OK for Dentist to Fire Object of Desire

December 29, 2012 by Leave a Comment

flossIn a small office, an employee often has no where to go  when she is mistreated by an employer.

The perils of this predicament are amply demonstrated in a recent ruling by the Supreme Court of Iowa.

The all-male Court  ruled that a dentist did not violate sex discrimination laws when he fired his long-time dental assistant because he (and his wife) was afraid he would have an affair with her.

The  Court upheld a lower court’s grant of summary judgment  in the case of Nelson v. Knight, No. 11–1857 (Dec. 21, 2012). This means the Court concluded  there was absolutely no way a jury could decide against Dentist James H. Knight and hold in favor of his assistant, Melissa Nelson.  Therefore, the case was dismissed before  trial.

Knight said he fired  Nelson, who had worked for him for ten years,  after his wife insisted that Nelson had to go. He gave Nelson one month’s severance.

 Knight admits that on several occasions he asked Nelson to put on a lab coat because her clothing was too tight, revealing and “distracting.”  Nelson denied that her clothing was tight or in any way inappropriate and said she complained to Knight at one point that his criticism was unfair.

 Nelson also recalls that  Knight once texted her to ask how often she experienced an orgasm. Nelson did not answer the text. The Court found it significant that  Nelson did  not remember ever telling  Knight not to text her or telling him that she was offended.

 When Knight’s wife found out that her husband and Nelson had been  texting each other, she confronted her husband and demanded that he terminate Nelson’s employment.  The Court finds it significant that Knight and his wife  consulted with the senior pastor of their church, who agreed with the decision.

After the firing, Knight told Nelson’s husband that nothing was going on but that he feared he would try to have an affair with her down the road if he did not fire her.

Nelson charged that Knight had discriminated against her on the basis of sex in violation of the Iowa Civil Rights Act. She contended that she would not have been fired if she were male. Nelson did not raise the issue of sexual harassment.

 The Court states in its decision that the question  to be decided was “whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction.”   In this case, the Court held that  Knight’s decision was driven by individual feelings and emotions regarding a specific person. The Court concluded Knight’s decision was not gender-based or based on factors that might be a proxy for gender.

The Court states that an employer does not violate sex discrimination laws by ” treating an employee unfairly so long as the employer does not engage in discrimination based upon the employee’s protected status.”

 The Court did concede that it might be possible to infer that gender was an issue if an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues.

 So if  Knight repeatedly fires future assistants because he thinks he might want to have an affair with them, or if Knights’ wife demands that he fire future assistants because she thinks he might want to have an affair with them,  presumably a Court could find discrimination  on the basis of sex.

Meanwhile, Melissa Nelson is unemployed, with one month’s severance.

This may not come as a surprise to some readers but, according to the Court’s web site, there are no women justices on the Iowa Supreme Court. The seven justices are Chief Justice Mark S. Cady, David S. Wiggins, Daryl L. Hecht, Brent R. Appel, Thomas D. Waterman, Edward Mansfield and Bruce Zager.  Justice Mansfield wrote the opinion.
Filed Under: DISPATCHES, SEXUAL HARASSMENT, STATE, TITLE VII Tagged With: , , , , , , , , , , , ,

Last Laugh? Not for NY Taxpayers

January 31, 2012 by Leave a Comment

My Boss’s Voice Made Me Vomit!

That was the headline in a  2/15/11 story in The New York Post.

The story was about a lawsuit filed by New York Housing Authority Superintendent Anthony Dingles against  the New York City Housing Authority and his boss, Demetrice Gadson. Dingles alleged Gadson began a campaign of constant verbal attack after he complained to higher ups about her poor management techniques. As a result, he said he literally became sick when heard her voice. He said the stress forced him to get medication for his stomach and intestinal system, inflamed his bleeding prostrate and he was so beaten down emotionally that he began therapy.

The New York Post’s web blog carried mocking comments: “He’s obviously not married, or he’d be used to it,” and “Where are the Sopranos when you need them?”  The Post gave the incident its annual Golden Stapler “As the Stomach Turns” award.

After a nine-day trial, a federal jury in New York concluded in December that Gadson violated the Dingles civil rights by filing frivolous disciplinary charges against him in retaliation for complaints that were protected by the First Amendment of the U.S. Constitution.

The jury awarded Dingles only  “nominal” damages of $1.  However,even that small amount is a disaster for the Housing Authority because it entitles the attorneys who represented Dingles, Bennitta Joseph and Alexander Coleman, to collect attorney fees from the city.  Such fees could reach up to $450,000.  And this doesn’t take into account what the city paid to defend Gadson, as well as all of the lost work time, absenteeism, increased health costs, etc.

Taxpayers of New York City ultimately will pay the bill for Gadson’s bullying. It might have been avoided. The New York Senate passed a workplace anti-bully bill in 2010 but it subsequently died in the House.

