absent" employee.  The stress causes her spine to worsen, causing even more time off.  Under the new ADA, that condition might constitute a disability.  

We had a saying when I served in Iraq, "nothing is easy in Iraq."  Well, nothing is easy in employment law. 

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 This is what is wrong with federal judges when it comes to employment law.  In a recent deicison, the Fifth Circuit applied the discredited "stray remarks doctrine."  Of course, a defense employment lawyer notes the application approvingly.  See post.  In Jackson v. Cal-Western Packaging Corporation, the Fifth Circuit Court of Appeals (federal) found a remark by management was not sufficiently related to the adverse personnel action to be admissible. Nonsense.  The manager had referred to the Plaintiff Jackson a year ealier as "an old, grey-haired fart."  So, a year later, when he was fired for inconsistent reasons, he claimed age discrimination.  The remark shows clear age animus.  Under normal circumstances, the remark would serve as direct evidence of age discriminatory motive.  The burden would then move to the employer to show they would have fired the employee even without the age discriminatory motivation.  That would be a dificult burden to meet.  So, this discussion has real import.

 The employee was 69 years old when he was terminated.  He was replaced by a 42 year old employee.  Jackson filed suit.  The district court granted summary judgment, finding insufficient issues of fact to justify a trial by jury.  Jackson was accused of sex harassment, which he denied.  He claimed younger workers accused of sex harassment were not fired. 

The Fifth Circuit's reasoning is wrong on several levels.  First, it is simply not sensical to expect that an ageist remark from a year earlier would have no relevance at all to the decision to terminate. That simply does not reflect the reality most of us face in our everyday work lives.  So, yes, this issue certainly should have gone to a jury.

Second, this reasoning by the Fifth Circuit represents the court's attempt to hang onto a discredited doctrine.  The stray remark doctrine was overturned in another Fifth Circuit case from 2005.  The doctrine is referred to as the "stray remark doctrine" because the remark is deemed so remote in time, and so irrelevant that is is simply a stray remark (as if stray remarks have no relevance).  

In 2005, the Fifth Circuit's use of the stray remark doctrine was expressly overturned by the US Supreme Court in Reeves v. Sanderson Plumbing Products, 530 US 133, 151-152 (US 2005).  In Reeves, the employee was described as "so old he must have come over on the Mayflower."  The Fifth Circuit in that case had disregarded the statements saying they were not made in the context of Reeves' termination.  The Supreme Court, however, found the court of appeals impermissibly substituted its judgment for that of the jury.  That is, the Supreme Court found the Fifth Circuit evaluated the evidence when it should have left that function to the jury.  The Supreme Court ruled that the jury should decide if the remark was too remote in time to be relevant. 

So, this decision in Jackson is the Fifth Circuit's attempt to ignore Supreme Court precedent.   Much to the detriment of employees who have to get by inn the real world.  I have discussed this before. Some judges simply have little experience in the real world.  The workplace can be venal, small and trivial.  The life experiences of a judge do matter. 

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 I wrote previously about a San Antonio law firm that refused to provide documents requested by the EEOC.   The EEOC even filed suit in federal court to get those documents.  Well, the Malaise law firm thought better about it and provided the requested documents, after all.  Russ Cawyer reports that the EEOC moved to dismiss its motion when the firm did later provide the documents.  

As I mentioned earlier, it is hard to understand how the law firm can claim privacy concerns when all information and documents acquired by the EEOC are treated as confidential. Indeed, it is likely now that the EEOC will view those documents with some suspicion.  The employer may have made their position worse with this resistance. 

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 The Fourth Circuit Court of Appeals (federal court) covers the Carolinas, Virginia, Maryland and West Virginia.  The Fourth Circuit and the Fifth Circuit (Texas, Louisiana and Mississiippi) are the two most conservative courts of appeals in the country.  So, it is news when the Fourtth Circuit overturns summary judgment in favor of the employer.  In this sex harassment case, the Fourth Ciorcuit found in favor of the plaintiff in Merritt v. Old Dominion Freight.  

The Court correctly noted that evidence of the falsity of the employer's explanation alone is sufficient to show discriminatory animus.  That is, evidence that the story was false suffices to show the employer was motivated by discrimination.  The case should go to the jury.  The jury should review that evidence of the employer's story and determine whether they believe that evidence shows discrimination.  

Key evidence included a PAT, a physical ability test, which the employer required Ms. Merritt to take before allowing her to return to work.  Evidence showed that few if any males had been required to take the PAT when they sought to return to work.  The employer could not produce any written policy showing when it even was supposed to require the test.  I think what caught the court's attention was the employer's argument regarding this policy evolved over time during the litigation and the appeal.  "It was only late in the game, on appeal and perhaps not until oral argument before this court, that the policy really took shape."  Slip opinion, at p. 15.  That is a polite way of saying that the employer did not pull this argument out until the appeal.  

It is never a good thing when a judge notes that a key claim or argument only took final shape on appeal.  That is judge-talk for this defense appears to be less than sincere.  And, the court is right that such lack of sincerity is for the jury to assess, not judges. 

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 The EEOC has found reasonable cause to believe there is overt racial discrimination at a plant in Paris, Texas.  Paris is in deep East Texas, more Southern than Western in its culture.  The EEOC is seeking to conciliate the matter.  See report.  The EEOC found that black workers were routinely subjected to racial slurs, comments and intimidation at a pipe fabrication plant owned by Turner Industries.  Black workers were passed over for promotion and subjected to discipline more harshly than white workers.  The workers provided photos of the notes, the nooses and the graffitti.  Turner Industries claims it cleaned up the graffiti as soon as possible.  Turner Industries has other locations in Texas.  See CNN story.  

If the employer claims it took remedial action, the  the case will likely turn on whether they took strong enough action quickly enough.  Conciliation, as practiced by the EEOC, can proceed quickly.  The last time I went through conciliation, the EEOC proposed settlement terms.  The employer refused and that was it.  Conciliation in my experience can go pretty quickly.  According to the CNN story, management retaliated against white workers who complained.  If that can be shown, then the employer will pay a steep price to conciliate.  

EEOC offices can vary a great deal from area to area, but in my experience, the EEOC is very careful about making direct public claims of discrimination.  If the EEOC makes public a claim of discrimination, they have pretty strong evidence in support. 

Yes, Dorothy, there is still overt discrimination in the world. 

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 A recent Third Circuit Court of Appeals decision finds that a change in shifts is indeed an accommodation which an employer may have to provide in certain circumstances.  In Colwell v. Rite Aid, the employee had no vision in one eye due to glaucoma.  So, she could not drive at night.  She asked to change shifts from the night shift to the day shift.  Rite Aid refused, because "it would not be fair to other employees."  A doctor provided a note also stating that she should not work at night.  But, it was to no avail.  Rite Aid refused.  The employee relied on family members to pick her up from work after 5:00 pm.  But, after a year of frustration and being treated by managers and co-workers as a pariah, she quit.

On appeal, the employer argued that it was not responsible for how an employee arrives to work, only for what occurs once the employee does arrive.  The federal Third Circuit rejected that argument.  The court found that the employer should have allowed the shift change.  The Americans with Disabilities Act expressly provides that one possible accommodation is "job restructuring, part-time or modified work schedules."  

As the Third Circuit noted, there are many cases finding that an employer is indeed not responsible for how an employee gets to work.  But, this requested accommodation was different.  This requested accommodation concerned more the conditions of employment once the employee was actually at work.  The employer did indeed control whether the employee would work at night or during the day.  

The employer must engage in an "interactive process" to arrive at a solution to the accommodation request.  Rite Aid had "flatly" rejected Colwell's requests for an accommodation.  And, later, Colwell resigned before any further meetings could occur.  Under the facts here, the jury could conclude that Colwell or Rite Aid failed to engage sincerely in the interactive process.  But, that decision was a fact question.  Facts questions should be decided by the jury, not a judge.  

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 The Americans with Disabilities Act and Title VII do not apply to churches or religious institutions.  But, what happens when the church operates a secular activity, such as a school?  It depends.  The church can require that teachers conform to particular church doctrine.  As this decision explains, however, much depends on whether the teacher's duties are ministerial, like a minister, or secular.  See EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School.  At the Hosanna school, they had what they referred to as "called" teachers.  Called teachers were expected to perform some 45 minutes of religious instruction out of a seven hour work day.  Called teachers were full-time.  The contract teachers were not always full-time.   The Sixth Circuit Court of Appeals (federal court) found the 45 minutes was too little time to qualify for the ministerial exception to the ADA.  

