Quote of the Day - Sometimes a scream is better than a thesis.
Sex Is Not The Only Way Employees Can Get Harassed
"[S]houting, 'screaming,' foul language, invading employees' personal space ... and [making] threatening gestures" is now enough to get sued for gender-based discrimination under Title VII of the Civil Rights Act of 1964, even though such actions were not overtly motivated by the victims' gender. So says the Ninth Circuit in its opinion in the case Christopher v. National Education Association.
The case wouldn't normally be remarkable because such behavior would be sufficient to create a hostile environment. Now that it's been linked to gender-based discrimination, we have a new, hybrid cause of action.
In its short, 13-page opinion, the Ninth Circuit unanimously sent this case back to Alaska courts for further proceedings. The Ninth Circuit provided some guidance to deal with its reversal of the summary judgment in favor of the defendant supervisor. "We hold that offensive conduct that is not facially sex-specific nonetheless may violate Title VII if there is sufficient circumstantial evidence of qualitative and quantitative differences in the harassment suffered by female and male employees." In other words, go look for it, and if you find it, find in favor of the employee.
Now, the screaming supervisor will defend his actions once again. Hostility can be sexually based.
The lesson? Be careful how you say what you say to your employees.
MIPTC's Rebuttal to Professor Davis' Yanowitz Debate
See yesterday's post (immediately below) for the lead-in to this post.
The additional facts offered regarding the dark-skinned nature and the sexual attractiveness of the L'Oreal saleswoman in the San Jose Macy's that the New York bosses wanted to fire are a red herring. They describe the characteristics of an individual secondary to the issue at hand - the saleswoman that the Plaintiff was supposed to terminate, not the Plaintiff in this case, Yanowitz. Yanowitz herself was neither dark-skinned, nor does the court mention whether she was attractive. The point of the case pivots on the discrimination that the Plaintiff felt as it related to discrimination against her (Yanowitz), not the saleswoman: The very definition of discrimination is what the Plaintiff perceives as discriminatory; not what the actor intends or does not intend or directs at someone else. Here, we're even one step more removed from that issue. The discrimination was directed at the saleswoman - someone entirely different than the Plaintiff. The Court mixed apples and oranges.
Here Yanowitz' only two possible claims for a "protected class" discrimination are religion (she's Jewish) and age (she's 53). In addition, her husband is a lawyer, so presumably she knows exactly what the protected classes are. Yanowitz knew that attractiveness (call it whatever you like: "hot," "sexually attractive," "dark-skinned," "blond," or "ugly") was not a generally accepted protected class (and is not in this jurisdiction, California). California is an at-will state, and no reason is needed to terminate someone. In both her administrative complaints to L'Oreal and her complaint to the court, Yanowitz argued only the two protected classes of religion and age. The California Supreme Court's opinion cites those two claims, and says only that Yanowitz believed that her New York bosses were discriminating against the saleswoman based on the saleswoman's attractiveness. The obvious corollary of that connotation is plain and simple: ugly. Yanowitz wasn't discriminated against based either on age or religion; she was terminated because she wouldn't follow her bosses' instructions.
The Court's opinion acknowledges this determination and does not characterize Yanowitz' claims as based in either race discrimination or sexual discrimination. Those two claims can only belong to the saleswoman, they cannot belong to Yanowitz because she does not possess either one of them; she is not dark-skinned, and in a similar vein, we know nothing from the Court's recitation of the facts whether Yanowitz is attractive. Those two characteristics, whether protected or not, are irrelevant to Yanowitz' claims. She based her demand for relief on other, unrelated claims.
