December Legal Roundup: Must You Act 'American'

Here’s the latest on some employment-related cases that have gone before the courts:

National-Origin Discrimination | Sex Discrimination | Disability Discrimination | Employment Contracts | National Labor Relations Act and Arbitration | Benefits | Legislation and Administrative Action

National-Origin Discrimination

Asking employees to model Texas business culture is not national-origin discrimination.

A university administrative employee of Vietnamese origin was critiqued due to complaints about rudeness toward others. She was told that employees were expected to exhibit a friendly “Texas business culture” by looking at people, listening in conversations and refraining from looking away or making expressions of boredom, irritation, disinterest or contempt toward others.

She was later terminated, and she filed a suit for national-origin discrimination, citing the Texas-culture direction as evidence of bias.

The court found no discrimination. The standard applied to all employees, whether from Vietnam or New York or Chicago. It was not focused on national origin, nor did it require the plaintiff or any other person to conform to any national origin or racial stereotype. It simply required polite behavior according to business norms prevalent in the area served by the organization.

Nguyen v. University of Texas School of Law (5th Cir., 2013)

Hidden position leads to case.

Usually one has to apply for a position in order to challenge not being hired. In this case, though, the court allowed a U.S. citizen to sue for being denied the opportunity to apply for a job that was never announced and was kept secret until filled by a Korean.

The plaintiff worked in a U.S. plant of a Korean-owned auto-parts manufacturer. She was well qualified for a promotion. After an Assistant Manager position was suddenly filled, the HR Manager happened to mention that the company “refused to even consider American candidates” and that the Korean executives had rejected even looking at credentials of qualified American employees for the position.

This created a viable national-origin discrimination case.

Kidd v. Mando American Corporation (11th Cir., 2013)

Sex Discrimination

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Family resigns due to harassment of daughter.

A court has validated the harassment case filed by a father on behalf of his 16-year-old daughter. Father, mother and daughter all worked at an Ohio amusement park. The owner allegedly questioned the 16-year-old about her sexual activity and then propositioned her to accompany him across the Ohio River to a Kentucky hotel to “have real sex with a man” instead of boys.

She told her parents. The whole family quit, and the suit was filed on behalf of the teenager.

The court found that though there was only one alleged incident, it was “sufficiently severe” to create a viable case under the state’s antidiscrimination laws.

Ward v. Oakley (Ohio Ct. App., 2013)

Title IX does not cover employee sexual harassment; school district dismissed from suit, but supervisor can be personally liable.

A school cafeteria worker was allegedly harassed by the head custodian, including overt sexual language and overt sexual touching of private body parts. This occurred several times, over the employee’s objections. The head custodian was terminated following an investigation.

The cafeteria worker then filed suit under Title IX of the Civil Rights Act, which prohibits sex discrimination in educational institutions, and also filed state tort actions for assault, battery, emotional distress and negligent supervision.

The court voided the Title IX and negligent-supervision case against the school district, and dismissed it from the case. It ruled that Title IX is not a sexual-harassment remedy for employees, only for students; the employee should have filed a Title VII employment-discrimination case instead. However, the court continued the liability case against the head custodian as a named individual, in his personal capacity. He can be liable for damages out of his own personal assets.

Hollis v. Metro School District of Pike Township and Rogers (D.C. S. Ind., 2013)

Disability Discrimination

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Temporary flexible schedule should have been granted.

Photo by Shutterstock.

A barista at a Starbucks store experienced off-duty complications with his seizure disorder. His doctor placed him on strictly limited work hours for a month of treatment in order to stabilize the condition. When he informed management of the one-month limitation, he was informed that alternating early-morning opening and late-evening closing were essential functions of the job. Since his medical limitations precluded these essential functions, he could not continue employment.

In the resulting ADA case, the court found that Starbucks should have granted the temporary schedule accommodation. Other baristas had flexible, variable schedules and could have covered for a short time without any undue hardship. In fact, that is exactly what the store did do after it discharged the plaintiff; it simply had others fill in for the opening and closing duties for a lot longer than a month.

Cairo v. Starbucks Corporation (D. Mass., 2013)

Employment Contracts

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Conflicting policiesemployee-handbook disclaimer voids company’s arbitration agreement.

A company required all employees to sign a contract mandating arbitration of all disputes. However, its employee handbook clearly stated that there is no contract and that all employment is “at will.” An employee sued the company for discrimination.

The company tried to get the case dismissed and force it into arbitration under the “contract.” However, the court found that the company’s own handbook “no contract” disclaimer superseded and voided the arbitration agreement, and allowed the case to continue in court.

Johnson v. Vatterott Educational Centers, Inc. (Mo. Ct. App., 2013)

National Labor Relations Act and Arbitration

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Officer fired for flirting (pulling over driver in order to make advances).

An officer responding to an auto incident engaged in flirtatious conversation with the female motorist. The officer later called and texted her to solicit a date. She texted that she was uncomfortable with his attentions. Then the officer waited at her workplace and pulled her over as she left, allegedly for failing to put on the turn signal. His conversation turned sexual and about dating.

She recorded this on her phone and asked him to stop. She then reported the incident to the police department. The officer continued his traffic-stop flirting. The next incident was also recorded and given to the department. The department fired the officer for sexual harassment.

The officer filed a grievance, claiming the city failed to do progressive discipline.

The arbitrator rejected this argument, finding the officer’s conduct was egregious and undermined public confidence in the police.

In re Law Enforcement Labor Services, Inc. and City of Maplewood, Minnesota (2013)


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A real zombiethe living dead.

A man deserted his family in the 1980s. He totally disappeared. After several years, his wife went to court to have him declared dead, so she could get SSI, his employment-provided insurance and other benefits accounts to support raising their children.

Then, after more than 30 years of absence, he resurfaced. He petitioned the court to have his death decree reversed so he could collect his own Social Security. The ex-spouse opposed, on the grounds that she would have to repay all the SSI and employment benefits she used to raise the kids.

The judge decided in her favor, ruling, “I don’t know where that leaves you, but you’re still deceased as far as the law is concerned.” The man may be walking around, but he is legally dead.

In Petition of D. Miller (Ohio Probate Ct., 2013)

Legislation and Administrative Action

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Senate passes ENDAsexual orientation/gender identity antidiscrimination act (will probably be tabled in House).

The Senate passed a bipartisan amendment to add sexual orientation and gender identity as protected status under EEO laws. The House of Representatives’ controlling Republicans have already announced that the bill will go nowhere, stating that it is an unnecessary law.

Wisconsin tries to have it both ways on arrest/conviction records.

Following the lead of the EEOC’s guidelines, many states are “banning the box,” prohibiting employers from asking about criminal records on employment applications. However, some states are imposing even more requirements to actively explore applicants’ criminal records. (Texas has even sued the EEOC to challenge its guidelines.)

Now Wisconsin seems to have gone both ways. The legislature just passed a law requiring fingerprinting applicants for childcare jobs because a mere name, DOB, SSI, etc., criminal search is not enough. At the same time, the legislature is considering AB-342 and SB-257 prohibiting consideration of the conviction record of an applicant for employment before the applicant has been selected for an interview.

This bill provides that employment discrimination because of conviction record includes requesting an applicant for employment, on an application form or otherwise, to supply information regarding conviction record or otherwise inquiring into or considering the conviction record of an applicant for employment, before the applicant has been selected for an interview by the prospective employer.

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached

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