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Lessons from the Courts: Sept. 2009

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in Discrimination and Harassment,Employment Law,HR Management,Human Resources

Discipline one day after complaint? See you in court

Meslu Tewold, a native of Eritrea, complained to HR about being passed over for a promotion. The next day, his boss issued a formal warning about Tewold’s productivity. Until then, Tewold had never been written up. When more discipline followed, Tewold sued for discrimination and retaliation. The timing was enough for the court to send the case to trial. (Tewold v. Owens & Minor, DC MN)

The lesson: Courts will always look at the length of time between the employee’s legal complaint and the alleged adverse action. Less time equals greater odds the court will see your actions as illegal retaliation.

Obscure terms could trigger race-bias suit

Construction worker Nathaniel Blackmore, who is black, overheard a co-worker use the term “n*****head” in a conversation and assumed it was being used to describe him. After being fired for attendance problems, he sued, citing the comment as proof of a racially hostile environment. The case was dismissed when it was shown the term referred to an outcropping of rock up ahead. (Blackmore v. American Infrastructure, ED PA)

The lesson: Encourage employees to avoid words that offend their co-workers, even if the word is technically appropriate.

Teach front-line staff how to handle legal papers

When Christopher Finley sued his former employer for discrimination, he served the legal papers himself, handing them to a clerk who happened to be available. The company tried to argue that the papers weren’t served correctly and Finley should have found a company exec. The court didn’t buy it. His case was sent to trial. (Finley v. Sagenet, WD NC)

The lesson: If someone accepts legal documents, you’re not going to be able to challenge how they were served. Make sure your front-line workers know where to send legal paperwork, as well as how to handle legal questions and media inquiries.

Employees can have more than one ‘employer’

After county jail employee Barbara Snyder was terminated, she sued, citing retaliation for a previous harassment complaint. Her suit named her immediate boss, the sheriff, plus the county commissioners, who oversee the sheriff’s department. The commissioners objected, but the court said she could sue both, since each appeared to be her employer. (Snyder v. Belmont Sheriff’s Department, et al., SD OH)

The lesson: Don’t think that because your organization doesn’t have direct control over some workers, you’re not their “employer” under federal law. You’re probably the employer if you assign projects, control the means by which assignments are completed, specify the skills required, control how the work is done and set the person’s pay.

Employee is her own lawyer? Don’t pull punches

Brenda Collins represented herself in a lawsuit against her former employer. When Collins failed to show up at a scheduled deposition, it cost the employer time and money. So it asked the court to fine Collins. The court did and dismissed her lawsuit. (Collins v. Tiaa-Cref, et al., No. 3:06-CV-304, WD NC, 2009)

The lesson: Courts are increasingly willing to zap self-represented (or pro se) litigants with fines if they don’t play by the established rules. If you’re facing a frivolous pro se case, talk to your attorneys about a request for sanctions.

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