Blonde Discrimination Not Illegal, May 30, 2003
And you thought a lawsuit claiming Oreo's should be banned was dumb. In a case out of Pennsylvania, a white, Jewish woman from Moldavia brought a lawsuit alleging that she had been harassed and discriminated against on the basis of her sex, race, religion, and national origin because she was blonde. Shramban v. Aetna, No. 02-CV-444, (E.D. Pa., May 16, 2003). Apparently, Shramban's boss was an insensitive lout, who made disparaging comments about her intelligence and work abilities, tying her deficiencies to her blondeness. The court agreed that the comments made by the supervisor "may be viewed as offensive, disparaging, unprofessional, and in poor taste," but not sufficient to constitute harassment or discrimination. "We also note that being blonde is not a protected group under Title VII," said the court.
Court Invalidates Circuit City's Arbitration Agreement, May 19, 2003
The Ninth Circuit struck down the arbitration agreement that Circuit City Stores requires employees to sign. Ingle v. Circuit City Stores, Inc., No. 99-56570 (9th Cir., May 13, 2003). The agreement has been the subject of many challenges, including a case decided by the Supreme Court in 2001 (Circuit City Stores v. Adams, 532 U.S.105 (2001), which held that the Federal Arbitration Act does not preclude mandatory arbitration agreements in the non-union setting. In this case, however, the Ninth Circuit held that the terms of the Circuit City agreement were procedurally and substantively unconscionable under California law. The court refused to sever the invalid provisions. Employers thinking about using mandatory arbitration agreements should be sure to consult knowledgeable counsel in this quickly developing area.
Behavior Alone May Be a Request for FMLA Leave, May 19, 2003
A previously exemplary employee who begins slacking off may give an employer sufficient notice that the employee needs FMLA leave, according to the Seventh Circuit. Byrne v. Avon Products, Inc., No. 00 C 5378 (May 9, 2003). Byrne was a highly regarded night shift employee who started to read and sleep on the job in the break room when he should have been on duty. Rather than check with Byrne to see what was going on, Avon installed a security camera to catch him in the act. Once they did, managers planned to talk to Byrne, but he had left work early, telling a co-worker that he wasn't feeling well.
When a call was placed to his home, a sister answered the phone and said that Byrne was "very sick." When a manager finally did talk to him, Byrne mumbled several odd phrases and was generally incoherent. Nevertheless, Byrne agreed to meeting but then did not show up. Without further discussion, Avon fired him for his failure to appear and for sleeping on the job. In fact, was hospitalized for major depression after he had barricaded himself in a room, had hallucinated, had tried to commit suicide, and had tried to flush his head down the toilet at the same time Avon was trying to contact him. Avon learned of his hospitalization the next day.
The Seventh Circuit overturned summary judgment for Avon, stating that when a sister told Avon that Byrne was "very sick" plus the news of his hospitalization may have been sufficient notice to Avon that the FMLA might be implicated. The case was therefore returned for a trial. This case is an important reminder to employers to "where the white hat" when dealing with medical leave matters, particularly where mental health issues are involved.
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