A Rastafarian who wears dreadlocks, Xodus applied for a job as a security guard with Wackenhut Corporation.  At his interview Xodus was told that Wackenhut has a grooming policy that would require him to cut his hair.  Xodus responded that cutting his hair was against his "belief," without specifying that the belief was religiously based.  As a result, he was not hired.

At trial the court found the person who conducted the interview for Wackenhut was not told that Xodus claimed a religious basis for his refusal to lose his dreadlocks.  Neither did the circumstances compel the conclusion that the interviewer should have known of the religious consideration.

In affirming the judgment of the trial court, the 7th Circuit Court of Appeals noted that "unlike race or sex, a person's religious belief is not always readily apparent."  Thus, Xodus had an obligation to bring his religious belief to Wackenhut's attention, and his failure to do so was fatal to his claim of religious discrimination.

So "belief" does not necessarily mean "religious belief."  If Xodus had used the adjective "religious" to modify "belief," the case probably would have had a different outcome.  As noted above, words have meanings, and we need to be mindful of that in our business dealings.

For the federal Family & Medical Leave Act (FMLA), try this.

The NJ Family Leave Act (NJFLA)is a little different from the FMLA.

Finally, here are FAQ's related to NJ's "paid family leave act."

Feel free to contact us if you don't find the information that you're looking for in these resources.

Hair Today, Gone Tomorrow

Andre Chreky apparently is the reigning king of hair stylists to the Washington, DC power elite.  Or perhaps that should be "was" the reigning king.  The recent settlement of two sexual harassment cases filed by two of his former employees will set him back, in theory, about $9.3 million.  Here's the story from the Washington Post. The story is not completely clear on the facts, but it is clear that there was actual or attempted sexual contact. 

We say "in theory" because Chreky is already in bankruptcy, so the plaintiffs may see only a small portion of the settlements.  There's no word on whether Mr. Chreky remains in business.

The Lawyer Didn't Do It!

From the left coast comes a different kind of story, involving an attorney and his paralegal employee.  Here's the story.  

In short, the parties agreed that there was a sexual relationship between the two.  After the paralegal was fired, she claimed that she was pressured into the relationship and was fired when she tried to break it off.   She also claimed that the attorney was a sexual predator.  She sued him for wrongful termination and sexual harassment.

Here's where things get interesting.  The attorney filed a counterclaim for defamation and won. 

The jury found for the attorney rejecting the paralegal's claims and awarding him $1.25 million on his counterclaim, of which $10,000 was awarded for punitive damages.  Extensive evidence of  electronic communications between the two, such as text message transcripts, had much to with with the final outcome.

The Moral of the Stories?

Well, to state the obvious, employer - employee relationships are inherently risky.  And the high dollar value of these cases demonstrates that there is potentially life-changing financial impact if the relationship goes bad and turns into a litigation.  But there has to be a recognition that the financial risk is not all on the employer's side, so spurned lovers need to think hard before deciding to use the failed relationship as a ticket to financial security.  Sometimes they may find that they are providing for someone else's financial security.

The legal news today just seemed to be filled with sexual harassment cases that illustrate the ways that office dalliances can affect the work environment, so say nothing of the dallier's (if that's a word) personal fortunes.

Consider this case, reported by Law.com, in which an attorney had a multi-year affair with a paralegal he employed.  He made the curious decision to participate in taking her deposition in the "inevitable sexual harassment case."  (His words, not mine.)  The case is being tried as this is written, but it doesn't sound like the attorney's position is very good.

Or this one, where the employer won in the end but still created all kinds of business problems because a supervisor's boyfriend made life miserable in his girlfriend's office by actually injecting himself into office business.  And she (the supervisor/girlfriend) let him!  And, by the way, they were both married to other people at the time.  Got all that? 

Which disposes of the sex and leads us to the cinema! 

We offer as an antidote to the kinds of problems noted above the timeless advice of the singing, dancing co-workers of J. Pierpont Finch in 1967's "How to Succeed in Business Without Really Trying."   Herewith, "A Secretary Is Not a Toy."  Enjoy.

(And for those of you who don't get the concept of this whole sexual harassment thing, learn!)

If you don't feel like waiting for it on TV, you can watch online here.

By the way, Steve is a very polished host and had a great way of swinging the conversation around the room to the different panelists, integrating our various areas of expertise.

I was a bit under the weather on taping day so I don't sound like myself, but I had a terrific discussion with some great people.  I hope that you enjoy it as much as I did.

In Kirleis v. Dickey, McCamey & Chilcote, P.C., the plaintiff Alyson Kirleis sued the defendant law firm, of which she was a partner, for gender discrimination, claiming that she was paid less than her male counterparts.  She sued under Title VII, the Equal Pay Act, and a Pennsylvania discrimination statute.  The issue was whether Kirleis, as a partner in a professional services firm, was an "employee " of the firm, a status that would allow her to sue, or an "employer," which would not.  The trial court found that Kirleis was an employer and thus found in favor of the law firm.  

Kirleis appealed to the U.S. Court of Appeals for the Third Circuit.  She fared no better there.  In a four page (that's really short, kids), non-precedential opinion, the court affirmed the judgment of the trial court. The court reviewed the six factors laid out by the Supreme Court in Clackamas v. Wells, and found that Kirleis in fact was a partner in more than name only, and thus was an employer.

