Employment and Labor Insider - Legalese Is Not Spoken Here

Five quick ones from the harassment world, plus a "bonus track" involving our old friends Sheryl Sandberg and Marissa Mayer.

This is sexual harassment? On what planet? Employment Law360 (paid subscription required) reports that a court in California is allowing the sexual harassment claim of model Lanisha Cole from The Price Is Right to go to trial in May. According to Ms. Cole, the executive producer of the show, Adam Sandler, burst into her dressing room while she was wearing nothing but a sheer thong (and I'm not talking about sandals) and bawled her out for not having worn a microphone in her previous segment on the show. Then he stormed out of the dressing room. Several other models were in the room at the same time.

Not this Adam Sandler. He'd never do a thing like that!

Of course, I am not condoning the alleged behavior of the other Adam Sandler, but how is this sexual harassment?

Jury busts EEOC in sexual harassment case. Ouch! The Equal Employment Opportunity Commission sued Evans Fruit Company, an apple orchard in Washington state, on behalf of 14 farmworkers who claimed sexual harassment by a foreman and others. Employment Law360 reports that the jury came back with zilch, nada, zip, zero, nuttink --  finding that no sexual harassment had occurred. The orchard's troubles aren't over yet, though. The EEOC has also filed a separate lawsuit for retaliation, which is still pending. But this big victory for the employer is proof that the EEOC isn't always right, and also that it doesn't always win. 

Finally vindicated! Employers can be sued for age-based harassment. For years, when I've done harassment training, I've warned folks about making too many age-related comments and jokes, saying that this could be a form of unlawful harassment. Of course, it's also evidence of age discrimination. Some people believe me about the harassment part, but many are skeptical. Well, now I have a case to prove it. A vice president of a comic-book publisher has been allowed to proceed to trial on claims of a hostile work environment based on his age. The VP, who was terminated while in his 50s, claims that his boss expressed a desire for a "younger, hipper" company, expressed surprise that the VP was not too old to cut the mustard, blamed the VP's age when he wouldn't go out to strip clubs with the boss, encouraged the VP to dye his hair and have liposuction so he'd look younger, and refused to listen to the VP's input about newfangled things like "social media" because he was too old to know anything about it. 'Cause, I mean, really -- who ever heard of a 50-year-old being tech literate?

Old guys and comics do mix.

(On the other hand, the court found that there wasn't enough evidence that the VP was terminated because of his age, so his termination claim was dismissed.)

Get your popcorn: Ex-associate sues big class action law firm for sexual harassment, big class action law firm files $15 million counterclaim against ex-associate. I love to see litigious people litigating litigiously against each other. It keeps them too busy to bother the rest of us. A former associate at Faruqi & Faruqi, a plaintiffs' class action law firm based in New York, sued the firm and an individual partner for sexual harassment. The ABA Journal reports that the defendants have now hit back with a $15 million counterclaim for defamation, tortious interference, and other claims. According to a Thompson Reuters report, the firm contends that the associate distributed copies of her lawsuit to many of the firm's clients, sabotaging a planned public-sector practice and causing the firm to lose other business. The associate, through her attorney, denies that she did anything improper. Can they all lose? Please?

Presidential peccadillos. And did you know that President Obama is a male chauvinist pig? (Just kidding - I don't really think so.) And Bill Clinton is a fan of the TV show Scandal.

Bonus track: Sheryl Sandberg defends the powerless and vulnerable. (This one isn't harassment related, but it was too good to pass up.) Facebook COO Sheryl Sandberg, on tour promoting her book Lean In, in which she encourages women to go for the gusto in the business world, is standing by Yahoo CEO Marissa Mayer. Ms. Mayer, you may recall, has been under fire because she banned telecommuting at Yahoo while building herself a nursery next door to her office for her own baby. Sheryl Sandberg says that Ms. Mayer is catching grief over this only because she's a woman.

Yep. Mm-hm.

Welcome to America, the land of opportunity, where even the multimillionaires can claim to be victims of discrimination! What a country!

I'm not aware of any man who is "similarly situated" to Marissa Mayer (plenty of guys, I am sure, would love to be), but now that Ms. Sandberg has raised my consciousness, I'll be sure to give him just as much grief. If I ever find him.

Image credits: Wikimedia Commons. Photo of Adam Sandler is by Rita Molnar (2002), Creative Commons License.

Following up on my post on the subject, I had the chance to talk with Colin O'Keefe of LXBN regarding the recent "veganism as religion" case of Chenzira v. Cincinnati Children's Hospital Medical Center. In the brief interview I explain the background of the case and offer my thoughts on whether or not the plaintiff's veganism must be religious in nature for her claim to stand.  Colin, thank you very much for the interview!

We're already into the seventh day of Chanaukkah, and Christmas is only eight short shopping days away ("I've gotta get that football helmet!"), so it must be time for a post on how employers should handle the holidays in the workplace.

Suzanne Lucas of The Evil HR Lady has a depressing-but-funny post about the lamest employee Christmas gifts ever.

And, only slightly off-topic, you may enjoy reading about tacky Christmas sweaters (check out the very last guy - hilarious!), or the woman who got tasered at an Apple store in Massachusetts because she wanted to buy too many iPhones as Christmas gifts for her relatives in China, or (if you have the intestinal fortitude) this great idea (not!) for a last-minute gift . . .

*     *     *

. . . For those of you who are still here, or who are still speaking to me after that last link, here is Bad Santa's workplace-holiday advice.

(WARNING: I think Bad Santa may be a plaintiff's lawyer.)

For the Ebenezer Scrooges* out there:

*If your company is suffering in this shaky economy, please know that this does not apply to you. I'm addressing this one to the companies (and there are many) who have done reasonably well in the last year.

Be a cheapskate.* Nothing says "employee appreciation" better than a coffee mug, key fob, or calendar with the company logo on it. These things are given away free at marketing events, but that doesn't mean they're free to you. And, what better way to make your employees feel good about themselves?

"A year of dedicated service, and we get a key fob with company logo? What a cheap trick!"

Make attendance at your party mandatory. After all, how else will you guarantee that anybody will show up for it? And, that way, if somebody gets hurt at the party, you'll get to be charged for their workers' comp.

Don't pay them for their time at the mandatory company party. In fact, even if attendance is optional, don't pay them. Dude, it's a party. They aren't contributing anything to your bottom line while they're drinking Russian tea (because you're too cheap to pay for alcohol) and pretending to be amused by your Santa costume (which you wear while handing out the key fobs with company logo). If attendance is mandatory and you don't pay, sure, you could have a little problem with the Fair Labor Standards Act, but so what? And if attendance isn't mandatory, no FLSA problem whatsoever! Just because they may not be too happy that they are losing a half day of paid work . . . or having to take away from their precious iPhone taser/shopping time after hours without pay . . . during the most expensive time of the year . . .

When scheduling your party, do what is convenient for you. You are the boss. What you say, goes. Your way, or the highway. If your employees have young children and have to hire a babysitter so they can attend your mandatory Russian-tea-and-company-logo-key-fob party -- well, that's the way the Christmas cookie crumbles.

Make sure everyone understands that they are expected to give a nice gift to you. Ebenezer Scrooge was really kind of a sucker, when you think about it, because he never spent any money on himself. Don't be that guy. Company-logo key fobs don't grow on trees, so it's only fair that the employees chip in and get you a totally awesome gift. Maybe a massage chair with Bluetooth technology for your office, while you listen to Cheap Trick on your noise-cancelling headphones and review Russian tea recipes for next year's party.

And for you Fezziwigs out there . . .

The holidays are FUN! Don't be a wet blanket! By, say, making sure that employees who have had too much to drink at the party have a safe way to get home, or even -- heaven forbid! -- putting some reasonable limits on alcohol consumption. You don't want to get the reputation for being a bluenose.

The holidays are FUN! Don't let the lawyers take all the fun out of your generosity! So, your lawyer tells you that the holiday bonus has to be included in calculating non-exempt employees' regular rate? And that your bonus (under certain circumstances) may set a precedent that you will be required to continue in the future? This isn't the time for legal nitpicking! Put a sock in it, Atticus Finch, and have a drink!

The holidays are FUN! Don't be a wet blanket! By, say, reminding your employees of your no-harassment policy before the party, as wisely recommended by Jon Hyman, or making sure that your party doesn't degenerate into "Employees Gone Wild." Harassment lawsuits are so . . . January!

So, Joe got a little carried away at the party, and now someone has complained? Boys will be boys! When people get drunk, they do all kinds of crazy things they wouldn't normally do. People won't feel free to have fun if you jump all over their case for everything they did when they had a few too many. You were young once yourself! So, don't investigate that complaint -- it will just stifle Joe and have a chilling effect on everybody else -- and next year's party will be the least, to say the most. You might as well serve Russian tea and hand out company-logo key fobs.

"What?"

Image credits: Wikimedia Commons (party scene is detail from The Orgy, by Diego Rivera). Product links are for entertainment purposes only and are not endorsements.

In tough economic times, harassment training tends to be viewed as a luxury that can be gone without until things get better.

I understand this thinking, but harassment training on a regular basis is never a "luxury." It's a "cost of doing business." That is the reality. Here are five reasons why:

"Don't be 'cheep' about your harassment training. (tehe - get it?)"

*Turnover. If it's been, say, five years since you last had harassment training, that means you have a whole bunch of employees who have never had it -- at least, not with your company. If you don't offer harassment training on a regular basis, how are you going to prove that your newer employees knew what behavior to avoid, or what to do if they were victimized? ANSWER: You won't.

"Eating cake is a luxury, mon cherie, but not le harassment training!"

*Evolving law and social conditions. There have not been radical changes in harassment law for a long time, but there has been evolution that makes a program only a few years old seem naive and even quaint. Looking back at my older programs, they were very focused on "traditional" scenarios involving straight men and women telling dirty jokes and having extramarital affairs that went wrong, like General Petraeus and Paula Broadwell.

