One of the more difficult problems for employers is harassment by unknown co-workers. The law was designed for harassment by supervisors. It functions not so well when the harassment is caused by co-workers. In Tolliver v. YRC, Inc., No. 17-10294, 2018 US LEXIS 17806 (5th Cir. 6/28/2018), African-American workers were harassed in various ways for over 15 years. The black workers encountered racist graffiti, nooses, and other incidents. The district court refused to allow evidence of incidents which occurred beyond the 300 day limitations period. So, the court only addressed two incidents, a noose left in YRC facilities and racist graffiti left on a YRC truck. It was not known who committed these acts.

The court found these two incidents were not sufficiently pervasive or severe to amount to a hostile work environment. The court noted that the plaintiffs did not contend that the two incidents were directed toward them. And, said the court, “for the most part,” the plaintiffs learned of the two incidents second-hand.

But, even if the two incidents were sufficiently severe or pervasive, management took prompt and remedial action. The company posted a $25,000 reward for information about the incidents. It interviewed hundreds of employees. It hired security guards, and it contacted law enforcement. The employer also provided weekly reminders about its non-discrimination policies. The employer did not discipline anyone, because the perpetrators were not found.

As the court added, Title VII is not a behavior code. It prohibits discrimination. Essentially the court is saying Title VII does not require the employer to deeply investigate acts of apparent racism. Most courts require reasonably swift action, and not much more than asking employees if they know who committed the acts. This decision is in line with those prior authorities. The Fifth Circuit affirmed the grant of summary judgment. See the decision here.

Well, the Tarrant County (Ft. Worth) Republican party voted to keep Dr. Shafi in his position as Vice-Chairman of the party. By a vote of 139-49, the precinct chairpersons voted to keep the doctor in his position. I previously wrote about this vote here. A lady named Dorrie O’Brien and others had pushed the idea that because he was Moslem, he had some connection to jihadists. That notion would be humorous if it was not so serious. See CNN news report here.

Dr. Shahid Shafi is finding much support among the Republican party in his quest to remain vice-chairman of the Tarrant County Republican Party. Gov. Greg Abbott and Sen. Ted Cruz have both issue statements supporting the doctor. The vote to remove Dr. Shafi is set for next week. I previously rote about this discriminatory attempt to remove the doctor here. See CNN report about this attempted removal here.

That really is the silliest thing, thinking just because he is Moslem that he must be a jihadist. I fought jihadists in Iraq. Trust me, Dr. Shafi is not a jihadi person.

The battle over whether individual arbitration agreements can prevent class actions was settled with the decision in Epic Systems v. Lewis, 138 S.Ct. 1612 (2018). That decision found that workers who signed individual arbitration agreements with his/her employer could not later file suit as a class or collective action. Employers viewed this decision favorably. But, now, maybe not so much.

See what has happened with what was intended to be a collective action against Chipotle. In 2014, Chipotle started requiring workers to sign arbitration agreements. Some 2800 Chipotle workers signed mandatory arbitration agreements. They tried to file a collective action in Denver based U.S. district court. Chipotle invoked the individual arbitration agreements. The judge agreed the claims should be heard in arbitration. But, then Chipotle tried to bar the plaintiff law firm from representing the individual plaintiffs in arbitration. The employer’s rationale was that since the workers received notices of a collective action from the law firm, that law firm should not represent them. In some way, argued the Chioptle lawyers, the plaintiff law firm had compromised the interests of the potential plaintiffs. The court quickly dispensed with that specious argument. See Reuters news report.

The defense lawyers warned the judge that there may be thousands of follow-on arbitrations. The lawyers suggested the plaintiff law firm had tried to leverage thousands of arbitrations to protect its lawsuit. But, replied, the judge, “Absent more concrete evidence of legal incompetence or evidence demonstrating a clear pattern of abuse of the judicial process, I will not interfere with the arbitration plaintiffs’ right to choice of counsel.” In other words, the judge said the employees can pick the counsel they desire.

Chipotle incurs a fee of $1100 per employee, just to file the arbitration. JAMS is providing the arbitration services and their rules require the employer to pay the fees. That ruling in Denver federal court occurred in April, 2018.

