Sunday, October 23, 2005

(Non-) Tort of the Week: Employment Lawyers are Entertaining

Last week, I took a day off from school and attended the state Bar Association's annual Labor and Employment Law CLE (Continuing Legal Education). I had to make excuses to my Contracts professor (who asked me if I'd been sick and then pronounced the CLE "a good excuse"), but it was worth it.

Mainly, what lawyers do at this kind of CLE is review the year's new case law. At the Labor and Employment Law CLE, this means a lot of time spent making fun of "Neanderthal managers." It was a defense attorney making that joke, a guy who's made his living since 1988 arguing FOR the employers of the Neanderthal managers. Evidently that makes one exhausted and cynical, and you just wish that people would stop being such fucking morons and behave like decent human beings, already.

Other interesting learnings from the CLE:
  • In news sure to gladden Mike's heart, the Ninth Circuit found, in Head v. Glacier Northwest Inc. 413 F.3d 1053, that reading is a major life activity under the ADA.
  • The Ninth Circuit used a "reasonable Arab" standard to find hostile environment when a supervisor refused to call the Plaintiff by his real name (Mamdouh) and instead insisted on calling him "Manny." When Mamdouh suggested that maybe the supervisor would have an easier time with his last name (Hakem), the supervisor started calling him "Hank." As a defense, the employer asserted that neither "Manny" nor "Hank" was actually a racial slur. In the words of the presenter, "The Ninth Circuit was not impressed by that argument" and found for the plaintiff.
  • In Tellis v. Alaska Airlines 414 F.3d 1045, the Ninth Circuit found that Alaska Airlines was justified in firing an employee who took FMLA leave to care for his pregnant wife, but instead took a four-day cross-country trip to pick up a new car, missing the birth entirely. The employee asserted that he did "care for" his wife by calling her on his cell phone during the trip. The court wasn't buying it.
  • In Al-Safin v. Circuit City Stores, Inc., the Ninth Circuit cut to the chase and ruled that Circuit City is the weaselliest employer on the West Coast. OK, not really, but the court found YET AGAIN that Circuit City's arbitration agreement was "unconscionable * * * because (1) it required employees to forgo essential substantive and procedural rights, and (2) the clauses regarding coverage of claims, remedies, arbitration fees, cost-splitting, the statute of limitations, class actions, and modifications rendered the agreement excessively one-sided." There are about a billion Ninth Circuit cases invalidating Circuit City's odious employee arbitration clauses, but every time, Circuit City's attorneys turn around and draft another one. You just can't keep those guys down. I'm sure we can expect another Circuit City case sometime in 2007. Writers of future casebooks will refer to this period as "The Circuit City Era."

I think the best thing about the CLE was the extremely terse and witty briefs they gave us for all these cases. I want to find out who wrote the briefs for the Ninth Circuit cases and go worship at his/her feet.


At 5:30 PM, October 24, 2005, Blogger WordzGuy said...

>, that reading is a major life activity under the ADA.

As in, if I am rendered unable to read by the negligent practices of my employer, I am due workers' compensation? Or that it is the obligation of an employer, in keeping with the ADA, to post information in non-textual ways?

As for the first, I would surely not wish to be disabled in such a way as to make reading impossible. That would ... suck.

-- Mike

At 10:27 PM, October 24, 2005, Blogger ohplease said...

Hmm. The ADA is confusing. To count as disabled under the ADA, you have to be impaired in one or more "major life activities." But you also have to be able to do your job with reasonable accommodations. So if you were rendered unable to read (by any cause, work-related or no), but were somehow still able to do your job with some kind of reasonable accommodation (having someone read TO you? who knows...) I think your employer would have to give you the accommodation, rather than laying you off.

But the editor who can't read--that's kind of boggling. I think in that case the employer would argue that there was no reasonable accommodation.


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