Now, the courts nationwide have recognized certain types of same-sex harassment as a form of "gender stereotyping" that violates Title VII, and many states have laws prohibiting "LGBT" discrimination, so we spend a lot more time on that subject than we used to. We also place more emphasis now on harassment based on race, national origin, religion, age, and disability. Over the years, the EEOC has placed increasing emphasis on retaliation, so we spend a lot of time on that. We talk more about the emerging issue of "bullying" now. Not to mention misuse of the internet and social media, which we were barely even thinking about a few years ago.

All of which means, if you have had a long hiatus from harassment training, your training will not be current, and you could be at risk for claims based on newer, "hipper," more modern forms of harassment.

"Thousands of pairs of shoes? Extravagant. Annual harassment training? Priceless."

*People forget. Even if you had bang-up, Cadillac Escalade-level harassment training three years ago, I can guarantee that everyone who was in that class has forgotten something important. You know it's true. And I'm talking only about the people who attended the training, of course -- the newer hires haven't heard anything that they can forget.

*It may be legally required, depending on where you live. Some states, including California, require employers to provide harassment training to management. If you're in one of these states, you cannot postpone training. It's the law.

Please take a minute and visit Eric Meyer's The Employer Handbook, which was host this week to the November edition of the Employment Law Blog Carnival. My post from last week about Obama 2.0 is featured there, as well as some great stuff from other employment law and HR bloggers. Thank you, Eric!

*It's expensive . . . until you get sued, and then in hindsight it was a steal. Yes, any harassment training costs money. You may think you don't have the money to spare, and I am sure you are right. But the legal fees to defend an EEOC charge will almost always exceed the cost of the training, and if you get a lawsuit, they will definitely exceed it big-time. Legal fees to get to summary judgment may run you about $50,000 or more, depending on where you live and the complexity of the case. If you don't get summary judgment and have to go to trial, your attorneys' fees may be more like $100,000, not including the plaintiff's attorneys' fees, which she is entitled to recover if she wins. And, of course, not including her award if she wins, which you will have to pay. And, as Chrysler found out, could be substantial.

"It may be a sin to have gold-plated plumbing in your bathroom *sob* and an air-conditioned dog mansion *sob*, but it's no sin to be current on your harassment training!"

Four-point-five million dollars? That harassment training just got real cheap, didn't it?

Seriously! One of the first things you'll be asked by the EEOC or a plaintiff's attorney is how recently you conducted harassment training and whether the parties involved in the case (the alleged victim, the accused, and any witnesses, as well as the people who investigated) attended. If you can say, "Oh, yes, we had training just six months before this all came about, and here are the attendance sheets showing that everyone completed the training," then that is good. In fact, that may provide you with a complete defense to the harassment claim. Wouldn't that be nice?

But sometimes what happens is that the rank-and-file employees testify truthfully that they don't even know what "harassment" is, and the managers "don't recall" the last time they had training because it was, in fact, last conducted before they were born.

Interested in seeing a sample of an interactive, computer-based harassment training program? Here is a "Petraeus-like" segment from a program that my law firm offers.

The cost of harassment training should never be an obstacle to an employer. Many law firms (including my own) and Human Resources consultants and employers' associations will do harassment training on a flat-fee basis so that you can plan for the expense with no surprises. You may have in-house counsel who is capable of doing the training, and if so, even better -- in that event, you don't have to pay anything extra for the training. If your turnover is too high to make "live" training practical, or if your employees are scattered to the four winds so that bringing them to a single location for live training isn't practical, you can go with a computer-based interactive program, a video-workbook combination, or even just a passive videotape (not as good because it isn't interactive, but definitely better than nothing). You can use some combination of these -- for example, by having live training once a year for management, and computer or video training for new-employee orientations in the interim. The possibilities are endless!

PLEASE NOTE: Having regular, current, high-quality harassment training is not a guarantee that you won't get a harassment charge or lawsuit, and it's certainly no guarantee that you will win. But our experience has been that employers who keep up with their training achieve a real benefit from it because employees are encouraged to speak up early, which allows the company to resolve the complaint internally before irreparable damage occurs. And courts have recognized effective training as an element of an employer's defense to some types of harassment cases.

Robert Burton and Benjamin Franklin approved this message!

FYI, next week, in honor of Thanksgiving, my "Friday" post will be up on Wednesday.

Photo credits: Wikimedia Commons. Painting of Marie Antoinette is by Jean-Baptiste Gautier Dagoty (1775).

It's a well-known fact that good-looking people have a better chance of being hired and promoted, and make more money, than less good-looking people. At least, as long as you're not too hot. Generally, there isn't much you can do about it if your opportunities are limited by male pattern baldness, that extra 25 pounds you've been meaning to lose, your acne scars from high school, or your thick glasses.

Unfortunately, the combover usually only makes things worse for the victim of appearance discrimination.

But, what if you are less attractive because you're the "wrong" sex? Is that a horse of a different color?

Interesting little decision from a federal magistrate judge in Savannah, Georgia, last week.

A district attorney (male) was allegedly attracted to men. He had been sued once already by a guy who claimed that the DA had sexually harassed him and retaliated against him. (The guy's lawsuit was eventually dismissed because he didn't notify the court of his mailing address.)

The same lawyer who had once represented the guy then took on a group of female plaintiffs, who claimed that they were not hired by the DA because he wanted only this hot male working for him. In other words, they claimed sex discrimination. During the course of discovery, the women tried to get the DA to declare his sexual orientation. The DA refused, so the women filed a motion to compel.

(A motion to compel is essentially a request that the court order a party to provide information or documents that are relevant to the lawsuit.)

"Her? She's UGLY!"

The magistrate denied the motion, on the ground that the women had failed to state a valid claim of sex discrimination. In so many words, he said that even if everything the women said was true -- that the DA was gay and hired the guy only because he was hot -- they would still lose their case because the law doesn't recognize this type of claim.

My initial reaction to this decision was, This magistrate is crazy. But it's clear that the magistrate did his homework and that my gut was wrong.

Here's the deal, assuming for the sake of argument that everything the women said was true (and realizing that it may not be):

The DA did not prefer all men to all women. He preferred the one guy to everyone else. He didn't even interview anyone else for the job. The magistrate said that this is mere "sexual favoritism," which is not illegal. That's why the bald guy weighing 25 pounds more than he should can't usually claim discrimination when he loses out to Peter Adonis (sorry -- all the links were either uninformative or objectionable, but you can probably get the idea from his name), and why Anderson Cooper and Megyn Kelly can legally beat out . . . uh . . . well, can you identify any ugly TV news person? Of course you can't. The average-looking journalists all work on newspapers, in radio, or are bloggers. This is why Kennedy beat Nixon in the debates.

A face for blogging.

Yeah, the women said, but he wanted to hire the hot guy so he could hit on him, which is sexual harassment. Doesn't that give us a claim?

Well, no, the magistrate said. There are valid legal claims when a boss gives preference to those who "grant sexual favors," and some lose out because they refuse to do likewise. But in this case, the women weren't saying they were rejected for refusing to grant sexual favors. According to their own lawsuit, they were rejected only because the DA hired this guy he hoped to hit on, who just happened to be a subset of the male population.

In other words, the magistrate reasoned, this is more like giving preference to your girlfriend or boyfriend, or your son-in-law, or your grandma. Unfair, maybe, but completely legal.

And because the women didn't have a case to begin with, the magistrate said, they couldn't compel the DA to disclose his sexual orientation.

This decision aside, women might be able to claim sex discrimination if a male hirer more systematically considered only people he found attractive, all of whom happened to be male. Or the other way around.

Usually, when employers discriminate in favor of the beautiful, they favor all beautiful people, so it's nothing more than "looks" discrimination, which is legal in most jurisdictions.* In the few cases where the employer's idea of beauty is based on race, national origin, or lack of a disability, the rejected individuals have valid discrimination claims. The same principle should apply if members of either sex are systematically excluded from consideration.

*Most, but not all.

But in this case, there was only a single alleged instance of attraction, which is much more akin to old-fashioned favoritism.

Anyway, there you have it. (And, of course, favoritism is never a good idea, whether it's legal or not.)

Photo credits: Wikimedia Commons.

This week, several of us bloggers (Dan Schwartz, Donna Ballman, Eric Meyer, Jon Hyman, and I) will be choosing a debate question on a labor and employment law topic for each of the Presidential and Vice Presidential candidates.

DISCLAIMER: I have tried to ask an "adversarial" question of every candidate. Please don't be offended, and please be aware that my questions may or may not reflect my actual political views.

Vice President Joe Biden -- today is your lucky day!

The Democratic Party Platform advocates the enactment of the Employment Non-Discrimination Act, which would prohibit employment discrimination based on sexual orientation and gender identity. Earlier this year, you publicly advocated same-sex marriage, which prompted President Obama to do likewise.

"I'm much better when I wing it. Bring it on, Baby!"

Based on our experience with courts' interpretations of other anti-discrimination laws such as Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, we can assume that if the ENDA became law, comments by supervisors and managers about sexual orientation or gender identity would be admissible as evidence of a discriminatory motive in an ENDA charge or lawsuit. Comments by employees as well as members of management, if "severe or pervasive," could be treated as unlawful harassment based on these characteristics. Although the ENDA includes an exemption for religious organizations, there is no explicit exemption for individual employees who act according to their religious beliefs.*

*I'm not talking about the Fred Phelpses of the world. I'm talking about the nice Baptist lady who has sincere and firm traditional beliefs but wouldn't deliberately hurt a fly.

Here is my question: Do you see any inherent conflict between the ENDA (assuming it is interpreted this way) and the rights under Title VII of employees to exercise and express their religious beliefs without discrimination, and to religious accommodation? If not, why not? If so, how do you propose to enforce the ENDA while at the same time protecting employees whose religious beliefs may not be completely aligned with the ENDA?

YESTERDAY: Governor Romney, what do you really intend to do -- specifically -- to decrease government intrusion into the workplace?

