Burger King Faces Whopper of a Religious Accommodation Lawsuit - COTW #107

The EEOC served up a "whopper" of a religious accommodation lawsuit on a Burger King (see what I did there?). You can read the Complaint here.

The employee's religion is a Pentecostal of Christian faith that requires women to wear only skirts or dresses. She brought this up at her interview for a BK cashier position, and the interviewer assured her it was not a problem. She got the job, but when she showed up to work in a skirt she was sent home.

Generally, employers are required to reasonably accommodate the sincerely held religious beliefs of their employees unless it would impose an undue hardship. Courts have allowed uniform requirements to trump religious garments in limited circumstances. For example, a prison can ban religious headscarves to prevent smuggling of weapons and contraband, and to prevent the scarves from being used to strangle people.

I doubt Burger King has such concerns. Although I guess it's possible that loose clothing presents some hazard around the kitchen. If the manager is just worried that the skirts clash with the BK unis - well, that sounds like an uphill battle to me.

HT: Prof. Volokh and his Conspiracy (he has additional analysis and citations).

Fed. Ct. Kills Unemployment Compensation Privilege

The Eastern District of Pennsylvania addressed an interesting issue on Monday, in Lalumera v. 2491 Corp. Both parties sought "hearing transcripts and related filings from the Pennsylvania Department of Labor and Industry respecting the employee’s unemployment compensation claim."

The Department (which I always call DLI, but the opinion calls DOL - any Pennsylvanians want to weigh in on this in the comments?) argued that the materials were "privileged" and refused to hand them over. DLI relied on new PA UC regs providing that UC information is "confidential" except as needed to decide UC issues and as required by law.

The Court rejected the "unemployment insurance privilege." However, it limited its holding to situations in which both employer and employee authorize disclosure.

HT: PBA Labor and Employment Law Section listserv (specifically fellow blogger, Harold Garner).

Image: Centre County CareerLink where Referees hear UC cases.

WSJ Explains Why Lawyers are So Smart

Finally, researchers have offered some insight into why I am so incredibly brilliant. As the Wall Street Journal reports in Study Shows Why Lawyers Are So Smart:

Intensive study for the Law School Admission Test reinforces circuits in the brain and can bridge the gap between the right and left hemispheres, according to neuroscientists at the University of California, Berkeley, in findings reported last week in the online journal Frontiers in Neuroanatomy. Those changes can improve reasoning ability and may increase a person's IQ score, the researchers said.

All joking aside, I loved the LSATs. I also loved law school. Whether I actually got any smarter, I can't say. But, I did learn to challenge assertions, objectively examine my own views and arguments, and view the world with an eye toward logic and reasoning. Even if I never practiced law, I still would have found the whole experience invaluable.

Now, if researchers could just figure out why lawyers are so really really really ridiculously good looking (and modest).

Desperate Housewives - The Lawsuit - COTW #106

The employment law Case of the Week is Touchstone Television v. Nicollette Sheridan (yes, that Nicollette Sheridan). This case has more twists and turns than an episode of Desperate Housewives! I'm guessing . . . never actually seen the show. In any event, the case arises out of the actress's work on the series.

Ms. Sheridan claims that the show's creator hit her while filming in 2008. She complained to Touchstone, and they retaliated by killing her! That sounds pretty harsh . . . no, wait . . . they killed her character on the show. My bad. The end result was that Ms. Sheridan no longer had a spot on the show.

She filed a claim for wrongful termination that went all the way to trial. The trial ended with a deadlocked jury. Before a retrial, Touchstone appealed claiming that they never terminated Ms. Sheridan. Instead, they just decided not to renew her contract. That seems like a pretty solid argument - how can you wrongfully terminate someone if you don't terminate them?

In a classic case of good news-bad news for Touchstone, the California appellate court agreed with them that Ms. Sheridan can't bring a wrongful termination claim based on Touchstone's decision to not renew her contract. But, she can amend her complaint to bring a new claim! California statute prohibits discrimination against an employee "because of the employee's complaints about unsafe work conditions."

Well, if you liked the first season of this lawsuit, great news! - It sounds like it just got picked up for another season.

HT: https://twitter.com/heatherbussing via email.

"Jackass" Wins Unemployment Compensation Appeal Over "Moron"

The employee in Brown v. UCBR (Pa. Commw. Ct. Aug. 9, 2012) is a real jackass . . . at least that's what he claims his supervisor called him. On appeal, the employee claimed he was eligible for unemployment compensation despite some colorful signs he posted in the workplace.

Initially, the warehouse employee posted signs on an out-of-service battery that stated "Do Not Use." Well guess what happened? Somebody used. So, the employee drew up new signs: "To the moron who can’t read do not use this, do not use this battery" and "Not charging you moron."

The employer terminated him for his "threatening" and "abusive" language. The Unemployment Compensation Board of Review found that he had engaged in "willful misconduct" and denied him unemployment compensation benefits. But, the Commonwealth Court saw it differently.

