And let's equally remember all who are in harm's way protecting us.

Happy 4th of July!

We pointed out that May's job loss was roughly the equivalent of putting St. Louis out of work all at once.  In June we did the same to Sacramento.

According to Bloomberg, since the recession began in December 2007 the economy has lost 6.5 million jobs.  That's about the same as the total population of Los Angeles . . . . . . . . times two.  We're closing in on having the equivalent of the population of our largest city, New York, out of work.  And we're doing it at a scary rate.

But with $200 million potentially at stake, you have to think that Northwestern wants its sales representatives to keep quiet and just sell insurance.

That's why, in these posts, we often discuss current court decisions.  By analyzing what the courts have done in the past, we can make educated guesses about what they will do in a similar future situation.  The lessons of these decisions can be applied not only by lawyers, but also by people in a business environment as a guide to arranging corporate policies and practices.  Sometimes it helps to have a law degree to figure this stuff out; other times the ability to read and a little common sense works just fine.

Which brings us to today's illustration of self-destructive corporate lunacy, courtesy of the always-vigilant Professor  Mitchell Rubenstein of the Adjunct Law Prof Blog.  My educated guess is that the company did not have legal advice when it established its unique corporate culture.

The case is Julie Gallagher v. C.H. Robinson Worldwide, Inc.  The full court opinion is here.

Suffice it to say that C.H. Robinson had an uninhibited work environment.  As the court described things:

Gallagher describes the atmosphere at the Cleveland office of
CHR during her four-month tenure as being much like “a guys’ locker
room” characterized by unprofessional behavior on the part of both males
and females, and an environment that was hostile to women. She
testified to the prevalent use of foul language by mostly male coworkers
who openly and loudly referred to female customers, truck drivers, coworkers
and others as bitches, whores, sluts, dykes and cunts. She
testified that male and female co-workers viewed sexually explicit
pictures on their computers (although the only incident she could
specifically recall was a sexually explicit picture on co-worker Angela
Sarris’ computer during the Christmas holidays), and that male coworkers
left pornographic magazines lying open on their desks.
Gallagher testified that, on several occasions, Starosto brought in nude
pictures of his girlfriend in different sexual poses and shared those
pictures with several of his male co-workers who occasionally brought
in, and shared, pictures of their own with him. She testified that her male
co-workers traded sexual jokes and engaged in graphic discussions about
their sexual liaisons, fantasies and preferences in her presence on a daily
basis.

All of this was too much for Gallagher, who sued  for sexual harassment on the basis of a hostile work environment.  She lost.  The trial court decided that since the sexually offensive conduct was not directed specifically at her, and was engaged in by some women so as not to have been "based on" sex.

On appeal the 6th Circuit Court of Appeals reversed the trial court.  The substance of the decision can be summarzied as "gimme a break."  "It is obvious," said the court, that the work environment was based upon gender, was more offensive to women than men, and was degrading to women.  That was enough to prove Gallagher's case.

So if you run a business, don't be lulled into a false sense of security by the fact that you curse at women and men with equal gusto.  The "equal opportunity abuser" defense is on the way out.  And don't think that the work environment is not hostile to women just because some women are acting like the boys.

Lesson learned?  Anyone care to prophesy about where the law of sexual harassment is headed?

If you were to give plaintiff attorneys a chocie between filing a complaint for discrimination or for retaliation, my guess is that they would usually choose retaliation.  I'm open to discussion on that point.  The important thing, however, is that when an employee complains of unlawful discrimination, even when the complaint is baseless, it needs to be investigated properly.  And future HR decisions about the employee need to be made with the prior employment history in mind to maximize the chances that a retaliation complaint will not be filed in court in the future.

The opinion was written by Justice Thomas.  Although we have not had time to digest the opinion thoroughly, the gist of the opinion is that, in a mixed motives age discrimination case, the burden of persuasion never shifts from the plaintiff to the defendant. 

Hence, the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the “but-for” cause of the challenged employer decision.

Stripped of the legal hocus-pocus,that means that many age discrimination cases just got harder for the plaintiff to prove.

We'll have more on this decision as time allows us the opportunity to read all 29 pages more thoroughly.  (What a great way to spend Father's Day!)

Here are the facts in brief.  Priscilla Huston worked at P&G's Mehoopany  plant on a team of technicians that ran large paper manufacturing machines.  Huston, who had a disciplinary history, was fired for falsifying machine data logs.  She sued, claiming that she was the victim of hostile work environment sexual harassment and retaliation.  The trial court ruled against her.