MONDAY: Mr. President, why do we need the Paycheck Fairness Act?

Tomorrow: Paul Ryan is in the hot seat!

That is not a typo. Watch out for the "M" word if you don't want to be accused of harassment based on race, national origin, or color.

The "M" word is "monkey."

Now me, if I were to associate a human being with "monkey," it would be the white guy Joe E. Brown. And who can forget all the monkey-related grief poor, white George W. Bush got? However, the term "monkey" is included on Wikipedia's list of ethnic slurs, and it's not a slur against white guys. Some of you may remember the uproar in George Allen's senatorial campaign in Virginia in 2006 after he referred to a Democratic campaign worker as "macaca," a variation on macaque, that is reportedly used by European colonialists on the African continent to refer to native Africans. (The campaign worker Allen was referring to was actually Indian, and Allen denied that he intended his comment as a racial or ethnic slur. He has since publicly admitted that he should never have used the term.)

See what I mean?

And WAY back, the late sportscaster Howard Cosell got in trouble for saying "Look at that little monkey run" in reference to an African-American football player, Herb Mulkey of the Washington Redskins. Cosell, who was buddies with, among others, Muhammad Ali, denied that he meant the comment as a racial slur. He said that he called his own grandchildren "little monkeys," and according to a blog about Cosell, he also referred to white athletes as "little monkeys," including Glenn Hubbard of the Atlanta Braves and, before that, Mike Adamle of the Kansas City Chiefs.

Well, enough history. A federal judge in the Eastern District of New York decided last week that a  "non-white Hispanic" guy was entitled to a jury trial for hostile work environment harassment because his co-workers called him "monkey." 

If you read the decision, you will see that they called him "monkey" a lot. Too much. But, in the company's defense, please note:

1-There was no evidence of any anti-Hispanic slurs or prejudice in the work environment.

2-The company employed other Hispanic workers, and there was no evidence that any of them were called "monkey."

3-There was evidence that the co-workers started calling the plaintiff  -- and only the plaintiff -- "monkey" after the plaintiff referred to himself as a "silver-back gorilla" because he had gray hair.

4-At least one of the co-workers who called the plaintiff "monkey" was Hispanic himself.

5-All of the workers (this was a small moving company) had nicknames for each other, including one unfortunate guy who was called "Toilet Bowl." I'd rather be the most intelligent of the non-human primates than a potty, but maybe that's just me.

Is this picture inappropriate?

In my opinion, all of the above is pretty strong evidence (as in, summary judgment for the employer!) that the "monkey" name was not intended as an ethnic slur, even though it appears that the plaintiff viewed it as an ethnic/racial slur. 

The defense argued that the term was race-neutral unless it was used against African-Americans.  The judge said this was an "astonishing proposition." In this case, the plaintiff was allegedly very dark-skinned, and the judge said, "Like Latin America itself, the term [Hispanic] encompasses a wide range of races and ethnicities, and discrimination sometimes occurs within these groups."

Fair enough. But I still think there needed to be some evidence that he was called "monkey" because he was Hispanic, or because he had dark skin, and the burden is supposed to be on the plaintiff, not the defendant, to present enough evidence to create a genuine issue of material fact.

Unfortunately for this employer, I was not the judge. Because the real judge was merely denying the company's motion for summary judgment, the company cannot directly appeal the decision but will have to go through the expense and difficulty of a trial on the plaintiff's harassment claims.  (Or settle.) Only after the company loses at trial, if it does, can it appeal and argue that this harassment claim should never have gone to a jury in the first place.

Of course, it's always possible that a jury will feel the way I do and will find that there isn't enough evidence that the "monkey" comments were directed at the plaintiff's race, ethnicity, or color.

DON'T FORGET - If you enjoy this blog, please vote for us to be included in the American Bar Association's Blawg 100 list. The deadline is Friday, September 7. Voting is quick and easy. Thank you very much for your support now, as in the past!

There are at least three things employers can learn from this decision:

*Take it seriously whenever an employee complains about being offended by nicknames, teasing, etc., from co-workers, even if the teasing does not strike you as overtly "EEO"-related. In this case, the plaintiff complained repeatedly to the company's owner, who told him to "roll with the punches" and "just deal with it." If an employee is offended by teasing, then tell the other co-workers to back off. If it continues, discipline them. If they still don't get the message, you'll have to ramp up the discipline, and maybe even fire them. Please note that I'm not saying you have to outlaw all teasing -- but you should make sure that employees are respectful of each others' feelings to the extent that you can. This is important for avoiding harassment claims, and also -- assuming the legal cause of action catches on -- workplace bullying claims.

*Don't forget that "color" discrimination is just as illegal as race or national origin discrimination. If it looks like someone is being teased or harassed because of color, then you need to take that as seriously as you would a complaint about sexual harassment. Color cases are relatively rare, but they do occur. For example, light-skinned African-Americans might pick on a dark-skinned African-American, or vice versa. In this case, it sounded as if light-skinned Latinos may have been picking on the plaintiff because he was dark-skinned -- at least, that's the way the judge looked at it.

*"Roll with the punches," or "deal with it" are almost never good responses to complaints about bad treatment at work. 'Nuff said?

Have a great Labor Day! And next Thursday, September 6, at 3 p.m. Eastern, Stephanie Thomas of The Proactive Employer will be hosting a webcast featuring Jon Hyman, Phil Miles, Eric Meyer, and moi in a "Dear Abby" for employers with bizarre HR and legal questions. (Normal questions need not apply.) You can call, email, or tweet your bizarre questions, and we'll try to field them as best we can. It should be a blast -- please tune in!

Photo credits: Wikimedia Commons (public domain).

I conducted harassment training this week for a client, and, interestingly, the attendees of all ages seemed to be more curious about age-based harassment than any of the other categories we discussed.

Meanwhile, there has been a debate on the internet this week that is of grave concern to us all.

No, I'm not talking about whether Mitt Romney committed an intolerable gaffe by criticizing the security at the London Olympics. Or whether President Obama hates private enterprise deep down in his heart. Or whether Chick Fil-A is an enemy of "Chicago values." (But assuming arguendo that this was true, wouldn't it be a good thing?)

I'm talking about whether women past a certain age should continue to wear their hair long, and down about the shoulders.

I feel sure that my readers are asking themselves, "What does Robin think about this pressing issue? After all, she's a woman, and she's no spring chicken herself."

Both true -- I am so far into the protected age group that I can't even see the entrance any more. My kids are almost in the protected age group. I'm exaggerating, but not much.

For the most part, long hair on an older person -- male or female -- is a hard look to pull off. But there are exceptions, including a woman I work with who is over 50, has beautiful long hair, and looks fantastic. On the other hand, the last time I had long hair, I looked like I'd fit right in with the cast of Macbeth. ("Bubble, bubble, toil and trouble.") And IMO the Hillary on the left looks better than the Hillary on the right.

Well, now that I've gone on record about this important issue, I'm tired, so I've asked my friend, The Devil, to give you some advice today in my place. Here are five things employers (and the young whippersnappers they employ) should do to be sure they'll be accused of age-based harassment. 

1. Be sure to associate "high energy level" with youth. Heaven knows, old people have no get up and go. That's why they need Geritol and go to bed before the 11 o'clock news comes on. (Or, if you live in the Midwest, the 10 o'clock news - even worse!!) If you want someone with pep, hire a kid. Do you have any idea what it takes to be able to play World of Warcraft (Cataclysm) until 3 a.m. on a work night? Didn't think so.

2. Be sure to call young slackers "slackers," and old slackers "dead wood." Of course young people are going to be lazy -- they haven't been around long enough to develop a work ethic, poor darlings. And "slackers" are kind of cute, and hip. They're all special, and they all just need a little time and a helping hand to become the "rising stars" that they really are. On the other hand, if somebody is a 45-year-old slacker, then something's wrong. He's dead wood. He needs to be cleared out of the forest, if you know what I mean.

3. You know those "over the hill" birthday parties? They're especially a good idea if everyone else in the department is under 30. Older employees love being reminded by their young co-workers that they're "over the hill," approaching death, and closer than you are to needing false teeth, blue hair dye, and other products too intimate to mention. Whatever you do, don't throw them a birthday party with a nice "normal" cake and ice cream, and maybe some flowers . . . at least, not unless the flowers are lilies. (Tehe - get it?) Take special care to figure out who in your department is sensitive about getting older, and give her the biggest, most obnoxious black balloon party of all. And even though it's good to throw these parties when a co-worker turns 40, it's even better to do them when the co-worker is 50, or 60, or 70. That makes the styrofoam tombstones that much more realistic.

4. Have nicknames for your older workers so they know you love them. "Pops" is good for guys past the age of 50 ("Gramps" is even better!), and women of that age love being called "Mom" instead of their real names.

5. If you're Gen X or Gen Y, be sure to talk at work about how much you hate Boomers and can't wait for them to die.* It's always good to stereotype people based on the 20-year period in which they were born because of course they're all alike -- sort of like everybody born between mid-July and mid-August has exactly the same strengths and shortcomings, according to Astrology. Everybody knows Baby Boomers are not technologically savvy -- well, except for Steve Jobs, may he rest in peace, and Bill Gates (both born in 1955) -- and they're all a bunch of aging hippies and left-wing radical former SDS'ers -- well, except for that aging hippie left-wing radical Mitt Romney (born in 1947). Anyway . . . never mind.

*Note how many alleged obnoxious "Boomers" on this website were really born in the 1930's, or early '40's, before the end of WWII. Hey, geniuses - the Baby Boom era ran from 1946 to 1964. I realize they quit teaching history in school after 1970, but look it up on those newfangled computers you're so good at! And, by the way . . . GET OFF MY LAWN!

Hey, this is Robin again -- sorry. The Devil got carried away there at the end. I made him go to his room with no TV, not even the Olympics. He must be sensitive about his age.

PHOTO CREDITS: Wikimedia Commons (public domain) except picture of Devil, which is from clipart.com.

