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| Volume III, Issue 1 |
Newsletter March 2010 |
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Employment Playful Give and Take is Not Sexual Harassment. A California Appellate Court has held that, in the context of mutual banter, even comments of a possible sexual nature may not support of claim of hostile work environment (Haberman v.Cengage Learning, Inc.). It was reported that the plaintiff, a sales representative, and her national sales manager would often engage in mutual banter, including comments by the sales manager that the plaintiff was attractive, and discussions concerning the sales manager's romantic relationships. In turn, it was reported that the plaintiff frequently remarked regarding the positive nature of the working relationship with her sales manager. Others reported a friendly and casual relationship between the two. Later, the plaintiff was required to report to a new sales manager who became critical of her sales performance. At this point the plaintiff first raised the issue of allegedly being harassed by her former national sales manager and then later complained that she had been routinely sexually harassed by him. The plaintiff was ultimately terminated and then filed a lawsuit alleging sexual harassment and retaliation. The Court held that the reported comments made by the former sales manager did not create a hostile work environment and, to the extent that some may have been sexual in nature, they were not sufficiently “severe and pervasive” as to constitute a hostile work environment. PRACTICAL TIP: Although this appears to have been the right result, it cannot be emphasized enough that comments and actions that may have originally been well intended and well received are often re-characterized when the employment relationship begins to head south. It is therefore still best for supervisors to avoid engaging in sexually-oriented or highly personal conversations with subordinates irrespective of the degree of confidence in the relationship. Do Not Discriminate On the Basis of Genetic Information. On November 21, 2009, the federal Genetic Information Non-Discrimination Act (GINA) took effect. A broader California counterpart known as the Knox-Keene Act also prohibits similar discrimination and applies to all private employers with five or more employees. GINA prohibits an employer from discriminating against an employee because of genetic information. “Genetic information” not only means any information obtained from genetic tests of the individual, but also information about his or her family members and information evident by the manifestation of a disorder in the individual or their family members. GINA also requires employers to maintain genetic information in a separate medical file and that it be treated as a confidential record. When Must an Employer Engage in the Interactive Process? A recent Ninth Circuit Court of Appeals decision under the Americans with Disability Act and California law reached the fairly straight forward conclusion that employers need only engage in the interactive process with employees who are considered legally disabled (Becerril v. Pima County Assessors Office). In this case the employee suffered from temporomandibular disorder which was allegedly aggravated by the stress of being transferred to a new position. The employee requested as a reasonable accommodation a transfer out of this position, but that request was denied. The employee then sued claiming that her employer refused to engage in the interactive process. The Court held that the plaintiff did not present evidence that her temporomandibular disorder substantially limited one or more major life activities and, therefore, there was no obligation on the part of the employer to engage in the interactive process. PRACTICAL TIP: Do not rely too heavily on this opinion. The failure to engage in the interactive process, in and of itself, can form the basis for liability. Therefore, you are taking a chance if you conclude that there is no disability and, hence, no need to engage in the interactive process. A safer alternative, when there may be doubt as to whether the employee legally qualifies as disabled, is to engage in the interactive process and make it clear that any accommodations considered or implemented are subject to the ultimate determination that the employee qualifies for accommodations under the applicable law. City of Los Angeles Found to Have Discriminated Against African-American Police Officer. A 16 year veteran of the LAPD was awarded over $600,000.00 when he was passed over for a promotion in lieu of a white female who had only five years of experience. PRACTICAL TIP: We have said before that the risk of an attorney’s fees award in cases such as this is a significant component in determining whether to proceed to trial. Case in point: over $400,000.00 of the award in this case was costs and fees. School Law What to do About Inappropriate Off-Campus Speech. Disclaimer: An issue which is becoming more prominent and creating problems for educators is what to do when a student makes negative, harassing or derogatory remarks about another student on a social networking site. A significant percentage if not a majority of students today have accounts with sites such as Facebook or My Space, and it is on these sites that very often inappropriate comments are made and communicated. If the student posting the comments did so on a school-owned computer in violation of the usage terms, then it is appropriate and necessary for the school to take action. However, usually such remarks are posted from a home computer, protected under the First Amendment, and therefore outside the reach of school discipline. PRACTICAL TIP:Nevertheless, if school administrators learn of harassing activity taking place away from campus, there should still be efforts to educate students regarding the appropriate ways to communicate and deal with conflict. |
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