A veteran of the Iraq war gets life for killing unarmed civilians in Iraq.  Reports the CBS news website.  I spoke about this sometime back.  It is a heinous crime.  But, I have noticed that many of the line troops, the ones conducting "kinetic operations," never work with the "nice" Iraqis, the ones who want to better their country.  That can lead to a jaded view.  

As I mentioned in my post on May 5, this would be a difficult trial for a defense attorney, to try to explain to a jury what life was like for this young soldier in Iraq.  That is one of the many challenges for every trial lawyer in every trial. 

 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.  

 Eric Holder, the US Attorney General, is pushing the Dept. of Justice back to enforcing higher impact civil rights.  So says the New York Times.  The DOJ will focus more on high impact litigation, instead of the former administration’s preference for individual cases.  DOJ can prosecute employment discrimination cases against state or local governments.  They can also prosecute employment discrimination cases against federal contractors.  

What this means is that DOJ’s Office of Civil Rights will focus on pattern and practice sort of cases involving many employees, not just one or two.  That makes sense.  DOJ’s resources are limited, just as the EEOC’s resources are limited.  It makes more sense to focus on cases ainvolving more potential victims of discrimination.  

 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.  

 A recent study of 1004 attempts to unionize a workplace finds that employers threatened to close the plant in 57% of those attempts and threatened to cut wages and benefits in 47% of the campaigns.  In 63% of these campaigns, supervisors met with employees in one-on-one meetings to ask workers whether they supported the union.  Of course, interrogating workers about union preferences violates the National Labor Relations Act.  The study was conducted by a Cornell University professor. 

Unions are not a major force in Texas, but even today, union traditions, such as morning coffee breaks, influence many workers in Texas.  Without some union presence somewhere in the workforce, many workers in Texas will suffer. 

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. 

 It will probably take months for Judge Berchelmann to review and draft a statement of facts regarding Judge Sharon Keller.  As Rick Casey mentions, Judge Berchelmann is well-suited to this task.  I have always known him to be a no-nonsense sort of a judge.  After he issues his opinion, Judge Keller will surely appeal a negative opinion.  So, a final result is many, many months away.  But, in the short-term, Judge Keller has suffered a black eye.  She knew the late call from the TDS lawyers was significant, yet she did not mention it to any other judge. 

 It is a critical thing to understand in every lawsuit.  Many people just flat do not remember what happened.  Ed Marty, the general counsel for the Court of Criminal Appeals, in the end, simply admitted that he did not remember what he told Judge Johnson.  This from a trained lawyer with many years experience.  

In one of my law school classes, a professor told a story about something another professor did once to illustrate this point.  The professor had someone come by right at the start of class and pretend to shoot the professor.  The professor falls to the floor and then quickly rises and reassures everyone he is ok.  He then asks the class to describe the shooter.  Everyone in the class had a different description.  Everyone.  Trials and lawsuits are not like on TV.  Everyone may had a different recollection about what happened.  The truth may be very elusive.