Butt painter's lawsuit to go to trial

Does anyone remember Stephen Murmer? He was the Virginia high school art teacher suing his former employer over his termination after school officials learned he moonlighted by creating paintings using his bare buttocks as a brush. (See Butt I was doing it on my free time). School officials terminated Murmer after they saw a YouTube video in which he wore a swim thong and a Groucho Marx mask to demonstrate how he applies paint to his rear and presses it onto a canvas. The ACLE filed the lawsuit, claiming that Murmer's termination violates his First Amendment right to free expression. According to the lawsuit, available via the ACLU, Murmer was terminated for art he created on his free time and under a pen name, all of which he kept private from his students:

18. Plaintiff has thus created paintings by using his posterior and other body parts as a stamp with which to imprint paint onto a canvas.

19. With this technique, which includes sitting in paint and then pressing his buttocks onto a canvas, Plaintiff has created paintings which range from depicting stylized flowers to portraiture and patterns.

20. These seemingly simple paintings thus have a surprise in store for the viewer: only gradually, if at all, comes the realization that the image has been created with monotypes of the human body, a realization intended to reverberate in the viewer, setting in motion a process of self-discovery of one’s own personality traits, oscillation between watching a flower (or portrait or pattern) and one's preconceived bias of the human body. The artist's hope is that the viewer thus discovers his individual personality characteristics through visual response – as well as his personal views on the concept and the purpose of art.…

22. On or about October 25, 2003, Stan Murmur appeared in a short-lived cable TV show entitled "Unscrewed with Martin Sargent," where he explained how he promoted his artwork using the Internet, demonstrated how he creates his art, and completed a composition for TechTV.

23. As character invention Stan Murmur, Plaintiff was wearing a costume consisting of a towel wrapped around his head in a turban, a Groucho Marx mask, a white bathrobe, and a black swim thong.…

26. Stan Murmur’s performance eventually found its way onto YouTube, an Internet website on which users post videos. Plaintiff had no role in posting the video on YouTube.…

28. Plaintiff has scrupulously kept his private artwork separate from his role as a teacher.

29. At no time did Murmer discuss his art in his classroom. Nor did he ever inform students about his art or the YouTube.com video.

Murmer and the ACLU claim that what Murmer did on his own time was his own personal business and that the termination violates his constitutional right to free speech. Last week, the trial court denied the school district's motion to dismiss, permitting the case to proceed to trial on March 11.

This case continues to illustrate the dangers that employees face when posting controversial material on websites. What do you think: should employers be allowed to fire employees over personal activities outside of work?

[Hat tip: Lowering the Bar]

Supreme Court to hear argument on racial retaliation under Section 1981

On Wednesday, the Supreme Court will hear oral argument in CBOCS West Inc. v. Humphries, which asks whether an employee bringing a claim for retaliation stemming from a complaint of racial discrimination can file under 42 U.S.C. § 1981.

Enacted as part of the post-Civil War Civil Rights Act of 1866, Section 1981 requires that all people, regardless of race, have equal rights "to make and enforce contracts." The Civil Rights of 1991 affirmed the right of employees to sue under Section 1981 for employment discrimination. While Section 1981 only speaks of "race", courts have interpreted that term to also include ethnicity.

There are key differences between Title VII and Section 1981, which makes the outcome of this case important. First, Title VII requires an EEOC charge and a right to sue letter, while Section 1981 does not. Also, Title VII has a short limitations period, while one has 4 years to file under Section 1981. Finally, Title VII's damage caps do not carry over to Section 1981.

Humphries was an African-American manager at a Cracker Barrel restaurant, owned by CBOCS West. He alleged that he was fired because he complained about his supervisor's racially discriminatory behavior. The trial court dismissed his Title VII claims for procedural deficiencies, but the 7th Circuit permitted his claim to proceed under Section 1981, holding that it authorizes suits where employers retaliate against employees complaining of racial discrimination.

CBOCS West argues that if Congress intended Section 1981 to include retaliation claims, it would have specifically said so as part of the Civil Rights Act of 1991. Under a plain reading of the statute, conduct is not unlawful under Section 1981 unless it is racially motivated. Because Retaliation is motivated by the employee's protected activity, and not the employee's race, it is not covered under Section 1981. CBOCS also argues that permitting retaliation claims under Section 1981 would undermine the EEOC's conciliation and mediation process and Title VII's statute of limitations.

Humphries, on the other hand, argues that retaliation claims are universally permitted under other companion provisions to Section 1981, and that the legislative history to the Civil Right Act of 1991 indicates that Congress intended for Section 1981 to cover "harassment, discharge, demotion, promotion, transfer, retaliation, and hiring."

Given that this case will hinge on statutory interpretation, some combination of Roberts, Alito, Scalia, and Thomas will dissent in favor of a reversal. Ultimately, however, a majority of the Court will probably find that Section 1981 allows for retaliation claims. More on this case after the argument on Wednesday.

