The Seventh Circuit Court of Appeals here in Chicago is known for having an aversion to the typical "bright line" rulings issued by other circuits (and, often, their bosses in D.C.). The judges say they like to think the cases through, instead of follow some "easy-to-follow" method spelled out in a previous case that just ends up confusing things*.
Whether that's 100% true is debatable. But in an opinion released this week, they certainly followed that tack, and in the process issued a ruling that did a great job defined the rights under the Pregnancy Discrimination Act.
The opinion in Hall v. Nalco, written by Judge Sykes, holds that in-vitro fertilization treatments are covered under the Pregnancy Discrimination Act. Which means, basically, that employers can't treat you differently (or fire you) for getting IVF treatments. That probably doesn't seem revolutionary, but it suprised me. Here's why:
The plaintiff, a secretary who was fired when her office was merged with another, claimed that her firing was discrimination because it was based on her "absenteeism" related to her in-vitro treatments. The plaintiff argued that infertile women are protected under the Pregnancy Discrimination Act, which extends discrimination protection based on sex (the gender kind, not the "doin' it" kind) to include pregnancy-related conditions.
Most people (including me) heard that argument and stopped paying attention, because the Supreme Court had already ruled that infertility is gender-neutral (i.e. the same for boys and girls - like a Slinky), which means it's not related to "sex" and not protected. So, done deal. Plaintiff loses. That's why the District Court threw the case out in the first place.
Well, not so fast. You can't just say "infertility isn't protected" and close the book. The Plaintiff's "absenteeism" was related to IVF treatments. Show me a guy getting IVF treatments. It's impossible - we don't have the parts. So who cares if there's a "rule" about infertility? This is about pregnancy.
Plaintiff gets to sue.
Agree or not, you have to love it when the judges (and their clerks) really pay attention to the case law. It doesn't always happen. In this case, the Plaintiff's complaint didn't even separate IVF from "infertility" (see note 3 of the opinion). But because the court saw a distinction, we have an opinion that will do so much more for understanding what the PDA covers than any "bright line" rule ever would.
* See Paul W. Mollica, "Employment Discrimination Cases in the 7th Circuit", 1 Emp. Rights & Emp. Policy J. 63, 100 (1997). Yeah. Sometimes I cite things. So?
Thursday, July 17
7th Circuit: Woman Fired After In Vitro Treatments Has Valid Cause for Suit
Thursday, March 27
EEOC PDA Claims Starting to Show: "Don't Call Us Fat!"
Today's WSJ (HT - Workplace Prof Blog)is reporting that the number of Pregnancy-related claims filed at the EEOC jumped 14% last year, and are up 40% from 10 years ago.
My original assumption that there must be 40% more babies being born was apparently false. The article attributes the rise in claims to "both changing demographics and a new activism among mothers," but points out that claims are also high because working women don't exactly understand how they are protected:
[E]ven now, 30 years after passage of the federal Pregnancy Discrimination Act, there is still confusion about what protections it provides. "I thought we were protected," said an advertising executive during a recent gathering of 100 working mothers. "Then I find out we can be fired while we're pregnant, employers can refuse to hire us -- what exactly are our rights?"
Ok, if the law said you couldn't get fired while you were pregnant, or that somebody had to hire you, that 40% jump wouldn't have been such a funny joke (if it ever was to begin with). Of course you can get fired. If you suck at your job, you can always get fired. Well, almost.
You just can't get fired on account of the little Biff or Jilly or Pilot Inspektor you've got in there. And thank God for that. So, a 14% jump based on more empowered women is ok. I think most of us are a little tired of the race/sex/national origin merry-go-round.
Let's do pregnancy for a little while and wait for the inevitable spike in religion cases next year...
Wednesday, January 16
FirmSuit of the Day: The House Always Wins
Day 2 of Current Employment's week of law firm employment suits is one of those cases that make you wonder if someone at the plaintiff's attorney's office just missed a question on the client questionnaire. Now it's a cautionary tale, thanks to Legal Blog Watch.
The Story: Theresa Brooks worked for Boston's Peabody & Arnold for sixteen years. Then, one day in 2005 she didn't come in. The next day, still no Theresa. Obviously, the firm was a little worried. Brooks had a history of back problems - the firm had given her a special chair, and made some poor chump do her heavy lifting (probably a law clerk).
