Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Jaclyn Tyndorf’

N-Word Lesson for Students and for Teacher

Monday, March 19th, 2012

Jaclyn-Tyndorf-photo-265x300I still remember my fourth grade teacher, Mrs. Ross, standing in front of me, hand outstretched, a stern expression on her face. Becky had passed me a note and I hadn’t opened it yet, and wasn’t even sure what it said, but there I was, holding the incriminating evidence. I was terrified.

I bet this is how one student at Chicago’s Murray Language Academy, felt last October, when he was caught holding a passed note in class. The teacher confiscated the note and read it. As it turned out, the note included rap lyrics with the “N-word.”

The teacher, Lincoln Brown, who is white, felt that this was a “teachable moment” to discuss racism and the implications of using such words with his predominately black class. Mr. Brown grew up in a home active in the civil rights movement; his parents even named their son after their favorite president.

During the ensuing discussion with his sixth grade class, Mr. Brown discussed the history of the N-word, and discussed its use in Mark Twain’s “Huckleberry Finn.” The school’s principal, who is black, happened to stop in that day, and heard some of the lesson.

Mr. Brown thought nothing more of the matter. But two weeks later, he received a “Notice of Pre-Discipline Hearing” from the principal on behalf of the school board accusing him of violating school policy for “using verbally abusive language to or in front of student.” Hearings and more notices followed, including a “Notice of Disciplinary Action” that informed Mr. Brown he would be suspended without pay for five days.

Under the “Suggestion(s) for Improvement” section of the notice, the principal wrote, “Do not use the word ‘N—–’ with students at Murray at any time; whether a ‘teachable moment’ or not; the word is not appropriate for this age group.”

Mr. Brown appealed the disciplinary action and a hearing was conducted with the school district’s Office of Employee Relations in early December, but the appeal was denied.

In January, Mr. Brown, who has been teaching for more than 25 years and who had never been disciplined before, sued the Chicago Public School’s Board of Education, its CEO, and the principal of the school for violating his first and fifth amendment rights, alleging that he was punished for talking about a matter of public concern, and that his due process rights were violated in disciplining him. He also claims that the school was behaving inconsistently; he cited to use of the word by the principal himself when discussing the incident.

The media reported that Mr. Brown is suing the school district and presented his account of what occurred, but didn’t analyze the matter from a legal standpoint. LASIS will.

In 2007, an Indiana public school teacher sued on first amendment grounds when her contract wasn’t renewed after a current events class discussion in which she expressed her personal opinions about the Iraq War. The court held that even though this was a matter of public importance, the first amendment didn’t provide support to primary and secondary teachers to discuss positions or matters that deviate from the established curriculum..

This decision was in line with the Supreme Court’s reasoning. In the 2006 case Garcetti v. Ceballos, the Court held that, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

So Mr. Brown’s first amendment arguments won’t help him.

He also claims that the discipline he received violated his due process rights because there was no written or verbal rule against what he did presented to him by the school district. To obtain relief under the fifth amendment, which states that, “No person shall be…deprived of life, liberty, or property, without due process of law,” a person in Mr. Brown’s position must show that he was harmed without the benefit of notice of what he did wrong or a hearing to decide the matter.

In a 2004 Illinois District Court case, a kindergarten teacher spoke publicly and criticized both the kindergarten program and the renewal of the school principal’s contract. She then received a “Warning Resolution” for insubordination and other violations, including not finishing tasks and not assigning grades to students, and after that, her contract was not renewed. She sued, alleging that the school had violated her due process rights, but the court held that the warning she received had amply satisfied those rights.

Mr. Brown’s due process rights appear to have been equally satisfied.

We believe he meant well. But in using class time to talk about the history of a word that the media only refers to by its first letter, he stepped outside the official curriculum. At least one student was reportedly uncomfortable with the discussion. And he was given notice and the opportunity for a hearing.

The law is not on this veteran teacher’s side.

This blog originally appeared in Legal as She is Spoke, a project of the Law and Journalism track at New York Law School, on March 17, 2012. Reprinted with permission.

About the Author: Jaclyn Tyndorf is a (2L) majored in Broadcast Journalism at Syracuse University. She is active at New York Law School, and is a member of the Media Law & Policy Center, the Institute for Information Law and Policy, and the Program in Law & Journalism. Jaclyn spends her free time exploring the neighborhoods of New York City and enjoys attending New York Jets games.

You've Got Great Experience, Sir, But You're Too Old

Tuesday, November 1st, 2011

Jaclyn-Tyndorf-photo-265x300In these turbulent economic times, securing employment can be a steep and uphill battle for job hunters, who are up against scores of other candidates all vying for the same position. Common sense dictates that those with the most amount of relevant experience should be at the top the list for consideration. And as federal law dictates, race, gender and age should be of no consideration at all for jobs in which race, gender and age don’t matter.

Sometimes, of course, these considerations do come into play.  A man isn’t going to get a modeling job to frolic on a beach in a bikini for the 2012 edition of the Sports Illustrated Swimsuit Issue. A white woman won’t likely be hired to serve as president of an Association for Asian-American males…And then there’s age.  If the applicant for a job has great experience but the job involves manual labor, can age be taken into consideration?

