Can explicit lyrics at work constitute unlawful harassment?

Equal Opportunity Harassment

Can explicit lyrics at work constitute unlawful harassment?

Thanks for clicking through to learn more about this  interesting case.

The Ninth Circuit disagreed and vacated the District Court’s order dismissing this claim. In doing so, the Court observed that the employer’s arguments “hinge on an ‘equal opportunity harasser’ defense that we simply do not countenance.  An employer cannot find a safe haven by embracing intolerable, harassing conduct that pervades the workplace.”

What do you think of the holding? The Ninth Circuit claimed that this was a case of first impression, but I see this kind of fact pattern repeatedly in the work that I do. It’s not usually music blasting from commercial speakers at deafening decibels. Instead, it’s music played in a breakroom or an employee singing loud enough for coworkers to hear. Should the playing or singing of songs that use racial or gender epithets, refer to sexual acts in vulgar terms, or use other offensive (to many if not all employees) words be the basis for a hostile environment claim?

If you don’t think so, this does not mean you approve of the conduct or, if you are an employer, lack any ability to stop it. Certainly, no employer is required to allow this type of conduct to go on in the workplace. Employer policies can and should prohibit using epithets and offensive language in any context. It is, however, a different question to ask whether allowing such music to be played in a warehouse should be the basis for a claim which requires that the offending conduct occur “because of sex.”  Are you convinced by the Ninth Circuit’s rationale or not? Happy to discuss this, please feel free to email me.

Do you have a case that you’d like to settle quickly? I still have some availability in late March and early April. In addition, dates frequently open up as scheduled arbitration hearings go off calendar almost every month. Check my calendar and book instantly.

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Think Twice Before Hitting Send – When Being Civil In Litigation Pays

Being Civil During Litigation

Think Twice Before Hitting Send – When Being Civil In Litigation Pays

Thanks for clicking through to learn more about this interesting case where a lawyer’s conduct cost him and his client nearly $500,000.

Perhaps you noticed that the newsletter content was a bit different from my past newsletters. That’s because the case was written entirely by CHAT PDF. I simply uploaded a PDF of the case into the platform and asked for a 200-word newsletter summarizing the key points of the case. The summary is not too bad. Wouldn’t you agree? I’d like to think I can’t be replaced entirely by AI. So here are a couple points that CHAT PDF missed:

The plaintiff prevailed only on his claim for failure to engage in a good faith interactive process and was awarded about $130K in damages. The jury found for the employer on disability discrimination, retaliation, failure to accommodate, and failure to prevent discrimination.

The plaintiff then sought fees of approximately $1.193 million plus a multiplier of 1.75 for a total fee request of about $2.09 million. The court corrected some arithmetic and then applied a 1.2 multiplier for an initial fee award of about $1.145 million.

But the court then applied a negative multiplier of .4 reducing the fees awarded to about $686 thousand. Here is part of what the trial court wrote after quoting two and one-half pages of counsel’s e-mail messages: “[counsel’s] incivility was not only directed to opposing counsel; it was also directed to the Court . . . ‘Plaintiff’s counsel’s tone of voice (which was not reflected in the Court Reporter’s record) was both belittling and antagonistic; at times it verged on the contemptuous. Plaintiff counsel’s ad hominem attacks were unnecessary for the zealous representation of his client.”

The appellate court affirmed the fee award. So, being a total jerk cost the lawyer and his client nearly half a million bucks. Undoubtedly, this case will be cited repeatedly in motions for sanctions and oppositions to fee requests. Don’t give opposing counsel any grist for this mill. Be professional. Take the high ground. Don’t personalize your client’s dispute so that it becomes your dispute.

Do you have a case that you’d like to settle quickly? I have some open dates at the end of this year and in January. Dates are always opening up as scheduled arbitration hearings go off calendar almost every month. Check my calendar and book instantly.

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Arbitration Opt-Out Form & Keeping Adequate Court Records

Missed Deadline image

Arbitration Opt-Out Form & Keeping Adequate Court Records

Thanks for clicking through. This is an interesting case involving an opt-out form delivered to the employer by a former employee, almost a year after her last day of employment.

What was your initial reaction as to which way the Court of Appeal decided?

  1. It affirmed the trial court’s decision to deny the motion to compel arbitration, or
  2. It reversed the trial court and ordered the matter to arbitration.

