Thursday, May 25, 2017

Tomi Lahren settles lawsuit against Beck and Blaze

Tomi Lahren (Twitter profile pic)
A month ago, I wrote about Tomi Lahren suing The Blaze and Glenn Beck for allegedly firing her for expressing a vaguely pro-abortion message on The View. I didn't want to leave you hanging, so . . . Update! The case settled. FoxNews has some of the details:
Lahren's attorney, Brian Lauten, said in a statement Monday that his client had been released from her employment contract and denied her access to the Facebook page TheBlaze had set up for her. He said that page and its millions of followers now belong to Lahren.  
In return, the conservative talker must remove videos she made for TheBlaze from the page and return them. Other terms remain confidential.
Now you don't have to wander through life wondering what ever happened to that lawsuit.

Monday, May 22, 2017

Transgender ADA claim survives motion to dismiss

In Blatt v. Cabela's Retail, Inc., a Pennsylvania transgender employee filed an ADA discrimination and retaliation claim. She alleged that "she requested a female nametag and uniform and use of the female restroom as accommodations for her disability." Her alleged disability was "Gender Dysphoria, also known as Gender Identity Disorder."

Here's the problem . . . the ADA specifically excludes "gender identity disorders" from  the definition of "disability." 42 U.S. Code § 12211. The defendant contended that her case should be dismissed because her alleged disability is specifically excluded by the statute. The plaintiff claimed that this exclusion is unconstitutional because it violates her equal protection rights.

The Court applied the "constitutional-avoidance canon" - the idea being that courts should try to interpret statutes in a way that avoids resolving constitutional issues - to conclude:
In view of these considerations, it is fairly possible to interpret the term gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have —such as Blatt’s gender dysphoria, which substantially limits her major life activities of interacting with others, reproducing, and social and occupational functioning.
In other words, the Court interpreted the statutory exclusion of "gender identity disorders" so narrowly as to not cover what the plaintiff herself pleaded was a "Gender Identity Disorder." The Court went on to deny the motion to dismiss. The decision is likely not immediately appealable, but it's an issue that may find its way to the Third Circuit eventually.

Tuesday, May 2, 2017

2nd Circuit: Employer cannot fire employee for profanity-laced Facebook rant

Under the NLRA, employees cannot be fired for posting things like "Vote YES for the UNION!!!!" on Facebook - because the NLRA generally protects union organizing and support. However, even protected posts can lose their protection if they cross the line into "opprobrious" or "abusive" conduct.

In my employment law classes at Penn State, I have used a certain "go to" case to illustrate the high bar of establishing "opprobrious" conduct. The employee posted (earmuffs kids, it's about to get PG-13):
Bob (his supervisor) is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking  family!!!! What a LOSER!!!!   
Vote  YES  for  the  UNION!!!!!!
He got fired and filed a charge with the NLRB.

At one time, I told my class something like "can you believe it? An Administrative Law Judge (ALJ) actually held that this post was still protected! But, remember kids, that's just one ALJ . . . I doubt the NLRB itself would hold that an employer was not allowed to fire someone for this post." Then, in 2015, that speech changed to, "But remember kids, that's just one NLRB decision . . . I doubt a court would hold that an employer was not allowed to fire someone for that post."

Now, here we are. Last week, the Second Circuit upheld the NLRB decision in NLRB v. Pier Sixty, LLC. Yes, a Circuit Court of Appeals actually held that an employee could not be fired for calling his boss a "nasty mother fucker" and posting "Fuck his mother and his entire fucking family" on Facebook.

This seems facially absurd, but I'll offer a tepid defense of the Court's decision: (1) courts apply a deferential standard of review to NLRB rulings; (2) there was an upcoming union election and evidence of additional anti-union animus (the employer allegedly threatened to rescind benefits and terminate employees who voted for unionization); (3) other employees cursed all the time and did not get fired; and (4) the online forum (Facebook) did not disrupt the workplace.

But remember kids, that's just one circuit, and we live in the Third Circuit. Also, there's a new NLRB in town, so I doubt it would hold the same way (that said, see my dismal track record for predictions above).

Tuesday, April 18, 2017

Justice Gorsuch debut at oral arguments on employment law issue

I can sympathize with the mainstream media on this one. Their coverage of Justice Gorsuch's first oral arguments had to address a seemingly simple question: what was the case about? On average, they struggled.