Some folks call it a jury verdict, I call it a lot of money

A federal jury in Forth Worth, Texas, has answered the age old question: How much is it worth if a female employee receives depraved and violent phone calls from a male co-worker for more than two years, in which he apes the voice of Karl from Sling Blade, threatening to kill her and cut her up. The answer: $15.6 million. On the up-side, the verdict was solely against the co-worker. The employer, American Airlines, was dismissed from the case.

The Star-Telegram has the details.

What else I'm reading this week #18

It's been a very busy week, and as usual, I'm here to bring you the best the employment law and HR blogosphere (or blawgosphere, if you prefer) offered this week.

To follow up on my post yesterday about office romances, Mark Toth at the Manpower Employment Blawg reports on a case finding that the perpetual ogling of the a female employee's chest could create a sexually hostile work environment — even in the absence of any physical contact, sexual propositions, racy remarks or other types of hallmark harassing behavior. Also take a look at George's Employment Blawg on the issue of workplace romances.

The Evil HR Lady shares her own thoughts on anti-fraternization policies, which not only prohibit workplace romances, but any type of non-work-related socializing with co-workers.

Teri Rasmussen, the Ohio Practical Business Law Counsel, posts her own thoughts on the business implications of Minor & Assoc. v. Martin, in which the Ohio Supreme Court held that retained memories are protected as trade secrets.

Both the Pennsylvania Employment Law Blog and the Connecticut Employment Law Blog (good luck Dan on your new job) have written this week on the issue of Employment Practices Liability Insurance. For more information on the pros and cons on EPLI coverage, take a look at Untangling Employment Practices Liability insurance.

The FMLA Blog has the most comprehensive review I've seen of the proposed new FMLA regulations.

BLR's HR Daily Advisor, which I recently added to my RSS reader, has two very thoughtful posts on retaliation: Retaliation: The Dumbest Thing Managers Do and Retaliation: 6 Steps to Prevent It.

Michael Fox's Jottings By An Employer's Lawyer comments on recent research on the benefit of arbitration agreements to employers.

Finally, John Phillips' Word on Employment Law draws some employment law conclusions from the dust up between Hillary Clinton and MSNBC.

When office romances go bad

I've previously given some guidance for companies on dealing with office romances. This week's Business Week Magazine covers the same topic from a cautinary perspective. Business Week cautions, "If you're thinking about hooking up at work, you're looking for love in all the wrong places." The article explains:

The odds against an office romance succeeding are just slightly better than what you'd find at the worst casino in Las Vegas. When you lose at roulette or keno, though, you're out only a couple of bucks (if you're smart), and that's the end of it. When you lose the game of love at the office, you still have to face the other person day after day. That constant reminder of a relationship that didn't work out is a painful burden to bear, and it can affect how well you are able to do your job, which is the main, if not sole, reason we're employed in the first place.

On this Valentine's Day, I thought I'd pick up the theme from the Business Week article and take a look at an example, courtesy of the 7th Circuit's decision in Benders v. Bellows & Bellows, of some of the problems a company might face when an office romance goes south.

Bellows & Bellows is a Chicago law firm that concentrates in, of all things, employment law. The two Bellows, Joel and Laurel, are husband and wife. In 1996, B&B hired Evelyn Benders, an African-American women then in her 40s, as a legal secretary; she was promoted to office manager the following year. Shortly after she started with the firm, Benders started a five-year relationship with Mr. Bellows. Benders remained employed after the relationship ended.

Approximately two years after the break-up, in May 2003, Mr. Bellows privately informs Benders that his wife and another partner were "campaigning to get [her] out" and that she should begin to look for another job. A few weeks later, B&B hired a white woman 10 years Benders' junior who began to take over some her of responsibilities. In February 2004, Benders filed an age and race discrimination charge with the EEOC relating to the new hire and her loss of responsibilities. Attached to her charge were e-mails authored by her former lover referring to Benders as "Seabiscuit" who "should have been put down" long ago, and stating that other African-American members of the office staff were making Benders' employment situation "a racial thing."

After Benders filed the charge, she claims that Mr. Bellows became increasingly hostile towards her and made her working conditions difficult. According to B&B, however, it was Benders who caused problems by becoming disruptive and insubordinate, not actively seeking other employment, and not performing certain job duties. Three days after B&B filed its position statement with the EEOC, Benders alleges that Mr. Bellows told her that because she had filed an "awful EEOC charge" he would not consider paying her any severance.

Five days later B&B finally terminated Benders' employment. According to B&B, Benders was asked to leave because a day earlier she had become hostile with Mrs. Bellows, who subsequently told her husband that she would not come to the office until Benders was fired. Benders' retaliation claim followed shortly thereafter.

Ultimately, the appellate court reversed the trial court's dismissal of Benders' retaliation claim on summary judgment. Specifically, the Court found that Mr. Bellow's comment about her "awful EEOC charge" coupled with her termination five days later created a factual issue on the issue of causation, whether there was a nexus between her EEOC charge and the termination. Also, the Court found enough of a factual dispute on whether Benders was actually under-performing and acting insubordinately.