The answer, as you have gathered by now, is, in fact, neither.  Instead, the Court of Appeal affirmed the trial court because defendant elected to proceed with the appeal without a reporter’s transcript. Because the minute order issued by trial court did not provide an explanation of the factual or legal basis for its decision, and there was no reporter’s transcript of the proceedings, or “a suitable substitute,” the Court of Appeal concluded that the trial court’s decision was to be upheld. In the absence of an adequate record establishing otherwise, an order or judgment is therefore presumed correct.

I am not sure how many lawyers would have noticed that the opt-out form did not state a clear deadline.  Even if that was noticed, how many would have concluded (albeit incorrectly) that there was an implied deadline that ended when the employment ended.  The plaintiff’s lawyer got it right. However, what sank the ship was the omittance of a reporter’s transcript in defendant’s appeal. It reminds us of the importance of attention to detail, and, perhaps more important, knowing how to preserve a trial court record at all stages of a litigation.

When preparing for a mediation, I like to get a good grasp of the details.  I can only do that if the attorneys provide them to me in briefs. I would much rather receive detailed timelines of events and documentary exhibits than a boiler plate discussion.  Provide detail about the facts of your case, and help the mediator focus on the most important issues from your client’s perspective.  

Do you have a case that you’d like to settle this year?  Dates are always opening up on my calendar, especially as scheduled arbitration hearings go off calendar almost every month.  Check my online calendar for my availability and schedule a mediation in real time. My case manager, Tammie Bellerose, will promptly be in touch with confirmation details.

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She Was Fired Because Employer Decided Her Religious Belief was Not Sincere

Religious Beliefs and Discrimination Under Title VII

She Was Fired Because Employer Decided Her Religious Belief was Not Sincere

Thank you for clicking through to learn more about the interesting case involving a woman who was fired because she refused the COVID-19 vaccination.  Here are some key facts about this case.

  •  Large company with employees in every state
  • Employee had been employed for over 20 years, as had her husband
  • Husband suffered stroke at work before COVID and was disabled
  • Company established mandatory vaccination requirement for ALL positions whether in-person contact was required or not
  • Plaintiff did her job remotely from onset of COVID until she was fired
  • The position Plaintiff held has been fully remote ever since
  • Company set up a process for employees to request religious exemptions for the vaccination requirement
  • Company processed over 3,000 requests for exemption and granted about 2/3 of them
  • Plaintiff submitted an application which, among other things, stated: “I have no objection to the vaccine, I just want to wait until the FDA approves it.”

 

Applicable Law

To quickly summarize the applicable law, a plaintiff alleging religious discrimination must allege facts that plausibly demonstrate: (1) plaintiff holds a sincere religious belief, the practice of which conflicted with an employment duty; (2) plaintiff informed the employer of that belief and conflict; and (3) the employer threatened the employee with or subjected the employee to discriminatory treatment, including discharge, because of an inability to fulfill the job requirements. Once a plaintiff has made a prima facie showing, the burden shifts to the defendant to show that it initiated good faith efforts to accommodate reasonably the employee’s religious practices or that it could not reasonably accommodate the employee without undue hardship.

 

What Happened at Mediation?

In the case I mediated, the employer never reached the issue of accommodation because it concluded, based on the plaintiff’s application, that the employee’s belief was not “sincere.” The employer moved for summary judgment which the court denied in a very brief order.  This is not surprising as “issues such as the sincerity of an employee’s religious belief are quintessential fact questions.” E.E.O.C. v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 56 (1st Cir. 2002).  Nevertheless, the employer in question had convinced judges in other jurisdictions that an employee’s belief was not “sincere” based on the employee’s own words.

 

Mediation Can Help Resolve Tough Cases

After a long day of mediation, I was able to help the parties come to an agreement which allowed the plaintiff to move on with her life and focus on caring for her disabled husband while allowing the employer to avoid testing its policy of evaluating the sincerity of an employee’s religious belief in front of a Los Angeles jury.

Do you have a case involving religious beliefs?  These are tough cases where mediation can be even more beneficial than in lawsuits involving less personal issues.  Please let us know if we can be of assistance.

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Is An Illegible Contract Enforceable?

Can You Read It? I can't!

Is An Illegible Contract Enforceable?

So, how did you vote?  Do you think the court required Fuentes to arbitrate her case when the contract she was compelled to sign was illegible?