The plaintiff was a teacher ho returned to work from leave related to her disability.  The school then fired her when she  threatened to take legal action.  This alleged retaliation, held the Sixth Circuit, was not barred by the ministerial exception.  The teacher, even at a religious school, had the right to protection for her anti-discriminatory activity.  

What probably made things difficult for the school was that they had "called" teachers and contract teachers.  Called teachers had to conform to church doctrine, while contract teachers did not.  Yet, their duties were virtually identical.  Both taught religious education.  Both types of teachers performed essentially the same duties.  So, the school could not sincerely argue that called teachers performed ministerial duties often enough to fit the ministerial definition.  

As Law Professor points out, the school only attempted at appeal to claim that the teacher was fired for reasons related to church doctrine.  Anytime an argument first appears on appeal, it looks suspicious.  By that point, it was too late, said the court.  A new approach to evidence so late appears less than sincere.  

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 in  a recent decision, the Fifth Circuit found in favor of the plaintiff, actually overruling a judgment for the employer.  Even more surprising is that in its decision, the Fifth Circuit appears to be construing the available facts in favor of the non-movant, as they should be doing.  See Carmona v. Southwest Airlines.  

In this ADA case decided under the old ADA, the plaintiff claimed a condition known as psoriatic arthritis, which can be quite delibitating.  This particular plaintiff, for example,w as often reduced to crawling at times, because walking was far too painful.  

The court noted that the employer's attorney omitted from a quotation a key clarification: "most of the time."  That is, the plaintiff testified that he could drive, walk, read, take care of himself.  When pressed further, he added,  "most of the time."   That is, he could walk, drive, read, take care of himself most of the time.  The defense attorney omitted the latter response, as many defense attorneys do.  But, this time, the employer's attorney was called on this glaring omission.  As noted above, the defense attorney is supposed to construe the available facts in favor of the non-movant, or plaintiff, when seeking a judgment as matter of law.  All too often, they do just the opposite.  They usually construe the available facts in favor of the movant, or defendant.  So, the Fifth Circuit construed all the available information in favor of the non-movant and found there was enough evidence to allow a jury to hear the case. 

Judgment as a matter of law is a motion where one party claims the other party has no case.  The entire purpose of judgment as a matter of law is to dispense with cases that have no merit.  Why waste the jury's time with obviously flawed cases?  But, when flaws are not obvious, then the jury should hear such cases.  This time, the Fifth Circuit agreed. 

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 Under the Americans with Disabilities Act, it is unlawful to inquire unreasonably into a person's medical background.  Under the ADA prior to the 2009 amendments, a person whose disability was controlled by treatment was not considered disabled.  So, what happens when a person with controlled epilepsy is asked about his medications and then is rejected?  Well, in Harrison v. Benchmark Electronics Huntsville, Inc., the court found that the applicant was entitled to file suit even though, under the pre-amendment ADA, the person was not considered disabled.  

In this decision, the 11th Circuit joined several other circuits (not including the 5th) in finding a private right to sue.  The applicant was a temporray worker for the employer.  The employer frequently hired temp workers permanently.  The employer routinely asked for a drug test as part of the application procedure.  Mr. Harrison tested positive for barbituates, which he took for epilepsy.  The applicant explained the nature of his medication.  The company's medical review officer confirmed the medical requirement of the medicine.  But, without explanation, the employer rejected Mr. Harrison's application.  

Under the old ADA, the EEOC rejected Mr. Harrison's charge, saying he was not disabled.  His epilepsy was controlled by medication.  The employee filed suit.  On appeal, the 11th Circuit Court of Appeals found that a private right to sue was available to persons who are not disabled due to improper medical inquiries.  As Law Professor points out, the utility of this finding may wane as we get further down the road from the 2009 amendments.  This ruling specifically applies to non-disabled persons.  So, the effect could be opposite.  Improper medical inquiries to persons without a disability, controlled or otherwise, may actually continue.  As Law Professor points out, the ruling would apply whenever a person is required to undergo a medical test not related to job skills that would not otherwise be required.  

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 The Eastern District of Pennsylvannia, US district court, finds under the old ADA (ie, prior to the Jan 1, 2009 amendments) high blood pressure is not a disability which requires accommodation.  Nmako v. Acme Markets.    The employee had requested accommodation for migraine headaches, emotional stress and high blood pressure.  The physician had told the employee that if he lost weight, worked no more overtime and took a diuretic, then he could manage his high blood pressure.  Under the pre-amendment ADA, therefore, his illness was not a disability.  Because under prior precedent, when treated, his hypertension did not limit his major life activities.  

Now, of course, the 2009 amendment changes this completely.  Now, we look at illnesses under their "un-treated" state.  

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 Yes, racism is still alive and present in dark corners of the country.  Today, we find some sort of racism in a New Jersey Wal-Mart store.  An announcement is made over the intercom telling "all black people" to leave the store, now.  See CBS news report.  

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 It is not often that the EEOC even issues a subpoena to an employer for records.  It is more rare still for the employer to resist that subpoena.  But, local San Antonio law firm, The Malaise law firm is doing just that.  According to Russ Cawyer, an employer attorney who blogs on employment law, the EEOC sought records regarding all employees during a certain time frame.  They would need such information in order to interview witnesses.   Malaise agreed to produce the names of the employees.   But, the employer refused to provide contact information for each employee.  Eventually, the EEOC had to file suit in US district court to enforce its subpoena.  

I would expect this to be tough battle for the Malaise law firm.  EEOC investigative records are confidential.  So, arguing that producing records would violate an employee's right to privacy will have limited effect.  In reviewing the early letters, it appears that Todd Malaise initially represented his firm himself in resisting the EEOC's demands.  There are numerous letters going back and froth between the employer and the EEOC.  Later, the firm hired employment attorneys to resist the subpoena.  

The EEOC always has too many investigations for too few investigators.  If they must spend so much time on one case, that helps explain why they spend so little time on all their other files. 

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 In a recent settlement with the EEOC, Sears Roebuck agreed to pay $6.2 million to resolve claims made by persons with disabilities.  Sears also agreed to enter into a consent decree, which means Sears agreed to perform many other non-monetary tasks in settlement of the claims.  The EEOC represented persons with disabilities who had worked at Sears.  In the suit, Sears allegedly maintained an inflexible leave policy which did not look at each request for leave on a case-by-case basis.  This is the largest ADA settlement ever.  Some 235 Sears employees received an average of $26,300 each.  

The EEOC also sued UPS in a class action lawsuit also for maintaining inflexible leave policies.  See report.  Delaware employment law blog reports that these leave policies concerned employers who terminate employees after six or twelve months, regardless of their individual situation.  These policies are fairly common, since they supposedly avoid claims of discrimination.  The theory is that every employee, regardless of whether their injuries stem from worker's compensation complaints, disabilities or just simple personal injuries, is treated the same: they are fired after so many months (six or twelve typically).  If all employees with health problems are treated the same, then there is no discrimination, correct? 

No.  Wrong, because the ADA requires an individualized assessment of a person's need.  Under the ADA, an employer must conduct a case-by-case evaluation regarding requests for accommodation.  For example, if an employee needs more time off as part of some treatment plan, the ADA would require an accommodation of more than six or twelve months of leave.  As Delaware employment law blog explains, employers with such leave policies are prime targets for lawsuits, now.  Many of us viewed such policies as unlawful.  Now, we know they are unlawful.  Employer should examine their polciies to make sure they allow for some sort of individualized evaluation whether extended leave is necessary as an accommodation. 

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 One of my first jobs was waiting on tables.  I envied the female waitresses because they often scored better tips simply because they were attractive.  The women knew that.  They generally accepted that fact and used it.  But, what if the employer told the waitresses, as some do to put on more makeup and look more feminine?  Would that be discrimination?  The argument would be that if stereotyping by gender itself is a form of discrimination.  In one recent case, a female clerk at a hotel was fired because she could not or would not dress up and put on that "Midwestern Girl look."   The clerk needed to look pretty, said her manager.   Was that discrimination based on gender?

