Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Performance reviews for marriages: what could go wrong?

Posted in Uncategorized

They’ll be sorry . . . 

Woman covering mouth.flickrCC.Sarah

“You don’t know what you’re saying!”

Marriage therapists are now advocating the use of “performance reviews” by spouses, according to an article in Monday’s Wall Street Journal. “By taking time to regularly evaluate and review their relationship together,” reporter Elizabeth Bernstein says, “partners can recognize what is and isn’t working — and identify goals for improvement — long before problems become entrenched and irresolvable.”

Oh, yeah? Well, I can tell those therapists a thing or two about performance evaluations. Here is my open letter to the marriage therapists of America.

(DISCLAIMER: The following is a parody, and John and Mary are fictitious characters. Any resemblance to actual persons, living or deceased, is purely coincidental.)

Dear Marriage Therapists of America:

Annual performance reviews for married couples sounds so logical and reasonable, doesn’t it? But you may wish to consult with employers, some of whom advocate dispensing with the performance review altogether. As an attorney who represents employers, let me share with you just a few of the things we’ve seen go wrong with the annual performance review.

*The reviewer tries so hard not to offend that she fails to address the problems that she needed to address. If a boss has this much trouble giving constructive criticism to an employee, how do you propose that it will work in the context of a marriage?

*Grade inflation. (Caused by same desire to prevent hurt feelings.)

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T.J. Simers discrimination trial: Has he folded under questioning?

Posted in Discrimination

T.J. Simers, a well-known former sports columnist for the Los Angeles Times, is suing the Times for age and disability discrimination. We’re providing regular coverage of the jury trial, which is expected to last about three more weeks. For the background on what the case is all about, go here. For the testimony of Mr. Simers’ psychiatrist last  week, go here. For a roundup of all of last week’s trial testimony (pretty interesting), go here.

T.J. Simers was in the hot seat for most of this week, being cross-examined by the attorneys forCracker Jack.flickrCC.MikeMozart his former employer, the Los Angeles Times. News coverage of the trial has been a little sparse, but here’s what I’ve got:

Mr. Simers admitted that his bosses had discussed the tone, content, and grammar of his articles well before his mini-stroke and the allegedly-bogus “ethical issue” related to his video with then-Lakers star Dwight Howard. “I would say God bless all the copy editors we pay money to to review my columns,” he was quoted as saying. However, he said that he didn’t take his bosses’ comments about his tone as “criticisms.”

(Interesting, since the Times’s psychological expert testified last week that Mr. Simers’ MMPI score indicated that he was paranoid and overly sensitive to criticism. Anyway . . .)

Mr. Simers admitted that the newspaper’s top editor, Davan Maharaj, had never made negative comments about his age or health but that after the mini-stroke managing editor Marc Duvoisin said the Times would “take it easy” on Mr. Simers by allowing him to have time off without having to use his vacation, and would limit his workload until he felt better. Mr. Simers admitted that these statements were “probably not disparaging or offensive.”

(“Probably”? I think those statements sound great – for the Times, that is.)

He also said that he did not think he had ever been excluded from an event or opportunity because of his age.

Last week, Mr. Simers admitted that he was not fired and that the Times executives asked him to stay. But according to one news report, he would have been required to accept a demotion (which we already knew) and admit that he had committed an ethical violation in connection with the Howard video.

One other tidbit that I don’t think I’ve mentioned before: Mr. Simers is seeking $18 million.

As you know, I’ve been back and forth on this case as the evidence has unfolded. But right now, I’m thinking, “Can you please remind me why the Times didn’t win summary judgment?”

Thanks as always to Daniel Siegal of Law360 for the continuing coverage.

Please feel free to give us your two cents in the comments. And don’t go away!

Image Credit: From flickr, Creative Commons license, by Mike Mozart.

Gorilla schtick, Juneteenth, and quit while you’re ahead

Posted in Discrimination, Harassment
Judge Judy.flickrCC.Jena.Fuller

“Counsel, you are NOT helping your case.”

One of the marks of a good trial lawyer is knowing when to sit down and shut up.

Maybe these lawyers knew that, and were just desperate.

