Monday, July 23

The 7th Circuit - Obsessed with Sex?

Discrimination, of course. Get your minds out of the gutters, seriously.

Honestly, though, a quick Westlaw search pops up 5 pretty salacious cases in the past 30 or so days for the Honorables over on Dearborn Ave. (Well, 4 salacious and 1 Indianapolis case about equal pay for park rangers, but we'll take it.)

The most noteworthy of the bunch, if only for the press, is clearly Bernier v. Morningstar, the best urinal-gazing case we've seen since we started typing bathroom terms into Westlaw as 1L's.

In what will surely find its way into emp. disc. classrooms as a "why did any attorney take this case" moment, Todd Bernier sued his former employer, Morningstar, Inc. (the investment firm), for sex discrimination and retaliation. Why? Because another guy on his floor, who he knew was gay, apparently kept eyeing him. First it was subtle stares in the hall, but what pushed it over the edge for Bernier was when the coworker made "an overt, purposeful and glaring look" at Bernier while they were in adjacent stalls in the bathroom.

Of course, Bernier did what any self-respecting business professional would do - he ignored his company's discrimination policy, and in lieu of confronting the coworker directly sent him an "anonymous" instant message over the company's computer system that read "Stop Staring! The guys on the floor don't like it." Genius. Espcially considering the real reason the coworker's "overt" stares was a lazy left eye.

We're not kidding.

More on this and another recent decision below. Click the jump.

The coworker took the IM as a clear sign of discrimination against him, followed the discrimination policy, and after, what I'm sure was about 8 minutes in the IT department, they found out the anonymous message came from Bernier. Bernier denied sending it, got fired, and filed an EEOC claim stating his termination was retaliation for notifying his employer he was discriminated against.

Honestly, never in our lives have we wished more that we made the trip across the street to hear oral arguments. The case was heard by Posner, Easterbrook and Wood. Judge Wood wrote the opinion – CE's guess is because Posner and Easterbrook both tried, and their computers exploded under the weight of the commentary.

Needless to say, Bernier went away empty handed – the court determined Morningstar was not put on notice by his anonymous IM to a gay coworker, and therefore couldn’t have retaliated against him.

Poor guy. Should’ve just used the stall.


Earlier last week another sex discrimination opinion came down, again on the side of the employer, but this one was plain old "fired for being a woman" brand. In Hossack v. Floor Covering Associates of Joliet, a woman sued her employer after she was fired from her job as an office manager.

We tend to think - at least in our beloved 7th Circuit - the first few lines of the opinion are going to tell you where the ruling's going to go. Hossack's started like this:

"Plaintiff...had an extramarital affair with a fellow employee...while working..."
Yeah, that's not going to end well for you.

Seems the Plaintiff and a co-manager of the store, both married, had been cavorting while on the job and she was claiming that she had been discriminated against because they fired her and kept him.

We won't make any calls on the wisdom of the ruling (there's some debate at CE's dinner table over this one). Our favorite part is the testimony of the owner of the company when they asked him about company policy:

Defense counsel asked [the owner]: "Are you aware whether any employees have had a romantic relationship while employed at Floor Covering Associates of Joliet, Inc.?" To which [the owner] replied: "Yes sir, I am." He thien went on to explain that: "I'm aware that in the Joliet store today of 17 people over the past number of years there have been 12 employees or more - 12 employees that I know of who have had romantic relationships with other employees."
12 of 17?! For real? Screw - the Joliet FCA store has a 70% success rate! Spread the word!

In case you're worried about retaliation for your dallience - don't. Remember, the court found in favor of FCA - and noted that the owner "stated that none of these employees had been fired or disciplined because of engaging in a romantic relationship."

That's all for today - pleasure doing business with you.

Bernier v. Morningstar
Hossack v. Floor Covering Associates