The 8th Circuit Court of Appeals thought so and ruled in her favor.  Several circuits have adopted the reasoning that gender stereotyping is discrimination.  The 2-1 decision resulted in one dissent.  The dissenting judge said that hiring or firing based on physical attractiveness  is not discrimination unless it is pretext for putting women at a disadvantage.  One commentator agrees with the majority in this decision.  

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 Many non-lawyers expect lawyers to follow the law.  Not always.  In one recent lawsuit, for example, a major law form was sued by the EEOC for age discrimination.  The employee claims in this lawsuit that his law firm, Kelley Drye, provides in its partnership agreement that if a partner wishes to continue working past age 70, he must give up any equity (ie, partnership) interest in the firm.  The employee also claims his pay was reduced by $25,000 in 2009 after he filed his charge with the EEOC.  If true, this would be a strong lawsuit.  Age distinctions in a partnership agreement are relatively easy to prove.  Taking reprisal after filing a charge is also relatively easy to prove.  Kelley Drye is a one of the largest law firms in the country.  One would expect them to follow the law better than others. 

In a separate lawsuit, a black lawyer at another national law firm, Howrey, a global law firm, encountered racism in the Bruissels office.  Howrey had recruited Ms. Menns from another firm.  They sent her to the Brussels office.  At the Brussels office, she was removed from favorable assignments and even moved to a different floor of the building.  When she complained, she was told by management that she was so impressive that the white employees felt uncomfortable around her.  The Manager also told her that because she was the first black lawyer, the staff was not used to being forced to be in a "subordinate position" to a black person.  

She then contacted firm leaders in washington, D.C.  The diversity committee and the firm CEO met with her in June, 2009.  The young associate, Ms. Menns was fired that day.   Ooops.  Can anyone say retaliation?  A bad day for a for a firm that ranked No. 13 out of the top 200 grossing firms for commitment to diversity.  

Ms. Menns seeks $30 million in damages. 

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 You gotta love these stories, sometimes.  An employee goes back to her home country, the Phillipines with her husband for seven weeks.  They visit family, friends.  The husband is disabled.  They visit a miraculous Catholic church, known for its healing abilities.  The wife pushes her husband's wheel chair, comforts him, provides psychological counseling, helps with the luggage.  Visiting family and friends consume perhaps 40% of their time.  She is gone seven weeks and claims FMLA leave when she returns to the US.  The employer denies her claim.  She sues.  Who wins?  The employer.  Because, she was seeking a miracle, not medical treatment, said the court.  According to Mike Maslanka.  Too, the court added, a priest is not a medical care provider under the FMLA. 

In an opinion out of the Massachusetts district court, the judge said even if this trip constituted medical treatment, the FMLA does not cover a vacation trip with a sick spouse, even if treatment is an incidental part of that trip.  Tayag v. Lahey Clinic Hospital.  It is not clear to what extent, if any, caring for a sick spouse on a medically necessary trip would be covered under the FMLA.  Courts have found that providing indirect psychological support for an ill family member does qualify as caring under the FMLA.  But, in reading the opinion, it appears that the court was too troubled by the vacation aspect and the absence of actual medical treatment. 

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 English only rules always bring controversy, even at a bookstore in New Haven, Connecticut, very near Yale university.  The EEOC generally frowns on such rules, but allows them for "business necessity."   In this case, the book store is essentially claiming the customers are uncomfortable with employees speaking Spanish.  Does the comfort of customers count as a business necessity?  Maybe, according to Workplace Prof.  It depends on whether there is evidence of discriminatory motivations.  That means an employer seeking to implement such a policy needs to show something more than mere perception of what makes a customer happy.  

It would also help to show some safety issue.  ....  Safety at a bookstore?  Those paper cuts can be viscious.....

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 The 11th Circuit Court of Appeals rendered a good decision on a sex harassment case.  Reeves v. CH Robinson Worldwide.    The latest version is an en banc decision overruling the result by an earlier 11th Circuit three judge panel.   An en banc decision means all the judges of the Court participated in this decision, not just the original three judges who rendered the first decision.  

The decision addresses the issue regarding the use of certain derogatory terms for women.  Is the use of the term "bitch" inherently discriminatory toward women?  The Court found that use of that term could indicate prejudice toward women depending on the context in which it was used.  Note that not all circuits agree with this finding.   The 7th Circuit, for example, has found that use of the term "bitch" is not necessarily targeted toward gender.   But, the Reeves court found that use of the terms "bitch" or "slut" would inherently be more demeaning toward women.  I think most people would agree, lawyers or non-lawyers.

The Reeves court further found that in this case, even if the men do sometimes use terms such as "bitch" and "whore" toward men, using such terms toward men does not make them less offensive toward women.  "It is undeniable that the terms "bitch" and "whore" have gender specific meanings.  Calling a man "bitch" belittles him specifically because it belittles women," said the Court.  Duh.  Its only amazing that such an issue must be appealed this far up before a judge can apply some common sense.  Yes, indeed, the background and life experiences of a judge do make a critical difference in many cases. 

The 11th Circuit also found that slurs directed at women in general could serve as evidence of prejudice toward a specific woman, thus joining the 2d, 4th, and 7th Circuits.  So, the en banc decision overturns the prior three judge panel decision in this same case.  It is, for once a good decision in favor of the employee. 

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 100,000 attend the Martin Luther King Day march held ever year here in San Antonio.  Mayor Julian Castro says it is because our significant Hispanic population identifies with the civil rights struggle that King epitomizes.  We were fortunate here not to have the clashes and strikes in the 60's and 70' seen elsewhere during the civil rights movement.  In fact, San Antonio city leaders saw the approaching tide early.  They voluntarily dropped the many vestiges of segregation in the 1950's and 1960's.  Our city does suppprt ML King Day across the board.  Many large businesses here allow their employees time off to attend the march and some even organize busses to transport employees tohe march.  While far from perfect, we certainly do better than many communities across the country. 

Without Martin Luther King and Lyndon B Johnson, there would never have been a Civil Rights Act of 1964.  The Civil Rights Act of 1964 lead to all the other employment statutes that followed.  We should all be grateful. 

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 Discrimination laws in Texas are enforced by the Texas Workforce Commission, Civil Rights Division and the Equal Employment Opportunity Commission.  But, the CRD is only located in Austin, Texas.  So, by far, most cases are filed with the EEOC.  Both agencies have a work share agreement in which a charge with one will simultaneously be filed with the other agency.  The federal statute is Title VII of the Civil Rights Act of 1964, while the state version is the Texas Commission on Human Rights Act.  The TCHRA generally tracks Title VII. 

Both statutes prohibit discrimination based on sex, race, national origin, and religion.  The Americans with Disabilities Act prohibits discrimination based on disability.  The Age Discrimination in Employment Act prohibits discrimination based on age.  The EEOC investigates alleged violations of the Americans with Disabilities Act and Age Discrimination in Employment Act.  And, of course, the Texas TCHRA also tracks the ADA and the ADEA.

Any charge of discrimination must first be filed with either the EEOC or the TWC, CRD before proceeding to a lawsuit. 

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 EEOC statistics have been released.  Total charges for FY 2009 were 93,277.  That number is down slightly from FY 2008 when a total of 95,402 charges were filed.  But, recall that prior to 2008, the EEOC had never received more than 90,000 charges.  The previous highest number was 84,000 in one year.  The high number of charges are almost certainly due to the down economy.  People losing their jobs are always more upset.  Too, in mass layoffs, many employers take that opportunity to get rid of persons who were perceived as marginal.  Looking at the number of charges filed is helpful, since the EEOC is generally good at screening out cases lacking the minimal requirements to prove a case of discrimination. 

Charges filed alleging national origin, religion, and disability reached record highs.  Charges filed alleging age discrimination were the second highest ever.  

Data show that the EEOC resolved 85,980 charges.  But, that is rather meaningless.  "Resolve" means everything from finding a violation and then reaching a settlement to simply issuing a right-to-sue letter.  To its credit, the EEOC did receive $294 million, a record amount through administrative enforcement and mediation.  Administrative enforcement and mediation refers to cases settled while the charges were still pending with the EEOC.  They have vastly improved the quality of their mediation services, at least here in the San Antonio region.  

