Bud1  obç| .fwi0blobç|Éclmv.fwswlong¬.fwvhshorÅ.icgoblob.infoblob(ø‰M¢JÄÂ@ Javascriptfwi0blobicnv JavascriptfwswlongŽShades of Grayfwi0blobicnvShades of GrayfwswlongŽSVCfwi0blobicnvSVCfwswlongŽXMLfwi0blobicnvXMLfwswlongŽ  @Ä @Ä @Ä @ E DSDB `Ä @Ä @Ä @County, Washington said that the senior command staff members conspired to demote and eventually fire McIntyre after she complained she was being treated more harshly than a male captain when they were both being investigated for violating an agency rule.

McIntyre began her career with the State Patrol in 1979 and challenged her termination. The State Court of Appeals agreed that she was wrongly terminated and ordered her reinstatement to the job.

One of McIntyre's attorneys, Valarie Zeeck, said: " The court has already determined she was wrongly terminated, and now this lawsuit is to determine why. We believe there is a larger pattern of discriminatory conduct in the WSP."

According to State Patrol spokesman Capt. Fred Fakkema, "The State Patrol denies these claims...There were legitimate reasons for taking disciplinary action against Ms. McIntyre in terminating her employment with the Patrol." He said the Court of Appeals decision was based on a "procedural deficiency in our disciplinary process."

"We have strict rules and policies in place to ensure a harassment-free workplace. We follow those policies," Fakkema said.

The case revolves around several incidents in 2001. McIntyre claims that her direct supervisor ordered her to fire a subordinate and that she did not want to do that. She did so because of the order she said. Later that year, she applied for that supervisor's job but she was passed over.

Soon afterwards, she was charged with violating a "residence regulation" which requires State Patrol employees to live within 35 miles of their place of work.

McIntyre said she lived in Sumner, which is under 35 "as the crow flies" miles from the department, but 45 road miles, according to documents filed with the Court of Appeals.

When she told senior staff that another patrol officer lived near her and also drove more than 35 miles to work, she claims he was given the opportunity to confess in order to receive minimal discipline--an offer not made to her.

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THE WEBB REPORT - May 2004

Cirque du Soleil to Pay $600,000 to Performer with HIV

The U.S. Equal Employment Opportunity Commission announced the settlement of an employment discrimination case under the Americans with Disabilities Act of 1990 (ADA) against Cirque du Soleil, (U.S.), Inc. for $600,000 and significant remedial relief on behalf of a performer who was fired for being HIV-positive. Montreal-based Cirque du Soleil is an international circus and entertainment troupe with 2,700 employees worldwide.

EEOC reached the voluntary resolution with Cirque du Soleil through the agency's conciliation process after investigating a charge of discrimination filed by Matthew Cusick, who worked as an aerial gymnast, and finding "reasonable cause" that the company violated the ADA.

"When I was fired from Cirque du Soleil it was the worst day of my life," said Mr. Cusick. "Today is nearly the exact opposite because I stood up for what I knew was right and changed one of the world's most popular entertainment companies."

In addition to the monetary payment to Mr. Cusick, the negotiated settlement requires Cirque du Soleil to appoint an equal employment opportunity officer to oversee the annual training of its employees on the laws enforced by the EEOC, with an emphasis on HIV/disability discrimination, and to post a Notice in its workplace about the resolution of the case.

Under the terms of the agreement, Mr. Cusick will receive $300,000 in compensatory damages, the maximum allowed for an individual under the ADA; $200,000 in front pay; $60,000 in lost wages; and $40,000 in attorneys' fees. Mr. Cusick was privately represented by the Lambda Legal Defense & Education Fund, a national gay and lesbian legal advocacy group.

"I commend Cirque du Soleil for working constructively with our federal agency to resolve this matter prior to litigation," said Olophius Perry, Director of EEOC's Los Angeles District Office, which investigated the case and negotiated the voluntary settlement. "I encourage all employers who are faced with an EEOC administrative finding of discrimination to use our conciliation process to resolve the employment dispute quickly and efficiently."