The Court itself invented the attractiveness argument and pinned it on a party unrelated to Yanowitz' claim. The Court reasoned that if Yanowitz believed that the New York bosses were discriminating against the saleswoman based on attractiveness (which we know Yanowitz did believe), and Yanowitz believed that attractiveness was a protected class (without regard to whether it was), then the Court was going to treat Yanowitz's termination as one that fell within a "protected" class. The next question is whether the Court created another protected class, and the answer is yes. That class, however, is most properly characterized as a "reasonable-belief-that-the-discrimination-is-constitutionally-prohibited" test. It doesn't matter whether the discrimination is constitutionally protected, it matters only whether the person that was terminated believed that the discrimination was constitutionally protected.
As just one example, we don't generally protect obesity as a constitutional class. If someone in California is fired because they're fat, they can't make a constitutional claim. But, if the person reasonably believed that obesity was constitutionally protected, then that person may have a claim. Not a good one, but nonetheless a claim.
How hard is it, then, to conclude that ugliness is a protected class? Not at all. Should it be? Agreed that it should not, just like obesity.
Things would have been a lot simpler if the New York bosses had just told Yanowitz to fire the saleswoman without providing a reason. Yanowitz should have lost her case because her termination was based on her failure to follow instructions, not based on any discrimination directed to her.
The Yanowitz Argument continues...
Typically, this blog contains lots of links. If you'll excuse the lack of links, I'm going to include the text of a debate between Martha Davis of Northeastern University School of Law regarding MIPTC's original post on the California Supreme Court's recent decision in the Yanowitz v. L'Oreal case. The debate was originally schedule to appear on Legal Affairs' website, and now appears here, thanks to their kind permission and Professor Davis.
Here's Professor Davis' counter to MIPTC's post:
"First, here are a few additional facts in the l’Oreal case. According to the court, the employee whom the supervisor identified as unattractive was a dark-skinned woman. And the supervisor didn’t simply say that she should be fired because she was ugly: he said she wasn’t “hot” enough and suggested that a blonde be hired in her place. Finally, Yanowitz, the manager who refused to fire the employee, alleged that the supervisor’s order constituted sex discrimination, i.e., there was no similar “attractiveness” criteria imposed on men employed by l’Oreal. In short, this case arose from classic facts involving sex and race discrimination. The court did not in any way create a new class of protected employees.
Look for MIPTC's rebuttal tomorrow.
Legal Podcasting Goes Coast to Coast With Inaugural Broadcast on Internet Radio
One blawger calls it one giant leap for legal podcasting. I don't know if it's that, but it's certainly Coast to Coast (free registration required to listen - or just click on the podcast icon immediately below). It's a podcast that's broadcast on internet radio about current legal topics. You'll find us on the Legal Talk Network , and by us I mean Bob Ambrogi, a fellow Law.com blogger and one of legal blogging's true pioneers, and me as co-hosts. We're also grateful to Law.com for its sponsorship of the program.
In our inaugural broadcast, Bob and I interview new ABA President Michael Greco about the American Bar Association's goals and Duke Law Professor Irwin Chemerinsky about the Supreme Court decision in Kelo v. New London. We hope you find it interesting.
Stay tuned: next week, we broad/podcast about Supreme Court nominee John Roberts, and promise some very interesting guests. Here's the teaser and one of our new logos:
Don't change that dial.
We're Not Helpless As We Watch Katrina Wreak Devastation
Follow updates here on the Katrina blog, the most up-to-date resource available.
Donate here to help through the American Red Cross.
Hold The Fries??In light of the California Attorney General filing suit this week to require fast-food restaurants and potato chip makers to warn (scroll to bottom to see sample warning) consumers that their fried potato products may cause cancer, I wonder if we haven’t as a society (or at least California) crossed a line abandoning common sense and self-responsibility.
I understand warnings on pesticides and cleansers and guess I even understand warning labels on cigarettes (although I doubt their effectiveness), but I don’t feel like I need the fine print on my morning coffee to tell me it may be hot (it better be, that’s the point of morning coffee).
Does anyone out there actually assume that fries or chips are “health” food? If we start with the cancer warning why not plaster the whole package with warnings about sodium, fat, and calories as well? In these modern times with modern science, it’s difficult to find any product that doesn’t contain some substance that has been shown to cause some type of harm in some laboratory study. The real law should not be to require warnings on fries, but rather to require people to use common sense and take responsibility for their choices.
