Outten & Golden: Empowering Employees in the Workplace

Archive for June, 2008

"Just One" Doesn't Work When Public Employees Treated Unfairly

Friday, June 13th, 2008

When I go to a restaurant by myself, one of my pet peeves is to be asked, “just one?” like it’s a sign of my own personal failure to be there without another guest. A public employee in Oregon can probably relate — she just had her own version of “just one” shot down by the U.S. Supreme Court. If you’ve been treated arbitrarily or irrationally, you better find someone else to join you at the table, says the Court.

Anup Engquist, a woman from India, sued her employer, the Oregon Department of Agriculture, after years of torment at the hands of a coworker, Joseph Hyatt, that ultimately resulted in her termination, allegedly for financial reasons. Over the years that he worked with Engquist, Hyatt refused to give her information she needed to do her job, made false, derogatory statements about her, and constantly monitored her, even when she went to the ladies room. (See Petitioner’s Brief at 3). Even after Hyatt was twice denied a managerial promotion, and transferred to another department in the same building, he continued to torment Engquist. Ultimately, he worked with another manager, John Szczepanski, to get Engquist laid off, ostensibly for financial reasons.

Engquist filed a lawsuit challenging her treatment, and in a trial on the merits of her case, introduced a mountain of evidence showing Hyatt’s hatred of Engquist and his constant efforts to undermine her, which the jury believed in awarding a verdict of $425,000 in damages in her favor, not because she was fired due to her race, sex, or national origin, but because the jury believed she had been treated arbitrarily and unfairly. However, that verdict was appealed, and a 2-1 panel from the Ninth Circuit Court of Appeals overturned the verdict in her favor. (See Ninth Circuit opinion.) Engquist then appealed to the U.S. Supreme Court.

The Supreme Court ruled against Engquist 6-3, in an opinion written by Chief Justice Roberts. (See Supreme Court opinion.) The primary issue before the Court was whether Engquist could bring an Equal Protection argument demonstrating that she had been treated arbitrarily and irrationally, if she was a “class of one,” — the only person making this argument. Generally, equal protection cases are brought by individuals claiming unfair treatment as a result of their membership in a particular class: race, sex, national origin, etc.) However, although Engquist was an Indian woman, the portion of the case before the Supreme Court was whether she could be fired for “arbitrary, vindictive, and malicious reasons.” This was considered a “class of one” equal protection claim.

A “class of one” claim appeared to be permitted by an earlier Supreme Court case which involved housing discrimination, and a few lower courts had applied it in other public employee cases. But the Supreme Court had never directly applied the theory in cases involving public employees before, and ruled that it was not appropriate to do so in this setting either. Essentially, the Court ruled that the government as a public employer has more leeway to act arbitrarily than it does when using its power against ordinary citizens, and that allowing the “class of one” claims to move forward would permit too much litigation against governmental employers.

Chief Justice Roberts, in writing for the Court, states:

Thus, the class-of-one theory of equal protection—which presupposes that like
individuals should be treated alike, and that to treat them differently is to
classify them in a way that must survive at least rationality review—is simply a
poor fit in the public employment context. To treat employees differently is not
to classify them in a way that raises equal protection concerns. Rather, it is
simply to exercise the broad discretion that typically characterizes the
employer-employee relationship.

(Supreme Court opinion at 12.)

According to this decision, if a public employee is treated differently than other employees, he or she must show not just that they were treated differently, but that the reason for this treatment is due to their membership in a protected group.

Indeed, our cases make clear that the Equal Protection Clause is implicated when
the government makes class-based decisions in the employment context, treating
distinct groups of individuals categorically differently.

(Supreme Court opinion at 12-13.)

So public employees who have been treated arbitrarily and irrationally by their employers have to bring someone to court with them, in essence demonstrating that there are other members of their protected class who would have been treated the same way, while others not in their protected class were treated more advantageously.

