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…..

 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. 

 

 The good news is San Antonio is doing better than the rest of the country.  Unfortunately, much of Texas is still hurting from the recession.  See Texas Workforce Commission’s recent report.  Unemployment in San Antonio decreased in December from 7.0% to 6.8.  But, unemployment in Texas went up from 8% to 8.3.  Nationally, the unemployment rate was 10.0% in December.  So, Texas is doing better than the country and San Antonio is still doing better than the rest of Texas. 

 Only infrequently do we get a glimpse into the inner workings of a court.  We have been looking at the inner workings of the Court of Criminal Appeals, the highest court in Texas for criminal cases, and the inner thinking of Judge Sharon Keller.  Now, we have the report of a relatively impartial observer, Judge David Berchelmann, of San Antonio.  Judge Berchelmann is a sober, careful judge. 

He finds that while Judge Keller’s actions do not bring credit upon the judiciary, he believes that her actions did not rise to the level required to call for serious sanction.  He finds her decision to not keep the clerk’s office open to accept a late motion "highly questionable."  From one judge to another, it rarely gets more direct than that.  In judge-speak, that is pretty critical of her actions. Judge Berchelmann thinks her decision was very poor.  I am not a criminal expert.  But, I am amazed that she would deliberately, knowingly, prevent an appeal in a death penalty case.  The stakes could not be higher.  Contrary to what many non-lawyers may think, few judges want to base any decision on a "technicality."  Most judges go to great lengths to avoid decisions based on administrative or clerical concerns.  One would hope most judges would be focused on justice, not on closing time.  Only more so when a man’s life hangs in the balance.  Her actions bring great discredit upon her and her office.  

The scary thing is if this is what the Court of Criminal Appeals does in a high profile matter like a death penalty case, what are they doing in the less visible cases?  

 

 Electronic monitoring in the workplace is still an area of developing law.  It is clear that an employer cannot use bugging devices and phone wiretaps to discourage or monitor union activity.  It is also clear that no one, including employers, can intercept “wire, oral, or electronic communication.”  But, what is  “intercept”?  What does that mean?  For example, several cases have found that retrieving telephone messages dos not constitute an interception of the transmission. 

The most important consideration is the extent to which employers have let employees know they may be monitored.  If employees know they are being monitored, then that will reduce expectations of privacy.  A frequent issue is use of work email.  If the employer allows use of work email for personal use, the employer cannot later, for example, prohibit use of work email for union activity.  Generally, the extent to which employers can invade an employee’s personal email will depend on the extent to which the employee has used work email servers to develop or send the personal email and the extent to which the personal email is password protected.  

Texas does recognize the tort of invasion of privacy (if the invasion would be offensive to a reasonable person).  In the workplace, there are varying levels of expectations of privacy.  For example, if an employer provides lockers to employees, but requires them to provide their own locks, then the employee does have an expectation of privacy in her locker.  So, yes, if the employer searches that locker without the employee’s permission, then the employer has violated the employee’s right to privacy.  But, if the employer provides the lock, then there probably is no legitimate expectation of privacy.

A 2007 survey shows that many employer engage is some sort of electronic monitoring.  Out of 304 employers surveyed, 65% reported the use of software to block connections to inappropriate websites.  96% block access to adult sites, 61% to game sites and 50% to social networking sites.  46% track key strokes, content and time spent at the keyboard.  12% monitor the blogosphere to see what is being written about the employer.  43% monitor employee email.  So, yes electronic monitoring is a continuing practice. 

 

 

 Facebook account belonging to a tax lawyer is hijacked and used for scam.  Tax Girl’s account was hacked and messages were sent out saying she had been robbed in London and needed money.  Tax Girl (aka Kelly Erb) has a wonderful blog on tax law.  Now, her FB account is suspended until the damage can be repaired.  Be careful out there in cyber space…..

 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. 

 An employment relationship that went bad.  It happens all the time from Burger King to any corporate boardroom.  When it happens in Lubbock, Texas to a major college coach, it becomes big news.  Mike Leach filed his Third Amended Petition in state court alleging breach of contract, wrongful termination,  among other things.  He has added new facts suggesting "outside forces" conspired to get him evicted.  But, as with any employment relationship, prior issues also serve as background evidence.  He had a difficult negotiation of his contract just last year.  

It is safe to assume Coach Leach had a "just cause" termination clause in his contract.  Otherwise, none of these new facts would be relevant.  If he did indeed abuse a player, then "just cause" means he could be fired without having to pay the remainder of his contract.  

"Just cause" means he could only be fired for a just or good reason.  Just cause is the opposite of "at-will."   Not all, but very many individual employment agreements contain some form of a just cause termination clause.  What is a just cause will be up to a jury.  Texas juries can be very conservative.  Coach Leach would have to show that Texas Tech did something more than reasonably rely on complaints from a concerned parent.  

 It is pretty well accepted among most lawyers that eye witness testimony is often inaccurate.  The story I heard in law school was that a professor staged a fake attack during class.  He had someone walk into his room and pretend to shoot him.  The shooter ran away and the professor jumped up to show his good health.  To the students, it looked very real.  The professor then asked the class to describe the shooter.  The professor got some 30 different descriptions.  It is very hard to describe a person or an incident accurately after just a few moments.  

Now, we know this even more so, since so many inmates on death row have been freed with DNA evidence.  In a recent Scientific American story, they report about a supposed rapist and killer convicted based on five eye witnesses.  He too was freed with DNA evidence.  73 of the 239 death sentences overturned with DNA evidence relied on eye witness testimony.  One-third of those 73 cases relied on one or more mistaken eye witnesses.  

The authors of the article explain that one popular misconception about the brain assumes we see an event and later, we simply re-play that same event.  Not so, say the researchers.  In reality, we reconstruct the event, much like putting a puzzle together.  Later, questioning by a lawyer may alter the memory by causing the witness to confuse actual recollection with information provided by the questioner.  Researchers have succeeded in creating false memories in various studies, simply by suggesting realistic, but inaccurate facts.  One-third of the subjects in one study reported recalling partially or completely the false information.  

So, the article explains, various factors can cause faulty memory:

  • extreme stress at a crime scene
  • presence of weapons at the scene of the crime (adding to the stress and causing distraction)
  • racial disparity between the witness and the suspect
  • brief viewing times ate a lineup or other identification procedure
  • a lack of distinctive characteristics, eg a tattoo

 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.