Recent trends reveal that employment retaliation claims are on the rise.  Further, courts are taking a hard line on offending employers accused of retaliation in employment.  A review of United States Supreme Court decisions in retaliation cases reveals a remarkable degree of agreement among the Justices.  Even conservative Justices who are considered supportive of business as a matter of judicial philosophy do not take kindly to retaliation against employees who have asserted workplace legal claims.

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At times, I have surmised that one reason women are usually the victims of sexual harassment is that most men can’t resist the power of The Man Gene. A recent case demonstrates that some men can defeat The Man Gene and even be the victims of sex harassment. In EEOC v. Prospect Airport Services, Inc., a male employee filed a harassment claim against his employer and a female co-worker.  

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For a long time, an employment decision based on pregnancy has been against the law. It violates the Pregnancy Discrimination Act, which is part of Title VII of the Civil Rights Act. Apparently, it’s not as well know as I thought, or employers continue to ignore the law, at least according to the Equal Employment Opportunity Commission.

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The recent hubbub over Virginia Thomas asking Anita Hill to apologize to her husband, Justice Clarence Thomas, got me to thinking. Almost 20 years had past since the original Hill/Thomas conflict. It’s still referred to occasionally, but it hasn’t been an issue for a long time. After the substantial media coverage of Mrs. Thomas request for an apology, Thomas’ long-time former girlfriend decided to come forward with allegations that her relationship with Thomas made her aware of Thomas’ addiction to pornography. More media coverage.

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Having grown up in a small town in middle Tennessee, I wasn’t exposed much to ballet. I can’t remember seeing a ballet, except perhaps on television, until after I was married. Unlike the theatre, to which I also wasn’t exposed much as a boy, I didn’t appreciate ballet for a long time. Men and women jumping around in outfits that would be banned anywhere else. I’m afraid I didn’t get it.

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It takes more than an allegation of horseplay to establish sexual harassment, but sometimes, it’s difficult to distinguish between the two. In Cross v. Prairie Meadows Racetrack & Casino, Inc., the Eighth Circuit Court of Appeals considered whether alleged conduct was horseplay or sexual harassment.

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Last week’s news about the clothing of a female sports reporter named Ines Sainz and the reaction by New York Jets players is still in play. My post on the subject provoked a few mixed comments and several private emails, some agreeing with me, some not. Since it’s still talked and written about, often in the context of sex discrimination or sexual harassment, it seemed to justify a tip of the week.

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The Equal Employment Opportunity Commission filed a class action against Area Temps, alleging that the temporary agency had honored some of its clients’ requests to deny employment on the basis of race, age, gender, and national origin. To meet its client’s requests, Area Temps devised a code to screen out applicants. The code was used to make sure the agency didn’t place the wrong person at a client that had indicated a preference.

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Earlier this week, three former female employees of Goldman Sachs filed suit against the firm for sex discrimination. The three women allege that Goldman systematically discriminates against female employees by paying them less than males in comparable positions. They also contend that Goldman promotes male employees more frequently than females.

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A sports reporter (formerly Miss Spain) was supposedly harassed at a New York Jets practice. (Here and here.) The reporter says she never felt threatened, but other reporters allege that Jets players acted inappropriately. Because the sports reporter wore a pair of skintight jeans, this incident provides the opportunity to examine whether provocative attire worn by a female has any role to play in a sex harassment case.

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Can nicknames be a problem at work? Of course. Nicknames that are tantamount to ethnic, racial or sexual slurs and given to an employee by co-workers are a problem. In those cases, it doesn’t matter whether the employee is called the nickname to his face or behind his back or whether the employee complains about the nickname. It can’t be tolerated.

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About a decade ago, a group of female employees of Wal-Mart filed a sex discrimination class action against the company, beginning the case known as Dukes v. Wal-Mart. It now involves more than a million current and former female employees and is easily the largest employment discrimination lawsuit in American history. Wal-Mart has now asked the U.S. Supreme Court to review this case — not based on whether discrimination occurred but based on whether it’s permissible for a case involving so many women can proceed as a class action.

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In a recent Slate article, Sharon Lerner rips both federal and state governments for the paucity of leave given women after the birth of  a child. The article also discusses leave laws across the country. I will avoid joining the philosophical debate on pregnancy leave (which is what Lerner’s article is mainly about), but the article will serve as the basis for this week’s tip.

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There’s been much commotion over Debrahlee Lorenzana’s claim she was sexually harassed at Citibank for being too sexy. (Here, here, and here.) It brought to mind Right Said Fred’s 1991 hit I’m Too Sexy. The tongue-in-cheek song is about a model, and, though sung by a male, one could surmise that he’s actually singing about a female whose so sexy, she won’t give him the time of day. “I’m too sexy for my love . . . shirt . . . shirts . . . Milan . . . New York . . . Japan . . .  your party . . . my car . . . hat . . . cat . . . this song.”

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I read this on the Employment Law Post and chuckled. When the top 10 reasons why supervisors don’t need basic legal training were listed, that was intended to be funny and to make a point. The list doesn’t contain anything new, but we’ve all heard these reasons before and a lot of other ones as well. And, of course, the point is that there is no good reason for not providing managers and supervisors basic legal training.

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As reported in the WSJ Law Blog (which links to other news reports about this matter), drug maker Novartis has been hit with a verdict of $37 million in compensatory damages and another verdict of $250 million in punitive damages. The company was found guilty of sex discrimination in denying female employees, particularly pregnant employees, the same pay as comparable male employees, opportunities for promotions and more. It’s possible that Novartis could be hit with additional damages. This may be the largest jury verdict ever in an employment case.

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A male professor at the University of Cork in Ireland has been disciplined with two years of intensive monitoring and counseling after discussing a scientific paper with a female colleague. The paper titled “Fellatio in fruit bats prolongs copulation” offended the female professor, who was also given a copy. She claimed sexual harassment. Though an investigation found that no sexual harassment had occurred, the university’s president censured the male professor by imposing the two-year discipline, which has the effect of preventing the male professor from obtaining tenure.

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A Hooters waitress in Michigan claims that she’s been put on probation and told to lose weight if she wants to keep her job. The server, standing five feet, eight inches, and weighing 132 pounds, says she’s devastated and looking for a lawyer. Hooters says it imposes no weight restriction on its employees. “Our practice of upholding an image standard based on appearance, attitude and fitness for Hooters girls is both legal and fair. It is not unlike the standard used by the Dallas Cowboy Cheerleaders or the Radio City Music Hall Rockettes.”

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According to a female TV reporter in New York, she was sexually harassed by male co-workers and then fired because she complained about it. There was no dispute that a picture of the reporter had been doctored to portray her with cartoonishly blown up, large breasts. The reporter also said she was called “Big Butt Booty” and was on the receiving end of sex jokes. The trial against her employer, a Time Warner-owned cable news channel, lasted two weeks.

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The case of Dukes v. Wal-Mart isn’t new. Filed a decade ago by six women on behalf of all female employees of Wal-Mart, it claims that the company pays women less than men for the same jobs, that female employees receive fewer promotions than men, and that female employees have to wait longer for promotions than men. In a 6-5 decision, the 9th Circuit Court of Appeals has ruled that the case should move forward as a class action. Wal-Mart is likely to appeal to the U.S. Supreme Court.

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