The employer's policy prohibited threatening conduct, and denigrating people because of a protected characteristic (race, religion, sex . . . a long list, not including morons). Even if the employer doesn't have a specific policy on point, the employee can still engage in "willful misconduct" (that's the catch-phrase for "you're not getting UC") if he exhibits: an "intentional disregard of the employer's interest" or "a disregard of standards of behavior which the employer has a right to expect."

The Court provides some helpful analysis about rude, vulgar, and abusive language in the workplace:

Calling a person a “moron” is rude, but it does not convey an intention to inflict harm on a person or his property . . . . Here, Claimant worked in a 770,000 square foot warehouse along with 605 employees. This was not a ladies club where the servers wear white gloves and speak in hushed tones. Employer produced no evidence that “moron” and words like it were not used and not tolerated at its facility. It is telling that when Claimant was called a “jackass” by his supervisor, no discipline was imposed on the speaker. The incident established that in Employer’s warehouse the use of offensive language, such as "jackass" and "moron," might require an apology but not a discharge. Notably, "jackass," a stronger word than “moron,” was uttered in a more troubling context because it was directed by a supervisor to his subordinate . . . . Concluding that “moron” was neither threatening nor far outside the bounds for what words might be spoken in a large and busy warehouse, we hold that Claimant did not commit willful misconduct.

So, the "jackass" wins on his appeal over the use of the word "moron." I wish the Court would have provided a citation for why "jackass" is a stronger word than "moron" (is there a list/hierarchy somewhere?). I also note that the work environment plays a huge role - perhaps "moron" would be inappropriate at the "ladies club."

Image: Centre County CareerLink, where they hold Unemployment Compensation Referee hearings.

Naked Twister, Orgies, and Facebook - COTW #105

Ah yes: naked twister, orgies, and Facebook . . . just another Case of the Week! In Targonski v. City of Oakridge, the plaintiff brought a number of workplace discrimination claims, including a sexual harassment hostile work environment claim.

Her claim started off pretty well. She alleged that co-workers were spreading rumors that she was a whore, a lesbian, invited people to orgies at her house, and distributed nude photos of herself to anyone who asked. That alone would be a decent Case of the Week . . . but dontcha just know there's a twist?

To establish a hostile work environment claim, the plaintiff must establish that she was subjectively offended by the conduct. Let's throw some Facebook posts into the fray!

[P]laintiff was herself discussing on Facebook her desire for a female friend to join her "naked in the hot tub." The previous day on her Facebook page, plaintiff was discussing "naked Twister." May 22, 2010 postings on plaintiff's Facebook page by her Facebook "friends" talked about female orgies involving plaintiff, Cassie Bridges, and others, to be filmed by plaintiff's husband.

Hmmm, maybe she wasn't so offended by the workplace conduct after all. The plaintiff claims she was just joking around on Facebook with her friends. She also argued (and I think most people would agree here) that there's a difference between joking with friends on Facebook, and somebody spreading rumors in the workplace that she's a whore who loves orgies.

The judge decided that summary judgment was not appropriate in this case as the plaintiff's "explanation . . . has some substance and must be credited by the court." But she's not in the clear yet, because "the jury will have ample opportunity to consider the Facebook evidence and reach its own conclusions in this matter."

HT: My Mason Law classmate Derek Bottcher at Cooley (.vcf) tipped me off to Eric Meyer's post on this case.

EEOC and NLRB Tag Team Workplace Investigations

There have been some great tag teams over the years . . . the British Bulldogs, Hart Foundation, Legion of Doom . . . that rap group Tag Team (c'mon, you remember Whoomp! There It is) . . . and now, the EEOC and NLRB??? Yup, they're taking on workplace investigations in a steel cage match.

The EEOC's Buffalo office recently issued a letter condemning the practice of threatening employees with discipline for "discussing 'the matter.'" Here, "the matter" is an internal workplace harassment investigation.

An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial. In this case, telling the ___ women who complained of harassment that they were not to tell others about the alleged harassment is enough to constitute a harm under Title VII. There does not have to be a separate adverse action.

What about the EEOC's tag team partner, the NLRB? In a recent decision (Banner Health System (.pdf)), the NLRB took a similar position:

As the judge found, human resources consultant JoAnn Odell routinely asked employees making a complaint not to discuss the matter with their coworkers while the Respondent’s investigation was ongoing. The judge found that the Respondent’s maintenance and application of this prohibition did not violate Section 8(a)(1). We disagree.

For some reason, this decision has been controversial in the blogosphere - but the core holding is actually based on a case from about a year ago. In Hyundai Am. Shipping Agency, Inc. & Sandra L. Mccullough, 357 NLRB No. 80 (Aug. 26, 2011), the NLRB held that:

Under the Board's balancing test, it is the Respondent's responsibility to first determine whether in any give investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up. Only if the Respondent determines that such a corruption of its investigation would likely occur without confidentiality is the Respondent then free to prohibit its employees from discussing these matters among themselves.

As the NLRB notes, employers often have good reasons for wanting investigations to remain confidential. In those instances, the employer may prohibit employee discussions about the investigation (according to the NLRB at least). Whether the EEOC will adopt a similar position remains to be seen.

Other bloggers have also covered this new tag team: Jon Hyman here and Dan Schwartz here.