1 And, by the way: hire more workers you greedy, Obama-hating business types!

2 Laura, this is nothing new. The EEOC has always operated under that rule and the courts have upheld it.

It follows the "disparate impact" theory.

3 Are the spaceships to Mars ready for launch yet?

Please!!!!!

4 Talk to the hand, bitches!

5

great

Add Civil Forfeiture to the list as well.

6 Crap. No more Hooters runs to Memphis, guys.

7 Ridiculous.

8 Faaaaaaaaaaaaantastic.

9

There is something big going on here in the Pennsylvania legislature as well.

The only state legislature controlled by republicans in the northeast may vote on a bill that uncaps the amount of damages sought by lawyers in law suits. So all of our insurance rates will go up for home insurance, car insurance, health insurance, etc etc so that some lawyers can get richer without producing anything tangible.

 

The reason it will probably pass is the law firms involved are writing tens of thousands of dollars in checks to republican elected officials.

This is big news here.

10 BTW, TN is a "right to work State" which means that an employee can fire anyone at will as long as it does not run afoul of federal discrimination laws.

So I suspect that the first case brought against a "deep pocket" employer that iusn't covered by the federal laws will go up court and this ruling will be overturned on those grounds.

11 Taking the 'prudence' out of jurisprudence since 1870 .

12 LauraW: this has been true (in effect, if not in actual decided law) for a long time.

If a man gets accused of "sexual harassment" most employers don't even bother with an investigation, anymore -unless the guy has a whole lot of clout- they just fire him and get on with it.

What makes it worse, is that "harassment" is the only "crime" in which the accussed's motivation/actions don't actually mean anything.  Something is "offensive" if "I feel offended."  Yes.  Really.

A woman says "Nice Shirt" to another woman: no problem.
A guy says "Nice shirt" to a woman: harassment.

Great, no?

13

If you're not under a contract (and thus an "at-will" employee), there's usually a clause about either party being able to sever the relationship for basically any reason, right?  Yeah, I know discrimination and things, being, you know, illegal, are exceptions, but what's to stop an employer from citing (at worst) semi-legitimate reasons that reduce to "wasn't working hard enough," "unreliable/not punctual," and so on?

(I still say that an employer should be able to fire, or indeed, not hire, for any reason at all, on the grounds that employers that do so frivolously or maliciously won't get good talent.  I *suppose* exceptions can be made for government, but, then again, so what?)

14 13 - See my post above.  It has been true (in practice) for a long time that harassment cases are the only ones where the burden of proof rests on the defense.

15 What's the best way for a small business to avoid getting wrongly sued by a minority, a female, or an older employee? Don't start a business in Tennessee.

16 #9  The only state legislature controlled by republicans in the northeast may vote on a bill that uncaps the amount of damages sought by lawyers in law suits. So all of our insurance rates will go up for home insurance, car insurance, health insurance, etc etc so that some lawyers can get richer without producing anything tangible.

BOHICA.  Haven't heard about this bill yet.  Thanks for the info, Ben. 

17 it is getting so about 1/2 the country needs to be run out of town, err, the country!

18

_{Posted by: LauraW. at 01:54 PM}

Nice post, Sugar Tits.

19

AllenG: Yeah, I'm a slow typist today; it wasn't there when I was composing.

Really, I think the Invisible Hand would sort this out pretty well.

20
Democrats are going to make it so hard to run any sort of business in America, we will all run into the arms of the big communist/ big union government.

That's their sick plan, anyway.

21

Yes, in harassment cases just the suggestion that there is a "hostile work environment" is enough to get someone fired. 

This does not sound like a great bullet point for a Chamber of Commerce demo on why businesses should leave rustbelt hellholes for the right to work southland.

22 Does every freakin' day have to be a stress test? Sheesh.

Hello contract labor. Goodbye full-time employment.

23 Socratease @ #15: Don't start a business in Tennessee.

Ding ding ding!

*throws Socratease a giant pink stuffed bunny*

24

Wow, what happens when a minority says 'nice shirt' to a woman and she gets offended? Can the minority just be fired immediately?

What's the PC Heirarchy solution to this liberal brain teaser?

25 Hello contract labor. Goodbye full-time employment.

Posted by: AnonymousDrivel at September 29, 2010 02:08 PM (swuwV)

That became the default with Obamacare. The only reason we are not hearing about it is the fact that nobody is hiring anyone at all.

26 I've got it!  Everyone will just sue everyone else, we all settle out of court, and then we'll just sit back and live off our settlements!

27 It's getting so a guy can't even walk around the office with a boner anymore.

28 In Tennessee, the burden of proof is now on the accused; an employer must somehow show that they did not harass, intimidate, or discriminate.

