October 2015

So, someone who posed as a nude lumberjack for Playgirl is now upset about the (foreseeable!) consequences of his decision – teasing by his coworkers. And a federal court judge has found that the employee’s sexual harassment claim against his employer, based on his coworkers’ teasing, may have merit. To me, this case, Sawka v. ADP, Inc., is crazy on several levels!Axe

Let’s start with the employee. I find the lack of personal accountability in our society to be appalling. Many people are unwilling to take responsibility for their choices and actions – and, in my opinion, this employee falls into this group. It seems to me that if you choose to put it ALL out there in a sexually-focused publication that is intended for widespread public distribution, you should realize that people (including those you know!) will look at the pictures, comment on them, and, yes, tease you about them. Really, isn’t the whole point of posing for a magazine like Playgirl to invite such attention? Now, I understand that the pictures date from 1991, and perhaps the employee regrets having posed for them at this point in his life. But the passage of time does not and should not absolve him of his responsibility for his (in retrospect) possibly ill-considered decision.

Moreover, his expectations of what his employer should have done were, again in my opinion, unrealistic. The employee initially failed to complain because, in part, he found it “embarrassing.” (Really?) When he finally complained about his coworkers, the employer conducted an investigation, which included interviewing the list of witnesses he provided as well as others. The employee now contends that the employer should have searched the computers of his coworkers to verify that they had looked for his pictures on the Internet. But at the time, I am sure the employer believed it had addressed the issue by speaking with the worst offender about his comments and instructing the Vice President in charge of the office to report any further comments or Internet searches for the employee’s pictures. Given that the employee admittedly did not make any further complaints (although he now alleges that the comments didn’t stop), the employer undoubtedly thought it had resolved the problem.Continue Reading The Playgirl Model’s Sexual Harassment Claim

As you may know, I am a die-hard management lawyer. For example, I recently saw a production of J.B. Priestly’s, “An Inspector Calls.” The titular Inspector forces various members of a wealthy family in Edwardian England to examine their roles in putting a young woman on the path to suicide. In particular, the father had fired the young woman from his factory for being a labor agitator. I know I was supposed to sympathize with the young woman, but I frankly thought the father had behaved in an completely Baby Bottleunderstandable manner (although, of course, it would now be a violation of the National Labor Relations Act to do so). My husband told me, “Well, I guess you’re in the right profession.”

But every now and then, there is a case that just smacks of unfairness to me, even though it may be legally correct. Frederick v. State of New Hampshire was just such a case.

The employee’s new baby had difficulties with bottle feeding. In addition, the employee’s doctor provided a letter explaining that the employee should breastfeed as must as possible to minimize her anxiety disorder. In preparation for returning to work, the employee asked for either an extended break time to go to her baby’s nearby daycare center to breastfeed, or to have her baby brought to her and to be allowed to breastfeed her baby in the employer-provided lactation room.Continue Reading No Protection for a Breastfeeding Mother?

So as Halloween approaches, a recent religious accommodations case involving the “mark of the beast” seemed seasonally appropriate.

For those of you not so familiar with the Bible, the Book of Revelation tells the story of a satanic beast that comes out of the earth and forces all humans to worship another beast coming from the sea. The worshipers are marked on their right hands or their foreheads with the number “666” – i.e. the “mark of the beast.”Mark of the Beast

Several years ago, a client implemented a biometric timekeeping system, which used a hand scanning procedure. One of the employees objected to using the new system on religious grounds, based on his fear that the system would either imprint or reveal the mark of the beast (it wasn’t terribly clear exactly what the concern was). My partner, Mike McGuire, noted that the mark appears on the right hand, however, and the employee could simply use his left hand on the scanner. Well, that seemed to fix the problem – a pretty simple solution, wasn’t it?

Unfortunately, it didn’t work out so easily for another company – Consol Energy. In that case, an employee who was an Evangelical Christian objected to the biometric scanning system for the same reasons as our client’s employee. Consol actually provided a letter to the employee from the company that made the system, explaining that the Book of Revelation specifies that the mark will appear only on the right hand (or forehead), and therefore the left hand may be used for scanning purposes.Continue Reading Religious Accommodations – A Beastly Concern