From Gattaca to GINA: Use of genetic information in workplace is problematic

February 03, 2014 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

If there is one thing that is universal about the entertainment world, it’s that it makes us all feel inadequate. Yes, with the airbrushed photos and the digital editing techniques, the stars and starlets who grace the covers of magazines and show up on the big screen all seem to have something (or multiple things) that we regular folk just don’t. I’d even bet most of the beautiful people look better rolling out of bed in the morning than I do on my best day.   GeneticEngineering

It’s true that in certain ways we are not all created equal. Each of us has our own genetic make-up, which is little more than the pooling of the genes—both good and bad—from our parents, and their parents, and so on. The combination of these genes determines things like our height, athletic ability, and our predisposition to certain medical conditions such as cancer. read more…

Punter’s legal claims may be blocked

January 10, 2014 - by: Andy Tanick 3 COMMENTS
Andy Tanick

When they asked me to join the rotation of writers for Ford Harrison’s EntertainHR blog, I was a little nervous. After all, while we Minnesotans make headlines for things like our weather (the high temperature here last Monday was 13 degrees below zero) and electing professional wrestlers to high political office, we haven’t had a juicy HR story up here since Lou Grant paid Mary Richards less than her male colleague Murray because she didn’t have a family to support. And that was fictional. Then it happened, just as my deadline was fast approaching: the Deadspin.com headline, dateline Minneapolis. “I was an NFL Player until I Was Fired by Two Cowards and a Bigot.” Thank you, Chris Kluwe.  As both an employment law attorney and the newly crowned champion of my fantasy football league, I might just be qualified to write about this. For those who haven’t heard, Kluwe was the Minnesota Vikings’ punter for eight years, until the team released him in May 2013. In the fall of 2012, Kluwe had become a media sensation due to his outspoken opposition to a proposed amendment to the Minnesota Constitution that would have defined marriage as “only a union of one man and one woman.” Many observers gave Kluwe part of the credit for the eventual defeat of that proposed constitutional amendment, which would have prevented the Minnesota legislature from legalizing same-sex marriage. Just a few months later, the legislature–encouraged by the defeat of the proposed constitutional amendment–did just that.football Now, Kluwe claims the Vikings “fired” him because of the allegedly homophobic views of his Special Teams Coach (the “bigot”) and the alleged failure of his Head Coach and General Manager (the “two cowards”) to stand up to those views. To nobody’s surprise, he has also announced that he’s hired a lawyer. And pundits, fans, and observers everywhere are asking the same question: “Is Kluwe going to sue the Vikings?” While at first glance it certainly seems like Kluwe’s claims, if proven, would support some claim under federal or state law, it’s actually not all that clear. Let’s take a look at the most likely legal theories. Discrimination? Not really. Kluwe doesn’t claim that the Vikings cut him because he belongs to any protected class. He doesn’t profess to be gay himself–indeed, he has stated that he is not, and his wife would likely corroborate that. A more likely legal theory would be retaliation. State and federal discrimination laws prohibit employers from taking adverse action against an employee because the employee engaged in “protected activity.” Protected activity in this context means either opposing a practice believed to violate those same discrimination laws, or participating in an employment discrimination proceeding. Kluwe never did the latter, so he would have to prove the former: that the Vikings released him because he opposed a practice prohibited under state or federal discrimination laws. As Kluwe describes it himself, however, the Vikings replaced him because he supported marriage equality, not because he opposed anything prohibited by anti-discrimination laws. Certainly, by supporting same-sex marriage, Kluwe was implicitly opposing the state law that, at the time, banned such unions. But opposing an existing law that some believe to be discriminatory isn’t really the same as opposing a practice or act that is specifically forbidden by civil rights laws, e.g., employment discrimination, sexual harassment, failing to accommodate a disabled employee, etc. What about Kluwe’s right to free speech, you may ask. The Vikings couldn’t fire the man just for speaking his mind on a highly charged political issue, could they? Well, actually, yes, they could.  Despite what TV and radio pundits might think, the First Amendment’s guarantee of free speech doesn’t apply to private employers such as a football team. While the law protects some types of speech, such as organizing a union, most speech by private employees is not protected. Indeed, exercising their nonexistent right to “free speech” has been the downfall of many employees. Chris Kluwe, of course, was not a typical “at will” employee; as an NFL player, he belonged to a union, and it’s possible (albeit unlikely) that his union’s collective bargaining agreement protects players from being released due to their political statements. But even if that were the case, Kluwe would probably have to pursue his claim initially through a union grievance, not a lawsuit. Plaintiff’s employment lawyers, of course, are nothing if not creative, and win or lose, Kluwe’s case would provide his lawyer with a lot of irresistible free publicity. And many people would find it objectionable if the Vikings really did let Kluwe go because of his political views. But being a victim of an unfair employment practice, no matter how troubling, doesn’t necessarily translate into having an actionable legal claim. So while Chris Kluwe’s situation may have saved this new blogger from having to write about Minnesota weather for the time being, when it comes to legal action, Kluwe may be forced to … punt.