The linked article does not say this. Businesses are no longer allowed to get an automatic dismissal; they must make their case to a jury. If they want to avoid the trial and get the case thrown out before it is even heard, then yes, they must prove the claims are false.

But, contrary to your assertion, the burden of proof is not on the employer if it does go to a trial. The jury will decide whose case is more credible based on the facts presented at trial.

29

Wow, what happens when a minority says 'nice shirt' to a woman and she gets offended? Can the minority just be fired immediately?

What's the PC Heirarchy solution to this liberal brain teaser?

Posted by: gator at September 29, 2010 02:09 PM (aOKEC)

Race trumps gender (as long as it's the right race) but I'm unclear on where sexual perversion stands.  And Muslim is moving up fast.  All I know for sure is don't mess with an Islamic black lesbian.

30 27 It's getting so a guy can't even walk around the office with a boner anymore.

Posted by: Ted Kennedy's Gristle Encased Head at September 29, 2010 02:12 PM (+lsX1)

You need to pay us a visit...

31 Sock off.

32 I'm no fan of this decision, but I fear you're overstating it, Laura. This doesn't shift the burden of proof to the accused -- it merely makes it harder to dismiss an accusation without a trial. The trial still proceeds with the same guidelines.

That said, a trial itself can be a very damaging thing to a company, even if news reports make it very clear that the charges my not be true (and they usually don't).

33 I'm really sick of all this shit today.  AND we don't get to execute that scumbag tonight in California. G-damnit!

34

That became the default with Obamacare. The only reason we are not hearing about it is the fact that nobody is hiring anyone at all.

Posted by: Vic at September 29, 2010 02:10 PM (/jbAw)

And you thought I was joking about going into the 'shine business.

35

Wow, what happens when a minority says 'nice shirt' to a woman and she gets offended? Can the minority just be fired immediately? Posted by: gator

Thank you for asking, gator.

The correct solution is ... to fire the manager who hired the minority!

Have a great day.

36

All I know for sure is don't mess with an Islamic black lesbian.

So, if I say, 'Nice hijab, Mfuma...and I love how your softball jersey matches your army boots!", I'll get fired?

 

37 Off with their socks!

38 Ah, yes. Unelected courts social engineering and writing cheques their asses don't have to cash. It's all the rage around the Western world, now.

39 Can the companies have new employees sign a form waiving those rights as a condition of employment?

40 Read  "The Servile State" by Hilaire Belloc. He wrote this 100 years ago and talks of exactly these types of laws. His argument is that these laws are seemingly pro worker but in practice continue and enlargen the divide between the financially free and the financial serf. Since the laws are created by the state and are enforced by positive law the mass of people live to serve the state and the class of people who control the state.

41

The correct solution is ... to fire the manager who hired the minority!

But what if that manager is Mfuma, the Islamic black lesbian? Goddang, pandering is tricky!!

42 If you get hauled into court for sexual harassment, might as well put your dick on the prosecutor's cheek, yell "FUCKWAFFLEROBOTWHOREDIRTYBITCHWHISTLE!" and tackle the bailiff. I bet you get a mistrial. Or something interesting to put on your resume. Either or.

43 That is quite a hash you've got, WalrusRex. (I'm not in Tennessee, so I think I can safely say that)

44

If a man gets accused of "sexual harassment" most employers don't even bother with an investigation, anymore -unless the guy has a whole lot of clout- they just fire him and get on with it.

This is just not true.

Employers have to go through hoops to document these types of things. There's usually some type of 'employee sensitivity' training that all employees have to attend. Typically yearly. And then if there's an alleged violation, HR gets involved. Witnesses are called in. Investigations. Corrective action is taken. And on and on it goes until eventually someone is fired.

45 If they want to avoid the trial and get the case thrown out before it is even heard, then yes, they must prove the claims are false.

I was going to say the same thing.  It's not necessary that much of an anti-employer ruling, as it is a PRO-trial-lawyer-industry ruling.  Because we have millions of lawsuit pushers out of work out there!

46

So, if I say, 'Nice hijab, Mfuma...and I love how your softball jersey matches your army boots!", I'll get fired?

 

Posted by: gator at September 29, 2010 02:15 PM (aOKEC)

You'll fry if I have anything to do with it.

47 Ah, excellent points, guys. I will amend the post.

48

In Tennessee, the burden of proof is now on the accused; an employer must somehow show that they did not harass, intimidate, or discriminate.

The ordinary rule, where one is presumed innocent until proven guilty, does not apply to 'employers,' which are nonhuman insects unworthy of the civil rights we afford to rapists and pederasts.

