Has the world gone crazy?
C. The word “crazy” is a microaggression.
See how you do with these guaranteed true news items from the last week, all relating to employment law. Then tell me whether you agree that we are living in some crazy times. YCMTSU.*
*You Can’t Make This Stuff Up. (I think this cliche has earned an internet acronym, don’t you? Maybe it already had one.)
Question 1: The City of Everett, Washington, recently enacted ordinances that, among other things, required workers in the city limits to wear at least a tank top and shorts to work (their employers would be subject to penalties for requiring them to wear less than that). Some local bikini baristas did the following in response:
A. Started wearing tank tops and shorts to work instead of bikinis.
B. Blew the whistle on their employers for continuing to require them to wear bikinis.
C. Moved outside the city limits of Everett, Washington, so they could lawfully continue to wear bikinis to work.
D. Filed suit against the City of Everett, alleging that the ordinance violated their constitutional rights of privacy, equal protection under the laws, and expression.
The plaintiff baristas earn their living working at bikini-barista stands. They wear bikinis while serving coffee to customers in their cars through a drive-through window. They express messages of freedom, openness, acceptance, empowerment, and individuality. By exposing who they are as people through tattoos, scars, and the bikinis that they choose to wear, the baristas exchange conversations with customers about life experiences, personal choices, and other topics that would not otherwise occur. The baristas cannot express these messages and prompt these discussions without the unique expression that wearing a bikini provides.
Bet you didn’t know that wearing a bikini to work was a constitutional right, did you? Neither did I. But my hat is off to their lawyer for some creative pleading that is legendary.
Question 2: An artistic director of the Oregon Bach Festival (run by the University of Oregon) was recently fired for engaging in racist talk with a countertenor who was African-American. What did this (British) artistic director say that caused him to lose his job?
A. He used the “N” word.
B. He expressed sympathy for the Ku Klux Klan and neo-Nazis.
C. After the countertenor, a Floridian, said he had recently sung in a show in the U.K. that had an “antebellum” feel like Gone With the Wind, the artistic director jokingly apologized on behalf of England and then asked in a fake Southern accent, “Do you want some grits?”
D. He expressed sorrow that white people are reportedly soon to be a minority in the United States.
E. What the heck is a “countertenor”?
ANSWER: C. The conversation was overheard by a third party, who reported the artistic director. This prompted an investigation and got him fired. But the countertenor has publicly said that they were having a friendly conversation and that the director’s comments were not in the least racist or offensive. He also contends that the University did not interview him — the alleged victim of the alleged racist remark — as part of its investigation. (!!)
The countertenor and others are reportedly seeking to have the director reinstated to his position. If they succeed, I’ll take this off the “bizarro” list.
PS – A countertenor is a high male operatic singing voice that has roughly the same range as a female contralto or mezzo-soprano.
Question 3: The U.S. Court of Appeals for the Sixth Circuit recently affirmed summary judgment for Cleveland State University in a lawsuit filed by a tenured professor at Cleveland-Marshall College of Law. Among other things, the professor claimed that his dean unlawfully retaliated against him for engaging in union activity. What did the dean do that was allegedly retaliatory?
A. Gave him a raise in the amount of $666 (“the Mark of the Beast” from the New Testament Book of Revelation).
B. Began proceedings to get the professor fired.
C. Snubbed him at faculty meetings.
D. Scheduled all of his classes at 8 a.m., five days a week, and short-sheeted his bed.
ANSWER: A. Although the amount of the raise really was $666, the court found that it was not based on the professor’s union activity — it just happened to work out that way at the end of the dean’s process for calculating faculty pay increases. Most damningly to the professor’s claim, other faculty who did not engage in union activity received the same amount. (Some commenters, exercising 20-20 hindsight, have suggested that the dean would have been wise to round the amount up or down to avoid having it come out to that number. Maybe so, since the case went all the way up to the Sixth Circuit.)
In any event, everybody knows that the Book of Revelation is allegorical. The real Mark of the Beast is the facial recognition technology on the new iPhone X.
Question 4: A Caucasian writer and actor in a well-known show is suing for reverse racial harassment. He alleges that an African-American actress called him “white Jesus” and said she wished all white people were dead. The actor is suing the show because it suspended him and then refused to use him again after he complained about the alleged harassment. Which famous show is the defendant?
A. Leave It to Beaver
C. Second City
D. Game of Thrones
E. The female version of Ghostbusters
ANSWER: C. Scott Morehead was the only white male cast member in Second City’s “A Red Line Runs Through It,” described as “a highly politically charged, hard-hitting comedy show about race, gender, and Chicago Mayor Rahm Emanuel.” According to the Chicago Sun-Times, “‘F-words and n-words erupt.’” (All of which makes me initially a bit skeptical of Mr. Morehead’s harassment and retaliation claims, but we’ll see.)
Four correct: You are a true bizarro. !snoitalutargnoC
Three correct: You ain’t right!
Two correct: You have your moments of quirkiness.
One or zero correct: Aww, too bad. You are perfectly normal.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.