The EEOC did reach a "merit resolution" in 17,428 charges.  Merit resolution refers to charges which assigned fault and/or reached the conciliation stage (which also requires some finding of fault).  So, out of 93,277 charges, only 17,428 resulted in any sort of finding.  That amounts to 18%.  

The EEOC filed 281 lawsuits last year.  That means across the country, they filed 281 lawsuits.  In my experience, they file very few here in San Antonio.  

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 The Ninth Circuit joins the Seventh Circuit in finding that an employee suing for retaliation under the Americans with Disabilities Act is not entitled to compensatory damages or punitive damages.  Alvarado v. Cajun Operating Co., No. 08-15549 (9th Cir. 12/11/09).  The court also ruled that a jury is not available.  See brief discussion.  Mike Maslanka agrees with the result.  

In fact, the Southern District of Texas reached the same result in a different case at about the same time: Miles-Hickman v. David Powers Homes, 613 F.Supp. 872 (S.D.Tex. 2009).  

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 What happens when an employee complains about sex harassment and the employer does nothing?  Well, in the case of Duch v. Jakubek, they get sued and lose.  In a decision coming out of the federal Second Circuit Court of Appeals (the circuit covering New York, Connecticut and Vermont), a female employee complained about sex harassment by a co-worker.  She complained when she was assigned to work with that harasser.  She asked for a schedule change to avoid the man.  The manager asked what happened.  She said she did not want to talk about it.  The manager then allegdly responded that he did not want to know what happened.  He dropped the matter.  The female employee then complained to the EEO officer, who was told not to report the harassment.  There was no follow-up.  The plaintiff suffered emotionally.  A new EEO officer came on the scene who did an investigation. 

The Second Circuit found this avenue to report EEO issues was adequate, even if the personnel were not well trained.  But, the court also found the employer may still be liable if the it "knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate action."  

Thus, the critical piece for the court was what the supervisor did or did not do.  The supervisor knew or should have known something had occurred, but did nothing.  He stuck his head in the sand like an ostrich.  The court cautioned that it was not creating a new standard of liability when an employee refuses or fails to report harassment.  "We merely recognize that, under the existing law of this Circuit, when an employee's complaint raises the specter of sexual harassment, a supervisor's purposeful ignorance of the nature of the problem - as [the supervisor here is] alleged to have displayed - will not shield an employer from liability under Title VII."  

Thus, the grant of summary judgment was not proper and the matter would proceed to trial.  Because the employer's investigation did not start for another three months, the employer would be liable for the harassment.  

So, yes, an employee refusing to report harassment is one issue.  But, here there was an additional issue.  The act of refusing to disclose some information may put an employer on notice that further investigation is warranted, the court found.  

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 Aaron Ramirez, a plaintiff employment lawyer in Dallas, writes about the "woman-hating" Dallas Fire Department.  The "D" magazine published an article with that just that title.  He wrote about the sex harassment issues again at this post.  I hope the Dallas experience is unique.  I represented a female victim of sex harassment at the San Antonio Fire Department several years ago and was pleasantly surprised to find that the SAFD actually was pretty anxious to hire her.  They were not guilty of any sex discrimination, at all.  The actual harasser was another employer.  But, of course, having served in the Army Reserve and National Guard for some 25 years, I have some first-hand experience with how some women are treated in male dominated work places.  

It will end at some point, but it may take a few lawsuits before real change comes.....

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 What does it take to show discrimination, if this is not enough?  The best evidence to show discrimination is almost always what we call direct evidence.  The "n" word, for example,  is always good evidence to show racial prejudice.  Using the term "old man" is very good evidence to show age bias.  So, this case where an employer refers to an African-American as "boy" several times over a two year period is very good evidence.  Yet, inexplicably, the 11th Circuit Court of Appeals affirmed the grant of summary judgment.  See Alexander v. Opelika City Schools. 

Summary judgment is where a judge essentially finds that a plaintiff (employee) does not have adequate evidence to justify having a trial.  To say that "boy" is not enough evidence to justify a trial is very hard to believe.  Frankly, many appellate courts apply an unrealistic standard for evidence.  

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 I served one year in Iraq.  I and many of my comrades could not have survived without the service of hard-working Iraqi Muslims.  Since returning home, I have been a little surprised to hear the folks here at home denigrate all Muslims.  i cannot accept that.  Some perhaps, but not all.  The Moslems I knew in Iraq were amazing persons, who, I believe, were made better by their faith.  Not all, of course.  But, some yes.  I knew a few Muslims who displayed an amazing humility and decency.  It is no more true to say all Muslims do this or all Muslims do that than it is to say all Christians do this or all Christians do that.  

This is off topic from my normal employment and labor law post.  But, I do comment on the Iraq and Afghan vets.  It would not be fair to fail to mention the hard-working, devout Muslims I knew and enjoyed when I was there.  Those Iraqi interpreters were devoted to improving their country.  But, unlike us, the Iraqi interpreters cannot leave the violence after a year.  They go home to it everyday.  Iraqi interpreters often have to sneak their way home to avoid being discovered as US employees.  Those Iraqis serving with us are targeted like us.  But, unlike us, they cannot escape the violence. They are paid well.  But, no one risks his/her life time and again for mere money.  And, no one risks the lives of their families time and again for mere money.  

My former translator was captured, tortured and killed.  Her only crime was that she worked for us.   Other interpreters I knew were targeted in their homes and in their neighborhoods.  Almost all of our interpreters were Muslim.  None tried to kill me or any US soldier.  None of our interpreters ever tried to kill anyone.  Indirectly, however, they fought the good fight simply by interpreting for us and providing desperately needed cultural advice.  They risked all.  

The "bad guys" in Iraq, what we referred to as Anti-Iraq Forces, would love to obtain the names of our interpreters.  They hate the interpreters with a passion.  It is ironic that many in the US denigrate all Muslims, while the Muslims I knew were forced from their jobs due to threats or are dead because - simply they worked for us.  

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 Sometimes, management lawyers like to scare potential clients and sometimes, they are simply concerned.  But, either way, they over-state the effect EEOC has.  The EEOC means well, but they simply have too many cases to perform an actual investigation.  Each investigator carries 75-80 cases per investigator.  Their budget was cut way back in the 1980's and has seen little relief since.  One local San Antonio management lawyer actually suggests business owners should be wary of the EEOC.  ("The EEOC Is On The Hunt. Are You The Prey?")  Is he kidding??

He must understand, as we all do who deal with the EEOC, that the EEOC very rarely finds in favor the employee.  Unfortunately, the EEOC is often a paper tiger.  

I was in federal court once when a federal judge chastised a government lawyer for suggesting that since the EEOC did not find in favor of the employee, there was something wrong with the employee's case.  The judge fussed at the lawyer and told him the EEOC does little or nothing in almost every case they get.  The EEOC means well.  They really do want to do right by the employee and the employer.  But, unfortunately, they accomplish very little in 99 out of 100 cases. 

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 Is San Antonio far behind?  Ft. Worth passed a broad anti-homosexual discrimination ordnance.  The ordnance applies to transgender folks, as well as to gay or lesbian persons.  This ordnance only applies to the city of Ft. Worth.  This ordnance was passed in response to an incident at a gay bar where the police allegedly harassed some gay men.  So, it is not likely that other Texas cities will follow suit.  

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 Cathy McBroom is headed back to Galveston with a promotion.  See Texas Lawyer story.  Ms. McBroom was one of the ladies complaining about Sam Kent's sexual  harassment.  Judge Kent later accepted a plea bargain and is doing 33 months in a federal penitentiary.  Ms. McBroom had been Judge Kent's Case Manager.  She was transferred to the Houston Division in 2007 when she made her complaints.  That is, she was transferred to Houston to work for other federal judges.  She will now go back to Galveston as deputy clerk in charge of the Galveston Division where she will serve as Case Manager for another federal judge. 

If only all sexual harassment complaints could turn out so well......

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 You're a federal employer and you have some "dead weight" you want to get rid of.  One method is to privatize your services.  Privatization allows the federal employer to "abolish" all jobs within a given department and let the new company hire who it chooses.  The new company can screen each employee and see who it wishes to keep.  

The danger in this approach is that the new employer will not the old employees.  Most new employers would want to hire some former management person to help them screen the old employees.  What if the former manager bases some or all decisions on prejudice?  This hiring process would present some temptation to. for example, to get rid of older employees or those might be chronically ill.  If the new employer relies on the former manager, then the new employer may be just as liable as the manager for improper motives.  