Director Perry added: "Unfortunately, employers continue to have difficulty in recognizing what constitutes a 'direct threat' under the ADA, despite the fact that fourteen years have passed since the law was enacted. Employers must ensure that employment decisions are not based on myths or stereotypes, but rather, on reasonable medical judgments based on current medical knowledge."

Hayley Gorenberg, Director of Lambda Legal's AIDS Project added, "This is a huge victory for working people with HIV, because it tells employers that there's a steep price to pay for HIV discrimination."

In publicizing this case, Cirque du Soleil agreed to wave the EEOC's statutory confidentiality provisions which hold that the agency is strictly prohibited from confirming or denying the existence of charge filings, investigative findings, or resolutions unless or until the Commission files litigation against an employer.

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THE WEBB REPORT - April 2004

Quit Due to Glass Ceiling is Constructive Discharge

The Iowa Supreme Court ruled that a businesswoman who said she was denied promotion by a "glass ceiling" was constructively discharged. The court also said the woman is entitled to increased back and front pay, based on what she would have earned if she had been promoted.

The woman began working for Van Meter Industrial in 1988 and claimed that the company had two separate tracks--one for men, leading to management and one for women, limited to clerical and support positions. She said her goal was to become a branch manager for the whole sale distributor of electrical products, which employs more than 250 workers in 15 Iowa locations with annual sales of more than $100 million.

When the current manager was away, the woman took on much of his responsibilities, including business decision making. When he was promoted, the woman believed she would get the manger's vacant position.

Instead, the vacant position was filled by a man who had been with the company for a year. When the woman spoke to the regional vice president he told her that he did not take qualifications into account" and that he had chosen the salesman as someone who could be "molded" for the position. He then asked the woman to help train the new manager and told her if he had it to do over, he would still hire the man over her for the manager's job.

The court said that "as a general rule, employees are entitled to back pay only when they have been actually or constructively discharged." It said trivial or isolated incidents do not support a constructive discharge claim, but rather working conditions must be "intolerable."

However, the court went on to say that the discrimination here was "broader" than one staffing decision. "There is substantial evidence that the woman was discriminatorily relegated to the operations side of the business where there was no reasonable likelihood of advancement into a manager position. Thus she was foreclosed from a career path, not simply deprived on one promotion.

The case is Van Meter Industrial v. Mason City Human Rights Commission, Iowa, No. 107/02-1161, 2/25/04.

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THE WEBB REPORT - March 2004

Removing Damage Cap for Sexual Harassment

A wide-ranging civil rights bill was introduced in February by key House and Senate Democrats. The bill would expand remedies under Title VII of the 1964 Civil Rights Act, the Equal Pay Act, and the Age Discrimination in Employment Act. It would also enhance protection for plaintiffs in suits involving public service and education.

The Civil Rights Act of 2004 (S 2088, HR 3803), called the "Fairness Act" by its sponsors, has 70 House and 15 Senate co-sponsors according to congressional staff. Senator Edward Kennedy (D-Massachusetts), the ranking member of the Health, Education, Labor and Pensions committee, is the chief Senate sponsor and Representative John Lewis (D-Georgia), is the leading House sponsor.

The bill includes, among its employment provisions, amending the Federal Arbitration Act to exclude employment contracts and to prohibit mandatory arbitration clauses in employment agreements. In the area of sexual harassment, the bill would eliminate the cap on damage awards under Title VII of the 1964 Civil Rights Act. According to the measure, "These limitations unfairly affect sex discrimination claims because employment discrimination claims based on race and national origin may be brought under 42 U.S.C. 1981 (the 1866 Civil Rights Act), which does not limit damages."

