What is sex harassment? Whatever it is, it must be severe or pervasive. In Royal v. CC&R Tres Arboles, No. 12-11022 (5th Cir. 11/21/2013), the Fifth Circuit found the following acts amounted to sex harassment: standing over and behind a woman and smelling her hair several times a day; one man sat in front of the woman with a visible erection and stared at her, saying nothing; smelling women as they emerge from the bathroom. The woman told the male co-workers she did not appreciate the smelling, but the actions continued. The woman reported the conduct to management, who ignored her concerns. The appellate court found that amounted to sexual harassment, but the lower court did not. See my prior post about that case here.

Now, the office of Congressman Blake Farenthold had the following occurrences: staff drinking liquor at work and discussed sex tapes, strip clubs and which anchors on Fox news had breast implants, lobbyists who tested shots of their genitals. A Congressman’s aide wanted to post a photo of a staff member attending an opening of a Twin peaks restaurant/bar ( a Hooter like chain) on Facebook as a promotion of Text business. Two female staffers lodged sex harassment complaints. See Politico report. Rep. Farenthold had an outside agency come investigate these incidents, as he should have. The investigation did not agree these incidents revealed sexual bias. But, the Congressman and the office did undergo sensitivity training.

Yes, in some courts, that conduct would indeed amount to sexual harassment. If there was also some otherwise unexplained personnel decisions that favored male employees. In other courts, it might not be severe or pervasive enough.

And, of course, before these two women complained about the sex talk at work, another female staffer, Lauren Greene, filed a lawsuit against Congressman Farenthold, which he settled for $84,000. Apparently, that training on sexual harassment came too late to avoid a lawsuit. The Congressman says he did not sexually harass Lauren Greene. But, people do not pay $84,000 to settle a claim that has no evidence.

And, look what happened in the Sanders v. Christus Santa Rosa case. In that case, the Western District of Texas found the incidents of alleged sex harassment was severe or pervasive. It rejected the employer’s argument that those incidents were just flirting or sexual bantering. It denied the employer’s motion for summary judgment. Yet, at trial the jury found for the employer. See my post about that case here.

Sometimes, what constitutes sex harassment is in the eye of the beholder. But, we can all agree there is no good reason for discussing sex tapes and genitals at work. And, is there any reason why work related outings need to occur at Hooter’s or Twin Peaks?

Ummmmm, no. Don Trump. Jr. has claimed attorney client privilege in refusing to answer questions about a conversation he had with then Candidate Trump in 2016. There was a meeting at Trump Tower in June 2016 between Donald Trump, Sr., Donald, Jr., and a lawyer. Early on, Donald, Jr. said it was a brief meeting between just the three of them. Now, it turns out there were eight folks present, including Paul Manafort and Jared Kushner. Now we know the meeting occurred only because Donald, Jr. expected to receive dirt on Hillary Clinton from Russian operatives. Donald, Jr. refused to answer questions about the meeting, citing attorney client privilege. He was appearing before the House Intelligence Committee, this week. See Politico report.

There are a few problems with his claim of attorney client privilege. First, he is not a lawyer. The attorney is bound by the attorney client privilege, not the client. The client, assuming it was Donald Jr. (but it would have been any of the eight persons in the room), can say whatever he wishes about what was said. Second, when a second person is in the room – in addition to the lawyer – then the attorney client privilege is waived. It is gone. It does not exist. If you as a client allow a second person to hear what you have to say to your lawyer, then you have waived the attorney client privilege. The point of the attorney client privilege is to ensure free flow of communication from the client to the lawyer, not the other way around. The client can share what he said to his lawyer anytime.

That Donald, Jr. would cite a bogus privilege in response to questions suggests ) he did not actually consult with a lawyer before deciding to cite the attorney client privilege, and 2) he has something to hide.

The thing about lawsuits and making stuff up is you just cannot predict how things will turn out. Pres. Trump has been sued by the James Madison Project, an intelligence watchdog group, and Politico seeking documents related to his tweets that are in turn related to Russia. In James Madison Project v. Dept. of Justice, DOJ argued that the tweets are public statements, “official” statements of the President. One or more of his tweets claimed the Steele dossier was “discredited.” So, the James Madison Project and Politco are seeking whatever documents support the claim that the dossier was “discredited.”

