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June 16, 2005
Practical joke not covered by insurance
True story. A dentist's employee needed an extraction. The dentist put her under anesthesia and had some fun with a practical joke. He put false teeth shaped like boar tusks into her mouth and took pictures, then finished the legitimate dental work.
That was the last day of work for the employee, who then sued the dentist for assault, outrage, and so on. The dentist asked his insurance company to defend him, and the company refused. After the dentist settled with the employee, he sued the insurance company alleging bad faith breach of the duty to defend. A jury returned a verdict for the dentist, but the Washington Court of Appeals reversed. Woo v. Fireman's Fund (Washington Ct App 06/13/2005).
The dentist had three insurance policies, none of which covered the situation.
- Dental professional liability. The court said no reasonable person would believe a dentist would treat dental problems with false boar teeth, so when he did that he was not performing dental services. He was taking "actions for his own purposes rather than for her treatment."
- Employment practices liability. To be covered by this policy, the employee must have been claiming "wrongful discharge" arising out of a "wrongful employment practice." The court pointed out that the employee's complaint against the dentist "would not conceivably constitute the tort of wrongful discharge."
- General liability. This policy provided coverage for personal injury arising from the business. However, the dentist's actions were not part of his business, and what happened could not be called an "accident."
My view: Check the insurance policy before inserting the boar tusks.
Posted June 16, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
May 04, 2005
Skimpy EEOC charge was good enough
Does an EEOC charge really have to state facts as to harassment in order to bring a Title VII suit? Maybe not, according to the 11th Circuit.
Freddy Green's pro se EEOC charge checked the box for race discrimination and gave one single date for both the "earliest" and "latest" dates. As for factual particulars he wrote:
I. I was employed from March 7, 1995 until my discharge January 2, 2001. I was terminated for violation of the attendance policy, but I have no written warnings for attendance. White males that have written warnings and have committed further violations were not terminated.II. Management stated I was discharged because of violation of the attendance policy.
III. I believe that I have been discriminated against because of my race (black) in violation of Title VII of the Civil Rights Act of 1964, as amended.
When Green sued for both racially discriminatory (a) discharge and (b) harassment, the trial court found enough evidence of both, but ruled that his EEOC charge was procedurally defective as to the harassment claim. Green won a jury verdict on the discharge claim, and appealed from the denial of the harassment claim.
The 11th Circuit ruled (2-1) that the harassment claim could go forward. Green v. Elixir Industries (11th Cir 04/29/2005). The court said Green's harassment and discharge claims were "inextricable intertwined," pointing to pre-discharge harassment facts that were introduced as evidence of the employer's motive for the discharge. The reasoning: if this evidence was "related to" the discharge claim, then it was "related to" the harassment claim.
In addition, the EEOC charge mentioned race discrimination, which racial harassment clearly is. The court also emphasized that one purpose of the EEOC charge is to put the employer on notice of the allegations, and the person who was responsible for the discharge was intimately familiar with the alleged harassing conduct.
The dissent said Green failed to allege facts sufficient to inform the EEOC that he was complaining of hostile work environment. "Green's EEOC charge does not allege a single fact that reasonably could have been expected to prompt the EEOC to investigate a charge of hostile work environment."
My view: This case takes the rules to the outer limit.
There really was nothing in the EEOC charge that would suggest to the EEOC that Green had a harassment claim. Indeed, the statement of a single date plus Green's emphasis on discharge would suggest that harassment was not an issue.
Therefore, if the purpose of an EEOC charge is to allow the EEOC to investigate and try to resolve claims without law suits, then the charge was woefully defective.
If, however, the purpose of the EEOC charge is to put the employer on notice, you could look at it two ways. One is what the majority said, which is that the employer's decision maker knew all the harassment facts and didn't need to be told. The other is that Green's failure to even hint at harassment meant that he was not making a harassment claim.
I don't expect to see other Circuits following this decision.
Posted May 04, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
February 21, 2005
Sexual harassment and the church
It looks like the 9th Circuit is inviting the Supreme Court to review its recent decision on the interplay between Title VII and the 1st amendment religion clauses. An associate pastor sued her church/employer claiming that her supervisor sexually harassed her, and then she suffered retaliation for filing an EEOC charge, and then she got discharged.
The church argued that the 1st amendment protected it against such suits. The 9th Circuit allowed the retaliation and harassment claims to go forward, but ordered dismissal of any claims for discharge. The court denied a rehearing en banc, and ten judges wrote five opinions.
Elvig v. Calvin Presbyterian Church
Original panel decision (9th Cir 07/23/2004) [Full text pdf]
Order denying rehearing (9th Cir 02/11/2005) [Full text pdf]
The heart of the controversy is the court's formula for dealing with church-minister employment sexual harassment. It goes like this:
First, the 1st amendment overrides Title VII when a church engages in sex discrimination when it hires, fires, or assigns duties to its ministers. That's called the ministerial exception.
Second, Title VII controls when a church engages in sexual harassment of, or retaliation against, its ministers. Therefore, if a church harasses and then discharges a minister because she is a woman, the minister can recover damages for the harassment but not for the discharge.
The 9th Circuit's position is troubling.
Here's my view: Although we attach the label "harassment" to certain kinds of discrimination, that label has no legal significance in Title VII analysis or in constitutional analysis. Sexual harassment is no more or less than a subset of on-the-job sexual discrimination. It is sex-differentiated conduct that changes the employee's terms and conditions of employment, and therefore is no different from assignments to different duties or establishing different rates of pay. These are unlawful under Title VII, but churches should be immune from suit when its ministers are plaintiffs.
There is general agreement that the 1st amendment does not allow Title VII to interfere with the church as to its decisions to hire, fire, and assign duties to its ministers. This protects the relationship between the church and its ministers from government regulation. But some 9th Circuit judges say that harassment suits are analogous to suits under state tort law when a parishioner is sexually abused by a minister. What? That's an analogy?
Elvig's case is an especially good one for 1st amendment protection. Elvig's complaint alleged that her supervisor leered at her and made unwelcome remarks. Government regulation of that activity would involve policing the demeanor (leering) of church ministers and the expression of their opinions (unwelcome remarks). As much as I dislike on-the-job sexual harassment, I think the 1st amendment should protect churches from government regulation of the day-to-day demeanor and expression of one minister to another.
Retaliation for filing an EEOC charge (as opposed to retaliation for complaining within the church) could be a different matter. It could be that there is a "compelling governmental interest" in protecting citizens who use the administrative forum (EEOC) established by Congress.
Posted February 21, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