While the opinion is not clear, it's pretty apparent that Mrs. Bellows knew about her husband's dalliance with Benders and wanted to rid her business of her husband's former lover. Can anyone really doubt that the broken relationship had something to do with Benders' demotion and subsequent termination? This case paints a picture of some of the dangers associated with office romances. The problems in this case were exacerbated by the fact that it involved an executive and a staff member. Relationships between co-workers are less tricky, but still pose their own problems. Because it is not illegal for co-workers to be romantically involved, how a company handles these issues is organizational. But, if a company is going to permit intra-office romances, it is best that it does so with eyes wide open, in tune to the various legal issues that can arise if a romance goes bad, as the Benders case points out.

EEOC targets use of arrest and conviction records

Last year, the EEOC launched it E-RACE Initiative. E-RACE stands for Eradicating Racism And Colorism from Employment. According to the EEOC:

The E-RACE Initiative is designed to improve EEOC's efforts to ensure workplaces are free of race and color discrimination. Specifically, the EEOC will identify issues, criteria and barriers that contribute to race and color discrimination, explore strategies to improve the administrative processing and the litigation of race and color discrimination claims, and enhance public awareness of race and color discrimination in employment.

One barrier that the EEOC identifies as contributing to race and color discrimination is employers' use of arrest and conviction records in hiring decisions. To remove or limit this barrier, the EEOC has set a 3 year goal to "develop and implement investigative and litigation strategies to address selection criteria and methods that may foster discrimination based on race and other prohibited bases, such as ... arrest and conviction records." In other words, the EEOC intends to litigate charges based on arrest or conviction records.

This EEOC initiative sets a dangerous precedent. I've always understood that using arrest records could cause a disparate impact, but that conviction records are fair game in employment decisions. E-RACE signals that use of the latter without a business necessity or job relatedness could also violate Title VII. This policy begs the question of what convictions are related to what job. Certain jobs are no-brainers. Anything with children will automatically disqualify a felon, for example. What about a warehouse worker, though? What is an employer's liability if a violent felon recidivates in the workplace? What about non-violent felons? Do you want a check kiter manning your cash register? These are difficult questions without easy answers. I'd like to give the EEOC the benefit of the doubt on this issue, but when it makes litigation a key cog in this initiative, it makes me nervous for companies that rely on criminal histories in employment decisions. For now, the safest course of action would be to tailor the use of specific convictions to related jobs. Practically, however, I doubt the feasibility of such limits, given the liability issues that swirl around the edges of such hires.

[Hat tip: Human Resource Executive Online]

Penny-wise, pound-foolish employment practices

Rush Nigut of Rush on Business shares some words on wisdom for businesses on doing things right on the front end versus paying a lot more to fix them on the back end. His advice is tailored to general business issues, and it got me thinking about what employers can do proactively in their workplaces to avoid the headaches of litigation and its high costs. It may cost some legal fees up front to have an attorney bring your workplace into compliance, but that cost pales in comparison to what it would cost in legal fees to defend a bad policy or practice in litigation.

1. Review and update handbooks, policy manuals, and forms (such as applications, FMLA forms, background check authorizations, etc.). While the Internet provides a wealth of business resources, using canned materials can be dangerous. One does not know who prepared the materials, if a lawyer reviewed them, and if they were reviewed, under which state's law the review was conducted. Laws change almost daily; it's dangerous to assume that free forms on the web are reviewed and updated that frequently.
2. In this era of electronic discovery, a document retention and destruction program is a must. If documents are destroyed during litigation, even accidentally, it is virtually impossible to explain that destruction to a judge if you don't have a retention policy and a workable litigation hold in place. Lawyers need to be involved early in this process to advise how long to keep documents outside of litigation, and what documents need to be kept when litigation becomes reasonably anticipated.
3. Implement a harassment training program, which includes a basic review of policies for new hires, and comprehensive training for all employees at least once every two years. A quick trip back through my archives will reveal how companies get tripped up by not providing this essential training. In my experience, employees tend to take this issue much more seriously when a lawyer is presenting as opposed to a co-worker.
4. Audit job descriptions and employee classifications for wage and hour compliance. Again, my archives are filled with wage and hour nightmares. Wage and hour litigation has become the hot employment claim for 2007 and beyond. It's naive to think that at some point your company will not have a wage and hour issue to deal with. Better to get your hands around it now than when a class action or the Department of Labor forces your hand.
5. Make sure that all managers and supervisors properly document all performance problems. This point should be self-evident, but it always amazes me how many issues I have with empty personnel files for so-called problem employees. A quick call to counsel to confirm whether an employee can be terminated would save a lot of heartache in having to defend a poorly documented firing.

Rush Nigut, citing to Chris Moander of the Wisconsin Business Law and Litigation Blog, sums up this idea by reminding businesses that they can pay for it now, or pay a lot more for it later: "Many business people sadly lump legal services into the 'too costly' or 'unnecessary' categories when it comes to starting or running a business. And while good legal services are not cheap it may actually save you in the long run.... It costs a lot more to repair ... than to do it right in the first place." I could not have said it better myself (which is why I didn't).