When Brooks informed the firm that she could no longer work because of her disabling back issues, Peabody decided a little more inquiry might be in order (back problems don't usually lead to trips to the happiest place on earth), so they sent her for an independent medical exam. But even the independent doctor diagnosed her with spondy-something (does this look like the DSM IV?) and agreed it was disabling. Still, 2&1/2 months after she stopped coming in, Peabody fired Brooks, and she sued.
At trial, Peabody showed a secret spycam video of Brooks... What? Oh, get off your horse - you know your firm's got one on you, too. Anyway, the video showed Brooks "working in her yard, repeatedly bending over, carrying heavy bundles, walking up and down stairs without difficulty, and walking without a limp or a cane," according to the court. But we all know that those videos are edited to make people in wheelchairs look like they spend their days surfing and competing in strongman competitions. That doesn't prove anything, right?
[The video shows that s]he was also physically able to drive forty minutes each way to a casino in Lincoln, Rhode Island, and to sit playing slot machines for three hours, while claiming that her back problems would not permit her to sit at her desk and type.
Oh. Well. Ok.
Advantage Peabody. Somebody greenlight whoever shot that footage - I smell an indie career. The moral of the story for those of us in the biz? Stick with craps, and it's high table, and let someone else roll.
Wednesday, December 5
Me Three - the Court Questions Your Buddy's Testimony
As always, SCOTUSblog (and now the awesome SCOTUSwiki - my new favorite website) has the best coverage. Not to be outdone the New York Times has a synopsis of the orals, noting that the Roberts Court seemed to be more conservative than Bush's EEOC, which would like to allow "me too" information when it can jive with the relevance and nonprejudicial rules of evidence.
Most of the Court seemed to think that letting in "me too" evidence would necessitate "minitrials" within trials to determine whether or not the information was accurate, and therefore relevant. From Paul Cane's Argument for Sprint:
Had the "me, too" evidence been admitted, then we would have had to respond with what might be called "not you, either" evidence. And then the plaintiff would have made a rebuttal to that showing, and we would have had trials within a trial on whether these couple of persons that plaintiff identified as potential bad actors were, in fact, bad actors...
I think they should disallow the use of the evidence until someone comes up with descriptions that don't make us sound like we're fighting over a Tonka truck.
Justice Souter said the evidence would be highly prejudicial, but could be probative too. After all, if your supervisor is discriminating and mine is discriminating, isn't that a sign of something? Not surprisingly, Justice Scalia didn't think so. Turns out, this is a really good oral transcript to read if you're a 2L stuck in evidence, because it goes to show you can be a Supreme Court Justice and still not know what Rule 403 really covers.
A thousand years. Hmm. So, like longer than the time between now and the Magna Charta. Maybe the Court should start taking on more mandatory retirement cases...
Monday, November 19
Anybody Want to Sue a Law School?
I'm going to go ahead and assume most everybody reading this either went to law school or works with a bunch of people who did, and the idea that they should be punished for something has probably crossed your mind at least once or twice, right? Admit it.
Well, here's your chance, via Craigslist:
Counsel sought: employ discrim. case against major university
Reply to: [redacted]
Date: 2007-11-11, 3:46PM
I am a law professor who was aggressively recruited by a law school in Chicago for my expertise and to serve a particular program in my area of expertise. The pre-screening was extensive: I was flown in, did a full day interview with a presentation, and my scholarship was reviewed.
Whistles whetted? I'm sure I don't need to tell you the prof. didn't get the job.
One more thing before you click the jump... if you have any specifics about this purposefully vague craigslist post, please do not put them in the comments. We would like to actually become attorneys without being sued for slander or libel or any number of other things that we would have to tell the Character and Fitness folks about. If you just have to get it out, email us.
The job, according to the unnamed candidate at the unnamed law school, went to a minority "nine years out of law school with no publication or teaching experience, and who had not distinguished himself academically while at law school." Well. I never.
The Masked Educator had apparently run the program for a year and did, in fact, distinguish him/herself academically while at law school. Also, according to the prof.:
[T]he law school had major internal issues and actually drove away minority faculty in the year or so preceding my visit, thereby creating their diversity problem. I am told that one person brought a legal action and received a settlement. I can identify the faculty at issue.