Here's a strange little case for ya . . .

A loss prevention manager for a major retail store chain -- we'll call her "Loretta" -- had some performance issues in the past but was only five days away from the satisfactory completion of a performance improvement plan. She and a male loss prevention partner were called to investigate a sexual harassment complaint. During the investigation Loretta and her male partner believed that the victim was "holding back." They agreed that Loretta should interview the victim alone. Apparently in response to some leading questions, the victim told Loretta that her supervisor had raped her, and more than once. The victim said that she did not want her husband to know and did not want to go to the police.

Loretta and her partner reported all of the above to their bosses, and Loretta strongly recommended that the company report the alleged rapes to the police. The company declined to go to the cops because the victim didn't want that, but they immediately suspended and eventually fired the alleged harasser/rapist.

Despite this prompt action, Loretta continued to insist that the company go to the police. The company continued to refuse to do so. Loretta was terminated shortly afterward -- according to the company, Loretta violated company policy by interviewing the victim alone, and by asking the victim leading questions.

Loretta, unsurprisingly, sued for retaliation.

So, who wins?

Continue Reading

It's been another zany week or so in the world of labor and employment law, rivalling Groucho, Harpo, Chico and Zeppo. Here are a few items that jumped out at me. (Each subhead is a line from a Marx Brothers movie or the title of a Marx Brothers movie. Answers at the end.)

"Hurry up, or you'll be late for jail!" Pepsi Beverages (formerly Pepsi Bottling Co.) agreed to a pre-litigation settlement of $3.13 MM to resolve charges that it considered arrest records in making hiring decisions, which, according to the U.S. Equal Employment Opportunity Commission, meant that approximately 300 otherwise-qualified African-American applicants were rejected. The rejected applicants will be offered positions with the company as part of the settlement. The EEOC is on record as strongly opposed to the use of virtually any criminal background information in connection with employment decisions. However, it appears that the company was using arrest as well as conviction information, which has been a no-no for a long time, and was flatly rejecting anyone with a "history" instead of considering the impact of the conviction on the particular job . . . another no-no. The company has agreed to revise its employment policies as part of the settlement.

Horsefeathers. A federal judge in Chicago denied a motion to compel in a class action filed by the EEOC against carrier DHL, alleging widespread racial segregation in job assignments. DHL requested detailed information and documents from each class member about subsequent employment, as well as personal medical information. The judge denied the request for information about subsequent employment because the EEOC had abandoned its claim for back pay or front pay -- therefore, that information was not "reasonably calculated to lead to the discovery of admissible evidence." Although the EEOC was seeking compensatory damages for emotional distress, the judge held that the medical information did not have to be produced because the agency was seeking only "garden-variety emotional distress" based on humiliation, embarrassment, and the like. Not all courts have bought this "garden-variety emotional distress" argument. Some have found that if a plaintiff pursues an emotional distress claim, he or she has opened the door to discovery of evidence regarding her medical, mental, and emotional condition.

"The party of the first part shall be known in this contract as the party of the first part." National Labor Relations Board Chairman Mark Pearce and now-ex-Member Craig Becker invalidated an arbitration agreement that precluded employees individually from pursuing class or collective actions. (Member Brian Hayes, the only Republican on the Board at the time, had recused himself.) Pearce and Becker said that the agreement interfered with employees' rights under Section 7 of the National Labor Relations Act to "engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .." Significantly, the employer was non-union and the agreement was not collectively bargained. The two-member panel invoked the same "protected concerted activity" clause that has been used against non-union employers who crack down on employees who use social media to rant about their employers.

Monkey Business. Speaking of the NLRB, President Obama and the Republican members of Congress have been in quite a battle over recess appointments. Yesterday the U.S. Department of Justice released an internal memorandum that supported the President's position. A recap: As we have reported before, Member Becker's recess appointment to the NLRB expired at midnight December 31, and his last day at work was January 3. Becker's departure left the Board with only two members (Pearce and Hayes) and three vacancies, and the Supreme Court has said that a three-person quorum is necessary for Board action. In an attempt to prevent Obama from making more recess appointments, the Republicans held pro forma sessions every three days during their holiday break. No business was conducted during the pro forma sessions, which lasted about one minute each. Technically, this meant that Congress was not "in recess" for the whole break and that Obama therefore would not be authorized to make any recess appointments. However, Obama outmaneuvered the Republicans (for now, anyway) and, armed with the DOJ memorandum, which declared the pro forma sessions a technical maneuver that could be ignored, made recess appointments to fill the three vacant positions. Legal challenges are sure to ensue. Bring your popcorn.

"Hail, hail Freedonia, land of the brave . . . and . . . free!" In a nice victory for religious employers, the Supreme Court unanimously held that there is indeed such a thing as a "ministerial exception" to the federal anti-discrimination laws arising from the Establishment and Free Exercise clauses of the First Amendment, and that it applies to people other than the clergy. The plaintiff in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC was a teacher who was formally considered a "minister" in the church and taught religion and led devotions and worship services, but who spent the majority of her time teaching "secular" subjects. She alleged that her employment was terminated in retaliation for exercising her rights under the Americans with Disabilities Act. Although many lower courts had recognized the ministerial exception, the Supreme Court had not addressed the issue. The EEOC and the government had argued unsuccessfully that the exception was unnecessary. The decision means that, if a court finds that the ministerial exception applies to a case, the case will be dismissed. (Religious employers who are not Protestant Christians will be particularly interested in the concurring opinion by Justices Samuel Alito and Elena Kagan -- not a combination you see every day! -- in which they provide an excellent discussion of how the exception should apply to employees who perform religious functions but are not "ministers.")

"I'll see my lawyer about this as soon as he graduates from law school." The U.S. Court of Appeals for the Sixth Circuit affirmed summary judgment in a lawsuit filed by a library employee of Ohio State University who alleged that he was ostracized and constructively discharged after he recommended a "freshman-reading" book that had a chapter describing homosexuality as aberrant behavior. The Court found that the plaintiff had waived his claims for damages by first having filed a state-court lawsuit. (Under Ohio law, this results in a waiver of the right to recover damages in any other forum.) His First Amendment retaliation claim was subject to dismissal because, although his speech pertained to a matter of public concern, he spoke in connection with his job duties and not as a "citizen." He also could not establish "adverse action" because both his dean and his immediate supervisor had supported him, even though many of his peers were vocally critical of him and had called for his termination. Finally, the Court rejected his claim that the OSU sexual harassment policy was unconstitutionally overbroad and vague.

MARX BROTHERS TRIVIA:

"Hurry up, or you'll be late for jail!" A Night at the Opera, 1935.

Horsefeathers, 1932.

"The party of the first part shall be known in this contract as the party of the first part." A Night at the Opera, 1935.

Monkey Business, 1931.

"Hail, hail, Freedonia [etc.]" Duck Soup, 1933.

"I'll see my lawyer about this as soon as he graduates from law school." Duck Soup, 1933.

What a year, am I right or am I right? Here is a catalog of the major employment and labor law developments from 2011. And, just to keep it entertaining, I've started off each month with a weird but true off-topic story that was in the news that month. Many thanks to Drudge Report archives for the strange stuff. Thanks also to Esquire magazine's annual Dubious Achievement Awards (sadly, discontinued in 2008) and Dave Barry's Year in Review, both of which I am ripping off paying homage to.

Now, fix me a drink, will ya? We have a lot to talk about.

JANUARY

Ah-choo! Some teenage burglars stole an urn that contained the cremated remains of a man and two great Danes. The teens, obviously not criminal masterminds, snorted the ashes, believing them to be cocaine. 

and . . .

"He*l, they're all disgruntled. I ain't runnin' no da*n daisy farm!" The EEOC reported that for fiscal year 2010 it received a record number of charges, and that retaliation charges surpassed race discrimination charges for the first time in history.

Express yourself. The U.S. Department of Labor issued guidance on its "lactation accommodation" provisions in the Patient Protection and Affordable Care Act (aka "Obamacare") and requested feedback from the public.

GINA: It's more than just a pretty name. The Genetic Information Nondiscrimination Act, which prohibits the acquisition, use or disclosure of "genetic information," which includes family medical history information, took effect.

Nice family. I'd hate to see somet'ing happen to 'em, ya know? The Supreme Court held in Thompson v. North American Stainless that the Title VII anti-retaliation provisions extend to fiances and other significant others of the person who engages in legally protected activity.

FEBRUARY

"Of course, you realize this means war." Uber-disgruntled ex-employee Charlie Sheen declared war on his former employers CBS and Warner Brothers.

and . . .

Another county heard from. (Or is it "country"?) Constangy, Brooks launched the most-excellent Employee Benefits Unplugged, which covers income tax, executive compensation, 401(k) and 403(b) plans, fiduciary compliance, and Department of Labor and Internal Revenue Service audits. All of the attorneys in the firm's Employee Benefits Practice group contribute, but the Chief Blogmistress is Jewell Lim Esposito from the firm's Fairfax, Virginia office.

MARCH

I hate to say "You can't make this stuff up," but you really can't make this stuff up. A New York man who had a court appearance on a DWI charge showed up with an open can of beer and (allegedy) was carrying a bag with four more cans of beer. The man, who had prior DWIs, was jailed with no bail.

and . . . 

At the stroke of a pen, entire nation becomes disabled. The EEOC issued its Final Rule interpreting the Americans with Disabilities Act Amendments Act.

Make sure your "paws" know the laws. The U.S. Supreme Court found in Staub v. Proctor Hospital that an employer could be liable under a "cat's paw theory" for employment decisions that were influenced by a supervisor or other member of management who had an unlawful motive.

APRIL

Study: Members of Congress give each other much less grief than they deserve. A Harvard professor conducted a study that concluded that members of Congress spent 27 percent of their time taunting each other.

and . . .

Life begins at Concepcion. The U.S. Supreme Court found in AT&T v. Concepcion that arbitration of class claims was ok and consistent with the policy underlying the Federal Arbitration Act. The Concepcion decision overruled the interpretation of the California courts that class claims could not be arbitrated.

