Ohio appellate court refuses to enforce employment arbitration agreement as “unconscionable”

An agreement between an employer and its employees requires an employee to submit to “final and binding arbitration … any actual or alleged claim or liability, regardless of its nature” (other than claims for unemployment or workers’ compensation, or for violations of the National Labor Relations Act).

An employee sues in court for race discrimination and retaliation, and the employer moves the court to compel the employee to arbitration his claims pursuant to their agreement.

Does the ADA protect employees who travel to areas that potentially expose them to coronavirus?

Coronavirus is 2020’s pandemic du jour. It’s a serious, and potentially deadly, respiratory virus that (likely) started in Wuhan, China, and has now made its way into the U.S. with five confirmed cases.

Suppose you fire an employee who you fear might have been exposed to the virus. She exhibits no symptoms, but because she had recently traveled to an area in which she could have been exposed, you think it’s better safe than sorry not to have her work for you anymore. She sues for disability discrimination, claiming that you “regarded her” as disabled. Does she win her case? The outcome might surprise you.

WIRTW #584 (the “He’s not the Messiah” edition)

We’ve sadly reached the point in history at which legends of the entertainment world are going to start passing. Someday, we’ll lose Paul, and Betty, and Mick. And the world will gasp, and mourn, and remember. This week was one of those weeks.

We lost Terry Jones, one of the founding members of Monty Python. He was a comedy genius, most famous for depicting middle-aged housewives, usually with hilariously falsetto voices. One of those housewives, Brian’s mom in Life of Brian, uttered one of the greatest lines in movie history—”He’s not the Messiah, he’s a very naughty boy.”


I discovered Monty Python’s Flying Circus as a pre-teen, late at night on our local PBS station. Staying up late to watch it made me feel part of a special, subversive cult. Flying Circus is now readily available, on Netflix, BBC America, and IFC, I’m joyfully introducing it to my 11-year-old son, who loves all things silly. And above all else, Python was always silly.

And Jones’s characters were some of the silliest. The nude organ player. Cardinal Biggles of the Spanish Inquisition. Mr. Creosote, the obese and vomiting diner in Meaning of Life. Holy Grail‘s Sir Bedevere. And Brian’s mum.

Rest in peace, Terry Jones. The world is better for all of the laughs you brought through the characters you created, and skits and movies you birthed.

Here’s what I read this week.

What does it mean to be "similarly situated" for purposes of proving discrimination?

The Ohio Department of Public Safety fired Morris Johnson, an African American state trooper, after he sexually harassed multiple women while on duty. He claimed that his termination was because of his race, and pointed to David Johnson, a White trooper, who he claimed committed similar harassment but was not fired.

Dream on — lawsuit by Aerosmith drummer highlights the legal risk of "fitness for duty" exams

Joey Kramer, Aerosmith's founding and longtime drummer, is suing his band mates after they blocked him from joining them at upcoming high-profile events, including this weekend's honor as the 2020 MusiCares Person of the Year and its Lifetime Achievement Award at this weekend's Grammys.

Kramer claims that Steven Tyler, Joe Perry, Tom Hamilton, and Brad Whitford are not allowing him back in the band following a temporary disability from minor injuries he suffered last year. According to TMZ, Kramer claims the band required him to audition to prove he was "able to play at an appropriate level" before he could regain his drummer role. He further claims that in this audition is unprecedented in the band's 50-year history, during which each of other members had to step away for various reasons.

This story got me thinking about an employer's rights when an employee seeks to return to work after a medically-related leave of absence. 

You can't prove age discrimination if you're replaced by someone older

Crescent Metal Products fired Donald Tschappatt for a variety of instances of poor work performance. He made "negative comments" about co-workers. He stood around doing nothing and disappeared from his work area. He took extended bathroom breaks. And he made various assembly and packing errors.

After the company fired the 55-year-old Tschappatt, he sued for age discrimination.

The problem with Tschappatt's claim? Crescent Metal Products replaced him with someone six years older. That's not a great fact for an employee claiming age discrimination.

WIRTW #583 (the “Portugal (not the man)” edition)

Last year I asked y’all to share your tips on travel to Italy. And you came through. So, I thought I’d try again this year, with Portugal. We’ll be there for 8 days in late March, and are planning to visit Lisbon, Sintra, and Porto.

If you’ve been—

• What other towns are worth visiting?
• Can’t miss things to see and do?
• Must eat foods / restaurants?

Thanks! I figure it never hurts to crowdsource your vacation planning.

Here’s what I read this week:

“OK Boomer” makes its Supreme Court debut

Yesterday, the Supreme Court heard oral argument in Babb v. Wilkie, which will decide whether the “but-for” causation standard of proof applicable to private-sector employees in age discrimination claims under the ADEA also applies to federal-sector agency employees.

Even for this employment-law geek, not the most scintillating of cases.

That is, until Chief Justice Roberts (a Boomer) posed this question to the plaintiff’s counsel during oral argument:

Frivolous litigation has a price … sometimes a big price

In 2005, Monika Starke filed a charge of discrimination with the EEOC alleging that her employer, CRST Van Expedited, Inc., subjected her to sexual harassment. The EEOC expanded that initial charge into a federal-court lawsuit over whether CRST engaged in sexual harassment against myriad of its female driver trainees.

What followed was 14 years of litigation, several trips to the court of appeals, one trip to the U.S. Supreme Court, and an attorney-fee award of over $3.3 million against the EEOC for frivolous, unreasonable, or groundless conduct in the filing and prosecution of the underlying claims.

DOL provides employers much needed clarity on joint employment

Joint employment is a legal theory in which the operations of two employers are so intertwined that each is legally responsible for the misdeeds (and the liabilities that flow from those misdeeds) of the other. It’s also a legal theory with which federal agencies and courts have struggled over the past several years.