Meanwhile, Dingles, who still works for the housing authority, succeeded in protecting his job and no longer is supervised by Gadson.  Which is not a bad result for Dingles.

Filed Under: DISPATCHES, STATE, WORKPLACE BULLYING Tagged With: , , , , , , ,

Ron Paul to sexual harrassment victims — Go home?

January 25, 2012 by Leave a Comment
Ron Paul to sexual harrassment victims — Go home?

Unlike Herman Cain, his former competitor in the GOP presidential race,  Ron Paul is not facing accusations of sexual harassment.

However, Paul, a member of the U.S. Congress from Texas, may be accused of having stunningly little understanding of the problem.

Earlier this month, Paul told Fox News he is standing by statements he made in a 1987 book, Freedom Under Siege, that workers who are targets of sexual harassment must bear some responsibility for the abuse and do not require any special legal protection.

“Why don’t they quit once the so-called harassment starts?” wrote Paul. “Obviously the morals of the harasser cannot be defended, but how come the harassee escapes some responsibility for the problem about sexual harassment in the workplace.”

Earlier this month, host Chris Wallace of  Fox News Sunday asked Paul whether he still agreed with those 1987 statements.  Paul said he does, adding that neither verbal and physical harassment  warrants a federal law.

Regarding the issue of verbal harassment, Paul said:  “If it’s just because somebody told a joke to somebody who was offended, they don’t have a right to go to the federal government and have a policeman come in and put penalties on those individuals. They have to say maybe this is not a very good environment. They have the right to work there or not work there.”

Paul said workers who are victims of physical sexual harassment also do not require protection from a federal law because there already are laws prohibiting assault and rape.

“Because people are insulted by rude behavior, I don’t think we should make a federal case about it. I don’t think we need federal laws to deal with that. People should deal with that at home,” he said.

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment, which is a form of sex discrimination. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

The U.S. Supreme Court repeatedly has said that Title VII doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious.  Harassment becomes illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

In other words,  to be actionable, victims of sexual harassment must feel their very freedom to work  is … under siege.

Filed Under: DISPATCHES, SEXUAL HARASSMENT, STATE Tagged With: , , Chris Wallace, , Freedom Under Seige, Herman Cain, , , Ron Paul, , , U.S. Presidential Race

U.S. Ranks Low in Access to Justice in Civil Courts

December 21, 2011 by Leave a Comment
U.S. Ranks Low in Access to Justice in Civil Courts

 

It is very difficult for workers to combat the epidemic of workplace bullying and abuse in the United States.

For one thing, unlike many industrialized countries, there is no law or regulatory scheme in the United States prohibiting workplace bullying.

With respect to the laws that do exist and which might offer workers some protection, the American civil justice system is simply out of reach for many Americans.  Most lack access to justice.

The World Justice Institute’s 2011 study of legal systems across the globe shows the United States ranks far behind other countries on providing an accessible legal system to the public.

The group’s report,  Rule of Law Index, analyzed nine different factors of legal systems around the world to gauge how well they function and serve each country’s residents.

In assuring access to the legal system, the U.S. ranked 21st out of the 66 countries included in the study. The U.S.’s lowest scores came from the “Access to Legal Counsel” and “Access and Affordability of Civil Courts.”

When the World Justice Institute’s study compared the U.S. to 23 other countries with similar average incomes, the U.S. ranked 20th, coming in ahead of only Croatia, Poland, and Italy. The “high income” countries (like the U.S.) with the most accessible civil justice systems are Netherlands, Germany, Sweden, New Zealand, Norway, Estonia, Austria and Japan, Belgium and the United Kingdom.  (So, Estonia beats us again!)

In the area of affordability of legal counsel, the U.S. ranked 52nd out of the 66 countries studied. “Legal assistance is expensive or unavailable, and the gap between rich and poor individuals in terms of both actual use of and satisfaction with the civil courts system remains significant,” the report’s authors said.

There also is a general perception in the U.S. that ethnic minorities and foreigners receive unequal treatment from the police and the courts.

The bottom line is that American workers have a much more difficult time than workers in other countries accessing the civil justice system to prevent employers from engaging in discrimination or workplace bullying.

The World Justice Project (WJP) is a multinational and multidisciplinary effort to strengthen the rule of law throughout the world. The WJP Rule of Law Index  is a quantitative assessment tool designed to offer a detailed and comprehensive picture of the extent to which countries adhere to the rule of law in practice. Data comes from a global poll of the general public and detailed questionnaires administered to local experts.

Filed Under: DISPATCHES, FEDERAL, STATE Tagged With: , access to legal counsel, Austria, Belgium, civil justice systems, Croatia, Estonia, gap between rich and poor, Germany, Italy, Japan, Netherlands, New Zealand, Norway, Poland, Rule of Law Index, Sweden, the United Kingdom, world justice, World Justice Institute