You be the judge of these real-life employment disputes! (I’ve changed the names to make it harder for you to Google the answers right away, but the answers with links are at the end of the post.)
SO FUNNY, I FORGOT TO LAUGH
- Susan and her husband, who are white, are cleaning out their attic one weekend. They come across some quaint old clothes and sepia-tinted pictures, and among the treasures Susan finds an old yellowed ticket from 1920 to an “event”: a basketball game on St. Patrick’s Day between the Ku Klux Klan and the Knights of Columbus, with Russian referees, to benefit the Jewish Relief Fund, at the Masonic Auditorium and sponsored by the “Advancement of Colored People [sic].”*
*Hatred of African-Americans is obviously the Klan’s raison d’être. But the KKK also does not care for Catholics (the Knights of Columbus and St. Patrick), Jews, Masons, Russians, or anyone else. The KKK’s membership and political influence reached their peak in the 1920s because of fear of the immigrants coming from Southern and Eastern Europe.
Susan thinks the ticket — an historical example of what passed for humor at the dawn of the Jazz Age — is cute and interesting, and she submits it for publication to the African-American editor of the company newsletter. The editor is offended by the ticket, and not only doesn’t want to publish it, but she also reports Susan to Human Resources. After an investigation, Susan — who had a long and unblemished record with the employer — is fired for inappropriate conduct. Susan sues for reverse race discrimination.
Does the court side with Susan, or with the company?
- Oh, for heaven’s sake. This is PC run amok. Of course Susan wins!
- Susan. The editor would not have been offended and the employer would not have been horrified if Susan had been African-American, which proves that race was a motivating factor in her discharge.
- The Company. This may be a harsh result, but it doesn’t mean they discriminated based on race.
- The Company, because everyone has the right to work in an inoffensive atmosphere.
DON’T ASK, DON’T TELL
- Mary applies for a job through a temp agency, Not-Terribly-Sophisticated Staffing. Her application packet includes a medical questionnaire. Mary knows her rights under the Americans with Disabilities Act, so she refuses to fill it out. As a result, she doesn’t get an assignment. Mary files an EEOC charge and then sues, and then NTSS settles with her for $12,500. As a condition of settlement Mary – through her attorney – sends a letter to the EEOC seeking to withdraw the charge. Her lawsuit is dismissed, and Mary goes away happy. Meanwhile, NTSS, having learned its lesson the hard way, quits asking for medical information pre-offer.
But the EEOC decides that it might have a big ADA case against NTSS for requiring medical questionnaires pre-offer, so it subpoenas three years’ worth of questionnaires filled out by applicants and current employees. NTSS fights it, saying the case is over. The EEOC files a motion in court seeking an order directing NTSS to produce the records.
Does the EEOC win?
- Yes, because the EEOC still has the right to investigate systemic discriminatory conduct even after the individual plaintiff/charging party is no longer in the picture.
- Of course. The EEOC always wins, and employers always get the shaft.
- No way. The case is over. If the EEOC wanted to make a federal case out of it, they should have done it before Mary settled.
- No, because maybe NTSS had a good reason for needing the medical information early in the hiring process.
YOU’VE BEEN A GOOD OLD WAGON, BUT YOU DONE BROKE DOWN
- Yogi is an account executive in his early 60s, and has received consistently good performance reviews. One day, the company announces that it is going to be looking for younger people to move up in the organization. In an employee meeting, Yogi’s boss says to Yogi and others that under the new initiative, “If you’re over 50, you’re screwed.”
Yogi’s next performance review is very good. However, not long afterward, three of his customers complain about him, independently of each other, and in rapid succession. In one alleged incident, Yogi is talking with a customer on his cell phone and accidentally fails to ring off. While the connection is still live, he insults the customer to a person he is with. The customer hears everything. Two of the three customers do not want Yogi handling their accounts any more. But Yogi’s boss gives Yogi another good performance evaluation after all of this. Then two more accounts complain about Yogi, and he is fired. Yogi sues for age discrimination. The company moves for summary judgment.
Does the company get summary judgment?
- Yes, because the customer complaints about Yogi are a legitimate, non-discriminatory reason for Yogi’s termination that negate the earlier age-based comments.
- Yes. This is a right-to-work state, and the company has the right to clear out the “dead wood” and bring in “new blood.”
- No, because Yogi has performed well for the company for many years, and he’s probably getting close to retirement and needs the money.
- No. Jury trial, baby, because the age-based comments constitute substantial evidence of discriminatory animus, and the fact that Yogi got good evaluations after the first three customer issues shows that the complaints were not a genuine concern.
- Lance, a well-known sports columnist, analyst, author, and podcaster for a major website that is affiliated with a major television sports network (we’ll call it “ENPS”) that gets a lot of revenue from a well-known professional sports league (we’ll call it “the LFN”), does a podcast about a domestic violence situation and how it was (mis)handled by the head of the LFN. Lance repeatedly calls the head of the LFN a liar, and in a most colorful and adamant manner. As a result, the network – for whom the LFN is bread and butter – suspends Lance for three weeks. Lance’s fans go crazy on Twitter, with the hashtag #freelance.
Not that he’s threatening to do it, but if Lance were to sue ENPS, would he win?
- Yes, because there’s more to life than the almighty dollar, and anyway this controversy probably boosted ENPS’s ratings, so Lance should take ENPS for every cent it’s got. #freelance
- Heck, yeah! First Amendment and truth to power, baby! #freelance ¡Viva la revolucion! Tell those corporate suits where to go and how to get there!
- No. Maybe what ENPS did was harsh, but it isn’t illegal for a business to want to avoid antagonizing one of its biggest sources of revenue. And, by the way, the First Amendment applies to state action only, not to actions by private-sector employers. But Lance is a good guy nonetheless, so #freelance!
- No. Lance’s profane language collaterally estops him from bringing suit. #freelance anyway!
ANSWERS AND LINKS:
So Funny I Forgot to Laugh: The answer is C. The Michigan Court of Appeals reversed a denial of the employer’s motion for summary disposition, finding that there was no evidence that the termination was racially motivated. (One judge dissented, though.)
Don’t Ask, Don’t Tell: The answer is A. A federal magistrate judge in Florida recommended that the EEOC’s motion be granted for exactly the reasons stated in Answer A, and the district court judge agreed.
You’ve Been a Good Old Wagon: The answer is D. In addition to what’s in Answer D, there was evidence that customers complained about account executives all the time, and that account executives were frequently shuffled around to suit customer preferences. According to a federal judge in Ohio, this further undercut the company’s contention that it fired Yogi because of customer complaints.
#FREELANCE!!!!11111!!!!: The answer, of course, is C. And according to this article, it’s all just schtick anyway. That three weeks will be over before you know it. #freelance!!! (Hat tip to my colleague and friend Jon Yarbrough, who suggested the Bill Simmons saga as a blog topic for this week.)