If the answer is “just one,” then the federal courts will “just say no,” which denied Engquist her place at the table, and will do the same for other government employees who can’t show they are part of a class of people treated differently than others.

Maybe You Should Leave the Spouse at Home

Thursday, June 12th, 2008

Unfortunately, we live in a world where harassment and retaliation cases haven’t gone away, and there are still some pretty egregious ones there. But a couple of suits filed recently caught my eye in that they involve the actions of the employer’s spouse. In both cases, powerful people brought their spouses into their workplace to work with them, but their employees allege their boss wasn’t doing enough to curb their spouse’s egregious behavior. These cases highlight the worst side of nepotism, where bosses don’t hold their spouses to the same standards of behavior to which the rest of their employees would be subjected.

Wendy Williams is a national radio personality and host of the show “The Wendy Williams Experience,” also featured on VH-1. Kevin Hunter is Ms. Williams’ husband and manager. Williams’ talent booker and publicist Nicole Spence recently filed a lawsuit against the show, its broadcasting company, Williams, and Hunter, alleging that due to Hunter’s conduct, she felt unsafe at the office.

Ms. Spence alleges that Hunter screamed and cursed at her at work, and called her late at night to tell her about his sexual fantasies and proposition her. When she refused his advances, Ms. Spence claims that Hunter’s conduct became even more threatening. Ms. Spence also feared for her safety because of the way Hunter treated his wife. She claims that Hunter once stormed into an office meeting, “pinning (his wife) against the wall with his hand around her neck, choking her while repeatedly pounding his fist into the wall directly by her head” — all because, she says, Williams failed to quit smoking. (See Associated Press article.) Another explosive allegation contained in the lawsuit is that Hunter attempted to find a hit man to have one of Williams’ on-air rivals killed after she bad-mouthed Williams. (See Black Voices blog.)

Even after the lawsuit was filed, Ms. Spence continues to work at the station. (I bet the environment is a little tense these days, however, and it sounds like she might want to watch her back.) As is typical, Williams has denied the allegations, saying that “Her allegations are totally false. This b*tch is out of her mind….” Hunter added that the allegations were “so far from the truth. It’s insane.” (See New York Post article.)

In Kansas City (my former home), Mayor Mark Funkhouser, who has already weathered several scandals since taking office in May 2007 (see Kansas City Star article), now has his hands full with a new lawsuit filed by a former aide, Ruth Bates, that primarily focuses on the behavior of Funkhouser’s wife, Gloria Squitiro. (See Petition for Damages, Bates v. City of Kansas City.) The legal issues raised by the case are compounded by Squitiro’s status in the mayor’s office as an unpaid full-time volunteer — albeit one that speaks on the mayor’s behalf. (See Kansas City Star article.)

Ms. Bates volunteered with Mayor Funkhouser’s campaign while he was running for office, and says she was asked to attend campaign events with her son and his friends, who were often the only African-Americans at those events. (See Kansas City Star article.) (Funkhouser ran against a popular African-American city council member, Alvin Brooks, who was supported by many local black politicians). After Funkhouser narrowly won election, Ms. Bates observed that the majority of the aides Funkhouser hired were white men. After Ms. Bates complained, she was offered a staff post as Administrator of Boards and Commissions. (See Petition for Damages, Bates v. City of Kansas City.)

However, Ms. Bates claims that she was the lowest paid full-time member of the mayor’s stuff, and was paid considerably less than other aides with less experience and education than she had. (Salary information for city employees, which is public, is available here: Kansas City employees database.) She also claims that Squitiro called her “Mammy,” while calling the only other African-American employee in the office “Bernie Mac” and “Mammy.” Squitiro is alleged to have said, when discussing attendance at a meeting in a Hispanic neighborhood, “I hope they don’t throw hot tamales at us.” Squitiro is also accused of making a number of sexually-charged comments in the office, and when another employee complained, responded that she was the only “fun” employee in the office. (See Petition for Damages, Bates v. City of Kansas City.)