In any privatization situation, the new employer needs to watch carefully how it makes hiring decisions.  

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 Unemployment is now over 10%.  First time since the early 1980’s.  There are indications that the economy is improving.  But, still, some employers will take this opportunity to get rid of some folks.  Beware persons with disabilities, and others.   Many employers view this as an opportunity to get rid of some employees viewed as less than desirable.  

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 From a more sociological perspective, the San Antonio Express news agrees that requiring New Mexico employees to only speak English is wrong on many levels.  See story.  The Express news adds that New Mexico, of course, was Hispanic long before it became part of the US.  According to the author, Ruben Navarrette, the employees who were fired come from old New Mexico families.  So, they are no immigrants and are speaking their "normal" tongue.  

As I recently posted, an employer who requires employees to only speak English must have a clear business reason.  Otherwise, it will appear that discrimination was a motivating factor.  The employer said he wanted employees to speak English because he was afraid they were talking about him in Spanish.  Sigh.  

The scary thing is the employer lived for many years in Texas and ran businesses here.  

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 An employer can impose rules requiring that only English be spoken in the work place.  But, an employer can do so only if there is a real, definable business reason for the rule.  Most cases that have allowed such English-only rules were based on safety reasons.  See post.  Of course, no such rule could be imposed if the primary purpose is discrimination.  But, if safety or some other business reason is not involved, it will appear that discrimination is the motivation.  If so, then Title VII of the Civil Rights act of 1964 will apply.  

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 This is how you get sued.  You buy an old motel, start making a lot of changes, such as: 1) telling Hispanic employees to pronounce their Hispanic names in an Anglo sort of way, 2) telling the Hispanic employees to speak English in your presence,  and 3) when they ask why, you tell them because you are the owner.  This is what happened in northern New Mexico to one new owner of an old motel.  See story.  So, yes, now the new owner is under intense scrutiny.  Fortunately, he has not been sued, yet.  But, he did fire some Hispanic workers, so lawsuits might still be in the works.  He seems to regret some of his actions.  Fortunately, in the lawsuit business, good manners and sincerity do count.  

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 Employer Support of the Guard/Reserve (ESGR) sends out a DVD to help employers mange their Reserve/Guard employees.  Having served some 25 years in the Guard/Reserve, I am very familiar with ESGR.  They did well for a Guard colleague some ten years ago.  The colleague returned to his civilian job from a US Army school, but his employer changed his job dramatically.  ESGR was able to correct this mistake with a few phone calls.  

But, since then, we have entered into a major war that relies on Guard/Reserve soldiers, airmen, sailors and Marines.  The problems have multiplied.  Since I do discrimination cases, I hear of many such military discrimination cases.  Military discrimination cases have also multiplied.  Unfortunately, some of my colleague plaintiff employment lawyers have had negative experiences with ESGR.  Some of my fellow plaintiff employment lawyers have found ESGR to rely too much on persuasion and slow to recommend to an unsophisticated Guardsman to seek legal advice.    I heard so many ESGR presentations as a Guardsman and Reservist, I hope this is not true.  

But, ESGR did move from DOL to DOD after the wars were well under way.  So, I suspect there was some problem.  Lawsuits, I believe, are the last resort.  ESGR can prevent many problems before they become lawsuits.  I hope they do.  Us civilian soldiers face many issues that active duty soldiers never will. 

For example, in the Guard/Reserve, the better you perform your Guard job, then generally, the more you put your civilian job at risk.  That is a real concern for a great many part-time soldiers.  

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 The local newspaper comments on the new ADA as if they just joined the debate.  The regs will make changes, to be sure, but, the floodgates will not open.  The new regs will correct decisions like the 1999 US Supreme Court decision, Sutton v. United Airlines.  We need to remember that when Sutton was decided, there was substantial debate about what Congress intended with the passage of the ADA in 1990.  Did Congress intend to include all persons with disabilities?  Or, did Congress merely intend to cover the most severely disabled?  Both sides tossed around statistics to make their case.  Both sides even toyed with the statistics used in 1990 by Congress when they passd the ADA.  Well, now Congress has responded to the 1999 decision and expressed its will. 

But, even with these new regs and the new ADA Restoration Act, a person with a disability will still have to show that his/her disability affects her job performance.  The new amendment and regs will move the debate away from whether a person has a disability and over to whether the employee sincerely attempted to accommodate the disability, a place where the debate should have been from the get-go.  

The SA Express-News quoted one local defense lawyers  as saying these regs will mean that "almost everyone" has a disability.   That is an exaggeration.  The attorney then recommends "training, training, training" for local supervisors.   I am sure she hopes local employers will contact her for that training. 

In the meantime, unemployment for persons with disabilities continues to rise.  It is over 16% now.  Applications for Social Security Disability Income benefits also continues to rise.  It increased 23% in 2009 over the same time period last year.  The application for SSDI probably reflects the great many employees who find they are unable to perform their work, according to one study.  Speaking as a lawyer for a few of those recent SSDI applicants, I can attest that these employees often find the employer unwilling to accommodate their disabilities.  So, they sometimes simply give up and apply for benefits.  They have to support themselves, somehow. 

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 According to a recent study, Spanish speaking plaintiffs received lower awards in civil cases.  Spanish speaking plaintiffs needing translators received lower awards.  Interest was initially sparked when a Dallas, Texas plaintiff lawyer noticed that his clients needing translators seemed to obtain lower verdicts from the jury.  This study apparently supports his initial suspicion. 

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 Many employers completely prohibit relationships between management and subordinates.  The military has some complicated rules regulating relationships and it too prohibits relationships between those with very different ranks.  But, studies show, nevertheless, that relationships continue in the workplace.  The workplace remains a prime source of marriage partners.  But, the problems developing in the wake of David Letterman's revelation about his relationships at CBS show the danger involved.  Even after ending the relationship, they can fester and develop into sexual harassment.  Co-workers can take sides in some perceived conflict and start a hostile work environment.  

Such relationships can become sexual discrimination if the employer takes adverse personnel action against one party but not both.  There are many traps for the uneducated.  That is why most large employers simply prohibit them.  CBS prohibits them, as this story explains.  So, yes, it is fair to say that Mr. Letterman could lose his job over this.  If CBS punishes no one, then it risks that no one will take its policies seriously.  If they punish the female subordinates but not the male manager, then it looks like gender based discrimination.  Looks like a no win situation for CBS, at this point. 

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 Most people are familiar with the retaliation part of Title VII of the Civil Rights Act of 1964.  That anti-retaliation provision prohibits retaliation against someone who opposes discrimination.  Texas is, of course, an at-will state.  But, even so, we do have a few state anti-retaliation statutes.  

Texas prohibits reprisal against an employee who reports abuse or neglect of a resident at a nursing home.  Texas Health & Safety Code Sec. 242.133.  Such a lawsuit must be filed within 90 days of the alleged reprisal.  

An employee is protected against being ordered to commit an illegal act.  This claim is known as a Sabine Pilot claim, after Sabine Pilot v. Hauck, 687 SW 2d 733( Tex. 1985).   The refusal to commit an illegal act must be the sole cause of the termination. 

An employee is also protected because he/she served on a jury.  Texas Civil Practice & Remedies Code Sec. 122,001.  An employee who believes he/she has suffered retaliation due to jury service has two years in which to bring such a claim.  The damages are limited, but still, this statute does offer some protection. 

Also, state or local government employees are protected if they report violations of law by their employer.  See Texas Government Code Sec. 554. The good faith report of the violation of law would need to be made to the appropriate law enforcement agency. The report would need to be related to the reporting employee's official duties. 

While this list is not completely exhaustive, these are the few protections we Texas employees have which actually have some teeth.  

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 The new regulations for the Americans with Disabilities Act have been proposed.  The EEOC promulgates those regs and seeks public comment before making them final.  You can view the new regs at this website.  These regs are based on the ADA Amendments Act which was passed last year.  Among other changes, they list new impairments that will be considered to be a disability.  Many of these new disabilities are impairments that might be in remission or episodic.  They make it clear that working is now a major life activity, which had been in doubt.  And, of course, as required by the amendment, the regs state that an impairment will be looked at in its non-treated form or without mitigation.  See the good folks at Workplace Prof for more discussion.  

