Unsigned Employment Contract Enforceable, April 30, 2001
An unsigned draft of a three-year employment contract between a chef and his employer represented an enforceable contract that was breached when the chef was fired. Schnider v. Carlisle Corp., Tenn. Ct. App., No. W2000-01695-COA-R3-CV (April 19, 2001). Chef Roland Schnider was hired to open and manage a restaurant in downtown Memphis called "No. 1 Beale." At a meeting prior to the restaurant's opening, the two parties sat down and discussed all the terms of the agreement. A final draft of the agreement provided Chef Schnider with a three-year employment term, salary and car allowance totaling $75,000 per year, 15% stock ownership in the restaurant, health insurance, and bonuses. The contract, however, was never signed.
The Tennessee Appeals Court found for Chef Schnider, recognizing a partial performance exception to the state's statue of frauds. Under the exception, Chef Schnider showed that his employer acted in a way showed it intended to stand by the agreement and that Chef Schnider, relying on his employer's actions, incurred a loss as a result. The court found that an oral employment contract existed between Mr. Schnider and his employer, with the terms of the contract contained in the parties' unsigned, employment contract.
Supreme Court Reverses Ruling On Title VII Retaliation, April 23, 2001
In a unanimous decision, the Supreme Court has held that one sexually explicit remark does not constitute sexual harassment, making an employee's complaint unprotected activity under Title VII. Reversing a federal appeals court, the Supreme Court found that since "no one could reasonably believe that the incident" complained about constituted sexual harassment, there was no causal connection between the actions and her involuntary transfer to a job with the same pay and benefits, but lacking promotion potential. The 9th Circuit had decided that the employee's complaint was protected activity because she had a reasonable, good-faith belief that the incident was illegal sexual harassment.
Largest English-Only Settlement, April 23, 2001
On April 19, 2001, the University of the Incarnate Word in San Antonio, Texas agreed to a $2.4 million settlement to resolve charges that it subjected 18 former Hispanic employees to verbal and physical abuse for speaking Spanish on the job. (EEOC v. University of the Incarnate Word, W.D. Texas, No. 99-CV-1090OG, settlement April 19, 2001). The former employees claimed they were hit, punched, had their hair pulled, and were called "stupid Mexicans" by their immediate supervisor when they spoke Spanish during work hours. Under the settlement, the University will pay $1 million in damages to the former employees and give each tuition waivers for eight full-time semesters of study, a total value of $1.44 million. The waivers can be used by the former employees, their children, or their grandchildren.
English-Only rules are unlawful when they are implemented arbitrarily to penalize a single group based on their national origin. Only where employers have a clearly justified business necessity are English-Only rules permitted.
Disability Harassment is a Cause of Action Under the ADA, April 16, 2001 The Fourth Circuit Court of Appeals issued a decision today recognizing that a hostile work environment claim is cognizable under the Americans with Disabilities Act. Following closely on the heels of the Fifth Circuit decision in Flowers v. Southern Regional Physician Services, Inc., (5th Cir. March 31, 2001), the Fourth Circuit, in a published opinion, recognized that the ADA does create a cause of action for a hostile work environment. The Court's decision was based, in large part, on the ADA's express reference to Title VII, the fact that both statutes have the same purpose, the prohibition of illegal discrimination in employment, and the reliance upon Title VII cases as precedent when interpreting ADA cases.
To prove a hostile work environment claim, an ADA plaintiff must prove (1) he is a qualified individual with a disability; (2) he was subjected to unwelcome harassment; (3) the harassment was based upon his disability; (4) the harassment was sufficiently severe or pervasive to alter a term, condition or privilege of employment; and (5) some factual basis exists to impute liability for the harassment to the employer. Click here for a complete copy of Fox v. General Motors Corp. (4th Cir. April 13, 2001).
Worker with Mental Illness Has No Disability Claim Under ADA, April
13, 2001
The Seventh Circuit Court of Appeals has held that a mentally ill employee whose employer denied his requests for a lateral transfer or for a full investigation of an alleged conspiracy among his co-workers to harm him failed to state a case under the ADA. Tyler v. Ispat Inland Inc., No. 00-2279 (7th Cir. April 5, 2001).
Kenneth Tyler, an electrician for Ispat Inland Co. had a mental illness, diagnosed as atypical depression with delusions of persecution. In the early 1990's, Mr. Tyler believed his coworkers were sabotaging his work, falsely accusing him of stealing from his employer, threatening to burn down his house, and threatening to poison his food. The employer accommodated Mr. Tyler by reassigning him to a different shift position. Nevertheless, shortly after his transfer, Mr. Tyler began experiencing stress and suspected his new co-workers of threatening him in similar ways. The employer refused Mr. Tyler's demand to return to his original position or to investigate his concerns.
