Louisiana Appellate Court Holds that Fear of Public Speaking Is Not a Disability, March 14, 2008
by Meg Gallucci
In a Louisiana lawsuit, an employee with a ten year history of generalized anxiety disorder and depression, who was discharged from her job because she had a phobia against public speaking, failed to prove that she had a disability under the Louisiana Employment Discrimination Law (“LED”). The Louisiana Court of Appeal held that the employee was not disabled under Louisiana law, even though she was taking anxiety medication and her physician testified that public speaking on personal matters would be detrimental to her emotional health.
Like the federal American with Disabilities Act, the LED defines a disabled person as one who has “a physical or mental impairment which substantially limits one or more of the major life activities, or has a record of such impairment, or is regarded as having such an impairment.” In this case, the employee refused to fully participate in a required Toastmaster program because she experienced performance anxiety and was fearful of being judged and critiqued by her co-workers. When informed at work that she had to participate in the program, the employee presented one of her supervisors with a “Notice of Disability” stating that she suffered from a medical condition that made it difficult, if not impossible, for her to participate in the Toastmaster program. The employee also produced a letter from her physician verifying her “disability.”
The employee was terminated for her refusal to participate in the Toastmaster program. She then sued in state court, alleging disability discrimination under Louisiana law. After a bench trial, the lower court rendered judgment in her favor. The judgment was reversed on appeal.
The appellate court noted that public speaking is not for everyone but that fear of public speaking is not the type of serious disability that the Louisiana legislature intended to address when it enacted the LED. The plaintiff failed to establish that she was substantially limited in a major life activity, such as walking, seeing, or hearing, under Louisiana law. The case is Pierce v. State of Louisiana.
Tenacious pro se Litigant Pursues Grievance to the Eleventh Circuit, March 12, 2008
by Meg Gallucci
These are the facts of a case filed by a pro se litigant that made it to the U. S. Court of Appeals for the Eleventh Circuit. Never let it be said that the courts are not engaged in deciding important issues in labor and employment law.
Barbara Barrington was discharged from employment with Lockheed after she cut co-worker Rickey Wilson’s hair without permission (how she pulled off the clandestine cut remains a mystery). Apparently Wilson had no issue with the haircut, but he filed a complaint at Lockheed against Barrington anyway.
Barrington believed that two female co-workers bullied Wilson into making the complaint. Perhaps she surmised that someone who would sit through an unwanted haircut lacked the gumption to file a complaint. Anyway, Barrington confronted the two female co-workers in the restroom in an attempt to straighten things (or them) out. A scuffle ensued. Still dissatisfied, Barrington filed a defamation suit in state court against them. In the interim, Lockheed terminated Barrington for violating rules against violent behavior (the tiff in the restroom?), inappropriate contact (the haircut?), and horseplay.
Barrington filed a union grievance challenging her termination and defending the haircut. The grievance went to arbitration. The union representative, believing that the company had not met its burden to show cause for Barrington’s termination, at first convinced Barrington not to testify at the arbitration. The union representative thought (correctly) that Barrington might not make a good witness on her own behalf.
During the arbitration, Barrington decided that she wished to testify and requested a continuance. Barrington then accused the arbitrator of improprieties, including bias and fraud, and requested that the union remove him. The union declined.
The arbitrator decided the haircut was not cause for termination but found other cause based on Barrington’s testimony, including the filing of a frivolous lawsuit. The union did not appeal. In keeping with her propensity to file frivolous lawsuits, Barrington, acting pro se, filed a motion to vacate an arbitration award with the federal district court under Section 301 of the Labor Relations Management Act and the Federal Arbitration Act. The court granted summary judgment in favor of the defendants, Lockheed and the union. Not one to be deterred, Barrington appealed. The appellate court affirmed.
The case is Barrington v. Lockheed Martin.
Prompt Management Action Called For in Same-Sex Harassment Claim, March 10, 2008
by Meg Gallucci
The EEOC and a Pennsylvania dairy reached a $75,000.00 settlement in an EEOC lawsuit claiming that the dairy violated Title VII of the Civil Rights Act of 1964 by firing a male employee who complained of persistent same-sex sexual harassment in the workplace. Under the terms of the settlement, all dairy managers and supervisors must undergo equal employment opportunity training and the company must post a notice describing the settlement and employees’ rights under Title VII. The notice must remain posted for four years.
The employee was allegedly subjected to offensive, sexually charged comments and gestures by other male co-workers. He objected to the unwelcome behavior and complained to management on multiple occasions but nothing was done about the problem. One month after the employee’s latest complaint, he was fired. He then filed a charge with the EEOC.
The dairy denied the charges but settled the case as a practical business decision. The problem was not that the workplace harassment occurred, but that the company allegedly did not investigate and take prompt action after the employee complained. The case is EEOC v. Turkey Hill Dairy, Inc.
A Little Light Shed on Retaliation Claims, March 5, 2008
Employees have the right to file claims against employers without fear of retaliation, even if the claims turn out to be baseless. Many employees, however, file these claims knowing that they have not been the victims of discrimination. In a whistle blower case, a federal court in the District of Columbia has ruled that the employee must reasonably believe that a violation took place. In other words, even if the employee genuinely believes that a violation took place, the belief must be reasonable. That is a good step forward. Hoyte v. American National Red Cross, No. 06-53200 (D.C. Cir., March 4, 2008).
Court Allows Unsuccessful Applicant to Sue Company Doing Background Check, March 3, 2008
A federal appeals court in the nation’s capital has made it easier for job applicants to sue companies hired to do background checks. The trial court had ruled against the applicant because he did not show, through expert testimony, that the company used by the employer did not conduct a complete and timely background check. The appeals court said that if the applicant can present “some evidence” from which a reasonable judge or jury can infer that the background check company failed to follow reasonable procedures, he does not need expert testimony. Wilson v. CARCO Group Inc., No. 07-7053 (D.C. Cir., February 29, 2008.
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