OFCCP starts pilin' on. The Office of Federal Contract Compliance Programs issued a proposed rule regarding the obligations of federal contractors to recruit and hire veterans. Although the desire to help veterans is laudable, the rule would impose significant compliance burdens on federal contractors.

Nothing could be finah . . . The NLRB filed a complaint against Boeing Corporation for opening a production line in North Charleston, South Carolina, instead of the outskirts of Seattle, Washington, where most of its production was located. The Board alleged that the move to right-to-work South Carolina was the company's unlawful attempt to avoid dealing with the International Association of Machinists, which had carried on a number of strikes at the Washington State facility over the years.

MAY

Cannibal Lecter. A man ran an internet ad seeking someone "who would agree to be killed, cooked, and eaten." A Swiss man answered the ad, thinking it was just a fantasy game, but after talking with the "cannibal" on the phone, determined that he was deadly serious. (Tehe. Get it?) The would-be "meal" called the police, who answered the ad undercover and foiled the banquet.  

and . . .

"I'm a victim of soicumstance!" (Probably true.) Bruce Raynor, President of the Workers United affiliate of the Service Employees International Union and International Executive Vice President of the SEIU, was forced out of both positions after being charged with filing misleading expense reports. Raynor, a labor leader for 38 years and who had been president of UNITE and UNITE HERE for eight years before joining Workers United, contended that he was a victim of SEIU politics.

Kiss our apps! The U.S. Department of Labor launched its wage and hour recordkeeping app (at link, scroll down to "Email your timesheets directly to Big Brother!") for iPhones and iPods, with a promise to develop counterparts for Androids and Blackberrys.

Labor pains. The NLRB sued the state of Arizona over a constitutional amendment that protected the right of employees to have secret ballots in union representation elections. The Board contends that state constitutional amendments like Arizona's are preempted by the NLRB. It has also sued the state of South Dakota for the same reason.

Your money, or your life. The OFCCP proposed changing the scheduling letter that it sends to federal contractors who are being audited. The changes would require contractors to provide detailed, individualized information about employees' compensation, among other proposed changes.

Continue Reading

A cornucopia of random employment law issues for your long weekend.

Lessons for employers from the Natalie Wood investigation. (OK, I admit this is a shameless tie-in designed to get you to read a legal blog over a holiday weekend.) But the reopening of the Natalie Wood drowning investigation after 30 years does contain a good lesson for employers -- to wit, that no matter how much time has passed, it's a good idea to go ahead and conduct whatever investigation is warranted, and even to re-investigate if appropriate. For example, suppose you learn about some workplace harassment but the accuser or the alleged "perp" is no longer with the company. Frequently the employer's reaction is, "What's the point? S/he's not even here any more." Contrary to this gut reaction, it is always a good idea to investigate allegations of wrongdoing even if one or both of the parties are no longer employed, and even if a lot of time has passed. For one thing, there may be other victims who are still working for you. It's also a good idea to reopen an investigation if you find that the original one was sloppy or otherwise flawed in some important way. At the very least, investigating the allegations whenever you learn of them will show your employees, plaintiff's lawyers, the EEOC, and the courts that you take allegations of misconduct seriously.

Dirty old men don't get love. The U.S. Court of Appeals for the Third Circuit (Delaware, New Jersey, and Pennsylvania) has affirmed summary judgment for a steel company that fired some older workers for sending pornographic emails through the company system. Even though the workers alleged that management had made some age-related comments, the court found that they were "stray remarks" that were not tied to the termination decisions. Although some younger workers had not been terminated for misuse of the company email system, the court found that their circumstances were different -- for the most part, they had been passive recipients of dirty emails but didn't send them to others. In the case of one younger worker, he sent a single dirty email from his home computer. By contrast, the plaintiffs were sending each other dirty emails using the company system on a daily basis, the court said.

Favoritism ain't necessarily discrimination. At least, not unlawful discrimination. We all have a tendency to think that any bias or unfairness in employment must be against the law. But as a recent case teaches, not all "bias" is illegal. For example, if the CEO hires his incompetent nephew to be your supervisor even though you are smarter, handsomer, and a much nicer guy than he is, the CEO has almost certainly acted legally. There is no law against that type of bias.

Have you hugged your evangelical Christian today? There were two religious discrimination cases in the news this week, both involving evangelical Christians. The cases are a good lesson that the religious discrimination and accommodation laws apply to all -- even those who are considered by some to be part of the "majority."

Couldn't they have waited until day 667? In one case, an employee has alleged that he was terminated for refusing to wear a sticker touting the employer's 666 days without a lost-time accident. The employee considered the number "666" to be the "mark of the beast" described in the book of Revelations in the New Testament of the Bible and that he would be faced with eternal damnation if he wore it. (If that's not a sincerely held religious belief worthy of a reasonable accommodation, then I don't know what is.) Nonetheless, the employer -- an overzealous safety manager? -- fired him for refusing to wear it. Right now, all we have is the employee's lawsuit, and we have not heard the employer's side of the story. But if it's true, the employer has clearly violated its religious accommodation obligations under Title VII.

"Evolution mama, don't you make a monkey out of me." (Yes, that is a real song, and you can download an MP3 of it for only 69 cents!) Another evangelical Christian, an IT guy for NASA, is going to be allowed to go to trial on his claim that he was disciplined and demoted because he advocated the "intelligent design" theory of the origins of the universe. "Intelligent design" holds that the universe came about, not at random, but through an "intelligent force." The plaintiff is claiming that NASA took action against him because he discussed his views with his co-workers, and a California judge found that he had enough evidence to go to trial on his religious discrimination claims under the state Fair Employment and Housing Act.

Have a safe and happy Thanksgiving, everyone!

Poor Herman Cain.

Or, poor young women who used to work for him.

Right now, I'm not sure which because the allegations are murky and anonymous. OK, I do have an opinion, but I'm going to keep it to myself until we get more specifics.

This is not going to be a political post. It's about sexual harassment in the workplace and what employers can learn from Cain's problems, which he brought on himself by either (a) being a serial sexual harasser, or (b) handling false accusations of harassment in an astoundingly incompetent manner. There is also always my old reliable possibility of (c), that he had consensual extramarital relationships with some female subordinates, which led to allegations of harassment.

For purposes of this post, I'll assume it's either (a) (complete innocence) or (c) (guilt, but not that kind of guilt).

A quick recap for those of you who have better things to do than read about this stuff: About two weeks ago, Politico privately contacted the Cain campaign and informed them of reports that two women who had worked for the National Restaurant Association, of which Cain was CEO in the 1990's, claimed to have been sexually harassed by Cain and accepted settlements to leave the association. Thanks to Raf Sanchez of the London Telegraph for the following timeline:

One of Cain's spokesmen initially called the allegations a "smear campaign" and denied that financial settlements were paid. A couple of days after that, the campaign acknowledged that some money had, indeed, changed hands and referred further inquiries to the National Restaurant Association.

Politico went public with its story last Sunday, October 30. The campaign responded by accusing the media of "unsubstantiated personal attacks."

On Halloween morning, Cain denied sexually harassing anyone and denied being aware of any kind of settlements with these two women. By the evening, he acknowledged "agreements" (which he said were not the same thing as "settlements") and admitted to making an innocuous-but-weird comment about the height of one of the women. According to Cain, he told her that she was the same height as his wife as he stood close to the woman with his flattened hand under his chin. (Why would he do or say that?) He said the woman might have taken him the wrong way. (??????)

On November 1, Cain admitted there might be a few other things that offended the women but that they were too "ridiculous" to remember. 

On November 2, the New York Times reported that one of the two women received a full year's salary in settlement of her harassment claims against Cain. Cain's campaign director (the smokin' guy) publicly attacked until-then-almost-vanquished-rival Rick Perry's campaign for leaking the information. Perry's campaign vehemently denies being the source. But IF the Perry campaign was the source, then Cain has effectively admitted that he knew about this mess at the Restaurant Association and its potential for his political campaign as long ago as 2003. (They say that Perry's campaign director, who worked on Cain's unsuccessful campaign for U.S. Senate in Georgia, knew about the harassment allegations because Cain told him about them at that time.)

Yesterday, Politico disclosed that there was a third woman, and that two women received full-year salaries as settlements. And the attorney for one of the women met with the National Restaurant Association to try to get her released from her confidentiality agreement. (No word yet on how that turned out.)

I'm sure there is new stuff today, but I'm afraid to look, because I may never get this blog post done.

In any event, not looking good for ol' Herman.

Again, I'm going to give Cain the benefit of the doubt and assume that he's not a sexual harasser.

Could he have handled this mess differently? Not only yes, but heck yes. 

First, remember that he had ample private warning that this story was going to come out. Un-flippin' believable.

Don't be too cocky about those confidentiality agreements. I'm wondering if some of the Cain campaign's ineptitude resulted from their belief that the women were bound by confidentiality agreements with the Restaurant Association while Cain, apparently, was not. As they've now learned the hard way, confidentiality agreements can be notoriously hard to enforce. The hardest part is knowing exactly how the information leaked out. It could be that the women breached their agreements. But it could also be that co-workers who heard t'ings contacted the media. Or it could be that any one of Cain's political rivals from either party did it. Not really a lot you can do about it, but just be aware of it when you sign one of these things.

People in glass houses shouldn't throw stones. (I just made up that expression -- pretty good, huh?) If you have problems, and your adversaries are bound by confidentiality agreements, it's a good idea to SHUT UP. Let them be the first ones to talk, assuming they ever will. Since there was a confidentiality agreement, Cain's best initial response was not to deny, give a partial answer (the wife's height thing), or claim that he was the victim of a "smear campaign." He should have just said, "I can't talk about any confidential personnel matters concerning employees of the Restaurant Association. I'm so sorry, but I'm sure you understand." By giving his side(s) of the story, he has arguably opened the door for the women to provide details to the contrary. 

