Legally Speaking: And You Thought You Had It Rough At Work

John G. Browning Oct. 24, 2011, 7:19am

Most of us spend a significant portion of our daily lives at work. And whether you're on a busy assembly line or passing hours in a cubicle, you generally try to make the day go as quickly as possible, putting up with certain workplace trials and tribulations in exchange for a paycheck, health insurance, and a certain measure of self-worth and accomplishment.

For some workers, though, it's become a case of one too many indignities, until they reached the point of humming right along with Johnny Paycheck's working man's anthem "You Can Take This Job and Shove It."

Take Roy Lester, for example. The 61-year-old from Long Island worked part time as a lifeguard at New York's Jones Beach State Park for four decades until 2007. He claims he was forced out of that job because of a state park regulation requiring lifeguards to take the annual 100-yard swim qualification test, wearing either brief Speedos or loose-fitting boxer or board shorts.

Lester, who prefers tight-fitting swim "jammers" that reach to the knee, refused to wear the board shorts (he says they slow him down) or the Speedos.

"I wore a Speedo when I was in my 20s," he says. "But come on. There should be a law prohibiting anyone over the age of 50 from wearing a Speedo."

Lester believes the Speedo regulation is a thinly-veiled way of weeding out older lifeguards (he estimates that over 80 percent of the Jones Beach lifeguards are over 40) and, in 2009, the part-time lifeguard and full-time bankruptcy lawyer filed an age discrimination lawsuit. An appeals court recently rejected New York's attempt to dispose of the claim, and trial is expected to go forward late this year or early in 2012.

Speaking of trials, most employers recognize the importance of civic duty like jury service. A number of states, including Texas, provide an added layer of protection for employees by requiring that employers give time off for workers summoned for jury service.

And of all the employers you would expect to be sensitive to the importance of jury duty, law firms would be at the top of the list—right?

Apparently, not at a certain Detroit-area law firm. When Macomb County Circuit Court Judge Mary Chrzanowski was preparing to swear in a jury in a September 2011 murder trial, one of the jurors surprised her by asking to be excused. The female juror submitted a letter from her law firm employer indicating that if she didn't return to work the firm would replace her.

Judge Chrzanowski considered it "unbelievable" that the firm would have "the audacity to do this." The judge wouldn't name the firm or detail how she handled it, but the juror was kept on the jury.

From the hot air of lawyers to, well, another form of hot air, how would you like your employer to discipline you over passing gas?

Clarksville, Tenn., paramedic Rita Cain filed a lawsuit claiming that her employer, Montgomery County Emergency Medical Services, illegally punished her for flatulence.

Cain has worked there since 1992 and rose to the rank of lieutenant. But on a March 2011 call, Cain was on the phone with a 911 operator when she passed gas. The operator heard the flatulent noise and made an internal complaint.

Within days, Cain says she was demoted and received a written warning (one step short of termination) for the flatulence episode.

Cain's lawsuit maintains that she's being discriminated against because of her gender, saying that male employees haven't been disciplined the same for identical "or worse conduct."

While it remains to be seen (or heard) how a federal judge feels about Rita Cain's lawsuit, at least one other court has held that flatulence itself doesn't constitute harassment.

In the 1999 case of Klein v. McGowan, a Minnesota judge held that the "expelling of flatulence, while offensive, rude, and vulgar to people of either sex, is not tantamount to actionable harassment."

Cain is seeking at least $300,000 in damages in her lawsuit. That could buy a lot of Beano, or perhaps jackets for all of her fellow paramedics—I hear windbreakers are making a comeback.

Most employers would prefer not to have employees with drinking problems. That concern becomes even more understandable for employers like the interstate trucking company Old Dominion Freight Line Inc., which doesn't want drivers with a history of alcoholism behind the wheel.

While this might make sense to you and me, the federal government — in the form of the Equal Employment Opportunity Commission — considers it to be a violation of the Americans with Disabilities Act, since that statute recognizes alcoholism as a disability.