So the prof. is seeking representation, preferably on a contingency basis, for a discrimination suit because his/her "productivity fell dramatically," is "no longer in a position to visit at other law schools unless [they] want to explain why [they were] denied a position by this other law school," and their "market appeal has fallen."
Market appeal. Must be nice. Most importantly (to me, not them): "I am not attending professional gatherings in the field to avoid explaining the situation and embarrassment." We've been to those get-togethers. If that gets put in the case, it should really mitigate those damages.
Man. If anyone takes this case, I'm seeing some major drama here in the Chi. We'll keep our eyes peeled. Any tips, EMAIL US. As stated, comments = liability = very short legal careers for the CE staff.
Wednesday, November 14
Lawyer Loses Case on Sex Poems? We Are Back in Business!
Whew – a somber day followed by a day of dead air – we're lucky anyone's still out there. Are you still out there?
Well, we hope so, because CE is returning to its bread and butter today, starting with a cautionary tale coming out of the 1st Circuit that we had to ignore on Monday.
We'll spoil it for you: if you're going to write love notes to coworkers, don't sue when you get fired.
Until now, we've always assumed British guys in their 60's living in the states could do pretty much whatever they wanted. (Girls go crazy for that accent. It's ridiculous.) Apparently, so did David Bennett. The ex-pat IP lawyer was fired from a corporation in Massachusetts, and he sued for age discrimination, among other things.
The problem was, he was fired for allegedly penning a series of anonymous, sexually-tinged love poems to a coworker. Though he denied writing the poems, he was ultimately implicated because many of the spellings and words were in the King's English, and not our west-of-the-atlantic, bastardized hog-talk. We can only assume this was a way of invoking the bright line rule about girls and accents espoused above. Plus, they hired a handwriting expert, which is an area of science we honestly thought was made up for 80's cop shows and CSI.
The other (read: actual) important thing to remember from the case is that, in the end, it didn't matter whether Bennett wrote the poems or not. From the ABA Journal:
Whether or not Bennett actually was the author was "largely beside the point," the panel wrote. "(W)hat counts is whether the decision-maker ... believed the plaintiff to be the author and, if so, whether he acted on that belief in deciding to send the plaintiff packing."
One last thing - when they asked Bennett if he wrote the poems he denied it, and then he said he had never composed a poem in his life. A search of Bennett's desk revealed a whole collection of other poems in his handwriting. Remind you of anyone? We'll simply repeat our often-repeated plea: Before you file that lawsuit that will cost hundreds of thousands of dollars and take years to fully resolve, THINK ABOUT HOW DIRTY YOUR OWN FRIGGING LAUNDRY IS!
Or don't. This stuff is a boon for us.
Monday, November 12
Veteran's Reemployment Rights - USERRA
[ed. note: While our goal at Current Employment is always to present this information in as lighthearted a way as possible, sometimes the situation is too important to run the risk of watering it down in humor, such is the case today.]
Since yesterday was Veteran's Day, we're devoting the day to veterans employment issues. Like always, we're not taking sides here, but this is one of the most delicate, complicated issues in modern employment law, so we felt the need to discuss it. This post is a general overview of the Uniformed Services Employees Reemployment Rights Act, or USERRA.
USERRA is meant to protect an honorably discharged serviceman's ability to return to his or her previous job after being deployed or on active duty. There are requirements for both the employer and the employee, and complaints are handled through an administrative agency.
Even with the law in place, the state of veterans returning from wars, both present and past, is not nearly where it needs to be. We'll address some of those issues in subsequent posts today.
Details on USERRA, and a place to go for help, after the jump.
Among USERRA's safeguards:- Protection from discrimination on Title VII grounds.
- Reinstatement to the position the servicemember would have been in had they not been called to duty. That means if the soldier would have been promoted in the regular course of his employment, he must be reinstated at the higher position (called the escalator principle). If the employee must take a test to be promoted, the test can be administered by proctors stationed where the employee is on active duty, or reasonable accommodations must be made upon return to work, either to train the employee or provide alternative employment opportunities.
- Reasonable accommodation for employees returning with injuries or disabilities. If an employee is convalescing from war injuries, they have up to two years to request reinstatement to their position at work.