Now, in December, 2018 some 150 of those workers dropped their attempted collective action and re-filed individual arbitration claims. So far, Chipotle has refused to pay much of those fees. The plaintiff law firm notes the individual claims amount to no more than about $1,000 per worker. Ordinarily, the plaintiff lawyers would not be interested in pursuing those claims. But, since they worked up much of the evidence for what they thought would be a collective action, they have pursued these 150 claims. See Huffington post here.

And look what happened to a Florida paving contractor in 2018. There were three claimants in that arbitration. The contractor was eventually hit with a bill for $100,000 in arbitral fees. Those three former employees also tried to sue in federal court first. The employer refused to pay the fees and tried to go back to federal court. Be careful what you ask for, because you just might get it.

 

I used to get referrals from the San Antonio Bar Association. These referrals included many clients who had never spoken to a lawyer anywhere. Many of them would call complaining basically about unfair treatment. I still get calls like that, sometimes. They might say, “my employer fired me because they say I did not call in, but I did call in sick.” I have to explain to such potential clients that in Texas, an employer can fire you for the wrong reason or even for a stupid reason.

We have what is known as “at-will” employment. An employer can fire you for any reason (other than various types of discrimination). Just as the employee can quit for any reason. So, yes, even when the employer is wrong, even when you did call in sick and the employer just flat messed up and did not record your call, they can still fire you. I wish that was not true. I wish our state laws were different, that they required some sort of “just cause” for termination. But, most states do not require just cause for a termination. Only some 10 states require a good reason for a termination. In the rest of the states, such as Texas, an employer can fire you for the wrong reason.

Clients and potential clients often ask me at some point what is the value of his/her case? What little they know of its value is colored by the ubiquitous Personal Injury lawyer ads. Or, sometimes, their knowledge is influenced by what some brother-in-law knows, or thinks he knows. So, some clients, a small percentage, expect wealth and riches.

Employment cases are not car wreck cases. The employment discrimination statutes provide for specific types of damages. Title VII and the Texas law equivalent, Texas Commission on Human Rights Act, provide for lost pay and benefits, compensatory damages, punitive damages and costs of prosecuting the lawsuit which includes attorney’s fees. There is nothing more. There is not, for example, such a thing as an award for the value of the home you lost or the divorce the job loss caused. Those sorts of losses do help show emotional suffering. But, no, there will be no dollar for dollar award regarding a lost home. I wish there were. The judge cannot award anything not allowed by statute.

Lost pay and benefits include more than may meet the eye. It includes lost pay of course. It includes all lost benefits. So, save that COBRA letter that records the dollar amount paid by the employer for your medical insurance. You need a record of what the employer paid for your insurance, not for what you paid.

Lost benefits include retirement benefits. Terminations involve different calculations than failure to promote. Lost promotions or raises can affect how much a 401K would grow. Some workers can “guesstimate” how much their retirement would have grown if they had received a particular step increase. If the client cannot make an estimate, then an economist may be necessary.

Lost bonuses count. Of course, the employer will claim bonuses are never guaranteed. They may even point to policies which provide bonuses are never certain and depend on financial success each fiscal year. But, if the actual practice suggests that bonuses are likely and that failure to pay a bonus may have been motivated by discriminatory animus, then there will be a fact issue regarding bonuses. If there is a factual issue, then the issue should be be decided by a judge or jury.

Arriving at an amount for compensatory damages is complicated. Compensatory damages describes damages intended to compensate a person for emotional suffering. There is no simple way to measure emotional suffering. The actual amount to be awarded is up to a jury. Most juries do not award anything for emotional suffering.

Punitive damages are even more rare than emotional suffering type damages.

Of course, all these amounts are subject to caps. Title VII and the the TCHR Act are capped at various levels based on number of employees. The highest cap is $300,000. So, even the largest employer in the country will never see a larger award than $300,000 in compensatory damages.

Once in a blue moon, we might see a jury award a million dollars for compensatory damages. But, that amount will be reduced by a judge to the appropriate cap level.

But, no matter how small, surely it is better that an errant employer pay something for violating the law and causing so much harm.

