5th Circuit Holds Faragher/Ellerth Affirmative Defense Not Available When Harasser is Proxy for Company

Declining an invitation to read the Faragher/Ellerth decisions narrowly, the 5th Circuit held that the affirmative defense is not available when the harasser is at a high enough level so that his or her conduct is a proxy for the conduct of the company. Under such circumstances, the company is vicariously liable. Ackel v. National Communication, Inc. (5th Cir. 8/1/03) [pdf]. In making this determination, the court noted it was following the lead of the 7th Circuit in Johnson v. West (7th Cir. 2000). The three judge panel, including a 9th Circuit judge sitting by designation, reversed a summary judgment and remanded to the trial court for a determination as to whether or not the alleged harasser was in fact a proxy for the company.



In this case, the harasser was the general manager, 2% stockholder and member of the board of directors of the employer, Fox 29 in Lake Charles, LA. Although the defendant had maintained that with only 2% stock ownership he could not be a proxy, the court held that ownership was irrelevant, it was his position of control and authority that would determine his status.



The court did reaffirm the 5th Circuit's position that paramour discrimination is not a viable cause of action because it is not based on gender, but on favoritism which impacts both sexes equally. Additionally, the court upheld the summary judgment for the retaliation claims.



Although not applicable to a large number of cases, for sole owners and very high level executives in companies, this case makes definitive what had appeared clear from the original Faragher/Ellerth decisions, your conduct puts the company at risk, beyond the saving grace of a well implemented sexual harassment program.

Eyebrow Ring v. Prohibition On Discrimination On Basis of Physical Appearance - Who Wins?

Madison, Wisconsin has its own Title VII type ordinance which includes physical appearance as a protected category. Sam's Club's prohibition against nose rings or other facial jewelry ran squarely against Tonya Maier's desire to wear a ring through her eyebrow to work, which ultimately led to her discharge. Although she convinced the Madison Equal Opportunities Commission that she had been discriminated against, when the Commission pursued judicial enforcement on her behalf, it was not so successful. The trial court, after considering expert testimony on the type of image that Sam's Club was trying to present (conservative), found it had established the affirmative defense in the statute. Sam's Club v. Madison Equal Opportunities Commission (Wisc. Ct. App. - 7/24/03). The defense allows rules if there is a reasonable business purpose.



Maybe it's the heat of summer, but it sure seems that there are a lot of cases recently which do nothing to bolster one's confidence that we have our priorities straight in the ways judicial resources get allocated. Which is not a comment at all on the judiciary who must deal with what comes before them.

EEOC Study on Women of Color

HRnext has an overview of the EEOC's in house study of how women of color have fared in the workplace. The whole report is available here from the EEOC website.

Employer's Lawyer Confirmed To The Bench

Not all that often that one of our own, a management side employment lawyer, is confirmed to the bench, but the Senate's action late last night did just that when it confirmed Xavier Rodriguez, to the United States District Court for the Western District of Texas. He will sit in San Antonio, replacing Judge Ed Prado, who is now on the Fifth Circuit. Judge Rodriguez had earlier served on the Texas Supreme Court. The Austin American Statesman has this report on his confirmation and his biography submitted to the Senate can be found here. Supported by both sides of the employment bar, Judge Rodriguez is an excellent addition to the bench.

HIPAA, ADA, General HR Security A Concern: Try Biometric Access

Or at least check with Brevard County to see how it is working for them. They are one of the first in the country according to this article in InformationWeek. The particular technology being used, bioLock, uses fingerprints to control access to sensitive documents.

Can't Wait For "Bullying" Cause of Action to Cross the Atlantic

He said sarcastically, in light of yesterday's near 1 million pound award to a former broker employed in the London office of Cantor Fitzgerald, the U.S. company heavily hit in the 9/11 attack on the World Trade Center. The report on the website of Croner Consulting sounds closest to the U.S. tort of intentional infliction of emotional distress or outrage. It is a slippery slope when we start using lawsuits to determine what is civil behavior and what is not. Of course we started on that course some time ago.

IBM Loses Round One On Cash Conversion Pension Plan

The trial court has now given its view that IBM's 1995 conversion to a cash-balance plan was illegal. The Forbes headline, IBM loses pension plan lawsuit, will appeal is the succinct bottom line. For more in depth coverage check out the first of what I am sure will be many more posts in the Benefitsblog.