Featured Cases ***
McCurdy v. Arkansas
State Police (8th Cir 07/23/2004)
McCurdy, who worked
for the state police, sued her employer for sexual harassment
under Title VII. The
claim arose from a single incident of sexually harassing
behavior, which McCurdy reported and to which the employer
immediately and effectively responded.
McCurdy suffered no tangible employment action.
The trial court concluded that the employer was
insulated from liability under the Faragher/Ellerth
affirmative defense. The
8th Circuit affirmed.
In Title VII sexual
harassment cases where an employee does not suffer an adverse
employment action, employers may attempt to avail themselves
of the affirmative defense set forth by the United States
Supreme Court in Faragher v. City of Boca Raton, 524 US 775
(1998), and Burlington Indus., Inc. v. Ellerth, 524 US 754
(1998). Under the
Faragher/Ellerth affirmative defense, an employer must
establish that 1) the employer exercised reasonable care to
prevent and correct promptly any sexually harassing behavior;
and 2) the employee unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the
employer or to otherwise avoid harm.
In cases where the
alleged sexual harassment occurs all in one incident, even
where employees promptly report sexual harassment their
employers will have no opportunities to remedy the situation.
By the time the employers learn of the harm, the damage
has already been done. In
such cases, employers will have no way to establish the second
element of the Faraghar/Ellerth affirmative defense and will
in effect be strictly liable for sexual harassment even when
no tangible employment action is present.
The court refused to adopt such an approach, stating
"[w]e conclude the Supreme Court, in crafting the Ellerth/Faragher
affirmative defense, did not change course in sexual
harassment jurisprudence by holding employers strictly liable
fro single incidents of supervisor sexual harassment."
The court thus concluded ultimately that the Faragher/Ellerth
affirmative defense is available in "single incident
cases in which the employee takes advantage of preventative or
corrective opportunities provided by the employer and the
employer thereafter takes swift and effective action to avoid
further offensive conduct."
Coke v. Long Island
Care At Home (2nd Cir 07/22/2004)
29 USC Section
213(a)(15) of the Fair Labor Standards Act (FLSA) exempts from
FLSA coverage employees engaged in "babysitting
services" and "companionship services."
The exemption applies to "any employee employed on
a casual basis in domestic service employment to provide
babysitting services or any employee employed in domestic
service employment to provide companionship services for
individuals who (because of age or infirmity) are unable to
care for themselves (as such terms are defined and delimited
by regulations of the Secretary [of Labor]) .... "
The court considered
the enforceability of two Department of Labor (DOL)
regulations interpreting Section 213(a)(15). The
first regulation, 29 CFR Section 552.6, includes within the
exemption 1) those who perform household work related to the
care of the elderly or infirm; and 2) those who also perform
housework incidental to their 'companionship services' as long
as the housework accounts for less than twenty percent of the
weekly hours worked. The
second regulation, 29 CFR Section 552.109(a), applies the
exemption to "[e]mployees who are engaged in providing
companionship services, as defined in Section 552.6, and who
are employed by an employer or agency other than the family or
household using their services."
The court held that the first regulation (Section
552.6) was entitled to Chevron deference and enforceable.
The court declined to afford the second regulation
(Section 552.109(a)) Chevron deference, and held that it
failed under the less deferential "Skidmore" level
The court noted that
Section 552.109(a) "is ... jarringly inconsistent with
other regulations the DOL itself promulgated under the FLSA
immediately following the 1974 amendments."
The court noted that 29 CFR Section 552.3, which
"was legislative, issued pursuant to Section 213(a)(15)
and, thus, entitled to Chevron deference" defined the
term "domestic service employment" as "services
of a household nature performed by an employee in or about a
private home ... of a person by whom he or she is
that "[p]lainly, under Section 552.3, employees employed
by third parties do not qualify for the exemption,"
the court reasoned "the stark internal
inconsistency between Section 552.109(a) and Section 552.3,
when coupled with the latter's entitlement to greater
deference and its greater consistency with congressional
purpose, strongly counsels against enforcement of Section
Velocity Express v.
Pennsylvania Human Relations Commn (Pennsylvania Cmwlth
The Pennsylvania Human
Relations Act (PHRA) prohibits employers from discriminating
against any "individual or independent contractor."
Section 4(x) of the PHRA states that "[t]he term
'independent contractor' includes any person who is subject to
the provisions governing any of the professions and
occupations regulated by State licensing laws enforced by the
Bureau of Professional and Occupational Affairs in the
Department of State [of the Commonwealth of Pennsylvania], or
is included in the Fair Housing Act .... "
The court held that the term "independent
contractor" under the PHRA is limited to the list of
occupations set forth in Section 4(x).
In other words, the list set forth in Section 4(x)
forms the exclusive set of independent contractors protected
by the PHRA.
Riehl v. Foodmaker
Riehl sued the
employer, claiming disability discrimination under state law.
He alleged that the employer failed to reasonably
accommodate his disability, and subjected him to disparate
treatment when it discharged and then failed to rehire him.
The trial court granted summary judgment in favor of
the employer on both the accommodation and the disparate
treatment claims. The
appellate court below affirmed as to the accommodation claim,
but reversed as to the disparate treatment claim.
The court affirmed.
The court noted that, "if challenged, the employee
must come forward at summary judgment or trial with competent
evidence establishing a nexus between the disability and the
need for accommodation."