USERRA requires the employee to notify the employer of his or her active duty requirement when reasonable, and to give as much time as possible to the employer to prepare. Upon return, the employee must apply for reemployment based on the following schedule:- If the active service was less than 31 days, the employee must apply on the next working day, excluding time travelling home and an eight hour rest period.
- If the active service is under 181 days, the employee has 14 days from the date they are released from service to apply for reemployment.
- If over 181 days, the servicemember has 90 days from release from service.
With regard to benefits, active servicemembers are eligible for all health and welfare benefits at their jobs back home for 2 years, though they may be required to pay up to 102% of the premiums. Pension benefits are always protected.
If a servicemember has a claim or complaint against their employer, they can take it to the Veterans' Employment and Training Service (VETS). From the Department of Labor USERRA site:If resolution is unsuccessful following an investigation, the service member may have his or her claim referred to the Department of Justice for consideration of representation in the appropriate District Court, at no cost to the claimant... If violations under USERRA are shown to be willful, the court may award liquidated damages. Individuals who pursue their own claims in court or before the MSPB may be awarded reasonable attorney and expert witness fees if they prevail.
It seems like a pretty comprehensive statute, but, as with many helpful pieces of legislation, reality is standing in the way. The claims that are filed don't seem to be getting resolved effectively, and the result is an terrible amount of veterans unemployed, untrained and homeless.
If you or someone you know is struggling through the maze of benefits or reemployment laws for vets, the John Marshall Law School has established a new clinic that may be able to help. Here's the website. If you need more information, feel free to contact us and we can put you in touch with someone who can help.
Thursday, November 8
McDermott Develops Avant Garde New Tier System - Looks Conspicuously Like Old One
McDermott, Will & Emery is trying to jump onto the multiple-tier media hayride that Perkins Coie and Chapman and Cutler are enjoying. But the two-tier system actually seems to be well-received and effective for recruiting associates, so in true Big-big-biglaw fashion, McD-W-E tried to do it different and screwed the whole frigging thing up for everybody.
From the ABA Journal: Instead of giving current partnership-track associates a choice between working more hours for more pay or taking a kinder, gentler approach to law practice at the same highly skilled performance level [what the other firms were doing], McDermott, Will & Emery is planning to create a second team of lower-paid, non-partnership-track associates. They will help handle work such as the deluge of discovery created by modern-day e-mail, reports the Recorder.
Yep. You read that right. MWE's Second-Tier? Contract attorneys. I know what you're thinking - there must be some reason for the second-class, I mean second-tier, system that benefits the associates. This is probably just a way for students of lower schools to work their way in to a big firm job, right? From the article:Initially, McDermott plans to hire a group of about 15 associate alternates with "good pedigrees" and big-firm experience..."They'll have a status within our structure that's brand-new," says Robert Mallory, a Los Angeles partner in the firm's trial group, noting that the idea is so new that no one knows yet what the lawyers in the second team will be called. "The idea isn't that this will be a training ground. This isn't a path into the firm."
We tend to agree with the commenters, who made the following points:
1. This smacks of "Mommy Track", and could be a dumping ground for minorities and women who have children.
2. This B Team is going to be treated like crap by every ladder-climbing 27-year old who walks in as a summer associate.
3. Although both 1 and 2 are true, if you offered me $120k for 40-50 hours a week, I'd totally sift papers for 9 hours.
Thursday, November 1
Job Bored - 11/1
- And you thought those models were going hungry by choice... - MarketWatch.
- If his boss hadn't put him on the feminine hormones he could've avoided the cross-dressing and that gay affair. Kind of gives new meaning to "on the basis of sex". - The Guardian.
- Atty General: "I'm resigning not because I'm a quitter." No, you're resigning because you owe $3.7 million to the employees you arbitrarily replaced on racial grounds, lost witnesses and dismissed the 2 biggest cases on the docket, then housed an armed robbery suspect in your house. Only in New Orleans. - L.A. Times
- B&H Video in New York: $4.3 Million - Gothamist
- Chevron: $5.5 Million - San Jose Mercury News
- Morgan Stanley: $46 Mil. And no, we're not missing a decimal point. - Investment News
Wednesday, October 24
The Job Bored:
- EU seeks to expand job portability by recognizing degrees and skills across borders. EU News and World Report ready with arbitrary ranking system to fill in oppressive educational class structure. - International Herald-Tribune
- If you were a "Democratic" Think Tank constantly defending yourself from accusations of being a haven for neo-conservatives, what would you do? Publish an op-ed called "The Myth of Middle-Class Job Loss" in the WSJ. Duh.