Being a bully never looks good. The Cain campaign's attack on the struggling Perry campaign reminds me of the Cowardly Lion going after Toto. (Right before Dorothy slapped him on the hand and made him cry.) If the allegation was total baloney, that would be one thing. But there is a lot of smoke here already, and Cain should have been spending his energy on explaining what happened (or not trying to explain it at all), not on attacking who he thought was the source of the leak, who denied it. Under these circumstances, it looked like he was just trying to deflect attention from the real issue . . . and being a bully, to boot, by picking on some poor candidate with 7 percent poll numbers, whose clock already appeared to have been cleaned.

In the workplace, this kind of behavior by the accused would probably get him fired for retaliation.

Get your facts straight before you open your big mouth. At some point, Cain probably would have had no choice but to speak up about these sexual harassment allegations. But he should have made sure he had his facts straight first. It's not that surprising that a CEO would forget a lot and have a lot of details wrong about something that occurred 15-20 years ago. But his ever-changing story has made him look like a liar, whether he really is one or not. It's much better to make sure you have all of the facts, and have sufficiently refreshed your memory, before you start talking. Then you can tell the story once and be done with it.

And wouldn't we all be grateful for that?

Over the next 8 business days, I'll have a series of short posts addressing common questions that employers have about the law. If there is an "FAQ" that you would like for me to address, please let me know in the comments box.

I may also have more in-depth postings as circumstances warrant.

Employer FAQ No. 4: Should I offer harassment training to rank-and-file employees? Isn't that just asking for trouble?

The answers are Yes, please!, and No, you are not asking for trouble. Many employers do not require their non-management employees to undergo harassment training. Sometimes the expense is a deterrent. Sometimes employers are afraid that harassment training will just give non-management employees "ideas." But it's a good idea to offer it so that

*You can be sure your employees will know how to behave at work.

*You can be sure your employees will know what to do if they feel that they, or someone they work with, are being victimized.

*Inappropriate behavior will be reported (and, it is hoped, remedied) before the situation is too far gone.

*You will look good to the EEOC, the plaintiff's bar, and the courts for having been such a conscientious employer.  Te-he.

Harassment training for regular employees need not be extensive, and the less "legalese," the better. An appropriate length of time is about 45 minutes, which should give you plenty of time to cover what your employees need to know:

*Which types of behavior can get them into trouble.

*What to do if they feel that they are being harassed.

*What to do if they believe that another employee is being harassed.

*That they cannot be retaliated against for making a good-faith report of harassment.

(Management training should cover all of these topics but also the manager's legal and policy obligations  when he or she becomes aware of alleged harassment, or should have known about it. This added component normally means that management training takes more time.)

FAQ No. 1: What exactly is this "interactive process" we hear so much about?

FAQ No. 2: "What does 'right to work' mean?"

FAQ No. 3: When do I have to start saving electronic evidence?

Don't forget to send me your own employer FAQs! And don't forget, if you vote for Pedro Employment & Labor Insights, all of your wildest dreams will come true.

"It could be that the purpose of your life is only to serve as a warning to others."

A politico and a priest in the news this week have much to teach men* who are accused of sexual harassment. Former head of the International Monetary Fund and French presidential hopeful Dominique Strauss-Kahn may not be guilty of sexual assault, after all. Meanwhile, a popular TV priest has put his foot in it more than once after being accused of sexual and other improprieties.**

*I realize that women can also be accused of sexual harassment and that men can be victims, and these warnings will apply to them, as well.

**PLEASE NOTE: The accounts of the allegations in the cases I am about to discuss are based on the latest information available in the media, but investigations are ongoing in both cases. I am not expressing any opinion as to whether the men or their accusers are in fact guilty of any wrongdoing.

Two cheers for DSK. Let's start with the (relatively) positive. From a criminal standpoint, DSK is looking better by the minute, and his accuser is looking worse. DSK has been released from house arrest, and although the investigation is continuing, he seems to be in pretty good shape. This came after it was alleged that the accuser, a Guinean immigrant, had repeatedly lied to get asylum in the United States, including a false claim of gang rape, had possibly been involved in drug trafficking, and had been overheard in a recorded telephone conversation telling an incarcerated boyfriend that "this person is rich and there's money to be made."

So, all's well that ends well if you're DSK, right?

Well, not so fast. First, he had to resign as head of the IMF. Second, although he may be innocent of assault or any form of non-consensual sexual relations, he continues to appear guilty of serious sexual impropriety, including having consensual relations with a hotel maid while he was married. (Current reports are that she claimed assault after he refused to pay her.) Finally, he's now been accused of attempted rape by another woman.

All of which brings me to two points I constantly harp on when I'm conducting sexual harassment training.

1. Men, if you want to virtually guarantee that you'll be accused of sexual harassment, be sure to have an extramarital relationship with a co-worker. (In light of the DSK situation, I will add "independent contractor" as well.) These relationships always end badly for someone, and when people are upset and emotional they tend to do foolish, vindictive things, like falsely accusing those who hurt them of sexual harassment. Even if you're innocent of harassment, you'll still have a lot of unpleasant explaining to do to your wife and family, and you will have jeopardized, if not completely ruined, your career. 

2. If you make mistake #1, don't compound it by lying about it -- tell the truth. It appears that DSK may have admitted to consensual sex early in the investigation, which is to his credit and is no doubt helping to bring this case to a relatively quick close. In my own experience, alleged harassers who promptly admit to the consensual relationship (if that is, in fact, what really happened) are in the best position to defend themselves, and usually prevail.

So, the politico did all right, apart from having the encounter that got him into trouble in the first place.

The strange case of Father Corapi. This case has not received wide attention, so I'll provide a quick summary. Father John Corapi was a fixture on the Catholic cable TV network for many years, and a popular and sought-after preacher with a dramatic story of being converted after a go-go career in L.A., during which he allegedly dated Hollywood starlets, drove a Ferrari, and became a cokehead. He subsequently went bankrupt and nearly died from his drug addiction, but thanks to the fervent prayers of his mother, he changed his life and became a Catholic priest.

As a preacher, he was so successful that he had his own media company to sell his videotapes and DVDs, and to handle his speaking engagements. (This will be important.)

Priests and nuns who belong to religious orders are generally required to make vows of chastity, poverty, and obedience to their superiors. (This will be important, too.)

Several months ago, a woman who worked for Father Corapi's media company went to his bishop with allegations that Father Corapi was abusing alcohol and drugs, having sexual relations, and even being physically violent. The bishop, as he should have, mandated that the allegations be investigated, and Father Corapi was quietly suspended from ministry while the investigation was pending.

Oh, sorry, did I say "quietly"? Yes, it is true that neither the bishop nor the religious order said anything publicly about the investigation, presumably to protect both the accuser and Father Corapi, who had not been found guilty of anything yet.

However, Father Corapi made one of the biggest blunders that a person accused of sexual misconduct can make: He went on the offensive. He authorized a posting on his website that accused his accuser of physical assault and an "unsubstantiated rant." He also sued her in Montana state court (where his media company is based), asserting claims that she'd violated a non-disclosure clause in a separation agreement and for defamation.

The suit reportedly had its intended effect, gagging the accuser and witnesses, thus bringing the investigation to a standstill. Meanwhile, the stalled investigation meant that Father Corapi remained on suspension indefinitely.

In June, Father Corapi apparently decided that he was tired of living in limbo (pardon the expression) and renounced his priestly faculties and announced his new web persona, "The Black Sheepdog." He has accused his accuser of being "seriously troubled," and implies that she is not sane. He has also blasted the bishop for being unfair and not giving him a chance to defend himself. Many of his followers have sided with him -- vehemently.

Corapi has continued to post in this vein ever since. Finally, this week, the religious order apparently got fed up and posted its side of the story. According to the religious order, it was impossible to interview the accuser or her co-workers because they had been silenced by Corapi's lawsuit, but the investigation nonetheless found through emails and text messages that he had been carrying on with at least one woman, had "sexted," had a million-dollar estate in Montana as well as multiple vehicles and boats, and had abused drugs and alcohol.

His bluff perhaps having been called, Corapi posted a lackluster defense yesterday (see Black Sheepdog link, above) that failed to address many of the specifics set forth in the religious superior's posting.

So, what should Corapi have done differently?

1. He should have cooperated with the investigation and allowed it to proceed. Although Corapi protested being suspended while the investigation took place, he should have realized that this is standard procedure and does not imply guilt. Accused harassers have been cleared (or sometimes found guilty but of much less serious conduct) in more instances than I can count. I'm not saying that the procedures are always fair to the accused, but in my experience they are fair much more often than not. 

2. He should not have sued his accuser. Even if it did not appear retaliatory or intimidating (which it did), Corapi should not have sued his accuser -- especially not right off the bat, before an investigation could even begin. The non-disclosure agreement and severance pay should not have precluded the accuser from making "internal" allegations of un-priestly conduct to Corapi's bishop and his religious order. (I put "internal" in quotes because she was an employee of Corapi's media company, not an employee of his diocese or religious order.) The woman has never gone public with her allegations, as far as I know, but took them only to church authorities. If I were her, I'd argue that the non-disclosure agreement, to the extent that it would prohibit this, is void as against public policy and unenforceable.

3. If you must sue your accuser before the investigation even starts, don't sue for defamation, for cryin' out loud! Truth is a defense to a defamation claim. By including this claim in his lawsuit, Corapi has opened himself up to free-ranging discovery about his alleged misconduct. The accuser-defendant will now have every reason in the world to subpoena the emails and "sexts," and to take the depositions of the individuals who conducted the investigation into her allegations. Based on what the religious order has posted, this could be a painful experience for Corapi.

Accused sexual harassers almost always ask whether they should bring some type of legal action against their accusers. I understand this feeling. And I always say, You can do anything you want, but I don't recommend that you sue your accuser (for all the reasons discussed above). Hard as it may be, the best course is usually to cooperate and tell the truth to the investigators -- even if you have to confess to an inappropriate relationship -- but otherwise to keep quiet and patiently await the outcome, difficult as that will be.