As luck would have it, the case dealt with jurisdictional issues in federal employee "mixed" cases. As someone who represented a USPS employee in such a case, I can assure you that the system is setup to be an unnecessarily convoluted mess with procedural traps for the employee every step of the way. The case at SCOTUS yesterday was Perry v. MSPB (SCOTUSblog page), and SCOTUSblog identifies the issue as:
Whether a Merit Systems Protection Board decision disposing of a “mixed” case (one which challenges certain adverse employment actions and also involves a claim under the federal anti-discrimination laws) on jurisdictional grounds is subject to judicial review in district court or in the U.S. Court of Appeals for the Federal Circuit.
Ahh, clear as mud, right? In any event, here is the SCOTUS transcript, with Justice Gorsuch debuting on page 10 (spoiler alert - this exchanges goes on for a several pages, with the highlight perhaps being Justice Gorsuch apologizing for "taking up so much time"... and then asking another question).

I wouldn't read too much into his questions. I can offer two observations though: (1) He seemed to focus on statutory language (no surprise); and (2) He was pretty talkative (closer to Scalia than Thomas on the participation spectrum).

Wednesday, April 12, 2017

The pharmacist who was afraid of needles and the ADA

Well, here's an interesting ADA case. In Stevens v. Rite Aid, Corp., the Second Circuit analyzed an ADA claim from a pharmacist with tryanophobia - a fear of needles.

A note from his doctor explained that he was "needle phobic and cannot administer immunization by injection." The pharmacist himself explained that this causes "lightheadedness, paleness, and a feeling that I may faint" and therefore he "would never even consider trying to become an immunizing pharmacist."

Generally, the ADA requires employers to reasonably accommodate employees with a disability. However, the employee still must be able to perform the essential functions of his job. Rite Aid requires its pharmacists to perform immunizations, and therefore injections were an essential part of the pharmacist's job. He "failed to present evidence suggesting the existence of a reasonable accommodation" that would have enabled him to do his job - so, he lost.

HT: My co-worker Jon Stepanian emailed me this ABA article: Court Holds That Pharmacist With Fear of Needles Has No Claim Under the ADA.

Monday, April 10, 2017

Tomi Lahren sues Glenn Beck and The Blaze

What happens when a conservative commentator goes on The View and expresses vaguely pro-choice opinions? Lawsuits, apparently. Tomi Lahren sued Glenn Beck and The Blaze last week (Complaint here). She claims that the The Blaze fired her (even this is a little muddled, arguing a de facto termination) because she went on The View (which is apparently somehow still on television) and said:
Tomi Lahren (Twitter profile pic)
I can't sit here and be a hypocrite and say I'm for limited government but I think the government should decide what women do with their bodies.
Her lawsuit makes vague allusions to First Amendment free speech and the right to express her personal views. Generally, such things do not apply to private employers and the lawsuit is technically not arguing that they do. Instead, Lahren argues that her employment contract (attached to the Complaint) requires "cause" to terminate her; and, the contract does not allow for termination based on her comments on The View.

The contract does allow The Blaze to terminate her for "repeated failure to comply with the reasonable directions of senior management" - we have yet to hear their side, so this may be a factor. Also, the contract was set to expire on September 30th of this year anyway, so perhaps they're content to just pay it out. We'll see.

So, what does Lahren want? A full prayer for relief appears in the Complaint, but to touch on some highlights:

  • Damages for wrongfully terminating the contract;
  • A declaration that The Blaze breached the contract and failed to perform other duties (like meeting a specific minimum number of recorded shows); and, therefore, Lahren is free to go out and compete without the restrictions of her contract;
  • Tomi Lahren's Twitter account is alive and well, but her Facebook page lies dormant. Lahren claims she is locked out and she wants it back (she has over 4.2 million page Likes). 
Sidenote: The contract appears to have a typo - stating that Lahren can be terminated in accordance with "Paragraph 9)b_(ii), (iii), or (vii)" . . . but in context this should clearly refer to Paragraph 11, not 9. I somehow imagine celebrities having these infallible airtight contracts . . . and, yet, they have typos and ambiguities just like the non-celebrity contracts I see in my day-to-day practice. 

Thursday, April 6, 2017

Miles on Regime Change in Washington

Straight from the Department of Shameless Self-Promotion, I present to you a recent story in the Pennsylvania Business Central: Change in management - The impact of regime change in Washington on labor law. The article includes extended comments from me, and another local employment law attorney, Amy Marshall.

I suppose now is as good a time as any to also note that Lawffice Space was selected by Feedspot as one of the Top 75 Employment Law Blogs on the web.