- "Um, the handicapped spaces are for armless Iraq war veterans/tank arsenal employees with real handicaps. You're fired." - Detriot Free Press.
- Looking for a job in real life is so 2005. - Daily Telegraph
- $5 Million a year's not insulting. It's the $3 million in incentives that really burned Joe Torre's britches. - NY Times
- Outsourcing singing telegrams. Seriously. No joke necessary. - Gatehouse News Service
Thursday, October 11
Law Firm Seeks to Clear its Name by Suing Partner, Airing Laundry.
Another day, another law firm debacle to report. First it was Sidley Austin's ostentatious settlement earlier in the week. Now Ballard Spahr's Baltimore office has apparently brought itself into court for discrimination.
From the Daily Intellegencer (via Law.com):
After attempting to resolve internally alleged issues of inequitable pay and the piecemeal removal of her practice over the course of a decade, Jane Ennis Sheehan had confidentially presented on May 9 gender discrimination claims and a demand letter to Ballard Spahr Chairman Arthur Makadon through her counsel, according to court documents from both sides.
Sheehan claimed that another partner who was supposed to be her equal in a two-person team took her practice from her over the course of several years and called it his own. That partner was ultimately paid more for doing the same work, she said in her demand letter.
She also claimed in the letter that she was retaliated against for bringing these claims to light internally, eventually resulting in her being taken from a percentage or equity partner to an income partner.
We know what you're thinking - another equity-to-income post? Yawn.
Come on, we wouldn't do that to you. This is not big-firm economics. This is straight up she-said/it/they/he-said, David versus Goliath-style mud-wading. But Goliath is supposed to stand there and get pelted, not throw his own stones. For an explanation, click the jump.
After a conference call to work out the details didn't produce, the firm sued Sheehan asking for a declaratory judgment that they did not discriminate, before she ever went to the EEOC on the discrimination claim. Again from the article:
"I wanted to keep it as discreet as possible. I never expected a suit by the firm," Sheehan said in an interview. "I expected an opportunity to sit down and discuss my concerns with the firm.
[Sheehan's lawyer] said Ballard Spahr did "everything wrong" when it came to dealing with an internal complaint, whether or not it agreed with the allegations. She said Sheehan wanted to keep the claims as quiet as possible, but the firm ultimately "advertised the suit" to the partners.
"It's interesting that I could raise the specter of discrimination claims and find myself the defendant," Sheehan said.
And elsewhere:
"I kept hoping incorrectly that things would straighten out," Sheehan said earlier.Yeah, we're pretty sure when the firm refused to pay us the measely $675k and reinstate our partner status, we'd get the itch to walk, but to each her own we guess.
Sheehan said she is still working for the betterment of the partnership through marketing the firm's practices and the Baltimore office, which now has 41 attorneys.
Maybe there's an explanation in here somewhere -
In its response to Sheehan's preliminary objections in the declaratory judgment action, Ballard Spahr said Sheehan had explained her poor performance and low billable hours through a 2004 letter to the allocation committee. She said the reason for the performance was because of personal problems that affected her work life, according to Ballard Spahr's response filing.
Sheehan said in an interview that the firm encourages partners to write letters to explain poor performance. While everything in her letter was accurate, Sheehan said, she did not bring up some of the professional reasons that her billable hours were low because she "did not want to antagonize the partnership," she said she thought she would suffer ramifications she wasn't ready to handle.
"Antagonize the partnership?" Oooh-kay. CE is not setting the odds for this one.
One more quote from the article:
In 2004, Sheehan earned $358,681 for her share of the partnership profits. She said in court documents that that was 82.3 percent of Casey's pay for that year, which would mean he earned almost $436,000.So we're not losing that much sleep over Ms. Sheehan's situation. Though CE thinks getting your hard-earned business snatched from under you is pretty crappy regardless of your gender or year end take-home.
Either way - we can't figure out what Ballard was thinking with this. They just hung the dirty laundry and expected eveyone to walk by without smelling it. I mean, when no one's calling you a sexist, don't ask the court to say you're not a sexist. That's all we're saying.