The answer is… YES.  The appellate court reversed the trial court’s order denying Nissan’s motion to compel arbitration and ordered Fuentes to arbitrate her case.

The court acknowledged that “tiny font size and unreadability make it hard or impossible for employees to read, and thus to understand the contract.”  But, the court went on: “Tiny font size and unreadability go to the process of contract formation, however, and not the substance of the outcome.”  In short, according to this court:  “Font is irrelevant to fairness.”

What do you think?  This was a 2-1 decision.  The dissenting judge wrote:  “The arbitration agreement speaks for itself.  The print is so fine it is unreadable without magnification.  See if you can read it without giving up… Given the complete unreadability of this arbitration agreement, I would find an extremely high degree of procedural unconscionably, requiring, as the sliding scale analysis allows, a low degree of substantive unconscionability.”

The dissenting judge disagreed with the majority’s conclusion that the illegibility of the contract goes only to procedural, not substantive, unconscionability.  According to the dissent, “the ridiculously tiny print in this agreement prompt for me a discussion of mutuality, a consideration for substantive unconscionability.”  More specifically, “the employee who is given this illegible document cannot discern the terms and provisions… if you can’t know what you are signing because the other party gives you only an unreadable copy, the stronger party is imposing unknowable terms on the weaker party… Their unknowability is sufficient to ’shock the conscience.’”

The dissent’s view is concisely summarized as follows:

“Watering down unconscionability analysis is not what I have in mind. Acknowledging the obvious is my intention.  Holding a signatory to an illegible contract that is also as prolix as this one strains the concepts of mutuality, fairness and common sense.  If an employee literally cannot read the contract, how is it substantively fair?”

So, there you have it.  The appellate court has held that an employee can be forced to arbitrate an employment claim even though she (like just about anyone else) could not read the contract she was required to sign.

I don’t know about you, but I had to look up the word “prolix.”  It means “tediously lengthy.”  I hope you did not find this discussion prolix.

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Was The Judge Disqualified?

Was The Judge Disqualified?

Was The Judge Disqualified?

So, was Judge Bowick disqualified?

 

The appellate court noted that “a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street.” (Jolie v. Superior Court of Los Angeles County (2021) 66 Cal.App.5th 1025, 1039-1040). This is an objective standard. If a reasonable person would entertain doubts about the judge’s impartiality, disqualification is required. The court also pointed out that the burden on a party seeking disqualification is “heavy” and affirmed the trial court’s decision denying defendant’s motion to disqualify Judge Bowick.

There are a lot of disputed facts about the interaction between the two judges. Here’s a link to the case.

As an arbitrator in California, I am required to answer about 30 questions on a disclosure form each time I accept an appointment. One of those questions is the catch all: “Are you aware of any facts that would cause a reasonable person to question your ability to be impartial?” As I stated at the beginning of this piece, I know the attorneys involved here, so I am not going to comment. How about you, though? Would you have disqualified Judge Bowick if you were on the appellate court?

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Help The Mediator Help You

What To Do About Ned?

Help The Mediator Help You

Preparing Your Client For Mediation

Thanks for clicking through! Let’s put some meat on the bones of the three topics I introduced earlier:

 

Substance

Don’t believe everything you read in your own mediation brief. 

Most lawyers submit traditional mediation briefs, which are exclusively advocacy pieces. Sure, a mediation brief needs to put your client’s case in the best possible light, but it’s not a summary judgment motion or a trial brief. The best mediation briefs devote some time to the problems with the case. In preparing the client for mediation, you should make sure you and the client are on same page from the beginning of the mediation. Mediations can go off the rails if the attorney has not gone over the strengths and weaknesses of the case and advised the client that the discussion of damages in the mediation brief is usually designed to quantify the maximum downside risk of loss, not to suggest a settlement value much less a bottom line position.

 

Process

Litigation is an adversarial process; mediation is not.

Instead of looking at mediation as another in a series of adversarial events during the life of a case, try looking at mediation and the mediator as a tool or resource. Negotiation behaviors can change when counsel and parties start viewing mediation more like a joint problem-solving collaboration than a cage fight. Lay out a context for the anticipated negotiation. It is frequently described as a dance. Your client may find the first steps demeaning, be deeply disappointed with the experience, and develop a negative interpretation, which can poison the chances for success. Encourage your client to appreciate that feedback from the mediator is one of the opportunities of mediation and that it can assist you both in refining the picture of what is a satisfactory resolution. As a result, mediation can be viewed as a potential learning experience about how others view the risks presented in the case. Remind your client of the voluntary nature of mediation. The client’s control of the outcome, in collaboration with the other participants, and in contrast to a trial, is one of mediation’s strengths. If you prepare your client with this mindset, the client can be more flexible, adjust their expectations with your guidance, and see the value of hearing different points of view during the mediation.   