Yet, in another case, some twitter users have sued the President for blocking them. They seek the right to reply to his tweets. He does not like their comments, so he has blocked them on his twitter account. Those twitter users have sued the President and Twitter to become unblocked. (Only in 2017 would we have a lawsuit requesting a government official to “unblock” them). Their point is that if these were traditional public statements, they could indeed react or ask questions. So, they argue that his tweets are a public forum.

In this second lawsuit, known as Knight First Amendment Institute at Columbia Univ. v. Trump, DOJ has argued that yes, while the tweets are official statements, they are also “personal conduct that is not an exercise of state power.” DOJ has moved for summary judgment, arguing that the tweets are maybe not so official, after all. In its motion for summary judgment, the DOJ argued, “To be sure, the President’s account identifies his office, and his tweets make official statements about the policies of his administration.” “But the fact that the President may ‘announce the actions of state’ through his Twitter account does not mean that all actions related to that account are attributable to the state.” In the legal business, we call that double speak. It is also considered a “judicial admission” when a person contradicts himself in one lawsuit, as opposed to another lawsuit. The President tried one lie or exaggeration in one case and found he had to adjust his “story” a bit for a second, different lawsuit. Both sides in this lawsuit have moved for summary judgment. See ABA Bar Journal report.

And, of course, just last weekend, Pres. Trump tweeted that he fired James Comey because Mike Flynn lied to the FBI. That tweet suggested Pres. Trump knew Mr. Flynn was obstructing justice weeks before the President fired him. So, when Pres. Trump fired Mr. Comey, he may have done so to help LTG(R) Flynn. And, now, Pres. Trump’s lawyer, John Dowd, claims he wrote the tweet. That claim will surely lead to the need to further adjust the “story” that the President’s tweets are “official.” Why would a personal lawyer be drafting “official” statements for the President? What regulations or statutes will that violate? The problem with creating a “story” for one’s defense is that keeping that story straight is very challenging.

That is why in employment cases, the employer’s articulated reason for firing an employee is so critical. If the employer does not know why someone was fired, then no one knows. Or, in this case, if the the President does not know what his tweets are, then it may well be that no one knows.

 

Employment cases are difficult for the employee. I have mentioned a couple of studies about the success rates for employment cases. See my prior posts here and here. Now, we have another study. In Rights on Trial: How Workplace Discrimination Perpetuates Inequality, the authors went to federal records and interviewed individual plaintiffs to study how well discrimination lawsuits achieve the simple aim of rectifying discrimination in the workplace. The authors included Ellen Berrey, professor of sociology, Robert L. Nelson, research chair in the legal profession and professor of sociology, and Laura Beth Nielsen, professor of sociology.

This study looked at not just reported cases, or cases that went to trial, but tried to review the gamut of cases, those that settled early and even some that did not see a lawsuit filed. The study focused on disability, sex, race and age cases. It studied four central steps in any lawsuit, dismissal, early settlement, late settlement and trial. The authors interviewed plaintiffs and their lawyers.

It found the filing of discrimination lawsuits is on the decline. Discrimination filings have decreased from high of 23,725 such lawsuits in 1998 to only 13,831 in 2014.

They found some 36% of such cases were dismissed or thrown out of court on summary judgment. 50% of plaintiffs settled for an average of $30,000. The median settlement amount was $30,000.  Rights, at p. 4. Only 6 percent of cases filed resulted in trial. Among those trials, only 33% resulted in a win for the plaintiff.

Apart from cold numbers, the authors found the plaintiffs paid a high emotional cost for his/her lawsuit. They generally faced ostracism from management and co-workers alike. Many plaintiffs reported depression, alcoholism and divorce in the wake of their lawsuits. Many hoped to get their jobs back. That almost never happens. That finding certainly jibes with my experience.

The study also found that employment lawyers typically accept one in ten of the cases that cross their desks. That does sound right. That screening process unfortunately works against plaintiffs with fewer resources and against African-Americans. African-American plaintiffs were less likely to find lawyers willing to accept their case. That lack of representation means they were more likely have their cases dismissed.