**PLEASE NOTE: To reiterate, the above accounts of the DSK allegations and the Corapi allegations are based on the latest information available in the media, but investigations are ongoing in both cases. I am not expressing any opinion as to whether DSK, DSK's accuser,  Corapi, or Corapi's accuser are in fact guilty of any wrongdoing.

Between "Weinergate," the indictment of John Edwards, and the relatively old news about Dominique Strauss-Kahn and Arnold Schwarzenegger, it is obvious that issues related to sexual misconduct, including sexual harassment, are not going away. How can you, as an employer, know when a sexual harassment case is a "dog"? Here are five signs that you might want to answer "yes, please, and thank you, Sir!" when you get that EEOC request to mediate.

The accused is a member of management and has admitted to the harassment, OR he hasn't admitted it, but you are pretty sure he's guilty. This one is obvious. Maybe he didn't admit to sending that picture on Twitter, but he can't say "with certitude" that it's not him. Whatever. He's probably guilty, and even if he isn't, you're going to have a hard time persuading the EEOC, a judge, or a jury that it didn't happen.

If you have an admission, or just a terrible feeling in your gut that won't go away, your case may be a dog. 

Your work environment is so bad that you "should have known" the harassment was going on. Normally, an employer is not liable for sexual harassment that it's unaware of, which stands to reason. After all, how can you correct a problem you didn't know existed? BUT . . . and there's always a "but," isn't there? If a work environment is so bad that anyone with eyes to see and ears to hear would have been aware of it, then a court is likely to find that you had "constructive knowledge" of the harassment. This means that, in the eyes of the law, you knew about it, whether you actually knew or not.

If you had actual or constructive knowledge of the harassment, then you probably won't be able to use the defense to your inaction that the plaintiff didn't report the harassment. Your case may be a dog.

You got a complaint of harassment, and then you sat on it. Ideally, the investigation of a harassment complaint will begin the same day you get it (or even earlier, if you had actual or "constructive" knowledge of it before you got the complaint). It looks bad when you get a complaint and don't even start interviewing anybody until two or three weeks later or -- even worse -- when you wait until the day you get the EEOC charge or the nasty letter from the attorney in the mail.

PS-This frequently occurs when someone outside Human Resources or Legal, like a manager or supervisor, receives and tries to "handle" the complaint on his own. Managers and supervisors should be instructed to immediately refer all complaints of harassment to the appropriate individuals for follow-up. Non-HR/Legal folks usually do not know all of the ins and outs of harassment law, many of which are contrary to common sense, and so they are that much more likely to do something wrong (like sit on a complaint).

Sometimes a delay can't be helped. Perhaps, for example, one of the key individuals involved is on a spiritual vacation meditating in a Buddhist temple in the Himalayas, and we all know that Buddhist temples in the Himalayas have no telephones or email. If that's the case, then be sure to document the reason for the delay, and be sure to do as much you can until the key individual comes back. And, of course, promptly follow up with the spiritually-refreshed employee after he returns to work.

If there is a delay and you don't have a good excuse, your case may be a dog.

You can't even remember the last time you had harassment training. The EEOC and a good plaintiff's lawyer will always ask members of management whether they've had harassment training, how long ago, who did it, what it covered, etc. There are at least two reasons for this:  (1) Your company will look very bad if you haven't done it recently, and (2) inadequate training will give the plaintiff an excuse for not having reported the harassment in a timely manner.  She can plausibly claim that she didn't report it because she didn't know she was supposed to report it, or that she didn't know how to do it.

You should conduct harassment training for supervisors and managers at least once a year, and the training should include how to identify harassment, "high-risk behaviors," what to do if the manager receives a complaint of harassment or sees a situation in which she believes that harassment may be taking place, and retaliation. Ideally, you'll conduct annual harassment training for non-management employees, too, which should cover the same topics but in more abbreviated form. This can be done live, or through web-based programs or videos. (Live and web-based are generally better than videos because they are interactive.)

If your harassment training isn't current, your case may be a dog.

You have established that "quid pro quo" harassment may have occurred. Let's say an employee comes to you and says that she was demoted because she did not surrender to her boss's "charms." Let's further say that you have done everything right -- you have mandatory annual harassment training for management and non-management employees, which this boss attended last month, you have a great policy, you promptly investigated the complaint, and you fired him and promoted her as a "thank-you" for coming forward. Unfortunately, you are still liable ("strictly liable") under the law because the employee suffered what the courts call a "tangible job detriment" as a result of the alleged harassment. All the good things you have done are relevant to damages but not to liability, meaning that at a minimum you could be stuck with nominal damages and her attorneys' fees.

One would hope that an employer this good would not have to worry about getting a charge or lawsuit from the victim, but if she chooses to pursue legal action, your case may be a dog. (In this example, maybe just a teacup poodle, though.)

My internet friend and worthy adversary Donna Ballman, an employment lawyer who represents plaintiffs, had a good and sad post this week on AOL this week entitled "Nine Signs of Age Discrimination." The comments were especially depressing, from a number of people who said that they'd experienced age discrimination either in losing their jobs, or in their attempts to find jobs.

I've heard a lot "on the street" about the difficulty older workers are having in finding jobs, and I posted a while back on some of the non-discriminatory reasons that might be accounting for that.

I don't know whether there is an epidemic of age discrimination (I sure hope not), but I would like to present the "defense side" of Donna's nine points. So here are my "9 signs that you'll lose your age discrimination case." Many of these will apply to other types of discrimination cases as well.

Sign No. 1: The person who fired you is the same person who hired you not too long ago. We call this the "same hirer/firer" rule. The courts presume that if, say, Supervisor Mary hired you when you were 58 years old and then fired you when you were 60, your age was probably not the issue -- otherwise, she would never have hired you at age 58 in the first place. (On the other hand, if Mary hired you when you were 35 and then fired you when you were 60, you might have a case. Also, an employee can present evidence to rebut the "same hirer/firer" presumption.)

Sign No. 2: You have been a victim of unfair treatment that is legal. The world is an unfair place, but our legal system can't "redress every wrong," as the judges like to say. In the workplace, things like nepotism, favoritism, consensual workplace sexual affairs, you name it, are definitely NOT COOL but usually not illegal. So, if you lost out on that promotion because your boss wanted his 22-year-old daughter who just graduated with a C+ average from Priscilla Vanderbilt's Finishing School for Rich Young Ladies Who Aren't Smart Enough to Get Into Four-Year Colleges instead of you, a superbly qualified, well-loved and respected, and professional person with 30 years' directly applicable work experience, you probably don't have an age discrimination case.

Sign No. 3: You don't know all the facts. In any decent workplace, personnel information is not shared with employees who don't have a need to know. That's a good thing, but it causes people to sometimes feel that they've been singled out when in fact they have been treated exactly the same as their so-called "similarly-situated" co-workers. Unfortunately, they don't always find this out until they are in the thick of the discovery process in a lawsuit that the employer will win. Once an employer has been sued and backed into a corner, it will have no choice but to trot out all the evidence that, just as it fired you for failing to generate new business, it fired 10 other sales reps for the same reason, many of whom are in their 20's and 30's. And those people who were younger who you thought were being treated more favorably? Lo and behold, they actually had better numbers than you did. Or they didn't, but only because they were on job-protected FMLA leave for part of the relevant time period. Or they didn't, but they are in the performance improvement process, too, just like you were -- and can be expected to meet the same fate as you if their numbers don't improve. You get the idea.

Sign No. 4: Your boss is a dirty, rotten creep. (This is related to Sign No. 2, above.) Your boss may just be a dirty, rotten creep. That's a bummer, but it's not illegal as long as he's a creep to everybody. On the other hand, if he's sweet to the whippersnappers but rotten to everybody over the age of 50, you might have a case.

Sign No. 5: You are a dirty, rotten creep. Before rushing off to file a discrimination charge against your employer, it's not a bad idea to take an unsentimental, high-definition, fluorescent-light look at yourself. How do you get along with the people you work with? Do they like you? Are you known as "high-maintenance" if not a DRC? If you filed a charge or lawsuit against your employer, would anyone at work side with you? (And, when considering that, be sure to remember that even the current employees whom you counted among your friends are going to be reluctant to get involved.) Or, do you think there is a good chance you could be subjected to sitting through deposition after deposition in which your co-workers testify under oath about what an incompetent jerk you were, and how relieved everyone was when you were finally fired, and how much better your replacement is? (This really happens, and, when it does, it's no fun for the plaintiff.)

Sign No. 5: Your sweet, kind-hearted, easy-going boss has been replaced with a Master of the Universe. Maybe you got outstanding performance reviews (plus home-baked cookies) for 20 years while you reported to Mrs. Santa Claus. Then Mrs. Santa Claus retired, and was replaced by Gordon Gekko. Suddenly, you can't do anything right, and you're on a 6-month Performance Improvement Plan with termination in your immediate future. But surely this is age discrimination, because I had outstanding reviews for 20 years and now that I'm 60, I'm suddenly on a PIP! Nuh-uh. The courts say that Gordon has the right to have his own performance standards, even if they are dramatically different from Mrs. Claus's standards. As long as Gordon requires everyone to conform to his tougher standards, he's acting legally.

Sign No. 6: Your employer made a business judgment that you don't agree with. You have been an awesome bookkeeper/accountant for your employer for 20 years, and your associate degree in business from the local community college, coupled with your work experience, has served you well. Suddenly your employer tells you that the company has decided to upgrade your position to Chief Financial Officer and put a CPA in the position, and can't afford both a CPA and you. So, you're now in the unemployment line, while 25-year-old Numbercruncher, who just graduated from a remote outpost of the state university with a C+ average and passed the CPA exam, is in -- as CFO!! How unfair! You know you are smarter and better at what needs to be done than Numbercruncher. It doesn't matter. Your employer has the right to make this type of decision, even if it's a stupid decision, as long as it's not based on age or some other illegal reason. As the courts like to say, "We do not sit as super-personnel committees, second-guessing employers' business decisions."

