The Inbox - May 17, 2013

May flowers are blooming, and so is the Suits by Suits news:

• CEO dismissals hit a 10-year high in 2012, according to The Corporate Board’s study of CEO succession practices.  Matteo Tonello of the Corporate Board published this summary of the study on the Harvard Law School Forum on Corporate Governance and Financial Regulation.
• The Anderson County Council is talking settlement in its long-running dispute with former county administrator Joey Preston, reports Bill Poovey of GSA Business.   The South Carolina legislators have spent $3 million in legal fees in their unsuccessful effort to recover Preston’s $1 million severance package.  That money would have bought a lot of Skins’ hot dogs.
• We previously brought you the story of David Nosal, a former Korn/Ferry executive who was facing trial on charges of gaining unauthorized access to Korn/Ferry’s system and stealing trade secrets.  Joanne Lublin of the Wall Street Journal reports that the trial did not turn out well for Nosal: he was convicted on all counts.  Nosal told Lublin that he is confident that the verdict will be reversed.
• New Mexico legislators criticized the large buyout offered to the new head coach at the state university, reported Alex Goldsmith at kqre.com.  Craig Neal will get $1 million plus up to $300,000 if the school decides to fire him in the next four years.  In his defense, Neal could have pointed to Mike Krzyzewski, who received $9.7 million from Duke in 2011 (when, incidentally, the Blue Devils lost to 15-seed Lehigh in the NCAA tournament).
• More sports news: Sean Newell of Deadspin reports that warm and fuzzy coach Bill Belichick and the New England Patriots may have cut a player, Kyle Love, because he was diagnosed with diabetes.  Newell’s post discusses the Americans with Disabilities Act, which could have protected Love from termination based on his condition, and the at-will employment doctrine.

The Inbox - March 29, 2013

Grab your matzoh or Scotch cream eggs or whatever your favorite snack is this time of year and settle in for this week’s Inbox on Suits by Suits:

• The Polaroid bankruptcy trustee has sued the company’s former CEO Lorence Harmer to claw back $5.1 million in alleged kickback payments.
• The bankruptcy judge overseeing American’s Chapter 11 proceedings delayed ruling on the severance package for American’s CEO Tom Horton when he approved the airline’s merger agreement with US Airways on Wednesday.  The U.S. Trustee had objected to the package.  We especially like Kyle Arnold’s reporting in Tulsa World on these developments, and not just because he quoted one of us.
• A pregnancy discrimination lawsuit filed in 2009 by Julie Gilman Veronese against Lucasfilm Ltd. is headed back to the trial court after an appellate court found fault with the jury instructions and reversed the $1.3 million verdict for Veronese ($1.2 million of which was attorneys’ fees) and the California Supreme Court declined to review the ruling on Wednesday.  George Lucas testified in the first trial.
• After a deal was struck last night, New York City appears to be headed the way of Seattle and San Francisco in requiring employers of a certain size to provide paid sick leave to its employees.  Under the proposed legislation, companies with 15 or more employees would be required to compensate their employees for up to five sick days per year.  As we’ve noted here before, federal law does not require paid sick leave and few state laws do.

Is A Bad Job Interview Evidence Of Discrimination? (Part 2)‎

In Part 1 of this series, we relayed the case of Pamela Hill, an engineer with the Virginia Department of Transportation.  Hill was passed over for promotion.  Another applicant, a man, who has less experience than Hill and doesn’t have a college degree like she has, got the job.  VDOT’s only reason for the decision is that the man did better in the interview. 

Hill sued VDOT, alleging sexual discrimination in violation of Title VII of the Civil Rights Act.  VDOT moved for summary judgment – an early resolution in its favor – and at the end of this post, I’ll tell you if Hill won or not.  Read More ›

Is A Bad Job Interview Evidence Of Discrimination? (Part 1)‎

A necessary part of life that no one particularly enjoys is the job interview: it’s tricky for the interviewee and taxing for the interviewer.  Unless the interviewer gets a thrill out of asking why manhole covers are round or testing the applicant’s knowledge of medieval saints. 

We’ve written about questions that shouldn’t be asked on interviews, because they can suggest a discriminatory basis for the employer’s failure to hire the job applicant.  But can an interview that doesn’t include potentially discriminatory questions – just the failure to hire the applicant after the interview itself – provide the basis for the rejected applicant to allege discrimination?    