The EEOC employs codes to identify early on which filings are more likely to result in findings f discrimination. It is a triage system designed to identify the cases where the EEOC can have the greatest effect. The authors compared those early factors to eventual outcomes and found the EEOC analysis was not accurate. The EEOC priority codes had no apparent relationship to the actual outcomes, found the authors.

The highest number of cases filed included race discrimination at 40%. Sex discrimination wa next at 37%. Then came age (22%) and disability (20%). See ABA Bar Journal report about the book here.

I will discuss later their observations about looking for lawyers and how well that process works.

Yes, sexual harassment cases are often rejected by the courts, i.e., by the judges. Over the past several years, the courts have developed a test for just how bad the harassment is (or is not). The legal term is “severe or pervasive.” The harassment must be severe or pervasive. See my prior posts here and here. In the Sanders v. Christus Santa Rosa, the district judge even comments in his opinion that the Fifth Circuit seems to be counting the number of incidents within a certain amount of time. In the Sanders case, the judge denied the motion for summary judgment, but the plaintiff later lost her case in front of the jury.

Sociology professor Sandra Sperino read through some 1,000 sexual harassment cases, apparently filed in federal court. She says only 3-6% ever make it to trial. See NPR news report. Another researcher for the American Bar Foundation looked at a random sampling of sexual harassment cases and found that 37% were dismissed before trial. About half settled, Laura Beth Nielsen added. Some judges dismiss the claim if there was no skin on skin contact. One plaintiff endured some 24 taunts and thinly veiled invitations over ten days. The judge said it only lasted ten days and was not, therefore, severe or pervasive. Ms. Nielsen found only 2% of plaintiffs proceed to win their sexual harassment trials.

The report indicates about one-half of all women in the work place endure some form of sexual harassment. But, only 5-15% report the behavior.

 

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex, color, religion, race, and national (ethnic) origin. Other statutes prohibit discrimination based on age and disability. But, the statute does not apply to all businesses. An employer must have 15 or more employees for Title VII to apply. For the Age Discrimination in Employment Act to apply, an employer must have 20 or more employees.  That means thousands of small employers are not covered by Title VII or the other discrimination statutes.

The intent behind this number of employees was to not burden smaller employers, the “mom and pop” shops. Small businesses employ a huge percentage of workers. It was felt at the time that new rules and statutes was more than the small businesses could handle. We might not feel that way, today. And, certainly, for those folks working for smaller employers who may be fired due to race, age, etc., this is not 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, his employer was way short of 15 employees.

He left my office knowing he would have to quit or risk losing his job. He was not ready to give up his girl friend. And, his girlfriend was not happy with him for staying there as long as he had. We often assume today that we are entitled to a discrimination-free work place. But, that is not always true.

The American Bar Association hs been reviewing proposed judges’ qualifications for decades. The President nominates a federal judge, and the ABA reviews and assigns a rating. For the first time since 2006, it has publicly rated a judge “not qualified.” It found Leonard Steven Grasz, a Nebraska lawyer, unqualified for the the position of judge on the Eighth Circuit Court of Appeals. The ABA’s standing committee found that it did not believe Mr. Grasz could set aside a “passionately held social agenda” to respect precedent, including Roe v. Wade. See ABA Bar Journal report here and here.

Some senators, such as Ted Cruz, respond that the ABA is a liberal advocacy organization. Cough Cough. No, not quite. The ABA is composed of hundreds of volunteer lawyers who’s serve in various capacities. The ABA is composed of dozens of various volunteer committees and organizations. Yes, some activities or committees of the ABA are more liberal than others. But, the standing committee on judicial nominations is not and never has been. It is a nonpartisan committee. It is unfortunately a reflection of these very partisan times that the President has been nominating some extremist judges.

The standing committee on judicial nominations has assigned four not qualified ratios so far this year out of 53 nominations. The ABA standing committee has found other judges not qualified in years past, but sometimes, those nominations were withdrawn and the “not qualified” rating was not made public.This is the first time since 2006 that the “not qualified” rating has been made public, not just with Mr. Grasz but with three other nominations. Ultimately, it will be the American public who will suffer when they have to appear in front of marginal judges.

