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Dress Code Tailored to Pedagogical Concerns Comport with
Free Speech.
The Ninth Circuit
Court of Appeals (with jurisdiction over California) ruled
that a Nevada high school's dress code requiring all students
to wear solid-colored tops and bottoms did not infringe on
students' free speech rights. Under the intermediate scrutiny
test, a restriction on student speech is constitutional if:
1) it furthers an important government interest; 2) the interest
is unrelated to the suppression of free expression; and 3)
the incidental restriction on First Amendment freedoms is
no greater than is essential to the furtherance of that interest.
The court determined that the school's dress code was motivated
by the goal of enhancing the school environment, school safety,
and student achievement, and that this was an important government
interest unrelated to the suppression of speech. Furthermore,
the dress code leaves students alternative channels for students
to express their views. (See Jacobs v. Clark County Sch.
Dist.)
Employment Law
ADA
Does Not Require Employer to Hire Disabled Applicant Over
One That Is More Qualified.
The U.S. Court
of Appeals, D.C. Circuit, in a recent decision concluded
that a deaf job applicant could not pursue his employment
discrimination case against the District of Columbia School
system where the employer hired better qualified candidates
for the positions for which plaintiff applied. The court
stated that "An [unsuccessful applicant] can directly challenge
[an employer's] qualifications-based explanation only if
[the applicant] was significantly better qualified for the
job than those ultimately chosen" and the qualifications
gap must be "great enough to be inherently indicative of
discrimination." (See Adeyemi v. District of Columbia)
How
the California Supreme Court's Decision on Same-Sex Marriage
Will Affect Employers.
The California
Supreme Court recently ruled that state laws limiting marriage
to opposite-sex couples are unconstitutional. Opponents
have collected signatures to place a constitutional amendment
on the November ballot to limit marriage to the union between
a man and woman. Although the controversy is far from over,
if the high court's decision holds up against the ballot
challenge, its impact will be felt in the workplace.
Employers should
be conscious of the following:
- Discrimination.
California law prohibits discrimination based on actual
or perceived sexual orientation. Now, it is also illegal
to discriminate against an employee or applicant because
of the gender of his or her spouse.
- Benefits.
Employers must now provide equal spousal benefits and
privilege that are required by California law or offered
under the employer's own policies to spouses who are of
the same or opposite sex. However, this does not apply
to benefits required or authorized under federal law such
as COBRA, retirement plans, cafeteria plans and health
savings accounts.
- Domestic
partnerships. Domestic partnerships remain on the
books, therefore, employers must continue to recognize
domestic partnerships and provide benefits to domestic
partners as required by existing California law.
General Liability
Assumption
of Risk Doctrine Can Apply to Non-Contact Sports Such as
Golf.
The California
Supreme Court held that the primary assumption of risk doctrine
is applicable to non-contact sports such as golf and that
being struck by a carelessly hit ball is an inherent risk
of that sport. Therefore, the defendant whose tee-shot hit
the plaintiff golfer in the head would not be liable for
negligence unless the defendant's acts were reckless. (See
Shin v. Ahn)
Assumption
of Risk Doctrine Applies to Spectators.
The California
Court of Appeal held that primary assumption of risk doctrine
turns on the nature of the activity and the relationship
of the parties to that activity. Thus, the doctrine bars
injury claims by a plaintiff spectator at a skateboarding
competition, when plaintiff was injured as he, along with
a mob of spectators, attempted to grab a skateboard deck
that was flung into the crowd. The court reasoned that plaintiff
and other participants should have foreseen the possibility
of injury and that there was an inherent risk in competing
for the prize (the skateboard deck) and plaintiff willingly
took that risk. (See McGarry v. Sax)
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