Wednesday, October 10
“THE PRICE IS WRONG????”
We all remember the opening….the late great Rod Roddy, in his sequence suits (I want to know where I can get one of those things) would yell out a contestants name…..”Joe Blow, c’mon down, you’re the next contestant on The Price is Right”….and like mad the contestant would run front and center to “contestants row” to play crazy games for huge prizes.
Of course the man overseeing all of this action is one of the greatest actors of all time - Bob Barker. (That’s right I said actors. And Bob Barker. Ever seen Happy Gilmore? The price is wrong, B***H.) For millions of us, staying home sick from school meant we got to watch The Price Is Right. No matter what ailed you, TPIR always made you feel better, and if you are like I am, you genuinely liked Bob Barker, almost like a grandpa.
Deborah Curling, however, is not like you and me. She is a former employee of the Price is Right who recently filed a lawsuit against Bob Barker and other producers claiming, among other things, that she was sexually harassed over an extended period of time.
Curling claims that because she testified on behalf of another employee who was suing TPIR, that Barker and the other producers sexually harassed her and created a hostile work environment. This is not the first time the 83 year Barker has been sued. There have been several former employees, many of them the models that display the products and prizes, that have sued Barker, alleging sexual harassment. Many of those cases were settled out of court. Curling cited those cases in her complaint.
We here at Current Employment take this kind of thing very seriously, and will continue to follow the developments in this case. At time of press, CBS had no comment regarding the lawsuit.
For more info on this story click here for a link http://news.yahoo.com/s/nm/20071005/us_nm/barker_lawsuit_dc_2
Saturday, October 6
How Many Years Does it Take for a Partner to be a Partner? The World May Never Know.
Earlier this week, Sidley Austin settled its lawsuit with the EEOC, pulling the plug on the burning-hot spotlight they've been under, but sadly offering no precedent on the plight of literally hundreds of other old, wealthy lawyers.
The EEOC investigation goes back to "Sidley & Austin's" 1999 "demotion" of 32 "partners" to counsel status, booting them from sharing in firm profits. The firm claimed it made the decisions based on performance (Profits per Partner are a key indicator of firm health surveys like the AmLaw 100), but the EEOC brought a claim alleging the move violated the ADEA, since most of the partners were in their 50s and 60s.
The fight between the agency and the law firm has garnered ridiculous amounts of attention in "Biglaw" circles, since a final judgment could either affirm the current corporate model used by most big firms or mandate a complete structural readjustment of billions of dollars in compensation. In the least, firms were eyeing their mandatory retirement policies with veins popping out of their sweaty foreheads.
With the settlement, nobody knows if partners are employees or if mandatory retirement is even legal - as with most settlements, both sides are using it to show how right they were all along.
For comments from both camps, click the jump.
From Law.com:Sidley agreed that the affected partners were employees subject to the ADEA only "[f]or the purposes of resolution of this matter." But the decree does not constitute a finding on the merits of the case. Nor does it require the firm to admit any wrongdoing. Sidley said on Friday the settlement was strictly a business decision. "The Firm believes that settling this case is preferable to the costs and uncertainties of continued litigation," Sidley said in a statement.
So, clearly the settlement could not set any type of precedent, right? It's not like Sidley made any explicit concessions or anything.Mark H. Alcott, a partner at Paul, Weiss who called for the end of law firm mandatory retirement policies ...said the size and public nature of the Sidley settlement amounted to an "explicit concession."
Oh. Well, whatever. The mandatory retirement debate rages on - the ABA just weighed in against the policies in the latest ABA journal.
What we care about is the drama (and intellectual discourse regarding the definition of "employee", of course). This is, after all, the government toeing up against one of the biggest law firms in the land. But regardless of Sidley's high-profile status in the legal community, it's still an "employer" right? So what's so weird about the EEOC challenging an "employer"?
Well, for one thing, usually the agency waits until an employee asks them to get involved. Here, none of the "partners" ever contacted the EEOC (some of them even bowed out once it was clear the agency was looking for payroll records, according to the Law.com article). And usually "employees" and "partners" aren't exactly synomous terms.
But that's a story for another time. Stay tuned. We'll post about the 7th Circuit cases and the "employee"/"partner" fight real soon...
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 Match.com - 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