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The National Law Journal, an ALM publication affiliated with California Employment Law magazine, each year compiles a list of employment-related court rulings from the previous year that are notable for their rather unusual facts, legal underpinnings or other circumstances. The wacky employment case survey for 2004 has a distinctly international flavor, which suggests that multinational corporations are likely to face even more bizarre developments in the employment law area in the years ahead. THE LONE RANGER RIDES AGAIN The Nova Scotia Court of Appeal, in In re Dorothy Kateri Moore, upheld an agency ruling that Dorothy Kateri Moore, a Native Canadian from the Mi’kmaq tribe, was not discriminated against when her boss referred to her as “Kemosabe,” the oft-used word from the 1950s television show “The Lone Ranger.” After spending an entire day watching reruns, the agency ruled that the term, which was regularly used by Tonto, the Lone Ranger’s Indian companion, when referring to his partner, was not derogatory. The Court of Appeal affirmed. Now the Human Rights Commission has asked the Supreme Court of Canada to review the decision. Hi-Yo, Silver! A SENIOR MOMENT Justice Marian Opala, 83, an Oklahoma Supreme Court judge, sued his eight colleagues in federal court, claiming they engaged in age discrimination by changing a court rule to allow the chief justice to serve consecutive terms. The post had previously rotated every two years, and Opala would have been next in line. He argued that his age was a “significant factor in being passed over” for the post, which includes ceremonial duties and a $3,000 pay hike. OH, LET’S ALL JUST MAKE UP Darlene Jespersen balked when a casino in Reno, Nevada, where she worked as a bartender, required women to wear makeup, which she claimed made her “feel sick, degraded, exposed and violated.” She filed a lawsuit after being fired, pointing out that men were only required to appear neat and clean, without any makeup requirements. In upholding the decision dismissing her case, the Ninth Circuit U.S. Court of Appeals, in Jespersen v. Harrah’s Operating Co., ruled that the plaintiff failed to prove that the makeup requirement was more of a burden than those imposed on male employees. BLONDE ON BLONDE The Seventh Circuit U.S. Court of Appeals ruled that punitive damages awarded to an employee in Lust v. Sealy Inc., a sex discrimination case, were excessive. Tracy Lust was promoted by mattress-maker Sealy to a position in the company’s office in Madison, Wisconsin, two months after being passed over for a position in its Chicago office. Shortly after she filed a discrimination claim with the U.S. Equal Employment Opportunity Commission. The court pointed out that her supervisor “had a history of making sexist remarks to Lust such as ‘You’re being a blonde again today.’” But the usually dour Seventh Circuit Judge Richard Posner, in a rare moment of levity, quipped: “Lust is blonde. Sealy points out irrelevantly that blondes are not a statutorily protected class, which will disappoint hair colorists.” AN EVEN THINNER BLUE LINE The U.S. Supreme Court ruled in San Diego v. Roe that a San Diego police officer who sold sexually explicit videotapes of himself in a police uniform during off-duty hours was not taking part in First Amendment-protected speech, and the city was justified in firing him. In a ruling without oral argument, the justices held that the officer was not “commenting on an issue of public concern” when he sold on eBay videotapes of himself in a police uniform stripping and masturbating. HOLD THE PEA SOUP, PLEASE A Michigan appellate court, in Howard v. Family Independence Agency, ruled that a state agency did not violate a social worker’s First Amendment rights when it fired her for trying to perform an exorcism instead of calling 911 after a client had a seizure. The social worker, Michelle Howard, was a religious woman who decided that the client’s seizure was “demonic in nature.” Rather than calling for medical help, she prayed over the client and sprinkled her with water. The court ruled that she “was not terminated for merely praying at the office” but for violating agency rules. NEIN TO MECHANICAL SEX A German court, in In re Helmut Hanf, rejected an unemployed car mechanic’s claim to be reimbursed for weekly visits to a brothel, which he said were needed to ensure his “health and bodily well-being.” The mechanic had been seeking $3,050 per month to cover the cost of the visits, along with some pornographic videos. The court threw out the claim, saying that unemployment benefits already covered everyday requirements. TALK AMONG FRIENDS A California appellate court held that it was up to a jury to decide whether frank sexual-related discussions among writers for the television show “Friends” constituted hostile-environment sexual harassment. In Lyle v. Warner Bros. Television Productions, Amaani Lyle, who worked as a writers’ assistant, complained that the writers acted like “teenagers in a locker room,” talking about masturbation, the best breasts and buttocks and other potential themes for episodes of the show. The sitcom no longer produces new episodes, but the legal wrangling continues. SO MUCH FOR ‘TEA FOR TWO’ When a male manufacturing employee with 35 years’ seniority was asked to relinquish his seat to a woman who came to the plant to conduct an audit, he patted his knee and said, “I have a place for you to sit right here.” The company discharged him for violating its “zero tolerance” policy against sexual harassment. But an arbitrator, in Lyon Workplace Products, ordered the employee reinstated, noting that his conduct was “typical of workplace behavior.” The arbitrator also concluded that “the auditor must realize that the shop floor is entirely unlike high tea at the Savoy.” Gerald Skoning practices employment law as an of counsel in the Chicago office of Seyfarth Shaw.

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