Bates filed an administrative claim with the Missouri Commission on Human Rights last fall, and claims to have suffered additional retaliation after her claim was filed, including being denied the small raise she was promised after complaining about her low salary, and termination on May 19, after she was told she would have to leave the Mayor’s office for a position in another department. (See Kansas City Star article.)

The mayor’s office has not commented on the allegations, except to tell supporters, “We are entering a difficult time again, and as such, we also know that our supporters will be sharing the difficulty with us as well. We apologize for this, and, as always, we are working hard to continue to earn and keep your faith and trust.” (See Kansas City Star article.) Funkhouser has also declined to change Squitiro’s volunteer role with his office.

If the allegations in these cases are true, you have a situation where employees have the ability to wield tremendous power over other employees, not by virtue of their role as a supervisor or manager, but by virtue of their relationship with the head of the office, which in each case is the powerful figurehead and the reason for the office’s existence. There would be no “Wendy Williams Experience” without Wendy Williams, and Mark Funkhouser is the elected official who heads the mayor’s office.

Because the office, in essence, revolves around them, they have the authority to install their spouse as a staff member in the office. It’s safe to say that there was no hiring mechanism when their spouses were brought on board. And, as these employees have learned, there’s no real way to complain when the spouse’s behavior is out of line. These figureheads are unlikely to fire their spouses without it having a significant impact on the relationship, and they aren’t going to fire themselves for making bad personnel decision.

With the high percentage of relationships where both partners work, and the ever-increasing number of couples who meet at the workplace, we are likely to see more situations where a spouse’s behavior adversely impacts the office environment. It’s not something that it’s easy to legislate around. While there are instances where there are legal limits on nepotism in government offices, here, where Squitiro is a volunteer, it may be more difficult to limit her influence. And corporate policies are unlikely to make a difference in situations where the company is structured around the office figurehead who wants to hire her spouse.

But all workers are entitled to a harassment and retaliation-free workplace, and so going to court may be the only way to resolve some of the most egregious situations where a spouse’s behavior is seriously out of line. As these lawsuits progress, we’ll see if having to take such a drastic step is the only real solution for Ms. Bates and Ms. Spence.

Paula Brantner Returns to Workplace Fairness as Executive Director

Monday, June 2nd, 2008

I am thrilled to announce that today, June 2, I return to work with Workplace Fairness as the organization’s Executive Director. Workplace Fairness’ mission of providing information and education to workers and representing the pro-worker voice in public policy debates is as viable as it has ever been in a workplace environment that is becoming ever more inhospitable to workers. I will be working with the WF Board of Directors to ensure the organization is again able to be a leading voice for workers in this country by continuing our programs, revitalizing our website, and maintaining financial stability.

In March 2007, Workplace Fairness was unfortunately required to eliminate its staff for financial reasons, and I had to leave the organization for whom I had worked since 2002. I joined Working America, the AFL-CIO’s community affiliate for non-union workers, as Program Director. In the meantime, the WF Board of Directors, and especially President Cathy Ventrell-Monsees, stepped in to oversee the organization’s operations and to keep it functioning without paid staff. In December 2007, I resumed work on this blog, Today’s Workplace, and our weekly e-newsletter, Workplace Week.

Some recent improvements in our financial situation have made it possible for WF to resume operations, and I am pleased to have the opportunity to rejoin Workplace Fairness at this critical time. Shortly after Workplace Fairness became unstaffed, we learned that the organization’s website, www.workplacefairness.org, was a Webby nominee, as a top site in the Employment category. A top priority will be continuing our website’s innovation and further strengthening its value as a resource for workers.

We look forward to announcing many more positive developments in the days to come, and thank you for your ongoing support during our most difficult times. I look forward to speaking with many of you personally in the next few months to hear more about what you would like to see Workplace Fairness achieve. We will continue to work with you to ensure that workers have the information they need and a voice in the policies that affect them most.

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