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 Written counseling is important.  I have advised and represented small business owners.  The best protection from a false claim is written counseling made at the time of the alleged infraction.  Russell Cawyer describes in good detail what written counseling should include.  Even the most basic workplace will have scratch paper somewhere.  You as a manager need to include the basics:  what the employee did wrong, when s/he did it, and what you as the manager expect in the future.  This written documentation will help tremendously when/if the employee later seeks unemployment benefits or files suit for alleged discrimination.  

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 If you have a problem employee, it is important to document those problems.  Written counseling serves many purposes.  Michael Fox discusses a case in which the employer did not document those problems and lost a claim for discrimination because of that failure.  Of course, he assumes the alleged work problems were genuine.  Maybe they were genuine and maybe they were not.  If the issues were genuine, then it is even more important to document those problems.  A good employee, or a formerly good employee, as this lady appears to have been, deserves a chance to improve.  

Of course, as Mr. Fox notes, it hurt the employer that it did not follow its own progressive discipline process.  That failure to follow its own policies can help show that the employer's concerns are not genuine and have been fabricated.  

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 The Fifth Circuit Court of Appeals issued a good decision on reasonable accommodation recently.  EEOC v. Chevron Phillips Chemical Co., LLP.   One of the few decisions to plumb the depths of acommodation and how the interactive process should work.  The lower court granted summary judgment in favor of the employer.  That is, the court found that the plaintiff had no case.  A summary judgment is a term of art meaning quick judgment, one without the need for a trial.  The lower court found that the initial request for accommodation, a simple release note from the doctor was *not* a request for accommodation.  Because, the release note did not offer a possible accommodation.  

But, the Fifth Circuit reversed this finding.  The law does not require magic words, said the higher court, when asking for an accommodation.  The employer was already aware of the employee's disability.   So, that knowledge plus this release note is enough to indicate the need for accommodation.  The employer was, in effect, on notice regarding the need for acommodation. 

An employee seeking accommodation is not required to come up with the solution on her own.  So, yes, the release note from the doctor was enough in this case to serve as a request for accommodation.    Once the employee presents a request for an accommodation, then the employer *must* engage in an interactive process to arrive at a solution.  Here, the employer simply said, no, "this isn't going to work."  Such a statement shows the employer was refusing to engage in the interactive process, said the higher court.   That refusal violates the Americans with Disabilities Act.  Both the employee and employer must talk about the requested accommodation and arrive at a solution together.  

 So, for these reasons, the higher court found that summary judgment was not appropriate and the plaintiff should have a trial on these issues.  As Mike Maslanka has said, the future issues in ADA cases will probably lie in the accommodation process, or lack of such a process.  

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 You're a woman in a managerial position.  You might think you are more removed from sexual harassment issues than your blue collar counterpart.  No, says a recent study.  a University of Minnesota Sociologist finds that sexual harassment is 137% more common among female managers than among blue collar women.  Ms. McLaughlin concludes that because of gender norms, people are still not accepting women in power positions.  

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 There are several ways to prove discrimination.  A very common method is to focus on disparate treatment.  Bob commits some offense at work.  He is treated differently than Pedro regarding the same offense.  If nothing can explain why Bob gets treated differently, then one might conclude that he was treated differently due to his ethnic origin.  This is a difficult way to show discrimination.  Mike Maslanka discusses the challenges when he discusses a recent case, Lee v. Kansas City Southern Railway Co.  I hear this all the time.  The "other" employees are treated better because they are the boss' favorites.  They come in late and nothing happens to them. 

The challenge is to show that Bob and Pedro are good comparators.  Do they have the same boss?  Are they in the same department?   If Bob was disciplined for the same offense, but Pedro was not, is the offense truly the same?  Do Pedro and Bob have the same responsibilities, training, experience?  All these are factors.  What the Lee decision helps with is it shows that if Bob ad Pedro have the same second level supervisor, then yes, they might be good comparative employees.  That is, if the boss' boss approves the discipline, then yes, they might be good comparators.  So, yes, if Bob gets disciplined for an offense for which Pedro was not disciplined, then that different treatment might constitute evidence of discrimination. 

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 Sexual harassment becomes more subtle in today's climate, reports MSNBC.  Instant Messaging, texting now allow more options to pursue an inappropriate relationship in more subtle ways.  But, speaking as a lawyer, that might make things easier to prove, if the victim thinks to save the IM's or text messages.  

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 The decision in Gross is not grounded in reality.  Gross v. FBL Financial Services does not reflect how discrimination and bias actually work.  Gross is the US Supreme Court's recent decision on age discrimination.  For various reasons, it will probably also apply to discrimination under the Americans with Disabilities Act, also.   Harold Goldner discusses its many errors in detail.  Discrimination is never simple.  It is never clear cut.  It is often a jumble of emotions wrapped around one issue, someone's minority background.

A manager can genuinely believe s/he is not biased.  Yet, that very same manager can look at someone and wonder why he is late so often, why he does not speak as well, etc.  But, the manager applies that extra scrutiny only to the minority person.  And, then when the manager fires the minority person, s/he can claim to have been motivated by job issues.  Under the Gross decision, the manager can claim s/he was motivated primarily by tardies, not by race.  The manager wins, but the victim loses.  

That is the problem with decisions like Gross.  Bias is not simple.  There will often be more than one motivating factor.  To require that a plaintiff show that "but for" the tardies, the employee would not have been fired is asking for more than reality will allow. 

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 I talked a while back about how it can be hard to find a plaintiff lawyer for employment cases.  How about those times when the plaintiff employment lawyer does not want your case?  Harold Goldner, a plaintiff employment lawyer in Pennsylvania, talks about some cases he (and I) do not want to accept.  

A young man called me one time and insisted he cussed out out his boss one time, not twice as his boss claimed.  I had to explain to him that a boss can fire you even for merely cussing him out one time.  Yes, folks, hate to break the bad news to you, but you can be fired for unfair reasons (or for reasons some people believe to be unfair).  Texas is what is known as a "at will" state.  You can be fired "at will" and you can quit "at will."  Most states are "at will."  We are no different.  Except for a few situations, discrimination, a union agreement, or a written employment agreement, among other situations, a person can be fired for any trivial reason.  There is still no substitute for hard work and making an effort to get along. 

In my experience, the best plaintiff is the reluctant plaintiff, the one who comes to see a lawyer only as a last resort.  

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 In a recent decision, the 5th Circuit Court of Appeals found in favor of an employee (plaintiff).  EEOC v. Chevron Phillips Chemical Co. LLP.  For the 5th Circuit to find for a plaintiff employee is very rare. For example, in a study completed a few years ago, the researchers, found that discrimination case plaintiffs were the second least likely to survive on appeal in federal courts.  The only plaintiffs who fared worse are prisoner cases, notoriously weak claims. 

In discrimination cases on federal appeal, plaintiff employees win 5.8%.  Other plaintiffs win 12% of the time.  When you compare plaintiff employees to defendant employers, plaintiffs win 4.65% while defendants win 53.85% of the time.  The federal courts of appeals are tough on employees, the 5th Circuit is even tougher.  The 5th Circuit covers Texas, Mississippi and Louisiana.  

So, the Chevron decision is all the more remarkable.  The 5th Circuit found sleeping to be a major life activity.  The employee suffered from Chronic Fatigue Syndrome for 7 months, long enough to qualify as a disability under the older version of the Americans with Disabilities Act.  The fact that Plaintiff said she could work during her outbreak of CFS did not mean she did not suffer from a disability, wrote the court.  

A welcome win, but one all too rare.....

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Discrimination exists.  It happens all the time even now in 2009.  When I first started doing discrimination cases in the 1990's, some folks would tell me they did not believe discrimination still existed.  But,  as I recall, it was mostly Anglo folks suggesting that. 

A few years later in one of my Army Reserve courses taught by a Reserve officer, the teacher related a story from his own civilian job.  In his civilian job, he also taught for a major university.   On a trip to Indonesia, he was shocked to drive by a recent car wreck with an Indonesian colleague.  In Indonesia, ethnic Chinese constitute a significant minority.  My teacher remarked that perhaps they should stop and help.  No, the Indonesian replied, it was just another dead Chinese, which was good, he said.  That, my teacher, emphasized, was *discrimination.*  His point was not that America lacks discrimination, but that in some countries, discrimination is far worse than it is here.  