Court Rules Farm Subsidies Are Not Property Interests Compensable In Eminent Domain
You've probably heard a number of complaints about entitlements to welfare. You know the rant: "Welfare is a privilege, not an entitlement. Go get a job!" Keep that in mind when you read this case about peanut farmers who lost farm subsidies for their peanut crops when Congress changed the Farm Bill for the umpteenth time since the 1930s. Don't get me wrong here - I used to live on a farm and be married to a farmer who received them - I think farm subsidies are necessary, as are tariffs on hard goods. My point is that sometimes we forget the plank. (It is Sunday, you know.)
Here's the deal: in the course of several amendments to a farm bill passed in the early '30s in response to the Depression, Congress established peanut quotas that applied to farmers who had been tilling the soil, growing peanuts for profit. Those quotas allowed farmers to get low-interest, non-recourse loans secured only by their crops. The loan rates from those loans could be assigned or leased to other farmers. It essentially encouraged sharecropping, where one farmer farms and the other who used to farm now just collects money. From the government. The net effect of the program was that it kept peanut prices artificially high. Then, in 2002, Congress changed the law and limited the quotas only to those farmers who were still tilling the soil. The quota benefits and loan rates were no longer assignable or could be leased, and those "farmers" who had not been farming lost out.
Peanut farmers were upset at the loss of their money, which they deemed a property interest, protected by the Fifth Amendment. It's those last two words: "just compensation," though, that really frosted them. They wanted the government to pay them for the loss of the money that Congress took away from them. Read that last sentence again, and you'll understand why the court decided the way it did.
The Court of Federal Claims (side note here: doesn't that yellow border look suspiciously like this yellow border? - are you listening NatGeo?) ruled that the peanut farmers did have a property interest in the quotas, but that interest was not compensable under the Fifth Amendment. The court said the farmers couldn't recover "because the property interest represented by the peanut quota is entirely the product of a government program unilaterally extending benefits to the quota holders, and nothing in the terms of the statute indicated that the benefits could not be altered or extinguished at the government's election."
In other words, it's not an entitlement.
Why Not Give Junior Lawyer Status To Two-year Law Students?
There's an old saw about law school: the first year they scare you to death, the second year they work you to death, and the third year they bore you to death. With low attendance and high debt, there's been some discussion and lots of comments about the wisdom of a three-year program in law school. (In that last link, scroll down to the 8/24/05, 10:15 a.m. comment - it's a classic.) The good professor highlights the root article that started the discussion, and perhaps wisely begs off offering his thoughts. Evan Schaffer cites to a law professor who emphatically says it's not a waste of time.
Sure, you can coast through law school if you want and buy Gilbert's Law Summaries for each class, avoid the reading, case briefing and heck, presumably even classes if you can memorize it and regurgitate it onto the exam (for those non-lawyers reading this, there's only one test per class in law school). In doing so, you'll miss out on learning legal reasoning through the Socratic method, how to read cases and brief them and how to argue cases and legal points. There can be plenty of "beer and softball" in your third year if you plan it right. That statement, however, reminds me of a question we used to ask in law school: "Would you hire so-and-so to be your lawyer?" Not all earned a yes to that answer, and I suspect someone who played softball and drank beer for most of their third year wouldn't earn an affirmative answer.
I don't know how they do it elsewhere, but in my law school, our third year was spent drafting on model legislation, assisting professors with legal research, trying cases in front of superior court judges, arguing appeals in the court of appeal and the supreme court, and generally learning how to practice law. I suspect that there are a number of law students out there who want to skip their "boring" third year and avoid incurring the additional debt.
Here's a proposal for those students: Go right ahead and skip it - just don't expect to earn a law degree. But you want something for the two years you did put in? No problem, we'll send you a junior lawyer certificate.