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The 10 Most Bizarre Employment Cases of 2004
Gerald Skoning
The National Law Journal
04-20-2005


The wacky employment case survey for 2004 has a distinctly international flavor. In an increasingly global economy, multinational corporations likely will face even more bizarre developments in the employment law area.

THE LONE RANGER RIDES AGAIN

10. The Nova Scotia Court of Appeal in In re Dorothy Kateri Moore upheld an agency ruling that Dorothy Kateri Moore, a Native Canadian from the Mi'kmaq tribe, was not discriminated against when her boss called her Kemosabe, the oft-used word from the 1950s show "The Lone Ranger." After spending an entire day watching reruns, the agency ruled that Kemosabe is not derogatory. The Court of Appeal affirmed. Now the Human Rights Commission has asked the Supreme Court of Canada to review the decision. Hi-Yo, Silver!

SENIOR MOMENT

9. Justice Marian P. Opala, 83, an Oklahoma Supreme Court judge, has sued his eight colleagues in federal court in Opala v. Oklahoma Supreme Court, charging them with age discrimination for changing a court rule to allow the chief justice to serve consecutive terms. The post had previously rotated every two years, and Opala would have been next in line. He argued that his age was a "significant factor in being passed over for" the post, which includes ceremonial duties and a $3,000 pay hike. Here come the judge ... making a federal case out of $3,000.

RAGE AGAINST ROUGE

8. Darlene Jespersen balked when the Nevada casino she worked for required women to wear makeup, which she claimed made her "feel sick, degraded, exposed and violated." She was fired and filed suit, pointing out that men only had to appear neat and clean. In upholding the decision dismissing her case, the 9th U.S. Circuit Court of Appeals reasoned in Jespersen v. Harrah's Operating Co. that she failed to prove the requirement was more of a burden than those imposed on male employees. One commentator observed that the case had seemed so much simpler, at first blush.

LUST TAKES ON MATTRESS FIRM

7. The 7th Circuit has ruled that punitive damages awarded to an employee in Lust v. Sealy Inc., a sex discrimination case, were excessive. Tracy Lust was promoted by Sealy to a position in its Madison, Wis., office two months after being passed over for a position in its Chicago office -- and shortly after she filed a charge with the Equal Employment Opportunity Commission. The court pointed out that her supervisor "had a history of making sexist remarks to Lust such as 'You're being a blonde again today.'" But the usually dour Judge Richard A. Posner, in a rare moment of levity, quipped: "Lust is blonde; Sealy points out irrelevantly that blondes are not a statutorily protected class, which will disappoint hair colorists."

COP DOES SAN DIEGO

6. The U.S. Supreme Court has ruled in San Diego v. Roe that a San Diego police officer who sold sexually explicit videotapes of himself in a police uniform during off-duty hours was not taking part in First Amendment-protected speech, and the city was justified in firing him. In a ruling without oral argument, the justices held that the officer was not "commenting on an issue of public concern" when he sold on eBay videotapes of himself in a police uniform stripping and masturbating.

EXORCISM HOUSE CALL

5. A Michigan appellate court in Howard v. Family Independence Agency has ruled that a state agency did not violate a social worker's First Amendment rights when it fired her for trying to perform an exorcism instead of calling 911 after a client had a seizure. While visiting a client, the client had a seizure, which Michelle Howard, a religious woman, decided was "demonic in nature." She prayed over the client and anointed her with water. The court ruled that she "was not terminated for merely praying at the office," but for violating agency rules. Amen to that.

'ACH DU LIEBER'

4. A German court in In re Helmut Hanf has rejected an unemployed car mechanic's claim for four brothel visits a month to ensure his "health and bodily well-being." Hanf sought $3,050 a month for the visits and pornographic videos. The court threw out the claim, saying that unemployment benefits already covered everyday requirements. Hanf has vowed to appeal (the state pays his legal costs). So much for the Socialist workers' paradise!

RAUNCHY WRITERS OF 'FRIENDS'

3. A California appellate court said it's an issue for the jury as to whether frank sex talk among writers at the network show Friends constitutes hostile-environment sexual harassment. In Lyle v. Warner Bros. Television Productions, Amaani Lyle, who worked as a writers' assistant, complained that the writers acted like "teenagers in a locker room," talking about masturbation, the best breasts and buttocks, and other potential themes for Friends episodes. The case is now set for decision by the California Supreme Court. Ah, the fine arts.

NO HIGH TEA AT THE SAVOY

2. When a male manufacturing employee with 35 years' seniority was asked to relinquish his seat to a woman who came to the plant to conduct an audit, he patted his knee and offered, "I have a place for you to sit right here." The company discharged him for violating its "zero tolerance" policy against sexual harassment. An arbitrator, in Lyon Workplace Products, ordered the employee reinstated, noting that his conduct was "typical of workplace behavior," and "the Auditor must realize that the shop floor is entirely unlike high tea at the Savoy."

INDECENT PROPOSAL, FOR REAL

1. In a sexual harassment suit filed in Orlando, Fla., Myers v. Central Florida Investment/Westgate Resorts, a former sales executive claimed that the owner offered her $1 million to have sex with him. Dawn Georgette Myers was engaged to her boss' son when the indecent proposal was made. She claims that after her boss divorced his first wife, he made sexual propositions that continued even after he remarried, when his new wife began asking her to join them for a m�nage � trois. Stay tuned.

Gerald Skoning is a senior partner at Chicago's Seyfarth Shaw.



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