Consider the case of two male electricians, both experienced in their trade. Upon applying for a “journeyman lineman” position their union and before meeting their would-be employer, they were both told, off the bat, that they were just too darn old.

A collective bargaining agreement requires Western Energy Services of Durango, Inc.(WESODI) to follow a union referral process for hiring. In August 2009, when the telecommunications and power line construction company had an available lineman position, it contacted a local union for the name of the next available member with the required skill sets. Eric Camron, then 72, was next in line.

After being told by his union about the job, Mr. Camron went to his local union office where a WESODI employee asked to speak to him on the phone. Mr. Camron was told that the job was “go, go go”, and that he would have difficulty keeping pace with the younger workers. WESODI hired a 24 year-old with less experience, instead.

One month later, the same thing happened to Dennis Thomas, then, 61, and for the same reason. A 28 year-old was hired for that position, again with less experience.

Messrs. Camron and Dennis are suing in New Mexico federal court. The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal laws making it illegal to discriminate against an employee or job applicant on grounds including age, and it is representing the two electricians.

The men want WESODI to stop discriminatory employment practices and to pay them back pay and money damages. While The Durango Herald discussed the men’s lawsuit, the paper didn’t discuss the requirements of proving a case of age discrimination, and whether our electricians will be able to meet these requirements. LASIS will.  

The Age Discrimination in Employment Act of 1967 prohibits an employer from discriminating against a job applicant or employee based on his age. This Act protects people who are at least 40 years old, and applies to employers with at least 20 employees.  The Act covers hiring, firing, benefits, and promotion.

Per the 1973 Supreme Court case McDonnell Douglas Corp. v. Green, age discrimination claims are analyzed according to a three-part process. In hiring and promotion cases, the first part requires that a plaintiff have evidence that is more likely than not to prove that he was: (1) within the protected age group of the Act; (2) qualified for the position; (3) negatively affected by the employer’s decision; and (4) passed over for a younger person who was hired for the position.

After a plaintiff meets that requirement, the burden shifts to the employer to show a nondiscriminatory reason for not hiring or promoting the plaintiff.

If this burden is met, the plaintiff can keep his case alive by showing the employer was motivated by a discriminatory reason or that age was at least an influential factor in the employer’s decision to hire a younger candidate. Then it’s up to the jury to decide if the employer discriminated illegally based on age.

In a 2010 District of Columbia district court case, a 55 year-old plumber who wasn’t hired for a particular job sued a company for age discrimination, alleging that the CEO had expressed concerns about whether he could physically perform the job responsibilities. The CEO hired another candidate whom he later said he chose because he was familiar with the other candidate’s work. The court held that because the person ultimately hired for the position was only five years younger than the plaintiff, age was likely not the deciding factor, and the plaintiff lost.

In a 1993 District of Columbia district court case, the court stated that at times, demonstrating a substantial difference between the age of the person hired or promoted and the age of the person who didn’t get the job or was fired may sometimes be enough to point to age discrimination. In that case, the plaintiff was passed over for promotion in favor of someone 17 years younger, which the court found sufficient to suggest that age played a role in the employer’s decision.

In the case of our journeymen electricians, the men may have established a solid age discrimination case. Both men were members of a protected group (potential employees over the age of 40) and sufficiently qualified for the positions… and were passed over for candidates more than 20 years their junior.

As a result, the company will have to show that it had other reasons for not hiring the men. An employer in a Texas district court case was found to be acting lawfully when it wouldn’t hire pilots over 60 to fly its corporate planes. This decision was based on the company’s reliance on a federal agency’s rule prohibiting pilots from flying commercial planes after 60 due to safety concerns.

WESODI CEO Kenny Robinson told The Durango Herald that the company doesn’t “discriminate for any reason and especially not for age. It’s very common for well over 40 percent of our workforce to be in the protected age group.”

That’s nice.  It doesn’t affect this case.  WESODI needs to show that reasons other than age factored into its not hiring these two electricians.

It will have a difficult time doing so.

The young men hired for the jobs had far less experience than both Mr. Camron and Mr. Thomas, and both plaintiffs allege that a WESODI employee told them on the phone that they were too old.

I called WESODI and learned that generally, WESODI journeyman linemen generally work in all types of weather, both above and below ground, installing and removing transformers, digging, and putting conductors in the trenches.  Some jobs involve climbing poles.

We do not have detailed information about the physical demands of the WESODI jobs that Mr. Camron and Mr. Thomas applied for, or about the physical fitness of either of the plaintiffs.  But unless the company can provide a legitimate reason for not hiring Mr. Camron and Mr. Thomas, the court will probably pull the plug on WESODI’s practices.

This blog originally appeared in Legal as She Spoke, a project of the Law and Journalism track at New York Law School, on October 28, 2011. Reprinted with permission.

About the Author: Jaclyn Tyndorf is a (2L) majored in Broadcast Journalism at Syracuse University. She is active at New York Law School, and is a member of the Media Law & Policy Center, the Institute for Information Law and Policy, and the Program in Law & Journalism. Jaclyn spends her free time exploring the neighborhoods of New York City and enjoys attending New York Jets games.

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