Robertson a sitting duck after controversial quotes released

December 19, 2013 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

Duck Dynasty patriarch Phil Robertson and his family are most likely not enjoying a Happy Happy Happy Holiday after his recent GQ interview hit newsstands. In the interview, Robertson is quoted as saying:

“It seems like, to me, a vagina—as a man—would be more desirable than a man’s anus. That’s just me. I’m just thinking: There’s more there! She’s got more to offer. I mean, come on, dudes! You know what I’m saying? But hey, sin: It’s not logical, my man. It’s just not logical.”

When asked what he considered sinful, Robertson elaborated:

“Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men . . . .”

[For greater context and to get Robertson's full quotes on the subject, I encourage you to read the entire GQ article, which you can find here.]

In response, A&E Networks put the eldest Robertson on “indefinite hiatus” from filming, issuing a statement saying the network is “extremely disappointed” to read Robertson’s comments, which A&E notes “are based on his own personal beliefs and not reflected in the series Duck Dynasty.”

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Save the white males!

December 05, 2013 - by: Brian Kurtz 6 COMMENTS
Brian Kurtz

For decades the most heated gender-related dispute in the world of Archie Comics wasshutterstock_91545035 whether Archie was more into Betty or Veronica. But a recent lawsuit by five white male executives of Archie Comics against the company’s female co-CEO is enough to whiten Reggie Mantle’s hair.

The five men (and one woman) allege that Nancy Silberkleit engaged in a lengthy pattern of harassing, bullying, and demeaning conduct, including referring to each male employee simply as “penis.” For example, the complaint alleged that Silberkleit once interrupted a meeting, pointed at each of the four men present, and said “penis, penis, penis, penis.”  The complaint, filed in the Supreme Court of Westchester County, New York, alleges gender discrimination under the New York State Human Rights Law and asserts various state law causes of action.

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Offensive personal foul

November 06, 2013 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Suspended Miami Dolphins offensive lineman and last-guy-to-realize-people-save-voice-mails-and-texts Richie Incognito is 6’3″ and weighs 319 pounds. He is (was) a member of the Dolphins’ players leadership council, and he was a 2012 Pro Bowler. Incognito, however, may finally be facing an insurmountable opponent: the corporate employment lawyer. The Dolphins put Incognito on indefinite suspension after reportedly hearing a voice mail he left for teammate Jonathan Martin in April 2013. According to reports, the voice mail said:

“Hey, wassup, you half n—– piece of s—. I saw you on Twitter, you been training 10 weeks. [I want to] s— in your f—ing mouth. [I'm going to] slap your f—ing mouth. [I'm going to] slap your real mother across the face [laughter]. F— you, you’re still a rookie. I’ll kill you.”

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Parks and relationships

October 18, 2013 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

As an avid Parks and Recreation fan, I cannot help but love the chemistry between newlyweds Leslie Knope and Ben Wyatt. Long before they were joining their dysfunctional families via a wedding with a punch heard round the world and a unity quilt (complete with a patch dedicated to waffles, of course), these two were navigating the complicated minefield of an office romance. Like a number of employers, the fictional City of Pawnee had enacted a policy against workplace dating, which posed a serious obstacle for Leslie and Ben’s budding romance.  Clearly this story had a happy ending for the two lovebirds, but unfortunately that is not always the case in the real world where workplace romances all too often lead to messy litigation.

While there are countless cases of one party to a soured office romance later accusing a coworker of sexual harassment and denying that the relationship was ever consensual (particularly where the accused had supervisory authority over the accuser), there are also cases of non-parties to the romance attempting to file suit under a variety of creative theories. For example, in a case out of Texas, two employees entered into an extramarital affair. Their spouses decided to sue the company for negligently interfering in their familial relationships by failing to take action to prevent the affair. The case eventually went to the U.S. Supreme Court, which found in favor of the employer and helped establish that employers generally aren’t liable for failing to prevent office liaisons.

