Employment Law Strategist

Recent cases of interest.

Given the burgeoning use of mediation, it is likely that most litigators, and many legal dealmakers, will find themselves representing clients in this process. It is thus imperative to understand the mediation process, its goals and possibilities, and to be effective in that process, understanding what works and what can abort the process and its positive possibilities. It is just as important to understand what not to do in the mediation process. Here is a non-comprehensive list of 10 choices counsel or parties might make that reduce the likelihood of arriving at a mutually acceptable resolution through mediation.

Employees and job applicants are increasingly filing claims of discrimination based on their appearance or image. The future scope of such claims may hinge on the outcome of a case currently pending in the U.S. Court of Appeals for the Ninth Circuit.

With little or no incremental cost, companies can now store unfathomable amounts of data and information about their business. Documents, e-mails, and financial data all can be sent and retained indefinitely with the simple click of a mouse. As remarkable and efficient as these capabilities are, they create dramatic new challenges for individuals and organizations alike. Employers, in particular, are faced with new challenges involving the retention of electronic records and data. What should be saved? How long is long enough? And what obligations do employers have to preserve electronic records when faced with actual or threatened litigation?

Recent rulings of interest to you and your practice.

No sexual harassment case has received as much attention in the press recently as the one brought against Fox News and television host Bill O'Reilly by former Fox producer Andrea Mackris. This case grabbed the headlines with almost as much fervor as did Anita Hill's claims against then-U.S. Supreme Court Justice nominee Clarence Thomas in 1994, which had previously been the most notorious of sexual harassment claims. The Mackris/O'Reilly case has frequently been compared with the Hill/Thomas case -- not only because of the cases' relative notoriety, but also because they involve similar allegations: that a subordinate employee was subject to verbal harassment.

On Sept. 30, 2004, California enacted a law that requires employers who operate in California and who employ 50 or more persons to provide all supervisory employees 2 hours of sexual harassment training every 2 years. Employers must complete the first round of training for supervisors by Jan. 1, 2006. After that date, new supervisors must be trained within 6 months of obtaining a supervisory position. Employers are scrambling to ensure that they have trained all California-based supervisors by year's end. This article describes why employers should not focus simply on training supervisors in California, but in every state.

Recent months have delivered to employers what could be seen as a nasty one-two punch. First, the Office of Federal Contract Compliance Programs (OFCCP) announced that it planned to focus its resources on "rooting out" systemic discrimination -- and unveiled proposed guidelines completely altering the way it will analyze potential compensation discrimination. The new guidelines, which require employers of a certain size to use a statistical tool called multiple regression analysis, will be enforced by a team of statisticians the OFCCP has newly hired to create the ominous-sounding Division of Statistical Analysis. Second, the recent Supreme Court decision allowing disparate impact claims in age cases could be interpreted as giving the green light to additional age-bias lawsuits by removing the hurdle of proving or even alleging intent. However, these changes will not necessarily have an adverse impact on employers, and may actually be helpful.