 

Emotions

It’s okay to show your emotions.

Negotiations are not purely rational exercises. It is often tough enough to manage our own emotional triggers without having to concern ourselves with another person’s emotional reactivity. Yet, the risk of emotions taking over the negotiation demands that we attend to both before mediation. You can overcome many of these problems by recognizing that the client’s feelings of comfort, recognition, and autonomy are essential to the success of the mediation. In your preparation, discuss with your client how their emotional concerns will be addressed in the mediation. What does the client really want the mediator/other side to understand about the harm that was done? Are there issues that would be best left unaddressed? Ask the client about anxieties or worries once they understand what is coming and be sensitive to the signs of potential emotional triggers. Above all, tell the client not to worry about getting emotional. A good mediator will expect and be prepared to deal with the spectrum of emotions that occur during mediation. The most successful mediations are often the most emotional because the client feels heard and the mediation can serve as a substitute day in court. 

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Help The Mediator Help You

What To Do About Ned?

Help The Mediator Help You

What Makes an Effective Mediation Brief?
 

Try to think like a mediator. Do you know what the mediator needs to help you settle your case? If not, ask. If your mediator is not conducting a pre-mediation conference call with you, initiate that call yourself. Then, retain another mediator for the next case, because any good mediator should be convening these calls as a regular part of the mediation process. A preparatory call with each side separately is part of my process and included in my fee. I do not know a reputable, effective mediator who does not do this.

Of course, your mediator will need to understand the basic facts, law, and procedural posture of the case, but an experienced, effective mediator is really interested in discovering the likely barriers to settlement. I am interested in helping the parties resolve their dispute, and I don’t need detailed briefs to do that.

In most cases, an effective mediation brief should take about five pages (1500 words). That’s it. Seriously. Below is a topic outline.

  1. Summarize the case, bullet point key factual disputes (attach evidence supporting your client’s position), and briefly discuss key legal issues. This does not mean including a paragraph about the McDonnell-Douglas test in every employment discrimination or retaliation case. It means educating the mediator on any point of law that is particularly important in your case.
  2. If you are the plaintiff, summarize the basis for your demand and attach supporting evidence. Demanding $5,000,000 because “that’s what the client wants” (yes, a lawyer told me that) without any rationale is not helpful to the process.
  3. Summarize the procedural posture of the case (if a complaint has been filed). What is the status of depositions and other discovery? What are the key deadlines? When is trial?
  4. Summarize any settlement discussions. Include each party’s last settlement position and any documentation thereof.

    And most importantly:

  5. Summarize perceived barriers to settlement. In other words, why do you need a mediator? If there were no such barriers, presumably, counsel could settle the matter themselves. These usually include personality conflicts, worries about setting a precedent, outside influences, etc. This section will likely be the hardest section for the advocate to prepare and the most useful for the mediator.

What about exchanging briefs? I urge the counsel to exchange briefs in every case. Almost nobody does. If you prepare the type of brief I described above, the only reason not to share the entire brief is if there is something in section 5 that will likely create an additional barrier to settlement if disclosed. In that case, delete that section from the version of the brief you provide to the other side.

I guarantee that submitting a brief like the one I described and exchanging the brief with the opposing party will be invaluable to the mediator you select and make the entire process more efficient and effective.

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REAL-TIME CALENDAR

What To Do About Ned?

What To Do About Ned?

What To Do About Ned?

A Family Mediation

The impasse on whether to look for an assisted living facility for Ned or to find caretakers to come into the home was resolved with a simple question. What was that question? By now, I’m sure you’ve figured it out. Neither Jane nor Sharon directly asked Ned, “what would you like to do?” Each made assumptions based on their own preferences and filters. When Marjorie interrupted the discussion to ask Ned his opinion, he said he would prefer to move to an assisted living facility because he felt he would have more opportunity to socialize than he would if he remained in his home. Voila – problem solved! The search has begun for an appropriate assisted living facility for Ned.