So the EEOC has sued Old Dominion for a policy that makes perfect sense and has probably avoided any number of catastrophic highway accidents.

Psst—EEOC—I hear that they won't let blind people drive either. Good luck with that lawsuit!

How about insensitive employers? Cecelia Ingraham, a longtime employee of Ortho-McNeil Pharmaceutical Co. in New Jersey, lost her teenage daughter Tatiana in 2005 to leukemia. Ingraham's grief was deep, and in her cubicle at work she displayed reminders of her daughter, like photos and Tatiana's ballet slippers.

After more than a year, Ingraham says her boss ordered her to take the mementos down and stop talking about Tatiana's death because it made co-workers "uncomfortable."

Ingraham resigned shortly thereafter and sued her employer for discrimination and for intentional infliction of emotional distress. A trial court rejected her claims, and a New Jersey appeals court recently upheld the dismissal.

It said that while Ingraham's boss might have been "insensitive" to the plaintiff's "continuing bereavement," the employer's conduct wasn't so "atrocious and utterly intolerable in a civilized community" as to justify a recovery.

Whether he's just another insensitive employer or "the boss from hell" as some of his employees have described him, William Ernst of Bettendorf, Iowa, has earned a spot in this rogue's gallery of employers.

Ernst, the owner of a chain of convenience stores called QC Mart, sent all of his workers a memo in March 2011. The memo announced a new contest — "Guess the Next Cashier to be Fired!!!"

Employees were encouraged to write down the name of the next cashier to be fired (for a variety of sundry offenses, such as wearing a hat or talking on a cell phone), seal it in an envelope, and give it to a manager. The winner would get "$10 CASH"—only one winner per firing.

The memo went on to jovially admonish "[N]o fair picking Mike Miller (from the Rockingham Road store). He was fired at around 11:30 a.m. today for wearing a hat and talking on is cell phone. Good luck!!!!"

At least two QC Mart employees sent letters to company managers complaining about the contest, with one stating that it had "created an atmosphere or distrust, intimidation and paranoia."

Cashier Misty Shelsky, her store manager and several other employees quit over the contest, saying Ernst had cultivated a hostile work environment.

When Shelsky filed a claim for unemployment benefits, Ernst contested the claim. Administrative Law Judge Susan Ackerman sided with the cashier and her fellow workers, calling the QC Mart work environment "intolerable and detrimental," and castigating Ernst for suggesting that employees "turn on each other for a minimal monetary prize."

Finally, if you've ever waited tables in a greasy spoon, a fast food place or even the finest restaurants, you know that there can be a seamy underbelly to the food business. But how would you like it if the restaurant where you worked was listed in the phone book under "Animal Carcass Removal?"

That's the case for the Bar3 Bar-B-Q restaurants in Bozeman and Belgrade, Mont., and the telephone book's printing mistake was immortalized in a Jay Leno monologue on the Tonight Show.

But for restaurant owner Hunter Lacey, it's no laughing matter. He's filed a lawsuit against Dex Media Inc., claiming that his brand and business reputation have suffered because of the restaurants' listing in the "Animal Carcass Removal" section.

The mistake was in both online and printed directories, and has lived on via the Internet, forwarded emails and even customer reviews on the restaurant's Facebook page.

Lacey's lawsuit accuses Dex Media of not only negligence and defamation, but also of deliberately publishing the harmful listing because Lacey refused to purchase an advertisement.

Dex Media "regrets" the publication and says that an employee who altered the restaurant listing to appear under "Animal Carcass Removal" was acting outside his duties. That's not enough for Hunter Lacey, who says his hard-won branding efforts have been "wiped out."

From being fired for not wearing Speedos or being a grieving mother, to working in environments known for flatulence or "Animal Carcass Removal," the workplace can be stranger than any "Dilbert" cartoon. Our legal system proves it.

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