I noticed during my own time in Iraq that the Sunnis and Shia really do have issues.  Some get along fine.  But, sometimes, they simply cannot discuss the other without lapsing into some degree of prejudice.

One of the many things I appreciate about my time in the Army is that in the Army, we face discrimination head-on.  I believe discrimination or prejudice is always with us to some degree.  It is those wise ones who face it and address it.  In my Army Reserve course, we discussed whether it existed and if so, to what extent.  That conversation took place in many different venues throughout my career.  The Army is not perfect, but I am proud to say that in the Army, a minority can get a pretty fair shake, as can a white person.  We face it.  We discuss it.  Where in the civilian workforce do we ever discuss race and prejudice? 

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 Aaron Ramirez in Dallas discusses the issues in finding a plaintiff employment lawyer.  Aaron is a plaintiff employment lawyer in Dallas.  He adds to what I said previously.   He presents some very helpful information.  This info is just as true for San Antonio and South Texas as it is for Dallas and North Texas.  

I cannot emphasize enough that an employee needing a lawyer needs to start looking as early as possible.  Too many good cases have been lost because the individual waited until they received the right-to-sue letter and then waited too long *after* receiving the RTS letter.  The best time to start looking is right after the adverse personnel action, or even sooner if possible.  

Everything Aaron says is right on. 

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 A recent study indicates that while men tend to be equal opportunity bullies, women tend to bully other women.  Bullying may be ineffective, but it still occurs.  I have not run into woman on woman bullying in any lawsuits, but it appears to be a fact at some workplaces.  If you wish to be heard regarding bullying, click here to take a survey. 

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 I wish I had a dollar for everytime this has happened here in San Antonio or especially across the country.  A person came to see me who did *not* receive his "right-to-sue letter" from the EEOC.  It was sent four months ago, but he just now found out about it.  He contacted the EEOC to get a status report and learned of his RTS letter.  Across the country, this happens many times, perhaps dozens, each year.  It has been a problem ever since some time in the 1970's when the EEOC stopped sending right-to-sue letters certified.  

Invariably, the Charging Party (the employee filing the complaint) responds to this problem by going to the EEOC and asking them to rescind the first RTS letter and issue a new one.  Most regional offices refuse. They point to their log that says they mailed the letter.  They offer nothing else.  The employee is stuck.

A right-to-sue letter is the street term for the Dismissal and Notice of Rights.  The EEOC sends these out as a conclusion to its supposed investigation.  The Notice notifies the Charging Party that s/he must file their lawsuit within 90 days.  If you miss the 90 days, your rights to file suit are waived forever.  Just a few days ago, I talked about how hard it can be to hire a lawyer for these cases.  It is a heck of a lot harder if your rights have already expired.....     

There may be ways around this.  That is, there are one or two other causes of action one may be able to file for particular types of discrimination.  But, darn, discrimination cases are difficult enough without having statute of limitation (deadline to file suit) issues floating around.  

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 Persons with disabilities always need information about possible accommodations.  A great website is JAN (Job Accommodation Network) website sponsored by Dept. of Labor's Office of Disability Employment Policy.  There you can look at various accommodations based on the type of disability.  There is a separate section for employers and employees.  

Of course, the best answer is whatever your health care provider and you come up with.  But, the JAN website can help you consider possible alternatives.  

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 Judge Sam Kent was denied his request to be certified as having a disability which affected his ability to perform his duties.  The 5th Circuit Court of Appeals denied his request.  Judge Kent was and still is a United States District Judge.  He heard many discrimination cases in his 15 years plus on the federal bench in Galveston.  He denied relief to a great many plaintiffs in discrimination cases, including sex harassment cases.

It turns out he was harassing his own female employees.  He was indicted last year for harassment and obstruction of justice.  He will now very likely be impeached.  If the 5th Circuit had found him to be disabled, then he would have continued to receive his federal judge's pension. 

Its one thing to harass and then deny other female victims the right to sue for harassment.  But, to then claim disability when he has denied disability protections to so many other persons with disabilities.  He claims diabetes and alcoholism.  Alcoholism seems the stronger argument.  But, under the Americans with Disabilities Act (prior to being amended in 2009), alcoholism did not qualify as a disability unless the victim was undergoing treatment.  

Its easy to look at his claim for disability with skepticism.  I hope it was sincere.  If it was, he probably better understands the position of many of my clients when they have been turned down for protection they deserved. 

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 Title VII of the Civil Rights act of 1964 prohibits discrimination based on sex, color, religion, and national (ethnic) origin.   Other statutes prohibit discrimination based on age and disability.  For Title VII to apply to your company, you must have 15 or more employees.  For the Age Discrimination in Employment Act to apply, you must have 20 or more employees.  Think about that.  Thousands of employers are not covered by Title VII or the other discrimination statutes.  

The intent was not to put too great a burden on smaller employers, the "mom and pop" businesses out there who employ a huge percentage of workers.  That is probably a good thing.  But, if you are being discriminated against by one of these employers, then that is not such a good thing.  A young man came to see me, once.  He had a steady girlfriend, someone he cared about very much.  But, his older female boss and sole proprietor kept "making moves" on him.  She just would not stop.  He was very upset.  He loved his work.  But, this steady pressure to cooperate was taking a toll.  I had to break the bad news to him.  Even with part-time employees, they were way short of 15 employees.  

He left my office knowing he would have to quit or risk losing his job when he was not ready for it.  Plus, his girlfriend was not happy with him for staying there as long as he had.  

In a perfect world, we would all lose or keep our jobs based on our merit.  But, in this world, we often lose or keep jobs through no fault of our own.  Welcome to free (or semi-free) enterprise......

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 I talked about how employee handbooks are not a contract.  That means an employer does not necessarily have to counsel an employee three times in writing before terminating that employee.  But, a question that often comes up is why would an employer want to counsel an employee in writing?  The most common reason is unemployment benefits.  In most states and certainly in Texas, a worker only gets unemployment benefits if s/he can show s/he lost the job due to his/her own fault.  Employers will try to claim the employee was a bad employee.  The best way way for the employer to win that argument is to show write-ups documenting alleged performance issues.  

And, if an employee accuses the employer of discrimination, written counseling regarding objective, non-discriminatory issues provides an effective defense.  In fact, in almost all of my discrimination cases, the employer will dredge up supposed write-ups in some way.  I used to firmly believe that employers could not accuse an employee of malfeasance without contemporary write-ups.  I formerly was sure no jury would believe an employer was upset about an alleged offense unless the employer could produce contemporary write-ups.  

So, imagine my surprise when a case I worked very hard on went to trial while I was serving in Iraq.  My co-counsel lawyer told me later we lost the trial probably because the jury believed the employer's claim they were upset with our plaintiff employees even though they had no write-ups at all to back it up.  Our clients were accused essentially of not working well with others (when just the opposite was the truth).  Yet, they apparently won on that one issue.  I am still in recovery from that shock.....

But, it still remains a valid rule-of-thumb: if you want to show a non-discriminatory reason for a termination (or some other adverse personnel action), you better have some write-ups.  

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 Watch what you say.  You hear that advice, but how many of us really follow it?  Too many people are still saying things they shouldn't.  In a recent report, the San Antonio Express news reports that a former head of the Department of Public Safety resigned due to alleged harassment of female subordinates.

I served in the Texas National Guard for many years.   I would sometimes provide our annual EEO briefing.  I urged my fellow Guard members to watch what they say.  The only safe joke these days, I told them, is a good Aggie joke.  Many did not believe me, I know.  But, inappropriate comments still go on.  Still to this day, 15 years later, men say inappropriate things to women.  In this article, the women, all successful in various walks of life, explain that they overlook the inappropriate remark depending on the age of the speaker or the context.  Many victims of discrimination do indeed try to overlook the early stages of discrimination or the less threatening forms of discrimination.  But, then the discrimination becomes more clear and those earlier comments take on greater importance. 

I am a lawyer.  My job is to minimize risk.  So, you supervisors out there, or soon-to-be-managers out there, watch what you say.  As a lawyer representing victims of discrimination, my best evidence is what you say.....