The ADA Amendments Act was passed in 2008 and became effective in 2009. Only now are we seeing cases interpreting those important changes. One significant change concerns the “regarded as” claim. The old ADA protected persons who were fired because they were “regarded as” disabled. But, the old ADA also required that to merit that protection, the person had to suffer from an actual impairment. That ruling meant many persons in the early stages of an illness or impairment were not protected. Their disability simply had not progressed far enough. So, the ADA Amendments Act broadened the requirement of “regarded as” to also include persons who were simply perceived as impaired. The ADAAA removed the requirement that a person suffer from an actual impairment that limits a major life activity.

In Mesa v. City of San Antonio, No. SA-17-CV-654 (W.D. Tex. 8/16/2018), the Court addressed a critical component of this new “regarded as” claim. How serious does the impairment have to be before the impairment can become the subject of a “regarded as” claim? In Mesa, the worker suffered from a shoulder injury. He recovered from that shoulder injury within eight days. In moving for summary judgment, the employer argued that the condition was “transitory and minor.” The ADAAA provides that the protections of the “regarded as” claim do not extend to conditions which are transitory and minor. The court in Mesa first addressed the question regarding who must show that an impairment is transitory and minor. The court reviewed the pertinent regulations and found this status to be a defense, so the burden lay with the defendant to show a condition was transitory or minor. So, in moving for summary judgment, the employer must show no genuine issue of material fact regarding the status of transitory and minor.

The Act defines an impairment as one which lasts six months or longer. Mr. Mesa’s condition apparently lasted less than six months. But, what is “minor”? The court noted that the employer focused on the wrong analysis in its motion for summary judgment. The employer argued in its motion for summary judgment that there was no evidence that any person at CPS Energy, the employer, viewed Mr. Mesa’s impairment as anything but transitory and minor. That was the wrong inquiry, said the Court.

The proper question was whether the employer believed the employee had an impairment which objectively could be viewed as transitory and minor. That is, was the employer aware of an impairment, which objectively could constitute a brief illness or injury? The court was saying that the employee must show not that the employer viewed the health condition as transitory and minor, but must instead show 1) that the employer viewed the impairment as a particular diagnosis, 2) which objectively may last longer than six months or is otherwise not minor.

The court engaged in detailed review of the facts and noted that CPS Energy took actions which did show they believed the employee had a shoulder injury which persisted, even after apparent treatment. They required him to take a fitness-for-duty examination, for example, even after receiving a medical report. Management also considered requiring the employee to undergo an MRI. Management took several steps even after initial assurances of his recovery. And, as the court noted, the employee was removed from work via an ambulance when the injury first occurred. All those facts suggest an impairment which was something more than minor.So, even though the condition may have lasted less than six months, it was something more than minor.

The court then noted that shoulder injuries as a matter of course, are unpredictable. It found that the plaintiff had presented adequate evidence to show genuine issue of fact whether the injury was not “minor” and whether he had been placed on unpaid leave due to his perceived injury. See the decision here.

If it was not so serious, the story in Tarrant County, Texas would be humorous. A small community near Ft. Worth has a City Councilman who is Muslim. Shahid Shafi has served as a Republican Councilman in Southlake since 2014. He is a doctor. He has served as delegate to state Republican conventions. In July, 2018, he was appointed vice chairman of the Tarrant County Republican Party. Within days of that appointment, a couple of precinct chairs have sought his removal. Dorrie O’Brien and others believe Dr. Shafi represents an attempt by the Muslim Brotherhood organization to infiltrate the Republican Party. Based on no evidence, these precinct chairpersons believe Dr. Shafi seeks too impose the dreaded Sharia law in Texas (and the hordes will multiply!) and that he has some unspecified connection to Jihadi groups. I previously wrote about this story here.

In Facebook posts, Ms. O’Brien has complained often about his appointment as Vice-chairman. She has offered no evidence, says the Texas Tribune, of her assertions about Dr. Shafi. Ms. O’Brien and another precinct chair, Dale Attebery, have asked an anti-Muslim activist, John Guandolo, to come to Tarrant County and conduct training on the dangers of Sharia law. His training will occur on Dec. 29. A vote regarding Dr. Shafi will be held on Jan. 10, 2019. See Texas Tribune story here.