The Seventh Circuit affirmed that the employer had already made reasonable accommodations for Mr. Tyler. Without a medical explanation for Tyler's request to transfer back to his original job, "old-fashioned common sense dictated that he be kept away from the original source of his stress." It is difficult, if not impossible, for an employer to accommodate an employee's delusions or hallucinations by addressing working conditions that are the product of the employee's imagination.
Refusal to Sign a Non-compete and Title VII, April 12, 2001
An employer who fired an older woman for refusing to sign a non-compete agreement was found not to be guilty of sex or age discrimination, even though the non-compete agreement would not have been enforceable. The employee had argued that a unenforceable non-compete could not form the basis for a valid employment decision, but the federal appeals court found that Title VII did not prevent an employer from "foolishly" seeking an ineffective document from its employee. O'Regan v. Arbitration Forums Inc., No. 994044 (7th Cir., April 9, 2001).
NLRB Revises Videotape Rules, April 9, 2001
The NLRB held that employers may not solicit employees to appear in anti-union campaign videos during union organizing drives, unless employees are assured that participation is voluntary and will not result in rewards or benefits, and that there will be no consequences for nonparticipation. (Allegheny Ludlum, 333 N.L.R.B. No. 109 (March 30, 2001)). Further, employers cannot pressure employees to participate in a video in the presence of a supervisor, nor can they "exceed the legitimate purpose of soliciting consent by seeking information concerning union matters or otherwise interfering with the statutory rights of employees."
Employers may not lawfully include the images of an employee in a campaign videotape if the video "reasonably tends to indicate the employee's position on union representation" unless the employee volunteers to appear in the videotape without any coercion from the employer. At the same time, if the video does not indicate an employee's position on the union, an employer may include the clip of the employee without his/her permission.
This ruling overturns the decision in Sony of America, 313 N.L.R.B. 420, 145 L.R.R.M. (BNA) 1242 (1993), to the extent that it establishes a per se rule for employers to obtain employee consent before including their image in campaign videotape.
Louisiana Court Says DNA Test Not Too Much To Ask Of Alleged Harasser, April 6, 2001
Sounding like an excerpt from Kenneth Starr's report, the Louisiana Court of Appeals held that an alleged harasser can be required to provide a cheek swab or blood sample to confirm if he had a sexual encounter with the plaintiff.
In this case, the plaintiff had produced a skirt on which she claimed the harasser had restrained her, laid on top of her, undid his pants, and masturbated all over her. Finding there would only be a minimal invasion of privacy, the appellate court held that the results of the DNA test would provide relevant evidence, in light of the harasser's insistence that he had not engaged in any sexual relations with the plaintiff.
Federal Appeals Court Recognizes Disability Harassment, April 5, 2001
Courts have long recognized that not all discrimination involves discipline. Some discrimination takes the form of harassment, usually involving racist, ethnic, or sexist comments.
A federal appeals court has confirmed that employees with disabilities may sue their employers for harassment. Flowers v. Southern Regional Physician Services, Inc., No. 99-31354 (5th Cir., March 30, 2001).
Religion Trumps Sexual Preference, April 2, 2001
The Fifth Circuit affirmed the dismissal of an employee's wrongful termination claim when the plaintiff refused to treat patients involved in homosexual relationships. Bruff v. North Miss. Health Serv., No. 99-60175 (5th Cir. March 28, 2001). The plaintiff claimed that homosexual behavior conflicted with her religious beliefs.
The plaintiff worked as a counselor in an employee assistance program at North Mississippi Medical Center, providing counseling to the employees of various businesses in the region. After a patient informed her that she was homosexual, the plaintiff discontinued the session explaining that the patient's lifestyle conflicted with her religious beliefs.
The employer argued that it to permit Plaintiff to counsel clients only on subjects that did not conflict with her religious beliefs would cause an undue hardship by creating an onerous burden on the other counselors. As a result, the employer offered the plaintiff a reasonable accommodation by giving her 30 days to transfer to another position where conflict of care issues would be unlikely to arise. Because the plaintiff made little effort to secure a transfer, the court concluded by stating that an employee has a duty to cooperate in achieving accommodation of her religious beliefs and must be flexible in achieving that end.
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