The measure would also amend the ADEA to include disparate impact claims, i.e. to prohibit policies and practices that have a discriminatory effect on individuals age 40 and older. The measure would also reinstate the right of state employees to sue their employers for damages. In amending the Immigration and Nationality Act, the measure would allow undocumented workers to receive back pay if they are victims of discrimination in employment.

Finally, the Equal Pay Act would be amended to provide for compensatory and punitive damages and to forbid employers from retaliating against employees who share wage and salary information.

An umbrella coalition of approximately 180 organizations, the Leadership Conference for Civil Rights, has expressed support for the measure, as have other organizations including the National Women's Law Center, the National Urban League, the National Council of La Raza, and AARP, the advocacy group for older Americans.

A fact sheet and analysis of the proposed legislation can be accessed at HTTP://www.house.gov/johnlewis.

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THE WEBB REPORT - February 2004

Drug Use Doesn't Excuse Firing

The U. S. District Court for the Northern District of Iowa ruled in late December that a worker at a Jiffy Lube who admitted to smoking marijuana daily, even twice while at work, can proceed with her sexual harassment claim and constructive discharge in violation of Title VII and Iowa law.

The court rejected the employer's argument that evidence of the employee's drug use, which was obtained after her firing, barred her recovery for unlawful discharge. The court said there was evidence that the employer, the owner of the franchise, knew about the woman's drug use before she was fired and that he had not confronted her about it nor had he disciplined her.

The court went on to say that the employee complained about the sexual harassment several times, but nothing was done to remedy the problem. The court also found a triable issue as to whether the harassment cause the work environment to be so intolerable that a reasonable person would feel compelled to quit.

The case is Ricklefs v. Orman, N.D. Iowa, No. C02-3061-MWB, 12/19/03.

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THE WEBB REPORT - January 2004

Curbs on Office Romance Not Sex Bias

In a recent case in Ohio, an employee began a relationship with a married co-worker whose husband also worked at the plant. The couple began to display their affection for each other while at work. Including among the incidents reported to management, the employees were seen kissing "pretty passionately" in the plant lobby and another employee reported being offending by their behavior. Management concluded that the behaviors were inappropriate at work and asked the couple to stop their excessive displays of affection.

The male employee claimed that a number of disciplinary actions were taken against him, including filing an incident report citing him for giving the married co-worker a goodbye kiss, confining him to his department and threatening to fire him if he were caught holding the woman's hand, and threatening to file sexual harassment charges against him on the co-worker's behalf. The man filed suit, claiming that female employees were not disciplined for similar harmless displays of affection. The court ruled that the man failed to show the alleged discrimination was the result of his gender. The evidence showed that both he and his girlfriend were warned that any further display of affections would not be tolerated. He did not show that similarly situation women were treated differently. Rather, the court said that his claim of discrimination was based on whom he was dating, not because of his sex, therefore no sex discrimination took place. In rejecting the claim the court said that the man's own affidavit stated that he was subject to discrimination because of who he was dating, rather than because of his sex.

Since the average American spends an increasing amount of time at work, office romance is become more and more common than in the past.

Such office romances can cause many problems for the organization. Employees who date can easily let their personal feelings interfere with the objectivity. This is especially likely and risky when a manager or supervisor dates a subordinate. Additionally, if dating co-workers break up, it can leave an air of conflict or awkwardness or even lead to revenge motivated actions such as sabotage, harassing, fighting, and violence. In the meantime, the employee is left to remedy the situation in order to minimize workplace disruptions.

According to Lindy Korn, Daily Record, Rochester, NY, columnist, "Workplace romance policies vary depending on the size and culture of the workplace, but responding to roman gone sour complaints early on, and in a consistent manner can be the key to preventing a lawsuit."

The Bureau of National Affairs says further that "A formal office romance policy should clearly spell out what's acceptable or unacceptable behavior. When office affairs arise, the company should treat all employees consistently to avoid discriminating against a protected group.

The case discussed above is Schwab v. Delphi Packard Elec. Sys., Ohio App., No. 2002-T-0081.

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