The court noted further that "[a]n employer has to
provide only medically necessary accommodations, and retaining
the medical necessity requirement ensures that this is the
court explained that "[t]he term 'medical necessity'
refers to the employee's requirement to establish this
Purdin v. Copperas
Cove Economic Development (Texas Ct App 07/21/2004)
(Link not available)
The definition of
"employer" under the Texas Commission on Human
Rights Act (TCHRA) includes "a county, municipality,
state agency, or state instrumentality, regardless of the
number of individuals employed."
The court held that an economic development corporation
created by a municipality falls within the definition of
"state instrumentality" for purposes of the TCHRA.
The court reasoned that "state
instrumentalities" were intended by the legislature to
include entities that perform public functions, and that
economic development is a public function.
Transportation v. NLRB (6th Cir 07/23/2004)
The National Labor
Relations Board (NLRB) found that the employer committed an
unfair labor practice when it discharged two truck drivers in
retaliation for engaging in union activities.
The employer argued on appeal that the NLRB erred in
finding that the truck drivers were not independent
contractors, but rather employees entitled to protection under
the National Labor Relations Act (NLRA).
The 6th Circuit affirmed the NLRB's decision,
concluding that substantial evidence supported the NLRB's
conclusion that the truck drivers were employees.
Advance Cast Stone Co
v. Bridge Structural and Reinforcing Iron Workers (7th Cir
The trial court
vacated an arbitration award entered in favor of the union.
The arbitrator had agreed with the union that the
employer was bound by a multi-employer agreement with the
union, and that the employer thus committed an unfair labor
practice when it assigned certain positions to members of
another union. The
trial court based its decision on the results of a "10(k)
determination" rendered by the National Labor Relations
Board (NLRB), in which the NLRB found that the employer was
not bound by any collective bargaining agreements with the
union. Since the
NLRB's 10(k) determination conflicted with the arbitrators'
decision that the employer was bound by a collective
bargaining agreement with the union, the trial court applied
settled 7th Circuit precedent ("an NLRB decision issued
pursuant to a Section 10(k) proceeding overrides a conflicting
decision by an arbitrator") and vacated the arbitration
award. The 7th
United Food and
Commercial Workers Union v. Crystal Mall (Connecticut
The union sought
injunctive relief allowing it to access a private mall for
purposes of distributing literature and contacting mall
patrons to discuss employee rights.
The union claimed that denial of access to the mall
infringed upon its rights to free speech and assembly under
Connecticut's state constitution.
The trial court rejected the union's argument and
denied its request for injunctive relief.
The court affirmed, concluding that "in the
present case, there is inadequate state action to trigger
state constitutional protection."
Poe v. Hawaii Labor
Relations Bd (Hawaii 07/21/2004)
Poe, a state employee,
filed complaints with the Hawaii Labor Relations Board (HLRB).
The HLRB dismissed the complaints, on the basis that 1)
Poe failed to exhaust the remedies available under the
collective bargaining agreement; and 2) Poe failed to prove
that his union breached its duty of fair representation.
The trial court affirmed the HLRB's decision.
The court affirmed.
Brooks v. Southern
University (Louisiana Ct App 07/14/2004)
(Link not available)
Brooks prevailed on
her state law hostile environment sexual harassment, gender
discrimination, and retaliation claims.
She was awarded $475,000 in compensatory damages by a
jury, but the trial court reduced the award to $65,000.
The trial court also awarded attorney fees in the
amount of 40 percent of the damages award. The court affirmed as to liability, but concluded that the
trial court erred in reducing the damages award too much. The court concluded that $200,000 was the lowest amount
reasonably supported by the record, and awarded an additional
40 percent of that amount as attorney fees.
DaimlerChrysler (Michigan 07/22/2004)
Gilbert sued the
employer, asserting a state law hostile environment sexual
harassment claim. A
jury awarded her $21 million in compensatory damages - the
largest recorded compensatory award for a single-plaintiff
sexual harassment suit in the history of the United States.
The appellate court below affirmed.
The court reversed, concluding that the award was
excessive - a result of the jury's "passion rather than
reason and prejudice rather than impartiality."
The court opined that Gilbert's trial counsel
"engaged in a sustained and deliberate effort to divert
the jury's attention from the facts and the law."
The court noted that Gilbert's trial counsel, in his
closing arguments, made "repeated attempts to equate
plaintiff with the victims of the Holocaust." The court also noted that the employer is under German
State v. Och (New
Jersey App Div 07/21/2004)
Och was convicted of
"wandering or loitering for the purposes of obtaining a
controlled dangerous substance," a "disorderly
persons" offense. Subsequent
to Och's guilty plea, Och's employer petitioned the court
seeking forfeiture of Och's employment pursuant to N.J.S.A.
trial court concluded that the employer was barred from
seeking forfeiture of Och's employment, since (among other
reasons) the issue was raised and dealt with at sentencing.
The court reversed, concluding that "the term
'raised' means more than a mere discussion of the issue of
forfeiture at the time of verdict, plea or conviction,"
and that "the issue of forfeiture was never 'raised' ....
Park Officers Assn v. Pennsylvania Labor Relations Bd
(Pennsylvania Cmwlth 07/22/2004)
The public employer
discontinued wage increases that were mandated by an expired
collective bargaining agreement (CBA).
The Pennsylvania Labor Relations Board (PLRB) concluded
that the discontinuation was not an unfair labor practice,
rejecting the union's argument that the employer altered the
"status quo." The
PLRB reasoned that "status quo" in this context
means freezing wages at the moment a CBA expires.
The PLRB also rejected the union's "past
The court affirmed.
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