Quote of the Day - No national political party is going to nominate another right-wing candidate for a long time.
Coast To Coast Internet Radio Discusses Opposing Views On Roberts' Nomination
For our second internet radio show on Coast to Coast (with me and my Right-coast co-host Robert Ambrogi), today we zero in on John Roberts' nomination for Chief Justice of the U.S. Supreme Court with a lively discussion. Our guests on the show are Professor Craig Bradley from Indiana University School of Law, who clerked for the late Chief Justice William Rehnquist, Elliot Mincberg, Vice President and Legal Director of People for the American Way, a nationally known advocacy group opposing the Roberts' nomination, Professor Gail Heriot from the San Diego School of Law, former counsel to the Senate Judiciary Committee and who writes the Right Coast legal blog and Lyle Denniston who has been one of America’s leading Supreme Court reporters for 45 years. Its an insightful group weighing in on one of the most historic times for America's high court.
Click on the podcast icon below and give a listen to our approximately half-hour show, or download MIPTC's Podcast RSS feed. Thanks for tuning in!
Who Bears The Risk Of Loss Of Your Internet Catalog Order?
In short, you do. Brawn of California, the parent company of a number of companies, including International Male, charged its customers $1.48 for insurance to cover items that were lost in transit between its warehouse and the customer. One customer apparently tired of paying this fee, sued, claiming that the risk of loss belonged to the company until the item was delivered.
He thought the slight charge added up to an unfair business practice. The court, however, saw it differently, looking to the Commercial Code for some guidance. With its tongue planted firmly in its cheek, the court reported that commercial law wasn't quite applicable between an individual and a company, saying, "As the Commercial Code, and the cases cited there, typically involve arm’s-length sales between fairly sophisticated parties, the fit is not perfect."
The legal issue pivots on whether your purchase from the catalog company is a shipment contract or a destination contract, and whether it's a sale-on-approval or sale-on-return contract. The first component is easy to see. If the contract is based on shipment, then the buyer bears the risk of loss once the item is shipped from the catalog company. If, on the other hand, it's a destination contract, then the catalog company must get the item to the buyer, and assumes the risk of loss until the buyer receives the goods. It's a great law-school exam question.
Whether your purchase is a sale-on-approval or sale-on-return contract is another matter. Usually, if the sale is subject to approval, then the seller bears risk of loss until the buyer accepts. A sale-on-return contract is designed to facilitate resale of items. Remember, these laws were written for dealings between merchants, who don't generally take the time to write down the contractual provisions of each transaction. Here, the court noted, Brawn specifically dealt with this issue in its contract, and charged the insurance fee. The court presumed that if you bought goods, then you consented to those terms. End of story.
The tricky part came in the consequences. The trial court had found in favor of Jacq Wilson, the plaintiff who sued Brawn, and awarded him litigation expenses in the amount of $24,699.21 and attorney fees in the amount of $422,982.50 over this $1.48 dispute.
The appellate court, however, reversed, and Mr. Wilson recovered nothing, and instead gave Brawn its expenses on appeal.
Solomon v. Lord - It's Not a New Case, It's a Great Read
MIPTC occasionally gets advance copies of books to read, and one showed up in my inbox through the comments to this blog. It's Solomon v. Lord, available September 2005. I started laughing on page two; I'm halfway through the book and haven't stopped yet. Author Paul Levine is a lawyer who's written the book for general consumption, but lawyers won't be able to put it down. It's a startlingly accurate portrayal of criminal trial lawyers and the judicial system, and a compelling read. You won't go wrong if it's the only book you take on vacation.
You'll get an inside book on the law and enjoy every page. Levine is a cross between Grisham and Leno, and the book shows it.
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.