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Selecting the strangest employment law cases for 2005 was an extremely daunting task. Choosing the top 10 examples of workplace wackiness proved virtually impossible. All in all, 2005 proved to be another banner year for this survey. Horseplay is not harassment 10. The 7th U.S. Circuit Court of Appeals has ruled that an employee, who alleged that a male co-worker forced him to simulate sex acts, pulled out his chest hair and bit him on the neck, did not state a claim for sex discrimination, harassment or wrongful discharge. Thad Shafer alleged he was attacked by a physically larger Kal Kan Foods Inc. co-worker. He said he complained to a manager, but nothing was done. The court rejected his claims, reasoning that the behavior, which occurred only four times, was not sufficiently pervasive, nor did it create conditions worse for men than women. A colleague of mine wryly observed, “Hey, his chest hair is bound to grow back!” Neither is foodplay 9. An Iowa court ruled that shenanigans by teenage workers at a Subway shop-such as making obscenely shaped meatballs and doughnut holes-were not enough to sustain a sexual harassment claim by an older female employee. Nita Warne, a “sandwich artist,” quit her job, alleging that the owner-managers had done nothing to stop the activity. The court ruled that the hijinks were not sufficiently continuous or severe to be actionable. It seems the artisan’s taste did not extend beyond traditional images. What would the duck say? 8. An Aflac Inc. sales associate has filed suit, alleging the company allowed fellow employees to engage in immoral conduct in violation of its policies. Lori Johnson claims that she joined Aflac in part because of its demand that associates not engage in “conduct involving moral turpitude.” In 2001, she learned that her ex-husband, also at Aflac, was having an affair with another Aflac associate. She says that the two bragged about their affair, as her ex steered clients from her to his lover. She was shocked by Aflac’s lack of disciplinary action. Fire me! Please! 7. A federal district court in Oklahoma has dismissed a 70-year-old office worker’s claim that her employer discriminated against her because she was not fired. Mary Wyatt, who had worked for Occidental Petroleum Corp. for more than 24 years, argued that she should have been fired and awarded a severance package. The court disagreed, reasoning that, “Plaintiff has not suffered an adverse employment action by the continuation of her employment.” I commend the court for its eminently sensible recognition that the continued opportunity to earn a living isn’t discrimination. No weight-loss poster boy 6. A federal court in Pennsylvania has ruled that a weight loss center did not violate the Americans With Disabilities Act by refusing to hire a salesman who weighed 350 pounds because it was concerned his appearance was inconsistent with the sale of its products. The court dismissed Bob Goodman’s claim, stating: “The mere fact that Defendant was aware of Plaintiff’s weight and rejected [him] for fear that his appearance did not accord with the company image was not improper.” I salute this weighty contribution to commonsense jurisprudence. Bad karma 5. In a wrongful termination suit filed in Marin County, Calif., a former employee claims that he was fired because of his age, his gender and his “low enlightenment/consciousness” level in violation of California law. Bruce Kuhlman was hired by New Santana Band Inc. and eventually held a management position. Despite 16 years of employment, he was fired after his “enlightenment/consciousness level” was found to be deficient, as “calibrated” in treatment sessions required by defendant Debra Santana. Only in California! Dogma, not diagnosis 4. The 10th Circuit has ruled that a “telephone triage nurse” who persisted in making religious comments to callers was appropriately fired by her employer. Mary Angela Morales worked for McKesson Health Solutions to assess patients’ symptoms by phone. Despite repeated warnings, Morales injected Roman Catholic prayer and dogma into calls and persisted in making religious comments that callers found “scary or offensive.” The court rejected the plaintiff’s “Hail Mary” attempt to establish a religious discrimination cause of action. Too sexy for Harvard? 3. Following a two-week trial in federal court in Boston, a jury rejected discrimination claims of an African-American assistant librarian at Harvard who alleged she was repeatedly by-passed for promotion, and was told that she was just a “pretty girl” who dressed too sexily to get ahead. Plaintiff Desiree Goodwin, who has two master’s degrees and 16 years of experience, was passed over 13 times for promotion. She complained, “A man would never be penalized for being too attractive. It could only enhance a man’s career if he is sexy.” Snared in red-tape scheme 2. Veterans Affairs workers Joseph Haymond and Natalie Coker were arrested in Tennessee and charged with taking bribes for buying 100,000 rolls of red tape at inflated prices. They worked at a pharmacy that mails prescription drugs to veterans. The red tape, stamped with the word “Security,” is meant to deter tampering. But perhaps that isn’t what the red tape was used for. Just ask any veteran who has filed a claim for benefits with the V.A.! Peep show for gorilla 1. Two fired caretakers for Koko, the world-famous, sign-language-speaking gorilla, have sued their former bosses, claiming they were pressured to expose their breasts as a way of bonding with the 300-pound animal. Nancy Alperin and Kendra Keller claimed they were subjected to sexual discrimination and wrongfully terminated. The suit seeks damages of more than $1 million. It remains to be seen how a California jury will react to these bizarre allegations.

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