CorpCar Services of Houston (Texas) lost a racial harassment lawsuit filed by two employees based on a dancing gorilla (played by a white woman) who was hired to “entertain” at a mandatory safety meeting. The gorilla’s schtick included referring to her “big black butt,” and she asked one of the plaintiffs, who was African-American, whether he had a banana in his pants. The safety meeting in which all of this took place was the day before Juneteenth of 2009.

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BREAKING: Young and UPS settle pregnancy lawsuit

Posted in Pregnancy, Settlements

Young v. UPS is ovah!

Law360 reported this morning that Peggy Young and United Parcel Service have settled their pregnancy discrimination/accommodation case that went to the Supreme Court, resulting in this decision from last March. The Supreme Court had found in Ms. Young’s favor for the most part, but remanded the case so that the lower court could make findings applying the Supreme Court legal standard.

UPS had already changed its pregnancy accommodation policy before oral argument, which took place last December. Although the amount of the settlement was not disclosed, Ms. Young’s attorney said that the change in policy at UPS was an important factor in the resolution of the case.

Older posts on Young v. UPS and pregnancy discrimination/accommodation:

Today’s SCOTUS pregnancy decision in 1:14 (from March 25, 2015, date of Supreme Court decision)

Pregnancy accommodation FAQs for employers (more in-depth analysis of the decision)

EEOC’s pregnancy accommodation guidance, revised after Supreme Court decision (June 2015)

And a brand-new pregnancy accommodation lawsuit filed by the EEOC (September 29, 2015)


HR FUN PUZZLE: Find what the AARP did right with this underperforming employee

Posted in Discrimination

If the AARP can’t win summary judgment in an age discrimination case, then who can?


“Me? Discriminate? Only against the young!”

Who’d believe that the American Association of Retired Persons would fire somebody because she was too old?

Who, indeed. The organization recently won a nice summary judgment victory in an age discrimination suit brought in federal court in New York by a former employee. The plaintiff was 50 when she was hired by her 56-year-old boss, and fired for poor performance when she was 59 by the same boss, who by that time was 65.

To the AARP’s credit, they didn’t just rely on their reputation as an advocate for older Americans. They actually did a bang-up job from an HR standpoint. So good, that it’s worth a look.

To make it fun, I’ll tell you the story, and you find every excellent HR practice by the AARP. My own list is at the end of the post. You may find more than I did. Feel free to include your score (and anything I missed) in the comments section.

HERE’S THE STORY – see whether you can find all of the excellent HR moves this AARP office made. 

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T.J. Simers discrimination trial: Are you paranoid if they really ARE out to get you?

Posted in Corporate Culture, Discrimination, Evidence

T.J. Simers, a well-known former sports columnist for the Los Angeles Times, is suing the Times for age and disability discrimination. We’re providing regular coverage of the jury trial, which is expected to last about four more weeks. For the background on Mr. Simers’ termination, go here. For the testimony of Mr. Simers’ psychiatrist earlier this week, go here.

Duel of the psychological experts

A psychologist retained by the Times testified this week that Mr. Simers scored “very high” forCracker Jack.flickrCC.MikeMozart paranoia on the Minnesota Multiphasic Personality Inventory. His test results showed that he was “overly sensitive to criticism,” “lacking in insight,” and scored a 6 on the paranoia scale. The psychologist testified that his MMPI result was consistent with people who are “self centered and have hurt feelings.”

Mr. Simers’ own psychiatrist testified earlier this week that he was devastated by his demotion, and was suffering from major depression.

I don’t know what to make of the psychological testimony. As I noted on Tuesday, I can believe that Mr. Simers was depressed. He had a lot to be depressed about, what with his medical condition and some of the changes going on at the Times. But how much of that was caused by the demotion (as opposed to these other potential causes)?

On the other hand, I’m skeptical of the defense psychologist, who interviewed him for three hours — presumably after he’d already got the shaft from the Times (allegedly) and maybe had reason to be “paranoid.” Yeah, maybe his standardized test scores were a little skewed after everything that has (allegedly) happened.


If those “eyes” in the middle are closed, you’re depressed. If they’re looking at you, you’re paranoid. (DISCLAIMER: Not an actual psychological opinion. I made it up.)

