Happy Ho Ho Holidays!

Posted on December 20, 2005 by Christopher McKinney
As you can probably tell, we are on an extended break from posting in early celebration of the holiday season. We want to take this opportunity to thank all of our readers and to wish you and yours the happiest of holiday seasons and a happy and prosperous new year!--
Virginia, your little friends are wrong. They have been affected by the skepticism of a skeptical age. They do not believe except they see. They think nothing can be which is not comprehensible by their little minds. All minds, Virginia, whether they be men's or children's are little. In this great universe of ours man is a mere insect, an ant, in his intellect, as compared with the boundless world about him, as measured by the intelligence capable of grasping the whole of truth and knowledge.Yes Virginia, there is a Santa Clause. He exists as certainly as love and generosity and devotion exist, and you know that they abound and give to your life at its highest beauty and joy. Alas! How dreary would be the world if there were no Santa Clause! It would be as dreary as if there were no Virginias. There would no childlike faith then, no poetry, no romance to make tolerable this existence. We should have no enjoyment, except in sense and sight. The eternal light with which childhood fills the world would be extinguished.Not believe in Santa Clause! You might as well not believe in fairies! You might get your papa to hire men to watch in all the chimneys on Christmas Eve to catch Santa Clause, but even if they did not see Santa Claus coming down , what would that prove.Nobody sees Santa Claus, but that is no sign that there is no Santa Clause. The most real things in the world are those that neither children nor men can see.

The New York Sun, September 21, 1897.
.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer
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Fifth Circuit makes it clear: Sexual harassment prima facie standard requires showing that conduct was severe OR pervasive, not both.

Posted on December 14, 2005 by Christopher McKinney
It has long been the law that "For sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'" Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)(emphasis added). In the Fifth Circuit, however, there has been long-running confusion within the district courts and various panels of the Court of Appeals on whether to apply the severe or pervasive standard as disjunctive or conjunctive. Compare Hockman, 407 F.3d at 326, 329 ("severe and pervasive"), and Shepherd, 168 F.3d at 874 (same (quoting Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996))), with Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir. 2005) ("severe or pervasive"), Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996) (same), Carmon v. Lubrizol Corp., 17 F.3d 791, 794 (5th Cir. 1994) (same).

In Molly Harvill v. Westward Communications, L.L.C. et al, Cause No. 04-40418 (5th Cir. December 13, 2005), the Court takes the issue squarely, acknowledges past confusion in the Circuit, and clarrifies that the rule in the Fifth Circuit is severe OR pervasive.
"The Supreme Court's decisions are controlling and we correctly stated the standard originally in Waltman v. International Paper, 875 F.2d 468, 477 (1989); therefore, subsequent incorrect statements of the test are not binding. See, e.g., H&D Tire & Automotive-Hardware, Inc. v. Pitney Bowes Inc., 227 F.3d 326, 330 (5th Cir. 2000) Contrary to being an irrelevant distinction, as Westward's counsel asserts, the requirement that a plaintiff establish that reported abusive conduct be both severe and pervasive in order to be actionable imposes a more stringent burden on the plaintiff than required by law. The Supreme Court has stated that isolated incidents, if egregious, can alter the terms and conditions of employment. See Faragher, 524 U.S. at 788; see also Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001) ("[W]e have often recognized that even one act of harassment will suffice [to create a hostile work environment]if it is egregious."); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998) (holding that a single incident of physically threatening and humiliating conduct can be sufficient to create a hostile work environment for a sexual harassment claim); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) ("[E]ven a single incident of sexual assault sufficiently alters the conditions of the victim's employment and clearly creates an abusive work environment for the purposes of Title VII liability."). By contrast, under a conjunctive standard, infrequent conduct, even if egregious, would not be actionable because it would not be "pervasive."
This case is an important clarification for those practicing in this Circuit as the misuse of the conjunctive standard by management-side attorneys and district court judges had become a frustration encountered all to often by employee-side attorneys.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer
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Best Buy hit with class action sex and race discrimination suit.

