Cabot Employment Alert

I. Featured Employment Case

Supreme Court Will Not Disturb Finding of Transsexual Discrimination

The United States Supreme Court on November 7, 2005, declined to review a decision of the federal court of appeals in Ohio, which found that the City of Cincinnati discriminated against a transsexual police officer, and awarded the officer $874,236.00. This case was originally brought under Title VII of the Civil Rights Act of 1964 which prohibits sex discrimination, and protects individuals from “sex stereotyping” because they do not conform to his or her gender in the way he or she looks and behaves.

Phillip (now Philecia) Barnes was a 17-year veteran of the Cincinnati police force, who was taking female hormones in preparation for surgery to change him from a male to a female when he took and passed a sergeants exam, but then failed the probationary period required to become a police sergeant, and was demoted from the position. Based on the results of a rigorous training and evaluation program during the probationary period, and a special form created to evaluate Barnes, the City felt that Barnes lacked “command presence,” did not appear to be masculine, and had “grooming deficiencies.” In fact at the time of his promotion to sergeant, Barnes usually reported for duty as a male, though sometimes wearing make-up, but was generally living as a female in his off-duty time: wearing women’s clothing, a French manicure, and arched eyebrows. Barnes sued the City of Cincinnati claiming that he failed the probationary period because of the City’s unlawful sex discrimination under federal law, based on his failure to conform to sex stereotypes.

II. Featured Labor Decision

Give Me Your Strike-Tired, Your Pictures of Closed Plants, and Your Personal, Factual Union Experiences…

The National Labor Relations Board recently determined that the Stanadyne Automotive Corporation did not violate the Labor Management Relations Act when it held meetings with employees during a United Auto Workers organizing campaign, when it discussed with employees: potential strike consequences including plant closures, violence, loss of pay and health insurance contributions; the contrast of experiences at union and non-union facilities; incidents of intimidation and sabotage with this union just before a collective-bargaining agreement was due to expire; and even the violent death of a guard during a strike at another Stanadyne plant. At the conclusion of the question and answer portion of the meetings, Stanadyne displayed seven photographs of closed Stanadyne plants with the word “CLOSED” across each photograph in red block letters, and a heading indicating that these plants are where the UAW “used to” represent employees. When the election was held 8 days after the series of meetings, the unit of about 650 production and maintenance employees voted against union representation with 219 for the Union, 412 against and 7 challenged ballots.

According to the Board, the above employer activities did not violate the LMRA because the Stanadyne meetings speakers conveyed events that had already occurred, supplied the perspective of employees who experienced some of the events, and informed the employees of the potential impact of their impending votes while making expressly clear that these were not threats or predictions about the future. The statements made and topics covered in these meetings fell into the permissible “general views about unionism” or “specific views about a particular union” categories of protected, free employer speech as defined by statute and Supreme Court ruling.

III. Featured Employer Tips

Employers at Risk: Hand-Held Devices

Technology keeps producing smaller and smaller hand-held devices, with memory capacities that get increasingly bigger. As convenient, and often indispensable as these devices have become to our workforces, the risk increases for employers every time technology chisels out a smaller, more useful hand-held device. Whether the risk is borne of a camera phone’s capability to photograph drawings at relatively high resolution for to-be-patented products, or a pocket PCs ability to download sensitive, legally privileged or protected files from an office computer, employers face a great risk of exposure to legal trouble and financial loss from workforce abuse of these devices. There are a number of things employers can do to prevent or lessen the security leak that could result from evolving hand-held technology:

  • Ensure that a technologically informed “information systems” person or staff is in place to implement available security feature modifications (both for theft and loss) on all office-based computer equipment as well as all company-issued hand-held devices;
  • Restrict physical and/or computer based access to sensitive company information, files and plans;
  • Include in employee handbooks, and prominently post up-to-date company policies on security issues and prohibitions, information confidentiality and the technological solutions the company has implemented to reduce or prevent information theft;
  • Hold mandatory training for all employees in the above-policies, and require employees to sign an acknowledgment of the training; and,
  • Determine whether the workplace lends itself to an absolute prohibition on employees bringing personal hand-held devices, including camera phones, to work, and if so, issue a policy to that effect.

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