(It’s supposedly common for jurors to disregard “dueling” expert witnesses – this is probably why.)

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Betty Davis, April 3, 1932-September 29, 2015

Posted in Uncategorized
Betty Davis

Betty Davis, 4/3/32-9/29/15

We are very sorry to report that Betty Davis, a dear colleague and friend, passed away unexpectedly on Tuesday, September 29. She was 83.

Betty, originally from Vidalia, Georgia, started her career with the Federal Bureau of Investigation in New York City, and began working for “the original Constangy” (Constangy & Prowell) in Atlanta as a legal secretary in 1957. She obtained a law degree in Atlanta but chose not to practice law.

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Double whammy for employer who won’t accommodate pregnancy — but will the EEOC’s case survive?

Posted in Americans with Disabilities Act, Discrimination, Pregnancy

This case may have some problems, but it’s a good illustration of why employers need to be careful, post-Young v. UPS. Thanks very much to Bill Goren for sending it my way.Pregnant_woman

The Equal Employment Opportunity Commission filed suit last week in a federal court in Pennsylvania against Landis Communities (retirement communities), claiming that Landis unlawfully refused to accommodate the pregnancy and disability of charge nurse/supervisor Amy Potts.

According to the lawsuit, Ms. Potts had an “incompetent cervix.” In layman’s terms, that means that her cervix (the “neck” at the bottom of the uterus) was weak, meaning that if she was pregnant, she could have trouble “holding the baby in” until it was really ready to be born. That’s probably about all I want to say about that, but for more information, go here.

Ms. Potts became pregnant, and had surgery for her condition, and in April 2010 came back to work with a 25-pound lifting restriction. According to the EEOC, Landis forced her to take a medical leave of absence, saying it could not accommodate her. Meanwhile, Landis did make accommodations for lifting restrictions of other, “non-pregnant,” employees. (Presumably, employees with on-the-job injuries, and ADA disabilities.) Then, in April 2011, Ms. Potts applied for a charge nurse/supervisor position (her old job?), and was told she’d have to prove that she didn’t have the lifting restriction any more. She was also told that she was considered “terminated” as of March 31, 2011.

Before I get into what I think is wrong with this case, let me note three important points for employers trying to act preventively:

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Shrink says sports columnist may not recover from depression

Posted in Discrimination

Our continuing coverage of the T.J. Simers age and disability discrimination trial . . . er . . . continues.

The psychiatrist for sports columnist T.J. Simers testified yesterday that Mr. Simers has majorCracker Jack.flickrCC.MikeMozart depressive disorder and general anxiety as a result of his demotion by the Los Angeles Times.

Mr. Simers is suing the Times for age and disability discrimination in connection with his demotion. He resigned from the Times in October 2013, wrote for the Orange County Register for about another year, and then took a voluntary separation package from the OCR and is now retired. I have background details here.

Mr. Simers is expected to testify today.

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EEOC wins most of discovery dispute in transgender case

Posted in Discrimination, Gender Identity Discrimination

In July, I posted about a discovery dispute in the transgender lawsuit going on in the Detroit area. The Equal Employment Opportunity Commission has sued a funeral home for discriminating against Aimee Stephens, a transgender woman.

The Defendants, represented by the Alliance Defending Freedom, had served discovery on the EEOC, seeking intimate details about Ms. Stephens’s transition, including whether she currently had male or female genitalia, and her psychological condition. The EEOC asked the court to block the discovery.

I said that the discovery did seem intrusive but that it was probably par for the course in an employment case. Law360 (paid subscription required) reports this morning that the court ruled in the EEOC’s favor on all of it, with the exception of two interrogatories asking for information about when Ms. Stephens’s co-workers would have become aware of her transition.

One important point that was clarified for me in the court’s decision is that the EEOC’s “transgender discrimination” claim has been dismissed, and only the “gender stereotyping” claim is going forward. The court acknowledged that if the transgender discrimination claim were still alive, then the more-intrusive discovery might be justified. On the other hand, a stereotyping claim is based only on the perceptions of the employer, so it’s not necessary to delve into those intimate, and potentially embarrassing, issues.

We’ll continue to follow this very interesting case of first impression.