One of The Rising Complaints of Discrimination - Pregnancy

At least that's the premise of this Buffalo New story, Reports of bias related to pregnancy are rising. Although the article quotes an EEOC spokesperson saying many women are confused or don't know about their rights, that does not seem to be the case of most employers.

Electronic Document Retention Policies - Why You May Need One

Thanks to Sabrina at be Spacific for this link to an article by Oregon based forensic consultant Paul French, Electronic Document Retention Policies. From an employment lawyer's perspective, I shudder to think at what often can be found in e-mail, a way too often a way of recording one's ill-formed and sometimes uninformed thoughts. Although it can work both ways, plaintiffs use e-mail too. Still hiding one's head in the sand and hoping you won't be asked to produce electronic documents in the future seems somewhat unrealistic. And if you can't, French talks about the potential perils.

Evidentiary Hearing Required On Motion to Compel Arbitration Where Facts Are Disputed

Although not recommended, the employer who filed a controverting affidavit only 22 minutes before a scheduled motion to compel arbitration, was successful in obtaining mandamus when the court failed to give it an evidentiary hearing. The court noted that there is no statutory deadline for filing affidavits in a motion to compel arbitration and no exceptions that it could find (although you get the feeling that they would like to) to when an evidentiary hearing is required when there are controverted facts. Rogers v. Maida (Tx. Ct. App. - Beaumont 1/22/04).

Drafting Error? - 7th Cir. No Compensatory or Punitive Damages for ADA Retaliation Claim

In what it calls a case of first impression at the circuit level, the 7th Circuit somewhat surprisingly relies on and adopts an opinion of a district court from the 8th Circuit:

The district court’s analysis in Brown v. City of Lee’s Summit is thorough and particularly persuasive. We agree with that court’s conclusion that “a meticulous tracing of the language of this tangle of interrelated statutes reveals no basis for plaintiff’s claim of compensatory and punitive damages in his ADA retaliation claim.” 1999 WL 827768, at *3.

Kramer v. Banc of America Securities (7th Cir. 1/20/04) [pdf]. Although not yet having traced (meticulously or otherwise) the tangled web, my guess would be this is a congressional oversight. And if so, one that is likely to be corrected.

White Employee Who Complains About Black Supervisor Survives Summary Judgment

A white employee, Ware, who was vocal about his black supervisor, Smith, to other employees, including making the claim that he was hired only because he was black, was terminated within 10 days of making his complaint to a senior vice president about a "black coalition that was hiring and promoting their friends." In reversing a summary judgment on the retaliation claim, Judge Prado found that the timing alone was enough to shift the burden to CLECO give a legitimate reason. But he found problems with the articulated rationale:

Smith acknowledged that his decision to recommend terminating Ware was based, at least partially, on Ware's attitude towards Smith, and Ware's effect on department morale. These highly subjective judgments, could easily be pretext for retaliation. See Rowe, 457 F.2d at 358. Smith's influence on the decision to fire Ware also contributes to showing a retaliatory motive because Ware had complained to Powell and Scroggs about Smith. See Gee, 289 F.3d at 346. As a result, a genuine issue of material fact exists about whether CLECO retaliated against Ware in violation of Title VII ...

Ware v. CLECO (5th Cir. 1/21/04) (unpublished) [pdf].

An Appropriate Case For Intentional Infliction of Emotional Distress

The tort of intentional infliction of emotional distress is not a favorite of mine, and absent tight judicial control that can easily turn into a code of civility, of the type that courts so frequently note does not exist. Nevertheless, there are rare fact situations where even I would be hard pressed to deny that such a claim might exist. Gantt v. Security, USA, Inc. (4th Cir. 1/23/04) [pdf] is such a case.



Gantt, a security guard obtained a restraining order against her boyfriend. Her week-end supervisor who also was her boyfriend's supervisor at another security company during the week, sent her to a job assignment knowing that she would be exposed to her boyfriend. Even after he called and threatened Gantt, the supervisor refused to remove her. After Gantt was kidnapped, raped and held captive for 6 hours by the boyfriend, she sued the company for among other things, the intentional infliction of emotional distress. The facts seem to me to be the very narrow exception that the tort was designed to cover. Even here the company may, and perhaps under the law of Maryland should, escape liability. The claim might fail because of the workers' comp bar as interpreted by Maryland courts, or the supervisor might not be at a sufficient level to bind the company vicariously, both are mentioned as possibilities in the opinion. But just on the question of whether the underlying facts state a cause of action, this one does not offend. At least not me.

The Fox in the Henhouse So To Speak

Walter Olson at Overlawyered: Harassment: do as we say? catches the irony of a $500,000 jury verdict for sexual harassment against Cook County, based on the actions of the individual who at the time was the County's chief investigator of sexual harassment allegations. Do as we say, indeed.