Sign No. 7: Your employer honestly believes you committed a termination offense, even if you didn't. What? Yes, it's true -- "guilty beyond a reasonable doubt" applies only when you've been charged with a crime. In the workplace, the employer is allowed to terminate (or discipline) employees based on nothing more than an honest, reasonable belief. So, when you are falsely accused of sexual harassment by a couple of colluding co-workers, it's not illegal for the employer to fire you (assuming it did not know about the collusion), even if the employer cannot say for a fact that you are guilty, and even if, a year, later, during her deposition, one of your accusers breaks down and admits that the accusation was a total scam. In your age discrimination lawsuit, the courts will not look at your guilt or innocence but whether your employer, at the time of the termination, had reason to honestly believe that you had committed a termination offense.

Sign No. 8: Your employer discriminated against you, but not because of your age. Frequently plaintiffs will have a number of theories as to why they were terminated -- if they're 40 or older, they'll think it's their age; if they're female, they'll think it's their sex; if they're a member of a racial or ethnic minority, they'll think it's their race or national origin; if they're white guys, they'll think it's reverse sex and reverse race discrimination; if they filed a workers' compensation claim, they'll think it's workers' comp retaliation, etc., etc. A good plaintiff's lawyer will encourage the client to narrow these ideas down to one or two strong ones that are supported by some evidence, and to let the other ones go. Although it is possible for an employer to discriminate against an employee for more than one reason (for example, women frequently claim that TV stations discriminate against older women -- but not older men -- as news anchors), it's tough to claim that you, a 40-year-old African-American, were discriminated against because of your age when all the evidence shows that your boss was really on a campaign to get rid of African-Americans, no matter what their ages.

Sign No. 9: Your replacement is as old as you, or older. This does not automatically defeat an age discrimination claim, but it is a pretty strong sign that your age is not the reason you lost your job.

As you can see, our legal system tolerates a lot of unfairness, meanness, mistakes, and stupidity. This is true outside the employment law world, too -- if someone cuts you off in traffic and flips you a bird while doing it, that is without question rude, and you will probably be justifiably furious for at least 15 minutes, but you will not be able to sue that person for intentional infliction of emotional distress, even if you managed to get their license plate number. It's a cruel world, and we need to think about that before rushing to the courthouse.

Latest dispatches from the employment law front:

If you're going to be an SOB, make sure you're an SOB to everybody. A federal district court in Kentucky granted summary judgment to the employer in a sexual harassment case. The female plaintiffs alleged that a charlatan "turnaround specialist" hired by their CEO was not "motivated by sexual desire" but was simply abusive and mean. The court found in favor of the employer based on the "equal opportunity harasser" concept: the evidence clearly showed that the "specialist" was abusive and mean to everybody, not just women. Among other things, he had "invited" the male production manager to step outside to the parking lot, presumably to fight. He had also cursed at another male employee, threatened him, and thrown a piece of paper in his face.

The "equal-opportunity harasser" concept is well established in the law because the essence of "discrimination" is to treat one group differently from others. If the plaintiffs could have shown that this consultant was a bully only to women, then they would have had a claim. But since he treated both sexes equally badly, he could not be found to have discriminated based on sex. For the same reason, the women's retaliation claims under Title VII of the Civil Rights Act of 1964 also failed -- because their complaints about the consultant were not complaints of sex discrimination/harassment, they had not engaged in activity protected by Title VII.

That said, consultants and managers who behave this way are toxic and should be dealt with promptly. In this case, the employees complained to the CEO, who removed the consultant from "service." (The plaintiffs sued after they were terminated for other reasons several months later.) Even if the employees don't have a valid discrimination claim, the morale issues caused by a bad boss are obvious. And employees who feel that they have not been treated with respect and dignity will be much more likely to take legal action against the company.

Dirty old men need love, too . . . or do they? A perennial problem for health care facilities, and especially nursing homes, is the patient who hasn't had the benefit of modern EEO, diversity, or harassment training, and doesn't understand that he or she cannot use racial epithets or grope the staff. Often, these patients are so elderly that they grew up in a completely different era and may not be familiar with modern standards of behavior. Or they may have diminished capacity because of senile dementia or Alzheimer's.

In any event, they can't be thrown out onto the street as easily as a 35-year-old able-bodied employee who is a jerk at work. But what does the employer do when the patient mistreats, abuses, or even molests the staff?

According to the U.S. Court of Appeals for the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming), the employer has to do more than just give the patient a good talking to. In Aguiar v. Bartlesville Care Center, the defendant nursing home had a resident who in his former life had a history of "domestic abuse, assault and battery, and violation of a protective order." Nonetheless, he was allowed to move freely in the nursing home and subjected the plaintiff, an aide, to unwanted kissing, groping, grabbing, and threatening behavior when she refused his advances.

The Center talked to him about his behavior, and documented the talks, and tried to assign another caregiver to give him his medications, but when another caregiver gave him medication, he would become hostile and go in search of the plaintiff.

After one such incident, in which the resident pursued the plaintiff, got into a shouting/cursing match with her, and called her a "b*tch," she retorted that he was a "pr**k." The next day, when questioned, she admitted to what she had said and was terminated. The person who had terminated her did not know the history of the resident's behavior or of the plaintiff's prior complaints, and was terminating her only because she had admitted to using abusive language with a patient.

The District Court found that the nursing home had done enough to try to end the harassment of the plaintiff and therefore granted summary judgment to the nursing home on the plaintiff's hostile work environment and negligent supervision claims. But the Tenth Circuit reversed, saying that a jury should decide whether the nursing home knew or should have known about the resident's harassing behavior and whether its response was adequate. Among other things, the nursing home said that it offered the plaintiff a chance to move to another area of the nursing home but that she had declined the offer. The plaintiff denied that such an offer had ever been made.

On the other hand, the Tenth Circuit affirmed dismissal of the retaliation claim, finding that there was no evidence that the manager who fired the plaintiff knew anything about the plaintiff's history with this resident.

Why bother? Prompt action by HR does no good, apparently. The U.S. Court of Appeals for the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) reversed a grant of summary judgment to an employer where the plaintiff alleged that her plant manager took her written complaint of harassment, wadded it up saying, "This is bulls**t," tossed it in the trash, and told her to leave and that he never wanted to see her again. Seems like an open-and-shut case for the plaintiff, no? But within two days of this alleged incident, the corporate HR manager told the plaintiff that she was not fired, and offered her the job back. The plaintiff refused to return and was treated as a voluntary quit. For this reason, the District Court granted the employer's motion for summary judgment, but on appeal the Eighth Circuit said that even a two-day termination might discourage a reasonable employee from engaging in the protected activity, so the plaintiff's claims will go to trial.

I just hope that the prompt action by this diligent HR manager will have some effect on the company's damages, if not its liability.

"Gender gap" on Wikipedia? Many of you have probably read about the recent angst of the Wikipedia Foundation about the fact that only about 15 percent of its postings are by females. The Foundation intends to take steps to increase the "female" presence on Wikipedia . . . not clear how that's gonna happen. Like the inflated "gender gap" in pay, which I submit is 99%* a result of voluntary work-family-lifestyle choices made by women, my reaction is . . . who cares? As far as I know, Wikipedia is doing nothing to prevent women from posting as often and as long-windedly as they want. If it turns out that women are statistically not as interested in pontificating on arcane subjects as are men, then let the guys do it. We have enough real problems to worry about.

*This is a statistic that I made up and is completely unscientific.   

Bruce Carton of Legal Blog Watch (via Overlawyered.com) notes the passing of Nordstrom's employee "handbook," which consisted of a single index card with the admonition to "use good judgment in all situations." Meanwhile, at Minding the Workplace and Jottings By An Employer's Lawyer, the authors note that many, if not all, of our workplace problems -- particularly harassment and "bullying" -- would go away if everyone simply followed The Golden Rule.

I don't disagree. I will go on record right now as being unequivocally "pro-Golden Rule." I think it would be great if we all knew what "good judgment" was and exercised it on a regular basis. Arguably, all the problems, not just of the workplace, but of the world, would go away if we always used good judgment and followed The Golden Rule.

But of course this isn't going to happen. That we have evil and stupid people in the world goes without saying. Even intelligent people who mean well sometimes act foolishly or do bad things.

And apart from the fact that we live in a fallen world, there is our counter-intuitive legal climate.  Let's face it -- from a legal standpoint, who even knows what "good judgment" is? One recurring theme of any management training I conduct is to emphasize that one cannot use one's common sense in dealing with workplace issues. Here are two recent examples showing why not:

To most of us, it shows good judgment not to bad-mouth your boss in a public forum, but the National Labor Relations Board says that you are engaged in "protected concerted activity" and can't be fired or disciplined for that. (The employer in this case says that it terminated the employee for other reasons.)

To most of us, it is "doing unto others as they would do unto you" when you tell your boss that your mother has cancer, when the boss follows up with some polite and concerned questions about your mother's condition. But, according to the final regulations interpreting the Genetic Information Non-Discrimination Act, such follow-up questions would be a violation of the law because they would elicit your "genetic information," which includes family history.

And how about respecting your wishes when you are being harassed at work but ask your boss not to intervene just yet because you think you can handle it yourself? How about refusing to give credence to hearsay or gossip about whether you are being harassed? How about trying to soothe resentful co-workers by (tactfully and gently) telling them that you are getting special treatment on the job not because of favoritism but because you have a serious medical condition? What employer would dare do these things any more? All too often, the desire to "do the right thing" is not only frowned upon, but is also actively punished, by our legal system.

And so, Nordstrom has reportedly had to replace its index card with a real handbook full of rules and regulations. No employer serious about avoiding liability would dream of merely telling employees to "do unto others."

Doing the right thing isn't good enough any more.