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Dress for success

October 13, 2013 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

This season, the network that originally brought you “COPS” is giving the oversaturated police-television show market a somewhat fresh take through its cop comedy called “Brooklyn Nine-Nine.” The show stars Andy Samberg as Det. Jake Peralta, a “talented, but carefree” (Fox’s words—not mine) detective dealing with his new hard-nosed, rule-following boss, played by Andre Braugher. You may remember Samberg from his digital shorts on Saturday Night Live, or as one-third of the comedy music act, Lonely Island. While the premise of Samberg’s new television venture is pretty standard, the show itself has so far proved funny and entertaining.

The show draws a good bit of its humor from the seemingly awkward to downright inappropriate workplace interactions among the cast members. From attempted interoffice relationships to inappropriate nicknames, to openly gossiping about the new boss’s assumed sexual preferences, just the pilot episode racks up quite a stack of complaints for the NYPD’s human resources department to wade through. But buried hidden behind the more overtly inappropriate conduct was a workplace issue that has recently been brought to the forefront of HR law—employee dress codes.

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Equal opportunity offender

September 20, 2013 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

No discussion of the film Horrible Bosses is complete without covering Kevin Spacey’s character, David Harken. Although he is arguably the most intimidating and even frightening of the three horrible bosses (two of which I covered in earlier posts, #1 and #2), his workplace conduct gives rise to the lowest litigation value from an employment law perspective. Unfortunately for Harken, his jealousy combined with his unhealthy marriage ultimately lead him to a life of violent crime outside the office and his final downfall. For the purposes of this blog entry, we will focus on Harken’s workplace conduct and leave his more colorful personal life for your enjoyment at home with a tub of popcorn.

In the film, Nick Hendricks (played by Jason Bateman) has good reason to detest Harken. After dangling a possible promotion in front of Hendricks and watching Hendricks work tirelessly to meet Harken’s extremely high (and often inconsistent) expectations , Harken proceeds to award the promotion to . . . himself.  He then commences construction on an even larger office for himself.  Hendricks is understandably upset about this strange turn of events. Sadly for Hendricks, “unfair” and even “bizarre” do not equate to “unlawful.” In addition, case law has clearly established that federal employment laws aren’t general civility codes for the American workplace.

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Fire all the “cripples” and the “fatties?!”

August 30, 2013 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

As I mentioned in my July post, the film Horrible Bosses has enough material for weeks’ worth of blog posts. With three atrocious bosses blatantly making the lives of their employees miserable and disregarding a long list of employment laws, it is certainly a plaintiffs’ attorney’s dream situation and an HR manager’s nightmare. I am sure the upcoming sequel will be full of blog material as well. This week, I turn my attention to the antics of Bobby Pellitt (Colin Farrell), the cocaine-addicted son of business owner Jack Pellitt.

Unfortunately, when his kindly, family-oriented, and environmentally conscious father suddenly dies, Bobby is left to run the business. As it turns out, Bobby’s business approach includes snorting as much cocaine as possible, having his own harem of prostitutes present at the office at all times, disregarding necessary safety precautions for hazardous materials, and firing all the “cripples” and the “fatties.” Bobby even starts calling one wheelchair-bound employee “Professor Xavier” of X-Men fame. According to Bobby, “Roaming around all day in his special little secret chair, I know he’s up to something.”

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Workin’ it in the library

July 25, 2013 - by: Jaclyn West 0 COMMENTS
Jaclyn West

It’s summertime, and the reading is easy. (For many, that is. There are some who like to take advantage of long beach days with a tome they otherwise wouldn’t have time to read; to them, we say more power to you!) As a bookworm, I’m always looking for a good read to take with me, whether that’s to the beach or otherwise—although I do prefer the beach. And as a proud employment law geek, I love it when my pleasure reading gives a nod to my chosen profession. So if you, too, like your summer reading to dish out a generous portion of human resources (I can’t be the only one, now, can I?), here are some of my personal favorites.

Fiction
Then We Came to the End: A Novel by Joshua FerrisThen We Came to the End was described to me as “Office Space in book form,” and I have to say, that description is apt. The book chronicles a group of employees in a Chicago advertising firm facing deep staffing cuts. It’s narrated in the first-person plural, which is an interesting, little-used perspective, and as a result, it honestly captures the group dynamics of many offices. This dark comedy manages to be simultaneously sad and funny . . . and anyone who has ever looked with an envious eye at a coworker’s office furniture will blush with recognition.

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