Dr. Shafi came to this country from Pakistan. He has been here 29 years. He says the Republican Party’s belief in small government appeals to him, especially after coming from a country like Pakistan. Leading Republicans in the state have affirmed their support for the doctor. It is ironic that the Muslims who come here are probably the ones most familiar with the horror of actual jihadis. Persons like Ms. O’Brien are attacking the wrong Moslems.

As I have mentioned here, I am continually appalled at the bigotry applied to persons who happen to be Moslem. It is comparable to blaming Presbyterians for acts committed by Methodists. Yes, they are all Moslem, but within the very large Muslim faith, there are infinite variations of adherence to one’s faith and one’s interpretation of that faith. It is silly to generalize all some 1.5 billion Moslems based on the actions of some hundreds in Iraq and Afghanistan. That sort of ignorance would be laughable, were it not so serious.

In a Harris Poll survey a few years ago, researchers found that 20% of hiring managers have asked unlawful questions in interviews. They asked these unlawful questions not realizing at the time that such questions could lead to legal liability. CareerBuilder commissioned the survey. A CareerBuilder representative said an interviewee who is asked these sorts of questions could decline to answer. If the hiring manager insisted on an answer, then that insistence suggests this might not be a good place to work. Those questions include:

  • What is your political affiliation?
  • What is your race, color, or ethnicity?
  • How old are you?
  • Are you disabled?
  • Are you married?
  • Do you have children or plan to?
  • Are you in debt?
  • Do you social drink or smoke?

Some of these questions are clearly unlawful. But, I do not see a legal problem in asking someone if s/he smokes or drinks. And, just to remind my readers, these questions only become an issue if some adverse personnel actions develops later for which there is no good, objective rationale. The best defense to a lawsuit or complaint remains simple: document problems and base that documentation on objective reasons.

Lawyers are not supposed to make things worse for their clients and we definitely are not supposed to wager our law licenses on a particular outcome.  Yet, in the Paul Manafort legal melodrama, that seems to be exactly what has occurred. Paul Manafort entered into a plea bargain agreement with the Special Prosecutor, Robert Mueller. Yet, at the same time, his lawyers also talked with the Trump legal team. Rudy Giuliani said the Manafort lawyers discussed the Mueller probe with Trump’s lawyers. They gained valuable insights, added the former New York City mayor. That is a remarkable admission.

Mr. Giuliani said the Trump lawyers “grilled” Kevin Downing, lawyer for Mr. Manafort, about whether the President knew about the 2016 meeting with the Russians at Trump Tower. See Axios report. And, in fact, that was one of the areas of questions posed to the President by the Mueller team.

Mr. Manafort’s lawyers engaged in those discussions with persons who could grant Manafort a pardon. That suggests the Manafort lawyers were motivated by a desire for a pardon. That suggests the President and his legal team may have suborned perjury. Suborning perjury means to bribe or somehow induce a person to commit perjury. It is a crime. Legal experts have expressed surprise that the lawyers for Manaofort and Mueller would put their law licenses at risk that way. See The Hill news report.

And, of course, at about the same time as all this information emerges, Pres. Trump said he would not rule out granting Manafort a pardon, making it clear a pardon was possible. The president has in effect dangled a dog bone of a pardon before the panting Manafort. Yet, Pres. Trump’s lawyers must realize how that looks. A good prosecutor, even one without the competence of Bob Mueller, would almost certainly look into what was said between the Manafort and Trump legal team. As a class, us lawyers hate to become witnesses. As a witness, we become burdened with a conflict of interest and must withdraw from the legal matter. The lawyers for Pres. Trump have remarkably exposed themselves to legal liability on so many levels. They have likely made themselves witnesses to possible perjury.

Regardless of what was actually discussed, these developments have opened the door to deeper, more extensive investigation. Like doctors, lawyers are expected to if nothing else, do no harm to your client (or to your law license). Yet, these lawyers appear to have done exactly that, harm to the President’s case and to their own law licenses. This is a bizarre turn of events.