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
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In
the News
Lynberg
& Watkins congratulates firm member, Ric
C. Ottaiano, who has been named to the
2010 edition of Southern California Super Lawyers.
Each year no more than 5 percent of the attorneys
in the state of California receive this honor.
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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.
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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