Among Pres. Trump’s recent nominations for a judgeship is Brett Talley, Harvard graduate, and conservative blogger. He is rated as “not qualified” by the American Bar Association standing committee on judicial nominations. The committee’s vote to rate him not qualified was unanimous. He is also a paranormal investigator, a ghost hunter. He is young for a judge at 36 years old. He has only practiced law for three years. He has never appeared in court for trial. See BBC news report. He has never tried a case. If he is confirmed, as seems likely, he will go from being an intern to performing brain surgery.

Mr. Talley is a member of the Tuscaloosa Paranormal Research Group. That apparently means he and others will go sit in spooky houses all night and observe activity. They apparently seek rational explanations for strange events. So, we can expect they apply some science to things that go bump in the night.

Still, I do not know whether to laugh or to cry. A judge who has never tried a case, but who has searched extensively for ghosts. Is a law degree necessary anymore? Is Jethro Bodine available? After all, Jethro “done gradee-ated” from 6th grade and moved to Beverly Hills with his Uncle Jed Clampett.

Filing suit in federal court is different. Federal court differs from state court in some key respects. One of these respects concerns attorney withdrawal. In state court, most judges would quickly grant a motion to withdraw. Not so in federal court. In GDC Technics, Ltd. v. Grace, No. 15-CV-488-ML, the Defendant’s counsel asked to withdraw. The motion to withdraw indicates the law firm would suffer financial hardship if the motion was not granted. That assertion suggests the firm was not being paid by the Defendant. The Plaintiff opposed the motion because 1) the trial date was about two months away, and 2) there was a corporate co-Defendant. J.R.G. Design, Inc. cannot appear in court without an attorney. Since Mr. Grace has not paid his current lawyer, argued the Plaintiff, then it is unlikely he would find a new lawyer. Thus, the corporate Defendant would have to be dismissed from the lawsuit, or a default judgment would have to be entered against it.

The Judge agreed. In a Feb. 10, 2017 decision, the court found that if granted, the status of the corporate defendant would be very problematic. Mr. Greace himself could appear in court pro se, but the corporate defendant could not. The court noted the law firm had represented the Defendant for well over a year. It seemed unlikely that the Defendant would be able to hire new counsel now.

A couple of months later, the same law firm, the Snell Law Firm, asked again to withdraw, citing some $44,000 in unpaid bills. The law firm noted that the client appeared to have funds with which to hire new counsel. The claims against Mr. Grace had been dismissed. The only remaining Defendant was J.R.G. Design. And, noted the Snell law firm, the parties had entered into a Joint Notice of Settlement. All the corporate Defendant had to do was settle the case. And again, the Plaintiff opposed the motion. The Court agreed with the Plaintiff. Finalizing a settlement agreement and transferring the disputed property would not require much time from the law firm. The Court did note that the conduct of Mr. Grace did appear to have caused additional work for his lawyers. So, if the remaining work became too much, the Court agreed it would re-hear the motion to withdraw. The Court noted that the Plaintiff had filed a motion seeking sanctions due to conduct of Mr. Grace. The Court seemed to be signaling its willingness to release the law firm if Mr. Grace mis-behaved.

That is the different between state and federal court. Bad behavior will have consequences much sooner in federal court. Another lesson appears in this decision, playing nice counts in lawsuits.

 

Coach Bev Kearney’s lawsuit has returned back to the trial court. She will soon start deposing various officials, including former Coach Mack Brown. She also plans to depose former school president, Bill Powers and former Athletic Director, DeLoss Dodds.

I previously wrote about her lawsuit here. Coach Kearney alleges she received harsher discipline in 2013 because she is black. Coach Kearney claims that other white coaches were given second chances for a similar offense. The coach was fired when a relationship with a student came to light. The university has spent $500,000 defending against the lawsuit so far. That is a shame, since the lawyers appear to have committed a serious error during the appeal. But, the university will have additional opportunities to make their point, that comparing discipline will not work when the supervisor in each situation as different.