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Depending on how you define “millennium,” our annual survey of the Top 10 Wackiest Employment Law Cases of the Year starts the new decade, century or millennium with a flourish. Here goes: 10. ON THE HOT SEAT (Although not technically an employment case, this proved irresistible.) A lab technician employed by the University of California was sentenced to three months in jail for smearing radioactive material on a co-worker’s chair. The technician reportedly blamed the other employee for a mishap that occurred during tests of radioactive material and placed the material on her chair “to get even.” The woman sat in the chair for two days before discovering what had occurred and is believed to have been exposed to a year’s dose of radiation during that time. The technician pleaded guilty to misdemeanor charges of assault and battery and a felony count of “unlawful disposal of radioactive material.” ( The Illinois Labor Letter March 2000) 9. FAMILY FARE The 7th U.S. Circuit Court of Appeals reversed the dismissal of a sexual harassment case brought by a former employee of a national hamburger restaurant chain, reasoning as follows: “We have no doubt that the type of conduct at issue here falls on the actionable side of the line dividing abusive conduct from behavior that is merely vulgar or mildly offensive … . Having a co-worker insert his tongue into one’s mouth without invitation and having one’s brassiere nearly removed is not conduct that would be anticipated in the workplace and certainly not in a family restaurant.” For its forceful statement of the obvious, we salute the 7th Circuit. Ann M. Hostetler v. Quality Dining, Inc. 7th Circuit Docket No. 98-2386, decided 6/29/00. 8. COLD FUSION IS GOD The Equal Employment Opportunity Commission decided in July that an employee who was fired for his “obsessive” belief in the possibility of cold fusion — which most physicists believe is impossible — can sue his employer, the U.S. Patent Office, for religious discrimination. The agency reasoned that as long as an employee has a seriously held conviction that he regards as “religious,” he is protected from discrimination by federal law. And so, the fierce debate over the dividing line between science and religion continues to puzzle the experts. Paul A. LaViolette v. U.S. Patent Office ( Chicago Reader Nov. 17, 2000). 7. VIPER’S JUSTICE The 8th U.S. Circuit Court of Appeals ruled that a hospital switchboard operator’s fear of snakes does not entitle her to coverage under the Americans With Disabilities Act because her fear does not substantially limit her ability to work. In affirming summary judgment for the hospital, the court ruled that the employee’s fear of snakes in her work area, where snakes had, in fact, been seen, was not a disability because it prevented her only from working in her current job, not from performing a broad range of jobs: “A comfort level with snakes is simply not a requirement for most jobs,” the court said. Anderson v. North Dakota State Hospital, 11 AD Cases 304, 8th Circuit 2000. 6. TOO SMART FOR A COP In a landmark ruling, the 2nd U.S. Circuit Court of Appeals upheld a lower court’s decision allowing the police department to reject a candidate whose scores on an intelligence test were too high. The plaintiff had scored 33 points on the test (the equivalent of an IQ of 125); the police department only interviewed candidates whose scores fell in the range of 20-27 points. The national average score for police officers is 21-22. The police department successfully argued that the higher score indicated a greater likelihood that the plaintiff would become bored with police work and leave the department after costly job training. Robert Jordan v. City of New London, 2nd Circuit September 2000. 5. SHAME-ANISM The United States’ largest aerospace company has been sued for religious discrimination by a former employee who was fired for working in the nude at the office on Thanksgiving Day 1998 when he thought he was alone. A security guard turned him in for “violating the company’s dress code.” The plaintiff charged that his termination was illegal because the company should have provided “reasonable accommodation” for his religion, shamanism. Mark W. Bziga v. Boeing, as reported in the Orange County Register, December 2000. 4. BABES IN TOYLAND A Minneapolis woman who took a job at a sex-toy shop filed a lawsuit against the store. The plaintiff claimed hostile-environment sexual harassment because of all the lewd talk she had to listen to during the workday. ( Chicago Sun-Times, Sept. 27, 2000) 3. BISEXUAL HARASSMENT The 7th U.S. Circuit Court of Appeals has ruled that a supervisor who sexually harassed both a male and a female employee is not liable under Title VII of the 1964 Civil Rights Act. Rejecting the arguments of a married couple employed by the state of Indiana — as well as those of the EEOC, which supported their position — the court ruled that because their supervisor solicited sex from each of them, the alleged harassment was not covered by federal civil rights law. The plaintiffs had alleged that their department foreman began seeking sexual favors from the husband in August 1995 and from his wife four months later, and he then retaliated against them after they rejected his advances. The court rejected the plaintiffs’ argument that harassers will shield themselves and their employers from liability by harassing members of both sexes to disguise their real intent: “Surely attorneys will not advise their employer-clients to instruct their employees to harass still more people — to commit, in most states, state law torts — which could subject their clients to lawsuits and themselves to claims of malpractice and charges of professional misconduct.” That should count as fair warning to all equal-opportunity harassers. Holman v. State of Indiana and Indiana Department of Transportation, 7th Circuit Docket No. 99-1355 (7th Cir. May 2000). 2. BITCH, BITCH, BITCH … The 7th U.S. Circuit Court of Appeals has upheld the dismissal of a saleswoman’s sexual harassment claim. During the two years that the saleswoman worked for the general manager, he is alleged to have engaged in hostile behavior by distributing sexually explicit material at business meetings, threatening violence toward female staff members, referring to women as “bitches” and “f—— bitches” and telling derogatory jokes at meetings. In dismissing the plaintiff’s sexual harassment claims, the court reasoned that the “mere use of the word ‘bitch’ without other evidence of sex discrimination, is not particularly probative of a general misogynist attitude.” The court reasoned further that the saleswoman presented no additional evidence demonstrating that the manager’s use of the word “bitch” connoted a misogynist attitude, adding that the term was not used as a “synonym for female-specific characteristics” of which the manager did not approve. Moreover, because the saleswoman who filed the complaint used offensive language herself, she failed to show that the manager’s language was unwelcome. Hocevar v. Perdue Frederick Co., 8th Circuit Docket No. 98-4075, Aug. 9, 2000. 1. SANITY PROTECTED Ohio’s 8th District Court of Appeals ruled that a clerical worker for a mental health agency who claimed he was fired after his employer determined that he had no history of mental health problems can proceed with a wrongful discharge claim. Characterizing the claim as one of reverse discrimination, the court ruled that the plaintiff, who was the only employee at the agency without a mental health disability (or a history of one), was entitled to a trial on his claim of reverse discrimination. Thus, for the first time in legal history, sanity has been identified as a protected class. Woods v. Phoenix Society of Cuyahoga County, 8th District Court of Appeals, 2000; BNA DLR No. 107, June 2, 2000 at A-1. Gerald D. Skoning, a partner at Chicago’s Seyfarth Shaw, keeps an annual vigil for cases worthy of mention.

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