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Pennsylvania Employee Law Blawg > Categories
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7/24/2009
I was watching a television news show the other day. One of its guests was a young lady who holds the title of: The Worlds Fastest Text Messenger. I was immediately disappointed to learn that I was not invited to participate in the World Text Messaging Championship. Until that point I fancied myself quite the texter! My displeasure was quickly replaced with amazement followed in short order by inferiority. The young lady (fifteen years old) could text faster then I could type—60 words a minute! I guess I’ll start training early for next year’s tournament.
So you ask yourself, why is Brian writing about text messaging on an Employment Law Blawg? Is he bored? No. Is he out of work? No. I’ll tell you why: Text Messages are a great way to preserve evidence of sexual harassment in the workplace! A recent article on Allbusiness.com reports that the number of sexual harassment suits filed where text messages were the basis of the harassment is increasing. It seems employers forget that a text message, like anything in writing, does not disappear into nothingness after it is drafted. Perhaps because of the nature of texting in general, a quick and easy way to communicate short bits of info from one person to another, employers don’t filter what they text. The article cites to a Michigan case where a soccer coach’s university paid $450,000.00 to settle a harassment lawsuit over several text messages sent to two female soccer players.
Employers should ensure they implement a policy aimed at preventing text message sexual harassment. Additionally, employees should not accept inappropriate comments of a sexual nature from their employers, regardless of the medium in which the employer sends them. Treat every text message like you would any written communication and expect that it will never go away.
For a full copy of the article click here.
6/8/2009
The Associated Press wrote today that the Hawaiian Tropic Zone, a New York City Eatery located at Times Square, has moved to dismiss a discrimination lawsuit filed against it by a twenty-two year old Latino women. The lawsuit alleges that she was denied a job as a barmaid because her speech was to “Ghetto.” The lawyers for the restaurant claim assert that a waitress is a salesperson and that a salesperson can be legitimately fired because they are poor speakers. While the article does not state under what statutes the suit was filed, it was likely filed pursuant to Title VII of the Civil Rights Act of 1964.
There are three requirements every Plaintiff must initially demonstrate in order to maintain a workplace discrimination claim under Title VII of the Civil Rights Act of 1964: (1) she was a member of a protected class; (2) she was qualified for the position to which she applied; and (3) another person, not in the protected class was treated more favorably. Once the plaintiff meets these requirements the burden shifts to the employer to demonstrate a non-discriminatory reason for unfavorable employment decision. If the employer can demonstrate a non-discriminatory basis for the decision the burden shifts back to the employee to show that the non-discriminatory reason offered by the employer is mere pretext for actual discrimination.
The article does not discuss the facts of the case with great detail. From what we know, the Plaintiff will likely make out the first element of the claim: she is a woman and a minority, both groups that Title VII was passed to protect. It is likely that she can also establish the other two elements: she was qualified for the position to which she applied and another person, not in the protected class was treated more favorably.
From the article, it appears the employer has offered a non-discriminatory basis for the adverse employment decision: she did not speak well. Therefore, the Plaintiff will have to show that this reason is mere pretext and that the real reason they did not hire her was racially motivated. This last element of a Title VII claim is often the hardest to establish. An employer can refuse to hire someone on the grounds of poor speech where good speech a legitimate requirement for the job. On June 1st I Blawged about such requirements in the context of discrimination lawsuits.
For a full version of the Article click here. 6/1/2009
The Los Angelus Times reports today that the United States Supreme Court will likely hand down a holding in the case Ricci v. Destefano. The decision has received heightened media attention because Supreme Court Nominee Sonia Sotomayor was one of the three 2nd Circuit Appeals judges who wrote the opinion now on appeal. That opinion was short—only two paragraphs—and adopted the reasoning of the district court judge.
The Plaintiffs in Ricci are those white firefighters of the City of New Haven who took and passed an examination for promotion. The examination, along with any promotions for those who passed it, was thrown out by the City when it was revealed that no black firefighters had passed it. The city decided to throw out the exam over concerns that it would be sued under Title VII of the Civil Rights Act of 1964 by those black firefighters who had failed it.
Under Title VII it is illegal for an employer to employ job standards, e.g, tests, that have a disparate impact on minorities. The Times pointed to a classical example of such illegal job standards: requiring high school diplomas to take a job as a janitor where a substantial portion of the black population does not have such a degree. That’s not the say that establishing job standards which inadvertently affect a minority adversely, automatically is discriminatory. Those standards must be essential to the job.
The article believes that the Supreme Court will rule in favor of the firefighters. When the decision is releases I will make sure to post a copy.
For a full copy of the Los Angelus Times Article click here.
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