Tom Appeals Blog

News and Observations About Law and Society

"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein

Central Florida "Super Region"

Posted: March 28, 2010 Filed under: Uncategorized

This article in First Monday Magazine discusses the future of the Central Florida economy. The article provides an interesting perspective based on facts about the current gross domestic product that are not widely appreciated outside the business communities of the Tampa and Orlando regions. For example, the article states, “Currently, the Tampa Bay Region has the 19th largest gross domestic product in the United States. The Central Florida Region is right behind, ranking 20th. Combined, the 13-county ‘super region’ has the 10th-largest economy in the United States, with the potential to be a major global economic competitor. Many forecasts, in fact, suggest that by the year 2050 Tampa Bay and Central Florida will become a single economic region and Florida’s dominant economic driver.”

Teenager and Mother in "Sexting" Case Have Protected 1st and 14th Amendment Interests

Posted: March 19, 2010 Filed under: Case Law, Law-Related News, Uncategorized

In a first-of-its-kind decision, the United States Court of Appeals for the Third Circuit has determined that a teenager and her mother are likely to prevail on First and 14th Amendment claims brought after a local prosecutor threatened to prosecute the teen for “sexting.”

Miller v. Mitchell arose after the district attorney threatened to prosecute the teenager unless she attended a class and wrote an essay about what she had done. Although topless photos of the girl were found on other students’ cell phones, there was no evidence that the girl possessed or distributed the photo, and no probable cause supported the prosecution. The court wrote, “We agree that an individual district attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles.”

Coercing the teenager to write an essay “explaining how [her] actions were wrong,” when she did not believe appearing in the photo was wrong, constitutes “compelled speech” in violation of First Amendment to the U.S. Constitution. Coercion of the mother, on the other hand, violated fundamental parental rights under the 14th Amendment, the opinion says.

As a result of the Court’s decision, an injunction barring the threatened prosecution remains in effect. The court did not decide the larger question of whether sexting photos are, themselves, free speech protected by the First Amendment.

11th Circuit Agrees to Rehear Home Depot Case En Banc

Posted: March 14, 2010 Filed under: Case Law, Employment Law, Law-Related News, Uncategorized

I wrote a blog post about Corbitt v. Home Depot U.S.A., Inc. in July 2009, shortly after a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued its decision. In its original opinion, the Eleventh Circuit reversed a trial court decision that handed Home Depot an across the board victory. The court affirmed, however, by a 2-1 vote, a trial court determination that the plaintiffs, two Home Depot store managers, failed to establish a sufficient claim for sexual harassment. The dissenting judge would have required the trial court to submit the entire case to a jury.

After my first blog post, the same three-judge panel issued a revised, 85 page opinion, on December 4, 2009, that reached the same outcome on the male managers’ sexual harassment claims.

Now, after a law professor at the University of Washington School of Law filed a petition for writ of certiorari with the Supreme Court of the United States, docket number 09-1063, the Eleventh Circuit has agreed to rehear the case en banc. That means all 11 judges on the Eleventh Circuit will decide the case. En banc decisions occur, but not often. The Eleventh Circuit’s decision to hear the Corbitt case en banc is especially interesting because the decision comes on the heels of another en banc decision in an employment law case, Reeves v. C.H. Robinson Worldwide, Inc., which I wrote about last week.

Look for an fascinating opinion, regardless of the outcome.

11th Circuit Unanimously Endorses Hostile Work Environment Claim

Posted: March 10, 2010 Filed under: Uncategorized

Ingrid Reeves, a former employee of C.H. Robinson Worldwide, Inc., scored a pivotal victory in a decision unanimously endorsed by all 11 judges of the United States Court of Appeals for the Eleventh Circuit. The circuit court reversed a lower court’s ruling that dismissed Ms. Reeves’s hostile work environment claim on the basis that the derogatory language she endured at work was not directed at her in particular. A hostile work environment is a form of prohibited discrimination when the hostility relates to a protected classification, such as gender, race, religion, disability, and so on.

The Eleventh Circuit’s opinion in Reeves v. C.H. Robinson Worldwide, Inc. is noteworthy for several reasons:

First, because it involved the entire court rather than the usual panel of three judges;

Second, because of its unanimity;

Third, because of the clarity it brings to the law governing hostile work environment claims, such as clarifying that activities need not be directed at the complaining party in particular and that “disparate treatment” is the proper framework for evaluating hostile work environment claims;

Fourth, because of its frank discussion of the off-color comments and conduct Ms. Reeves endured and to which she repeatedly objected; and,

Fifth, because the court allowed Ms. Reeves to go forward with her case even though she voluntarily resigned her position at C.H. Robinson.

Whether a reasonable person could find the environment hostile or abusive was especially important to Ms. Reeves because a person who voluntarily quits her (or his) employment generally may not sue for prohibited discrimination unless no reasonable person could work in the discriminatory environment.

As is often true in law, context is everything. Thus, the Reeves court prefaced its opinion by saying,

We recite the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose. We do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created “an environment that a reasonable person would find hostile or abusive.” (Citations omitted.)

Although Reeves represents a victory for employees, the Eleventh Circuit was careful to reaffirm broad general rules that impose a rigorous burden of proof on employees suing because of a hostile work environment. For example, the court identified the “bedrock principle” “that not all objectionable conduct or language amounts to discrimination under Title VII.” “[G]eneral vulgarity or references to sex that are indiscriminate in nature will not, standing alone, generally be actionable. Title VII is not a ‘general civility code.’”

Not even harassment between men and women is automatically discrimination when the words used have sexual content or connotations, the court said. Rather, the test is “is whether ‘members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’”

According to the Reeves court, several of the core principles of employment discrimination law are:

first, to prove a hostile work environment under 42 U.S.C. § 2000e-2(a)(1), a plaintiff must show that her employer discriminated because of her membership in a protected group, and that the offensive conduct was either severe or pervasive enough to alter the terms or conditions of employment; second, Title VII is not a civility code, and not all profane or sexual language or conduct will constitute discrimination in the terms and conditions of employment; third, workplace conduct cannot be viewed in isolation, but rather is to be viewed cumulatively, and in its social context; and fourth, a plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out in the offensive conduct.

Several lessons can be learned from the Reeves decision, including, but not limited to, the following:

• Employees should carefully document all hostile comments and activities that occur in the workplace, including dates, times, persons involved, and names of witnesses;
• Employees should focus on severe and pervasive comments and activities that are both hostile and addressed specifically to a protected group (such as a specific gender, race, religion, the disabled, and so on);
• Employees should read and follow all of the employer’s procedures for raising and complaining about prohibited discrimination and hostile or abusive conduct and comments;
• Employers should listen to employees who raise concerns and complaints and should carefully investigate and, if appropriate, address and remedy, the concerns and complaints registered; and
• Employers should not treat complaining employees differently, should not take adverse employment action against complaining employees without appropriate documentation of the reasons for the adverse action, and should not retaliate against employees who make claims in good faith.

This synopsis of Reeves v. C.H. Robinson Worldwide, Inc. is not intended to be, and should not be considered as, a substitute for reading the Eleventh Circuit’s opinion. Employers and employees alike are likely to find the court’s opinion enlightening and are well advised to heed the court’s instruction.

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