That is not at all what the story says.  The story says that unless the employer can offer substantial proof that the plaintif's claims are false, then the plaintiff has a right to have his or her claims heard by a jury in a trial.    Completely different than how you have characterized it and with completely different implications.

49
The best part is with the Wise Latina and Paul Blart on the SC, we can't even rely on this kind of idiocy being struck down.

But, you know, blocking those nominations weren't hills we were willing to die on, didn't want to get our ammo wet, etc., etc.,.

50 The linked article does not say this. Businesses are no longer allowed to get an automatic dismissal; they must make their case to a jury. If they want to avoid the trial and get the case thrown out before it is even heard, then yes, they must prove the claims are false.

But, contrary to your assertion, the burden of proof is not on the employer if it does go to a trial. The jury will decide whose case is more credible based on the facts presented at trial.

Posted by: The Republican Party at September 29, 2010 02:12 PM (DsU01)

So now juries will tell businesses how to run their business? How is this any better?

51 Given that this article was written by a reporter, I am willing to bet that we are getting some sorta half-assed opinion about the Court's decision and critical stuff was omitted. I suspect that the plaintiff still has to establish their claim before the employer has to prove the claims false.

NY law (and I suspect federal discrimination law), if plaintiff meets all the elements for a discrimination claim, the burden then goes to the employer to prove that the employee was fired/demoted/transferred for legitimate non-discriminatory reasons. If the employer meets this burden (and they do, even in liberal NY), the employee then has to prove that the employer's reasons were pretextual.

52 That said, a trial itself can be a very damaging thing to a company, even if news reports make it very clear that the charges my not be true (and they usually don't).

All that means is a settlement proposal somewhat less than a successful defense will cost is all a bogus complainer needs to ask for to GET PAID. 

Start asking for $2M, settle for $8K.

53

What's the PC Heirarchy solution to this liberal brain teaser?

Blame the white guy for trying to make Obama look bad.

Duh.

54 I was going to say the same thing.  It's not necessary that much of an anti-employer ruling, as it is a PRO-trial-lawyer-industry ruling.  Because we have millions of lawsuit pushers out of work out there!
Posted by: Bender Bending Rodriguez at September 29, 2010 02:19 PM (B9I+f)

Dead on. Convictions still require the accuser proving his case beyond a reasonable doubt. Dismissals are meant to weed out cases that can't bring any concrete proof, and would only be a waste of time and money. The effect of changing that will be to scare the accused into settling to avoid the negative PR of a trial. And then the trial lawyer takes a cut. Easy money.

55 If you want to know who really has the advantage in these cases it's the women with the big titties and nice asses.  Every single time they make a complaint those fags in HR take their side.  Thanks a lot Obama.

56

Blame the white guy for trying to make Obama look bad.

Of course, but I'd just love to see the PC Scale of Victimhood by Degree. I know straight white misogynist racist oppressor males are all worse than Hitler, but I'm not totally clear on the rankings.

I hope the BCS, perhaps with the help of Congress, addresses this woeful need soon.

57

Nice post, Sugar Tits.

Posted by: Mel Gibson at September 29, 2010 02:05 PM (0BXUB)

Oh and nicely done, Mel.

58
The linked article does not say this. Businesses are no longer allowed to get an automatic dismissal; they must make their case to a jury. If they want to avoid the trial and get the case thrown out before it is even heard, then yes, they must prove the claims are false.

But, contrary to your assertion, the burden of proof is not on the employer if it does go to a trial. The jury will decide whose case is more credible based on the facts presented at trial.

One of the protections associated with the "Burden of Proof" is that an accuser must present prima facie evidence for a case to go to trial.  The thinking is that taking someone to trial without such evidence is a waste of time, and the defendants money and resources. Just going to trial itself is costly. This eliminates that hurdle, making it easier for false claims to settle out of court to avoid the cost of trial. In effect Tenn has at law authorized corporate shakedowns. Every other type of case, the accuser has to meet prima facie outside of trial prior to a trial being allowed. In addition if a case doesn't have prima facie, and it goes to trial the trial judge should overturn the jury settlement, judgment notwithstanding the verdict (If appl to Tenn) , so no good reason exists to take a case to trial without prima facie evidence except to force shakedowns out of court in the form of cost saving settlements.

59 33 I'm really sick of all this shit today.  AND we don't get to execute that scumbag tonight in California. G-damnit!

Bring back the firing squads, or the guillotine!

/Execute him by lethal injection anyway, without the sodium pentothioal.  If the scumbag suffers a bit, tough shit.

60 And yeah, the plaintiff's bar definitely profits by this ruling. Does Tenn. have a loser pay requirement in discrimination cases?  I know the 42 USC 1983 does (civil rights violations) (42 USC 1988 is the provision).