Posted on December 12, 2005 by Christopher McKinney
Citing what they called a "corporate culture of discrimination," six current and former employees sued Best Buy last Thursday, claiming the retailer violated civil rights laws by discriminating against female and minority workers. The Best Buy case is similar to a class-action suit against Wal-Mart by current and former female employees who allege discrimination in pay and promotion. The lawsuit seeks class-action status and accuses Best Buy of putting black and Latino employees in lower-paying stockroom, cashier and minor sales positions. It claims Best Buy has a disproportionately white sales and management force, with white men making up more than 80% of the chain's managers. Fewer than 10% are women, African American or Latino.

Here's the story from the San Francisco Chronicle and one from the L.A. Times.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer
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Tech Note - BaseCamp Project Management

Posted on December 11, 2005 by Christopher McKinney
A few months ago, a friend put me on to a website called BasecampHQ.com. It is a web-based project management application. I have been using it for the last month or so and all I can say is Wow! I have begun rolling it out for all of my firm clients and response has been tremendously positive. Basecamp is an extremely user-friendly project management solution that is simply perfect for small-firm and solo practitioners. (It would probably be great for large-firm practitioners too but you will have to work through your IT committee or whatever so I can't really speak to that.) One of the most difficult thing with representing any large base of clients is keeping everyone on track and on the same page as far as what is being done, what still needs to be done, and who is responsible for seeing that each item gets done. Frankly, I often feel like herding cats would be an easier endeavor. Well BaseCamp helps with all of this tremendously. It allows you to set up a web-based communications hub for each client or client matter that will keep all email messages, calendar items, to-do lists and important files centralized in one location. Now, instead of simply emailing a file of some draft discovery to a client to review, with a few clicks, the file is uploaded to the hub, an message is sent to my client asking her to review it and get back to me, and a checklist item is added to my client's to-do list indicating the task needs to be done. I can also add a deadline in the calendar for when I need a response from my client and easily follow up with her if I don't hear back in a timely manner. Another feature I like is the Whiteboard feature, which allows my client and I to work collectively and collaboratively on the same document. The system tracks who made what revisions and when they were made and greatly improves efficiency in drafting important letters, interrogatory responses, etc. Another great feature is that the calendars created in basecamp can be "subscribed" to by my desktop calendar program (I use Apple's Ical) and is automatically updated with any changes to any of my clients' BaseCamp calendars. I control all of the security for all of the client hubs so that clients can only access their own matters while my staff and I have access to all.

BaseCamp also has a time-tracking feature, however, I have not yet used that much as my time tracking is built into a larger accounting software structure here at my office. The software is available for a monthly subscription and you can cancel the service anytime without a long-term commitment. I think it is great for lawyers and encourage you to give it a look.Here is a link to the software tour and free trial.
Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer
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Supreme Court will finally decide what constitutes an "adverse employment action."

Posted on December 6, 2005 by Christopher McKinney
The Supreme Court granted cert yesterday in a Title VII case, White v. Burlington Northern & Santa Fe Railway Co., 364 F.3d 789, 93 FEP 1011 (6th Cir. 2004) (en banc), on what degree of injury an employer's action must inflict to pass the threshold of "adverse employment action" in a retaliation case. For more than 40 years, federal law has prohibited employers from retaliating against employees who complain about discrimination on the job. But neither Congress, which included the anti-retaliation protection in the Civil Rights Act of 1964, nor the Supreme Court has ever defined "retaliation."On Monday, the justices agreed to provide the definition, accepting a case that began in a Memphis rail yard when the only woman working in the maintenance department there complained about sexual harassment by her supervisor.Within 10 days, the woman, Sheila White, was transferred from her assignment operating a forklift to the less desirable position, within the same job classification, of working outdoors on the tracks.Three months later, after she filed a formal complaint with the federal Equal Employment Opportunity Commission, her employer, the Burlington Northern & Santa Fe Railway Company, suspended her without pay. After a union grievance, she was restored to the payroll with back pay after 37 days.The question for the court is whether the United States Court of Appeals for the Sixth Circuit, in Cincinnati, correctly concluded that those events amounted to the type of retaliation that Title VII of the Civil Rights Act of 1964 prohibits. The appeals court upheld a jury award of $43,250 in compensatory damages to Ms. White. Here is the Sixth Circuit's opinion: White v. Burlington Northern (6th Cir en banc 04/14/2004)Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer
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