Pew Research Poll Shows Americans Like Unions A Lot Less, February 25, 2010
A recent poll by the Pew Research Center found the only 41 percent of the American public holds a favorable opinion of organized labor. When the survey was conducted two years ago, unions got a 58 percent favorable rating.
The Pew Research Center is a nonpartisan fact tank that provides information on the issues, attitudes and trends shaping America and the world through public opinion polling. The poll can be found at http://pewresearch.org/.
More Rain on Toyota's Sunroof? February 17, 2010
It is a chore to keep track of the AFL-CIO's various boycotts and programs. Still, over the years, "Buy American" has become a labor mantra, especially where the purchase of automobiles is concerned. Toyota decided to adjust to recent market setbacks by closing one of its manufacturing plant. In response, United Auto Workers Vice President Bob King said that UAW members would not buy another Toyota. Likewise, Teamsters Regional Vice President Rome Aloise confirmed that Teamsters "won't buy a Toyota . . . ." Somehow that seems a little like hearing Sarah Palin threaten that she will not vote for Barack Obama in 2012.
Common Sense Invades the Law, February 15, 2010
John Hyland is an attorney who was laid off in connection with a reorganization at AIG. Hyland attributed his lay off, after some 16 years of employment, to his age (56). Hyland's primary evidence of age discrimination was a statement by his supervisor at one point that Hyland was "the 'old man' of the operation." Hyland's case was dismissed at the trial court level. The Third Circuit Court of Appeals upheld the decision, writing:
[I]t would be unfortunate if the courts forced the adoption of an employment culture that required everyone in the structure to be careful so that every remark made every day passes the employment equivalent of being politically correct lest it be used later against the employer in litigation. . . . [I]t is necessary to remember that the age discrimination laws are not intended to remedy all of the possible wrongful adverse employment decisions by an employer . . . .
A refreshing breeze in the jungle of employment law.
EEOC Ordered to Pay Employer’s Legal Fees, February 15, 2010
I love a story with a happy ending. And these don’t come along very often. The EEOC sued an interstate trucking company in a class action sexual harassment suit, in which the Commission ultimately admitted to never having even investigated or attempted to settle the claims of some alleged victims, although it professed a “good faith belief” that every one of the more than 250 women for whom it sought relief had viable claims.
First, the court dismissed with prejudice EEOC's class allegations of sexual harassment because – I am not making this up – the EEOC had sued the company under wrong section of Title VII. Second, the court reduced the number of aggrieved individuals claimed by EEOC to 67 former or current employees. Third, the court dismissed EEOC's complaint in its entirety because the EEOC had never investigated, issued probable cause findings on, or attempted to conciliate charges relating to those 67 women.
In its August 2009 order (which the EEOC has appealed), the district court acknowledged that dismissal was a “severe but appropriate remedy” for EEOC's conduct because to rule otherwise “would ratify a ‘sue first, ask questions later' litigation strategy on the part of the EEOC, which would be anathema to congressional intent.”
Now, the court has required the EEOC to pay $4.5 million in legal fees to the company. Finding that the EEOC’s lawsuit was “frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith” under Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the court held that the “EEOC's failure to investigate and attempt to conciliate the individual claims constituted an unreasonable failure to satisfy Title VII's prerequisites to suit.” EEOC v. CRST Van Expedited Inc., No. 07-CV-0095 (N.D. Iowa Feb. 9, 2010). The company had used biglaw firm Jenner & Block (whose rates ranged from $325 to $825 an hour) and sought to recover over $7.5 million. Instead, the court used its discretion to award fees based on the rates charged by the company’s local counsel.
No Need to Accommodate an Unreasonable Request, February 1, 2010
You have an employee who is a bully. One day, in his office, he is so abusive to a co-worker that you are forced to fire him. But wait, the employee says, he’s disabled (a diabetic), and that when a hypoglycemic episode occurs he “rambles, repeats himself, has fuzzy thinking, he is not sharp, and he says things which he does not mean.” The employee says that because his diabetes has a substantial impact on his ability to interact with people at work or at home, you should not have fired him and that, as his employer, you had an obligation to move his office to a remote location so he could interact “peacefully” with his co-workers.
Affirming the entry of summary judgment for the employer, the Eleventh Circuit recently said that the employer in this circumstance did not fail to accommodate the employee, because the requested accommodation was not reasonable. McKane v. UBS Fin. Servs. Inc., No. 09-13011 (11th Cir. January 21, 2010). The court held that the evidence did not show that moving the office to a remote location would have completely obviated the need for the employee to peacefully interact with co-workers, and as a result, his requested office relocation did not constitute a reasonable accommodation.
Moreover, “[t]he ADA provides no cause of action for failure to investigate possible accommodations,” said the court, and “an employer's failure to investigate does not relieve the plaintiff of the burden of proving the availability of a reasonable accommodation.” It stressed that “A contrary holding would mean that an employee has an ADA cause of action even though there was no possible way for the employer to accommodate the employee's disability.”
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