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 One question that frequently comes up is what constitutes "sex harassment."  That has been a very important question in the proceedings against a federal judge.  Judge Sam Kent was sent to jail for 33 months for abusing his position and harassing female subordinates.  Certainly, his actions, groping females, was clearly sex harassment.  But, generally, any unwanted attention based on gender constitutes sex harassment.  

But, look at that statement closely.  The actions must be known to the victim.  If not know, there is no way to know whether it is unwanted.  The stereotypical grafitti on the wall of the men's room only becomes an issues when it becomes known to the victim.  And, the actions must be based on gender.  If the grafitti concerns both men and women, then it is probably not based on gender.  

Earlier, Judge Kent tried to claim the touching was consensual.  There are many ways to show consent or non-consent.  It helps if a victim complains about the problem to someone else at about the time of the unwanted attention.  But, the best way to show lack of consent is simply for the victim to file a written complaint about the actions.  Many victims do not complain early on, simply out of a desire to "fit in" or try to get along.  That is part of what makes sex harassment cases problematical.  If employment cases were easy, then the PI lawyers who advertise on TV would be doing them....

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 Seems like I am one of the few following the trials of soldiers accused of atrocities in Iraq.  I follow them because I am a retired Reserve officer and because I spent time in Iraq.  The latest trial concerns a 101st soldier accused of a revenge killing in Southern Iraq.  This soldier is facing trial in a civilian court where it will be nearly impossible, I believe, to educate the jury on just how difficult things are and have been in Iraq.  He is presumed innocent, of course.  But, whatever he did or did not do, life in a war zone is hugely difficult.  

When I was in Iraq, I tended to minimize the difficulties when talking to folks back home.  You do not want to visit your problems on people back home.  Too, as a soldier, you are never sure how much the folks back home will understand.  So, the job of educating the jury will be very difficult for this civilian criminal defense lawyer.  

That is not a new problem for lawyers.  This trial is just more so.  In the average discrimination case, for example, the challenge is educating the jury about the daily obstacles a woman faces, or a minority faces.  That is why, contrary to popular belief, when we pick a jury, we seek to strike jurors biased against our client.  But, we also seek to keep jurors who might have some understanding of our client's predicament.  There is a saying in Iraq that applies to juries.  "Things are never easy in Iraq."  

I do not know what this soldier did or did not do.  But, I do know that not many on the jury will understand......

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 I have been in the trenches, too long.  II have been representing employees in their struggle for justice and vindication, too long.   After all these years, I tend to look at judges in terms of how they will look at employment lawsuits.  I should be more balanced, but have to admit that I am not.  President Obama is looking at several possible nominees, based, he said, on how well they empathize with working people.  

That is music to my ears.  I have seen way too many cases decoded on appeal by judges who have never had to meet a payroll, never had to struggle with a minimum wage job, and never had to dig a ditch.  Way back when, I worked my way through college digging ditches, cooking hamburgers, and waiting on tables.  I did what I had to do.  My former supervisor at my ditch job, asked me once, "will you remember us when you get to be a lawyer?"  He meant will I remember the working people when, in his mind, I become rich and successful?  Well, I am not rich, but I hope I do remember my roots.  Too many appellate judges (who decide an awful lot of cases) have never done any of this sort of work, have never known people intimately who have dug a ditch.  

Struggling by itself does not make a good judge.  But, it does lend perspective.  As a country, we know this already.  That is why for decades, there was a "Jewish" seat on the Supreme court, a "Catholic" seat and now, one might argue, a "female" seat and an "Africa-American" seat.  As a country, we know that people who are not female will not understand fully the issues of women.  We know that Caucasians will not fully appreciate African-American issues.  Having represented many people who had real jobs in the real world, I believe that judges who never worked during college or law school, who went from law school to big law firm and then to a judgeship, just cannot fully appreciate the issues of people who had "real" jobs.  

How else do you explain a decision in which a black man is referred to as boy on several occasions, yet the Fifth Circuit Court of Appeals finds this does not equate to hostile work environment?  The life  experiences of a judge do matter.  

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 I am frequently asked about sex discrimination.  Until I retired last year, I was a member of Reserve/National Guard units for many years.  Sex harassment was an occasional topic of concern.  It is true that unwanted touching is clear sex harassment.  But, what about invitations to dinner?  What about persistent invitations to dinner?  If the person says no, how clear must she be?  How often does she need to say no?  What if the harassment comes from co-workers?  This is a very complicated subject, wrought with deep emotions on all sides. 

There are generally two types of sex harassment: hostile work environment (most often caused by co-workers) and traditional sex discrimination (in which a supervisor treats an employee differently due to the employee's gender).  Hostile work environment refers to occasions when co-workers make a person's work environment extremely difficult - and the co-workers(s) are motivated by the victim's gender.  This is when you hear stories of graphic pictures hanging on the wall or sex based jokes.  As I used to tell my Guard/Reserve audiences, the only safe joke now is a good Aggie joke.  There is no place for gender based jokes in today's workplace.  

Contrary to what some people, even some trained HR personnel, say, there is no easy formula for what constitutes hostile work environment.  It all starts with the alleged victim.  What does he/she say?  What does he/she find objectionable?  The HR/management team should complete a thorough investigation.  The employer is not required to be perfect or understand everything, but it is required to make a thorough investigation and take effective action if necessary.   One of the many challenging aspects of harassment, sex based or otherwise, is the employer must listen closely to the alleged victim.  Sometimes, the harassment consists of relatively harmless acts, such as refusing to invite the victim to critical meetings or even lunch, refusal to greet the alleged victim in the hallway, or worse.  So, it is important that the employer do something it may not often do: listen closely.  

But, in the end, it is about retaining trained, qualified, motivated employees.  So, the better the employer responds to one incident or one complaint, hopefully, the better *all* employees will perform.  In the end, a well-motivated workforce is a profitable workforce.  

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 In a recent decision, the Fifth Circuit Court of Appeals in New Orleans found that referring to an adult African-American male as "boy" twice, as "doofus"and as "dunce" did not amount to racial discrimination.  See: Cavalier v. Clearlake Rehabilitation Hospital, Inc.   Cavalier was a director of nursing at the hospital.  The comments were made by another director.  Michael Maslanka, a well-known employment lawyer who typically represents employers, points out that this finding stretches reality.  In his blog, Work Matters, he appears to understand that to most people in Texas and the rest of the South, referring to an adult African-American male as "boy" is discrimination.  

But, as Mr. Maslanka adds, Mr. Cavalier resigned.  More importantly to the Court, Mr. Cavalier also declined an offer from Human Resources to resolve this conflict.  Resigning almost always weakens an otherwise strong case.  Declining assistance from HR is also unwise.  Do those failures make these comments, somehow *not* discrimination?  Not, probably not.  But, in today's climate, where some judges look for reasons to find against an employee, employees must proceed very carefully.  Many judges have never held a menial job.  They have never had to answer to a capricious or arbitrary employer.  These judges may over-estimate the relevance of HR.  The employee who ignores that reality proceeds at his or her peril.  

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 Title VII of the Civil Rights Act prohibits discrimination based on sex.  But, the Supreme Court has said that does not truly mean "based on sex."   Oncale v. Sundowner Offshore Services concerned some oil rig workers who harassed a fellow male employee in a sexual way.  But, they did not want or intend a homosexual relationship.  We now know that Oncale did not in any way find that harassment based on homosexuality was covered by Title VII.  Many court decisions since Oncale make that clear.  

But, is that fair?  More importantly, is that what Title VII says?  If an employee is fired because s/he will not participate in homosexual activity, is that fair?  Or, is it fair if an employee is fired because s/he does participate in homosexual activity?  Fairness is hard to find in the law, often times.  As lawyers, we have to look at what the law says, not necessarily what is fair.  If Title VII prohibits discrimination based on sex, then why does that not apply to all discrimination based on sex? 

A client of mine was harassed by a supervisor who was probably homosexual.  He harassed my male client in a sexual manner, grabbing his buttocks and making sexual innuendo.  The male supervisor almost certainly did not seek any sort of a relationship.  But, his harassment was apparently based on sex.  My client probably is protected by Title VII.  He may have remedy in the courts.  But, what if the supervisor did want a homosexual relationship?  if the boss did want a relationship, then my client has no remedies......

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