Saturday, October 31, 2009


By David McCarthy

You don't need a well-written contract when everyone is performing as agreed. You need it when things change for the worse. Everything is always changing, of course, and all too often changing for the worse.

A number of matters that have come into the office lately have driven those points home. In one case, a client dealing with a known rascal preferred to sign off on an agreement that was virtually drawn on a cocktail napkin than to pay an attorney a few bucks to "rascal-proof" the agreement. It was only a matter of time before the rascal did what rascals do. The client has paid far more to keep the rascal in check and the effectiveness of those efforts is much harder to measure than would be so had a well-written contract been drawn at the start of the relationship between rascal and client.

In another case a group of would-be partners had the good sense to commission a well-drawn contract on the front end. Their objective was to share gains and losses equally.

That seems simple enough, doesn't it?

Imagine several boys with paper routes who meet in their tree house and deposit their collections in a coffee can. At the end of the month, they count out the money in the can and divide it equally.

What could go wrong with that?

Not much if they are all delivering the same newspaper to the same number of customers, achieving the same rate of collection, depositing every dime they agreed to deposit; and if no third parties have any claim on the money in the coffee can (e. g., the Internal Revenue Service, the Illinois Department of Revenue, the Illinois Department of Employment Security, spouses, children, dependents, and all the rest of it).

Since the would-be partners are grown men with lives and obligations that are a bit more complicated than those of boys with paper routes in a tree house, putting down on paper an agreement that meets the needs of all is of utmost importance and demands care and attention.

Tuesday, October 6, 2009


by David McCarthy

Query: When an employee with seniority and an employee with a disability vie for the same job, who gets it?

Usually the employee with seniority, according to the U.S. Supreme Court.

In 1990 a man named Barnett injured his back while employed as a cargo handler by U. S. Airways Inc.. He invoked his own seniority rights to gain a less demanding position in the mail room. Two years later his position, among others, was opened to seniority-based employee bidding, and Mr. Barnett learned that two co-workers who were senior to him intended to bid for his positions.

Mr. Barnett proposed to U. S. Airways that it accommodate his disability by exempting his position from the seniority system. Ultimately the employer refused, Mr. Barnett lost his job, and he sued U. S. Airways on the grounds that it had discriminated against him in violation of the Americans With Disabilities Act ("ADA").

Summary judgment for the defendant-employer was reversed on appeal. Then the U. S. Supreme Court, in another 5-4 decision, reversed the Court of Appeals and remanded the case to the trial court.

The Court held that the accommodation requirements of the ADA do not oblige an employer to disregard its own seniority system unless the plaintiff-employee shows "special circumstances" warranting from the seniority system in that particular case.

What does a "special circumstance" look like?

The Court offered only one example, to wit, that of an employer who has so often exercised a unilateral right to make exceptions to its seniority system that one more exception will not matter. It is too soon to tell whether the seniority-is-trump rule will be swallowed up tby the "special circumstances" exception, but it is predictable


by David McCarthy

There was a time when it was widely understood and accepted that tenure was conditioned on being published.

Interestingly, officials of the University of Wisconsin were sued for refusing (by a vote of 7 to 1) to grant tenure to an assistant professor of physical education who had published nothing. The contract of employment did not guarantee tenure, but only that plaintiff would be considered for tenure. The case was dismissed on dispositive pre-trial motions and the Seventh Circuit Court of Appeals affirmed the dismissal.

Plaintiff brought a claim under Title VII of the Civil Rights Act that alleged sexual discrimination in the form of "associational discrimination."

It contended, in gist, that tenure had been denied to plaintiff because of her association with a male employee of the university who had earlier filed a sex discrimination claim (and who also cast the only vote in favor of granting tenure to plaintiff). The Title VI claim was found to be time barred.

A claim predicated on denial of equal protection failed for want of evidence that plaintiff had been treated differently from similarly situated candiates for tenure and for want of evidence that the individual defendants were motivated by an intent to discriminate against persons such as plaintiff.

Plaintiff asserted that she was a class of one, a heterosexual female professor who befriended a heterosexual male professor who filed a sex discrimination complaint. However, she did not carry her burden of establishing that the defendant's justification for discriminating against her was irrational and arbitrary.

Finally, the Court rejected a claim that denial of tenure carried a stigma so great that at two different performance reviews prior to the time when plaintiff came up for tenure, the Dean had told her that publishing would be a "critical factor" in the tenure decision.

After the litigation commenced and after the defendants filed their motion for summary judgment, the response of plaintiff flagrantly disregarded local rules pertaining to statements of fact and citations of law. The trial judge therefore disregarded a large part of plaintiff's opposition. Plaintiff charged the trial judge with abuse of discretion. The Court of Appeals rejected that contention.


by David McCarthy

Being transferred from the day shift to the night shift does not constitute sexual discriminiation.

A woman grown accustomed to the day shift quit as soon as she had been transferred to the night shift and sued for "constructive" discharge on the grounds that any reasonable person would deem the change of shift unbearable.

The Seventh Circuit Court of Appeals affirmed summary judgement in favor of the defendant-employer on the grounds that transfer from day shift to night shift did not constitute an "adverse employment action."

The case is noteworthy for its rejection of the sexist position of the plaintiff.

She accused her boss of preying on her "wifely instincts": He knew she would resign rather than accept transfer to the night shift because she was a dutiful wife, caregiver in the home and not the principal breadwinner.
Or so the argument went.

The Appeals Court remarked that the plaintiff -- apart from having no evidence in support of her speculations -- was attempting to build a case on the very gender stereotyping which Title VII of the Civil Rights Act of 1964 was designed to eradicate from the workplace (Grube v. Lau Industries Inc. No. 00-4131, 7-19-01).