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Labor & Employment Update: February 1998

This article was edited and reviewed by FindLaw Attorney Writers | Last reviewed March 26, 2008

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In this issue:
Melrose Actress Wins Over $4 Million In Pregnancy Discrimination Lawsuit
Discrimination Lawsuit Dismissed Because Of Workers' Compensation "Stress-Free" Work Restriction
Supreme Court Resolves Dispute Over Invalid Age Discrimination Releases - Texas only
Workplace Comments Result In Judgment Against Employer For Sexual Harassment - Texas only

Melrose Actress Wins Over $4 Million In Pregnancy Discrimination Lawsuit
In the first successful pregnancy discrimination suit brought by a television actress, a ten-woman, two-man Los Angeles jury awarded Melrose Place actress Hunter Tylo $4 million in damages for emotional distress and nearly $900,000 for breach of contract after Spelling Entertainment Group terminated her when she disclosed she was five weeks pregnant. Tylo v. Spelling Entertainment Group.

Tylo, who had not appeared in a single episode prior to her termination, argued that she was terminated solely because of her pregnancy in violation of California's Fair Employment and Housing Act. Tylo's eight-episode contract, with an option to renew for an additional three years, did not assign a specific character to her role and included a provision that permitted Spelling to terminate Tylo "if [she] suffers any material change in [her] appearance...."

Spelling's attorneys argued unsuccessfully that because the actress's character "is by necessity not pregnant," she could not perform her job duties for a position in which physical beauty is an essential function. Spelling's attorneys also argued that the actress's forty-six-pound weight gain violated her contract's material change of appearance clause. They also claimed that because Tylo's character required a "vixen, seductress, adulteress," she could not perform with any dramatic credibility and should, therefore, be exempted from pregnancy discrimination protections.

Tylo countered that the weight gain occurred after her termination and that two other Melrose Place actresses, Heather Locklear and Tylo's replacement, Lisa Rinna, had successfully performed their respective roles while pregnant. In fact, body doubles, cleverly draped leopard-print sheets, bathrobes, furniture and even a picnic basket had all been successfully used to conceal Locklear's pregnancy. An attorney for Spelling responded that an established character should be treated differently than an entirely new one and has announced that Spelling will appeal.

Discrimination Lawsuit Dismissed Because Of Workers' Compensation "Stress-Free" Work Restriction
In Jackson v. County of Los Angeles, 70 Cal.Rptr.2d 96, 97, a California appeals court recently held that a work restriction in an injured safety officer's workers' compensation award prevented him from establishing a claim as a "qualified individual with a disability" under the Americans with Disabilities Act (ADA).

In his capacity as a safety police officer III at the Los Angeles County.USC Medical Center, Eddie Johnson was required to prevent acts of violence, make arrests and respond to emergencies. After suffering back and stress-related injuries while restraining a patient, he filed a workers' compensation claim but did not request any work-related accommodations.

After two doctors reviewed the claim and disagreed over the ability of Jackson to return to comparable work, both sides signed a work restriction stipulating that Jackson work exclusively in an "environment free from emotional stress and strain and no heavy work." As Johnson's former position had required that he carry a firearm at all times and face "arduous" physical and emotional demands, the County attempted to transfer him to another position in compliance with the workers' compensation stipulation. Jackson, however, refused to accept another position and sued, alleging that the County had violated the ADA by failing to accommodate his disability.

The Court held that Jackson was precluded from making such a claim because in order to prove that he could perform the essential functions of the job with or without accommodation . the standard for relief under the ADA . he would have to assert a position "totally inconsistent" with his prior "mutually agreed" position in the workers' compensation proceeding. Under the doctrine of judicial estoppel, an individual cannot take such an inconsistent position in a subsequent legal proceeding. In other words, Jackson could not claim to be qualified for the position of safety officer under the ADA when he had earlier agreed to a stress-free environment workers' compensation restriction that rendered him unqualified for the very same position.

Supreme Court Resolves Dispute Over Invalid Age Discrimination Releases (Texas)
The Older Worker Benefit Protection Act ("OWBPA"), passed in 1990, provides that, in order to be valid, a release of claims for discrimination under the Age Discrimination in Employment Act ("ADEA") must satisfy certain requirements. Specifically, in most cases, the employee must (1) be given twenty-one (21) days to consider the release offer; (2) be advised to consult with an attorney; and (3) have the option of revoking the release during the seven (7) day period following its execution. It is well settled that a release of claims under the ADEA is invalid unless it complies with each of the above requirements. Until recently, however, courts have wrestled with the issue of whether an employee is required to return consideration received in exchange for an invalid ADEA release before the employee signatory to the invalid release may bring an action for age discrimination.

Last month, in Oubre v. Enterge Operations, Inc., No. 96-1291, 1998 WL 23157 (U.S. Jan. 26, 1998), the United States Supreme Court held that an employee signatory to an invalid ADEA release may sue for age discrimination without returning consideration received in exchange for signing the release. At best, the employer can obtain an offset against any future recovery by the employee in the amount of the consideration provided for the release. A more detailed explanation of Oubre will be contained in the March 1998 Labor & Employment Update. However, under Oubre, employers are cautioned to exercise extreme care to ensure that the requirements of OWBPA are satisfied whenever providing consideration in exchange for a release of claims under the ADEA.

Workplace Comments Result in Judgment Against Employer for Sexual Harassment (Texas)
In Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d 1408 (10th Cir. Dec. 3, 1997), the United States Court of Appeals for the Tenth Circuit affirmed a judgment awarding damages for hostile work environment sexual harassment.

Plaintiff Debbie Smith sued Norwest Financial Wyoming, Inc., Norwest Financial, Inc., and Curtis Mangus alleging Mr. Mangus, her supervisor, made sexually disparaging comments to her over the course of her twenty-three month employment with Norwest as an accounts service representative. The trial court admitted evidence of six disparaging remarks at trial, including three remarks the court concluded "were severe enough to affect a reasonable person's identity as a woman." Mangus told Smith (1) to "get a little this weekend" so she would "come back in a better mood"; (2) that Smith "would be the worst piece of ass that [Mangus] ever had"; and (3) that Smith "must be a sad piece of ass" who "can't keep a man." Mangus also told Smith she "would find a decent man if [she] just quit dating Mexicans." Mangus made the comments to Smith in Norwest's office, a relatively small, open workspace without partitions or walls. Smith's five coworkers could hear Mangus's remarks and occasionally witnessed his humiliating treatment of her. After twenty-three months, Smith resigned her employment.

The Tenth Circuit held that several factors supported the conclusion that the sexually disparaging remarks were sufficiently severe to create a hostile work environment for Smith. Two of Smith's male coworkers testified that Mangus's conduct was "sexually inappropriate," "offensive," and "intimidating." Of significant importance to the court was the fact that the comments were publicly made; the "public setting only increased the humiliation, and, therefore, the severity of the discriminatory conduct." The court also noted that the fact that Mangus's "invective . . . was directed solely at [Smith] . . . may be a relevant factor" in determining whether the work environment was sufficiently hostile to warrant legal relief. Although the court made clear that Smith was not required to prove that her tangible productivity or work performance declined as a result of the harassment, the court held that testimony that Mangus's conduct negatively affected Smith's performance supported the conclusion that a reasonable person would have found the sexual harassment severe. Furthermore, the fact that Smith herself engaged in casual joking in the office "[did] not negate the harshness of the harassing treatment." Finally, the court held that the aggregation of the evidence of sexual hostility with that of racial hostility "emphasized" its point that the conduct was sufficiently severe that a reasonable person would find it abusive.

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