Appeal court guts protections against customer harassment

Thanks to the 6th Circuit, customer-facing employees are now a whole lot less safe at work.

Dorothy Bivens worked as a sales rep for Zep, Inc. A few months into the job, she visited a motel client. The client's manager locked his office door, asked her out twice, and only let her leave when she said no. She reported it to her supervisor, who reassigned the account so she'd never have to see that customer again. A short time later, Zep cut her position in a COVID-era reduction in force. She then sued for hostile work environment, retaliation, and race discrimination.

The 6th Circuit just tossed all her claims. The retaliation and race claims fell apart for lack of proof the decision-makers knew about her complaint or targeted her for her race. But the headline here is the harassment claim.

When your supervisor flips to Team Union…

Rising Star Coffee Roasters is in the middle of a full-blown labor meltdown—protests, police, firings, a closed store. And right in the thick of it? At least one supervisor who decided to stand shoulder-to-shoulder with the employees attempting to unionize.

That's not just awkward; it's dangerous for an employer. But the employer isn't without remedies. They just have to exercise them with care.

Under the NLRA, supervisors aren't covered “employees” and have zero legal protection to engage in union activity. You can discipline or terminate them for it, as long as you're not punishing rank-and-file employees in the process. The law sees them as management. When they cross the line, they're not "organizing," they're undermining the company from inside the chain of command.

WIRTW #768: the 'Peniche' edition

If you find yourself traveling through Portugal, don't overlook Peniche. This coastal town—set on a peninsula that juts into the Atlantic—is the westernmost city in continental Europe. Peniche is best known for four things: fishing, scenic vistas, surfing, and its long, wide, beautiful beaches. It also happens to be one of my favorite places in the world. 

Just an hour north of Lisbon and two hours south of Porto, Peniche makes an ideal stopover for a few days of relaxation between the two (as we did on our first trip to Portugal) or a beach vacation in its own right (as we did on our most recent visit).

Here are my suggestions for the top 7 things to do in and around Peniche:

1. Take a day trip to Berlenga Island: Hop on a boat to this stunning nature reserve, a UNESCO biosphere reserve,  for hiking, snorkeling, and exploring the 17th-century São João Baptista fort.

2. Wander the medieval streets of Óbidos: Step back in time in this charming walled town, known for its cobblestone alleys, whitewashed houses, and ginja, cherry liqueur served in chocolate cups.

3. Walk the rugged trail to Ilha do Papôa: Explore this small, rocky island connected by a narrow land bridge, offering stunning views, dramatic cliffs, and a touch of wild isolation just steps from town.

4. Catch world-class waves at Supertubos Beach: Peniche’s legendary surf spot known for its powerful barrels and international surf competitions. It's also much calmer in the summer, and there are dozens of surf schools that will teach any beginner. (Or, just walk the beach and watch others tempt the surf.)

5. Visit the Fort of Peniche: Explore this historic fortress-turned-political-prison that now serves as a powerful museum of Portugal's resistance to dictatorship.

6. Stroll the scenic cliffs at Cabo Carvoeiro: Marvel at dramatic ocean views and unique rock formations at Peniche’s westernmost point, which is even better when the sun is setting.

7. Explore the open-air art of Buddha Eden: 25 minutes from Peniche, you can stroll through acres of peaceful gardens filled with giant Buddha statues, contemporary sculptures, beautiful flora, and peacocks (so many peacocks) in Europe's largest Asian garden.

Bonus tip: Drive five minutes north up the coast along Baleal Beach, and eat brunch or lunch at Tugo's. The sandwiches and salads are the best around and the chill vibe blends well with the beach-town atmosphere. Ask for Hugo and tell him that Jon from Ohio sent you.

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Here's what I read this week that you should read, too.

It's wrong. It should have never been said. But is it illegal discrimination?

"Old man, you been here longer than I've been alive. Are you ready to retire?"

Kenneth Lowe had worked at Walbro for over 40 years. In 2018, at age 60, he was fired. According to the company, his position as Area Manager was no longer needed. According to Lowe, it was age discrimination.

He sued, claiming his supervisor had made several age-related comments, including the one above, which was said during a ceremony celebrating Lowe's 40th work anniversary. Lowe said his boss also made other comments like "let the old guy do it," and "are you losing a step?"

At trial, the jury bought it. They gave Lowe over $2.3 million in damages. But the judge threw out the verdict and entered judgment for the company instead. The 6th Circuit just affirmed.

🚨 You can't ask that: Disability questions in hiring 🚨

Yesterday, a commenter noted on LinkedIn that many individuals with disabilities suffer in silence at work because they're afraid to disclose their disability during the hiring process—worried it might get them screened out. "There are dueling incentives for claiming or not claiming a disability, and the pendulum has swung hard towards staying as masked as possible if you don't want to end up in application purgatory," he wrote.

I wholeheartedly disagree. It is 100% illegal to ask an applicant this question in a job interview: "Do you have any medical conditions we should know about?" It's a per se ADA violation and a lawsuit waiting to happen.

Just because an employee says he has a disability doesn't mean he actually does

The University of Nebraska fired James Trambly, an IT support specialist, for violating university policy by removing a hard drive from a university-owned computer without authorization. The termination followed a year of documented performance issues—poor communication, overstepping into colleagues' work, visible frustration, interrupting clients, and spending excessive time on service calls.

After his termination, Trambly sued for disability discrimination and retaliation, claiming the university was aware of his "mental impairment": attention deficit/hyperactivity disorder (ADHD).

WIRTW #767: the 'cerveja' edition

When part of your business involves providing legal representation to craft breweries, even vacation means finding a beer garden where you can sit, relax, and sample the local brews.

Saúde to Letaria, a craft brewery tucked inside Óbidos, Portugal—a 12th-century walled town that feels straight out of a fairytale. The beer was excellent, and the quiet beer garden offered the perfect escape from the bustle of a crowded summer weekend in this popular tourist hub.

If you ever find yourself there, don't skip the ginja, a sour cherry liqueur served in chocolate cups and sold all over town. It's as fun as it is delicious.

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Here's what I read this week that you should read, too.