Hiring executives may be interested to know the answer to this question, which was the central issue in an opinion in Hill v. Virginia Department of Transportation, released by a federal court in Virginia at the end of January.  Read More ›

Sometimes, It Pays To Be A Bad Sport: California Court Finds That Employee Who Deceived Her Employer About Having Signed An Arbitration Agreement Cannot Be Compelled To Arbitrate

We have written previously about litigants’ attempts to compel arbitration under a theory of “equitable estoppel.”  For example, last July we discussed the move by Silicon Valley venture capital firm Kleiner Perkins to force its former partner, Ellen Pao, to arbitrate their sexual harassment dispute on the theory that, despite the absence of an agreement to arbitrate between the parties, it would be inequitable to allow Pao to avoid arbitration.  Although the trial court rejected this argument, Kleiner Perkins appealed and is awaiting a decision.

Since then, the issue of equitable estoppel has cropped up again in the California courts.  Just last week, in a decision that may have ramifications for Pao and Kleiner Perkins, the California Supreme Court declined to review (subscription required) a decision by a California appeals court affirming the denial of The Sports Club Company’s motion to compel arbitration against its former employee, Susan Gorlach. Read More ›

Iowan Dentist's Firing of Assistant Because of Her Perceived Threat to His Marriage Was Not Unlawful Gender Discrimination, But Was it Unlawful Sexual Harassment?

Between baking cookies, assembling toys and driving to the in-laws, you may have missed the Iowa Supreme Court’s decision on December 21 that a male dentist was not liable to his former female assistant of ten-and-a-half years – admittedly the best assistant he ever had – for gender discrimination.  The dentist fired the assistant after:  he complained that her clothing was too tight, he told her that she would know her clothes were too revealing if she saw his pants bulging, he texted her to ask how often she experienced an orgasm, he observed that the apparent infrequency in the assistant’s sex life was “like having a Lamborghini in the garage and never driving it,” and he was confronted by his wife, who believed the assistant was a “big threat” to the dentist and wife’s marriage and demanded that the assistant be terminated, which he then did by reading a prepared statement to the assistant in the presence of his church pastor.   Read More ›

The Inbox

The Inbox

Grab your glass of eggnog, light the fireplace, and peruse the latest in Suits by Suits:

• Fox Business reports that a New York law firm is making a cottage industry out of lawsuits against company directors based on the Dodd-Frank Act’s “say-on-pay” provision, which requires an advisory shareholder vote on executive compensation once every three years.  The lawsuits by Faruqi & Faruqi, which a defense lawyer calls a “shakedown” effort, claim that companies aren’t giving their shareholders enough information to assess executive pay.  They haven’t resulted in awards to shareholders, but have resulted in some additional disclosures (and some legal fees to the plaintiffs’ counsel).

Online University Faces Trial on Employee's Discrimination Claim Based on Polish National Origin

Jones International University (“JIU”) is headed for trial on claims by its former employee, Ivonna Edkins, that it discriminated against her based on her Polish origin and gender.  Two weeks ago, a federal district judge in Colorado denied JIU’s motion for summary judgment on Edkins’s claims, finding evidence that JIU’s former general counsel was a “domineering male who was disrespectful and dismissive of women with executive responsibilities.”  Edkins v. Jones Int’l Univ., Ltd., No. 11–cv–01790–RPM (D. Colo. 2012).

In his order, Judge Richard Matsch described the power struggle that led to the dispute.  Read More ›

The Inbox

With only two weeks to go until the Mayans’ end of days, what better way to spend your time than reading this week’s latest in Suits by Suits:

• A store manager for American Apparel has sued Dov Charney, the company’s CEO, accusing him of assault.  UPI reports that the manager alleges that Charney called him nasty names and tried to rub dirt on his face at an industry convention.  Lawyers can get a bad rap, but I doubt anything like that has ever happened at the ABA’s annual meeting.

Tip: Don't Blame A Pregnant Woman's "Hormones" For Job Performance Before Firing Her

Let’s start this story with a basic truth: it’s generally a bad idea to tell a pregnant woman that her hormones will make her “get emotional” and get “caught up in things” in a way that affects her judgment. 

You need not take this from me as a lawyer-blogger.  Take it from me as a guy whose wife is pregnant with our first child.  Blaming anything in our house on pregnancy hormones is a one-way ticket to the basement couch. 

It’s also a bad idea to say this to a pregnant employee, as department-store chain Target Stores is learning.  We’ve written about the Pregnancy Discrimination Act of 1978 before, and in some high-profile contexts.  But the case of Spigarelli v. Target, which will move forward in federal court in Pennsylvania now that Target has lost its summary judgment motion, shows that this lesson continues to bear discussion.  Read More ›