The issue on appeal to the 3rd Circuit was narrow: whether P&G knew of the alleged harassment through the machine supervisors who were aware of it and nonetheless failed to take prompt remedial action.  The court held that the machine supervisors --- despite having limited supervisory functions --- were not of a level sufficient to impute knowledge of the harassment to P&G.  To put it plainly, knowledge of facts pertaining to aleged sexual harassment was not  material to their jobs, which were limited to supervising work on the machines.  

Thus, the court found that "an employee's knowledge of sexual harassment will be imputed to the employer where the employee is specifically employed to deal with sexual harassment.  Typically such an employee will be part of the employer's human resources, personnel, or employee relations group or department."

There are a couple of lessons here.  If you are an employer, and especially a small employer without a well-defined corporate structure, publish a policy that defines who in the management structure is authorized to deal with harassment.  If not, you're leaving it to an unknown court to make the decision for you, and you may not be happy with the result. 

If you are an employee with a harassment complaint, be sure to get the facts to someone in management who indisputably has the responsibility, as part of his or her job function, to deal with such things.  Fail to do so and an effort to vindicate your rights in court will probably fail. 

Oddly enough, authorities quoted in the article think that the universities often get "out-gunned" by the coaches and their agents.  And yet that point of view is plausible.  Coaching contracts often get put together in a hurry.  The employers usually rely upon their in-house legal staffs, who may or may not have the requisite expertise, and who always have many other things to think about.  The coaches, on the other hand, have a singular focus: to get the deal done as quickly as possible, on the most favorable financial terms.  And usually with the help of agents and lawyers who do have the requisite expertise.  Viewed that way, one can see that it is not always a fair fight.

How to level the playing field?  For one thing, college administrators can try to anticipate their coaching needs --- and coaching changes --- and prepare for the negotiation in advance.  One way to prepare is to line up some "outside talent," such as consultants and outside attorneys, to work with in-house lawyers as an integrated team.

We can tell you from experience that a poorly drafted contract can cause many problems down the road.  Especially when you're playing in the high stakes world of major college coaching, get it right from the start to avoid big problems later.

The Lancaster Law Blog reminds us that in a down economy non-compete agreements are at once increasingly common and increasingly difficult to enforce.  As a result, businesses that rely upon them may be lulled into a "false sense of security."

The Virginia Non-Compete Law Blog, looking at things from the employee's perspective, validates the thought about a false sense of security  when it tells us that "employees should fight back" against the unwarranted enforcement of non-competes.

Non-competes serve a valid purpose when they seek to protect legitimate proprietary business interests.  But when they do no more than seek a business advantage by stifling prospective future competition, New Jersey courts will find them to be invalid.

In our practice we often see small businesses attempting to use "one size fits all" non-compete agreements bought over the internet.  Those often have deficiencies that make them problematic when applied to a specific business situation.  Frequently their biggest value is merely their deterrent effect.  Employees are dissuaded from fighting back not because they are wrong, but because of the expense of the fight.

In short, both of my fellow bloggers cited above are right.  If you are seeking to protect a business, be sure that your non-compete agreement is tailored to legitimate business needs or it may offer no protection at all.  If you are an employee faced with a non-compete, don't despair.  You may have more leverage than you think.

Who said the law can't be fun?

Now, if we could just figure out what Tribbles might teach us about HR issues  . . . . . No, we don't want to go there.  But enjoy Dan's post anyway.  

The short story: Terri Patraw, a soccer coach at the University of Nevada-Reno, was fired.  She sued, claiming that her termination was in retaliation for her reporting of possible Title IX and NCAA rule violations, and sexual harassment.  The university defended on the basis that Patraw was (a) an employee at will and thus subject to termination at any time, and (b) was a source of continuing turmoil in the athletic department.

Shortly before a scheduled trial the court granted the university's motion to dismiss the complaint.  This came after 4 days of oral argument.  Four days!!!!  When was the last time that you heard of four days of oral argument on anything, maybe short of a dispositive motion in a class action antitrust case?  But I digress.

After a thorough airing of the issues the court granted the defense motion and the case came to a screeching halt.  Now the university is threatening to seek from its former coach reimbursement of a half million dollars in legal fees.  I plead ignorance on the specifics of Nevada law, but in most places such a motion would go down in flames in short order.  Let's hope that it doesn't take four days of argument to get a decision.