The Kirleis decision has implications for all professional services firms, not just law firms.  An important lesson to take from this case is that, in order to avoid discrimination claims between partners, care must be taken in setting up a corporate governance structure.  Properly done, problems can be avoided.  Do it improperly, though, and there can be big problems that could have  significant financial ramifications for the organization.

A claim of sexual harassment is the basis for a $7.3 million trial verdict in Redman v. Bernstein, Shur, recently tried in the Superior Court of Maine.  We say "basis  of" the verdict because the case was a claim for legal malpractice, not a direct claim for sexual harassment. 

The facts are contained in this opinion disposing of the parties' cross-motions for summary judgment.  In short, there was a battle between brothers for control of a family-owned business.  One brother learned that there was a plot afoot to make him look bad, and a short time later he was accused by a female employee of sexual harassment. The Bernstein Shur firm was consulted on the matter.  The jury found that they were negligent in how they handled the harassment claim and awarded $7.3 million against them, ALL of it for emotional distress.

An extreme case with an eye-popping result?  Yes, but it serves to emphasize how carefully employers and their attorneys must treat claims of sexual harassment.

So, in honor of the season, for the next several Mondays our attention will turn to  cinema in the courtroom, pairing Hollywood with the law.

We kick it off with a scene from . . . .who else? . . .  The Three Stooges, from "Disorder in the Court."  Unfortunately, we can only link to it.  Take the time to follow the link.  The scene is short, and you won't be disappointed.

Enjoy.

My co-panelists were Don DiStasio, CEO of the Eastern Division of the American Cancer Society, Ellen Levine of The Wellness Community of Central NJ, and Rochelle Shoretz, an attorney and Executive Director of Sharsheret.

It was a terrific panel and the discussion certainly opened my eyes to the human side of what I usually see presented as just a legal problem.

I have not been told when the show will air, but will keep you advised.

Here's how it starts: 

I had just arrived in the newsroom for my shift as a copy editor when a manager came over to my desk and declared, “We need to discuss your goals.” I was 66 years old - past retirement age, damn near old enough to be his father - and he wants to discuss my “goals.”

“Go away,” I told him

McCoy continues:

Floyd was both dense and tone deaf.  He wouldn’t go away. If only Floyd were as dogged in fleshing out a good story. The Performance Review had to be done, he said. I wasn’t going to budge either. It was a crock - something dreamed up by the morons in Human Resources who had nothing to do and, worst of all, absolutely no experience in newsrooms. They all ought to be fired, I said, several times in several ways. This back and forth continued, with the volume of each exchange rising, until the magic words came out.

     
            “Go f*** yourself,” I said.

And so it continues, running through the all-too-familiar ratings on such immeasurable subjective nonsense (OK, that's editorial) as whether someone is a "team player," has appropriate respect for co-workers, appropriately mentors staff, and on and on.

All of which came to down to one conclusion for McCoy: "You want a newsroom full of wusses. You don’t want to hear it when one of our reporters or AP butchers a story or misses the point completely."

You may find yourself cheering by the end of the article.

Now I relate this from the perspective of one who represents both management and employees.  So, like most employment lawyers, I've seen performance reviews used to reward good or correct poor performance.  I've seen them doctored to justify firing someone who was performing well (GASP!).  I've seen performance goals set with absolutely no expectation that the employee might actually meet them.  Just check out 9 of 10 "performance improvement plans" if you don't believe me.

So, yes, I'd have to say that there is a "wussification" factor involved in a lot of HR policies aimed at performance evaluation.  They're designed to force workers into a behavioral mold, and the shape of that mold ultimately is for the company.

But doesn't McCoy have a point when he asks "What were my goals outside of coming in, trying to do a good job and finding good stories and angles others may have overlooked?" 

And might it be possible that HR policies and performance reviews that don't focus on those true measures of performance  --- in the old-fashioned sense --- should themselves be reviewed?

The bill is HR 3721, the "Protecting Older Americans Against Discrimination Act."  We've previously posted on this legislation here.

Here's the latest from Law.com.

I predicted once before that POWADA will become law.  I haven't been proven right yet, but then again, I haven't been proven wrong, either.  I still think that it will happen, and plaintiffs will have the older (pun intended, I suppose), easier road to proving age discrimination restored.

The law is supposed to be a civilizing and moderating influence on society.  While judging has never been free from risk, it's a cause for concern when threats are being received in such volume by the highest court in the land.  Let's hope that Congress is wise enough to give the court whatever is necessary to preserve the safety of the justices and all court personnel.  We are talking about the security of a separate branch of government, co-equal with the legislative and executive.

The linked article notes that fake "resignations" as an April Fools joke are a bad idea.  I second that thought.  Definitely a bad idea.  Twice recently I've seen hypothetical discussions about severance packages get twisted into "resignations" that resulted in a loss of employment!

For now, however, some of my fellow employment law bloggers have begun to look at the details with an eye to formulating strategy.  Here's some thinking from the Washington DC Employment Law Update, the Connecticut Employment Law Blog, and the Employment Law Post.

One thing's for sure: there will be more in the days to come.