61 Corrected. Reading is fundamental.

62

I was sued by an illegal alien in Los Angeles for breaking up a fight at school. Prosecutor told me he knew I didn't do what was accused, but he laughed and said I can't prove I didn't do it. His family, who did not even have custody of him, settled for $1500 bucks after two years of stress and 10 court appearances.

Only cost me about $20K.

63 I meant to say that 42 USC 1983 (cause of action for civil rights violations) has a losers pay provision, so that not only does plaintiff get the $$, but then the defendant has to pay the plaintiff's lawyer as well. And, the court's apply a much more rigorous standard when the defendants win. Essentially, the defendants have to prove that the case lacked merit, and the cases and courts are leery of giving legal fees to defendants in 1983 actions because they think it might discourage people from suing. Not sure i understand the logic on that one.

64 So, under this ruling, if I choose white prostitutes over Asian prostitutes I can be sued?  (Actually I prefer Asian prostitutes, I'm just making a point)

65

_{Oh and nicely done, Mel.}

Thanks, Dang.  I wanted to sock as 'Ace @ Memphis HQ',  but you know how sensitive he is these days.

66 Only if you pay her less than you would a white prostitute for the same service.

67 Everybody knows that you'll get in trouble for insulting a lesbo, but a lot of times you don't know she's a lesbo until after you rub up against her and she gets pissed off.  So, catch 22.

68

_{/Execute him by lethal injection anyway, without the sodium pentothioal.  If the scumbag suffers a bit, tough shit.}

.22 behind the ear. 

Cheap, Safe, and highly effective.

69 Update Numero Dos!

70 Keep 'em coming! (I kid, I kid.)

71 I guess "Sexual Harassment Fridays"™ are out, that's a shame cuz that's when I do my best work.

72 The linked article does not say this. Businesses are no longer allowed to get an automatic dismissal; they must make their case to a jury. If they want to avoid the trial and get the case thrown out before it is even heard, then yes, they must prove the claims are false. bva

That's all that matters. I owned my own restaurant/bar for 17 years. How am I supposed to find the time to go to trial for every single absurd accusation to prove my innocence? So Laura is absolutely right.

73
Update 17 : Stop correcting me.

74 Never mind...............

75

SO, lemme get this right.

 

You're not suing me?

 

...

 

whew

76

I still suck for not reading the article thoroughly. I had it for two days and even had a discussion about it with Tom. What a dorkwad move not befitting a professional amateur cob-logger.

*hangs head in shame*

Don't be too hard on yourself, Laura. We all have a hump prism of personal experiences we all view things through.

77 Dave, stalking is a whole different area of law

78 Don't worry Laura. I'll still follow you on twitter even if everyone else abandons you.

79

*hangs head in shame*

There, there LauraW (pats hump affectionately). There, there.

80 I need to take the fall here, folks. I was the one who pushed the ideology of the piece, not LauraW.

Having said that, the big thing missing from all the comments is this: EPLI lawsuits are on the increase, and, even if the employer wins the suit, it costs them an average of forty thousand dollars. This decision by the court now makes it more likely that a lawsuit that might have been rejected on its face gets brought to trial.

I can't speak for anyone else, but I can say that my business would not be able to afford one suie, let alone more. The cost for the insurance has been quoted about $2,500.00 over my existing policy, and I can't swing that right now, either. A larger employer, sure. A small company with maybe seven or eight workers/ Not in this economy.

Please don't blame Laura for my over reading of this, though. If I end up on the hospital, or crippled for life, it won't be a good thing.

81 There is no presumption of innocence in civil matters and never has been.  There is a burden of proof, but once the prima facie case is shown, it's usually on like donkey kong for the jury to weigh the evidence.  The standard is a preponderance of the evidence.  The employer can either shoot down the prima facie case or bring up various affirmative defenses, including superseading legitimate causes etc.

82

>> Dave, stalking is a whole different area of law

So I've been told by my defense attorney.

83 Don't feel too bad Laura , Rush was off his game today also ,
or you can blame it on a drinking problem ,Thats what Hollywood does...

84

Roach is right, there is no presumption of innocence, precisely because guilt is not being adjudicated.  There is a difference, though, between burden of proof and burden of persuasion.

Apparently, employers in TN cannot rely on Summary Judgment to get rid of the case, and have to go the expensive route--not trial but discovery.  That is what costs so much, and will now provide leverage for Plaintiff.

85

By God, the answer to the intractable unemployment problem was rightbefore our eyes all along.  Make employers terrified of their employees.  Who doesn't want to walk on eggshells all the time.

Thank you, out of contol judiciary