There are a number of lessons about conflict resolution that can be drawn from this simple, real-life example. First, a conflict does not have to be acrimonious. Here, Jane and Sharon recognized that the other wanted what was best for Ned. Second, parties to a conflict always bring personal preference (or bias) to the table. Based on their respective perspectives, Jane and Sharon each thought they knew what was best for Ned. Third, there is no such thing as a stupid question. The only stupid thing is not to ask. Once Ned was asked what he wanted to do, the problem was solved. Perhaps Sharon or Jane had asked Ned prior to the meeting. If so, perhaps he gave a different answer. Or, perhaps they hadn’t understood what he wanted. Anyone who knows Ned immediately realizes that his desire to continue to be social is consistent with who he is. The rationale for moving into an assisted living facility seems obvious in hindsight. It should have been the first question asked at the meeting, not the last. Although this was not a litigated matter, there are lessons for attorneys and mediators handling such disputes: always, always, focus on the wants and needs of the parties. Don’t make assumptions. Ask questions and keep asking. Most conflicts are resolved when parties ask questions and really listen to the answers.

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The Taxonomy of Mediators

The Taxonomy of Mediators: Bullies, Butterflies, Status Quo, and Compliance

The Taxonomy of Mediators

Bullies, Butterflies, Status Quo, and Compliance

 

Continuing with our discussion into the four basic mediator personality types, Paul breaks down his taxonomy as follows:

Bullies, as their name suggests, want immediate results. Bullies seek power and authority, prestige and challenge. Inexperienced mediators, especially if they are used to adjudicating as opposed to mediating,  are more likely to adopt this posture than those with more experience. Often a bully is a true expert and demonstrates little tolerance for attorneys who are not quite as versed in the relevant area of the law. If a bully wants others to weigh the pros and cons of an action and calculate risks, he will tell the party what the pros and cons are and refuse to hear a party’s take on the pros and cons. A bully is likely to be extremely evaluative rather than facilitative, and forceful about pushing his evaluation on the parties. The worst bullies are those who simply tell each party:  “you are going to lose,” or “you are going to spend a lot of money” without any cogent analysis.  Bullies are predictable. They try to scare each party into settling rather than persuading them that it’s in each of their interests to do so.

If the mediator is a bully, mediation is more likely to come to a quick, sometimes abrupt, conclusion. Any settlement, if at all, would tend to be accomplished quickly. While this style may be appropriate and successful in some situations, most people end up feeling short-changed in that they often want to air out their grievances.  In these situations, even a settlement can leave a party feeling bad about the process.

Butterflies. Butterflies are articulate “people person” types who make favorable impressions on others. They want to be popular, and social recognition is important to them. Butterflies need others to seek out the facts and focus on the task at hand by being nice, building rapport, and appearing interested in what a party says.

A butterfly-type mediator is often able to keep a dialogue going, even when the parties do not appear to be making much progress, so that parties do not reach an impasse or walk out too soon. The chances for a settlement between two parties is increased with a well-respected, butterfly-type mediator.

Butterflies may challenge you by making you feel bad about your position by contending that it makes you look unreasonable.

Status Quo Mediators. Status quo mediators are patient people who prefer security and social norms, and the generally accepted status quo, unless valid reasons indicate change is necessary. For example, they may look at an email and presume that most people who respond to emails read them. If you contend that you did not get the email, he will suggest that you have responded in bad faith, because a generally accepted social norm is that if you receive and respond to an email you read the original message.

Frequently, status quo mediators will continually ask you “does that make sense?” That statement is always made, because sometimes, a position articulated may not make sense on its face. You must be ready to defend your position with responses that sound reasonable based on social norms.

Compliance Personality. Compliance types tend to concentrate (and sometimes overly focus) on details. They focus on key directives, standards, and timelines. When you are unable to work with them on key details, they will discount your case and make you feel like your case is worth less than what it is.

The message to attorneys and clients is that personalities matter. While not every mediator fits neatly into a single category, the process and outcome of any mediation will depend, in large part, on what type of mediator is at the mediation. Or at least what personality traits come out during mediation. Attorneys should help their clients prepare for a mediation by selecting the mediator whose personality the attorney believes is most likely to facilitate an agreement. Not only that, but attorneys should provide their client an assessment of the mediator’s personality so the client knows what to expect and how to react to what the mediator says and does.

Resolve your case through mediation.

Call me at 626.469.5070