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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