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By Lindy Korn, Esq.
Originally printed in Buffalo Healthy Living Magazine
January 2017

Some people with a disability may need a service dog as a reasonable accommodation, in housing where they reside. Many co-ops have policies that prohibit animals in the complex. What should someone do, if they need a service dog due to a condition that arises during the
term of residency?

Property management should be made aware of the need for a reasonable accommodation, and scheduling a meeting to discuss such accommodation is appropriate. A note from a treating physician explaining the need for the service dog is important since it provides a basis for understanding the need for an accommodation.

The property management committee may not think that an accommodation is needed and may threaten eviction. This may be the basis for disability discrimination. Establishing that a person has a disability and that the service animal is necessary in order for her to “enjoy” the residence and to lessen the symptoms of the disability, is required. Sometimes psychological documentation is helpful to establish the importance and right to have the accommodation.

For example, a woman who lives in a co-op had been diagnosed with rheumatoid arthritis. Over time that condition worsened. She told the Board that she needed a service dog to assist with her symptoms and stress, and the dog caused her to move about more. Medical documentation was submitted. The Board denied the reasonable accommodation because the woman had lived in the co-op for many years without needing a “service dog”.

The American with Disabilities Act requires an “interactive” process when considering what is a reasonable accommodation. To avoid legal action, a person with a disability should present medical documentation and discuss what the law requires. The EEOC has a guidance for reasonable accommodation in housing – which can be found on the eeoc.gov website.

Buffalo Law Journal

Jane Schmitt, Copy Editor Buffalo Business First

Sep 20, 2016

What do you bring to the table as co-chair of the Working Parents Committee of the local chapter of the state Women’s Bar Association?

I think my most important contribution … has been my passion for the type of work we do. We have such a dedicated, talented membership, and being able to help facilitate ideas and develop goals for the committee has been so rewarding. My son is 18 months old, and I have been practicing as an attorney for almost three years, so I am certainly not the most experienced parent or even the most experienced attorney on the committee. I practice plaintiff-side employment discrimination law, and so for my entire career, I’ve been an advocate for employees. Many of my clients have been working parents who faced discrimination because of pregnancy, lactation rights, parental leave and so forth. So when I became a parent myself and learned about the Working Parents Committee, it seemed like a natural fit to become involved. I absolutely think my legal practice helps inform the way I approach the committee since I have such an awareness of the issues working parents face across the board.

As a workplace civil rights attorney, do you have a sense of how families feel the impact of divorce and custody proceedings and other elements of family law?

My practice does not involve substantive family law issues, but there is certainly an intersection between family, divorce and custody issues and employment discrimination that we see. For example, domestic violence survivors are protected in relation to employment under the New York Human Rights Law. Our office has handled several cases where a domestic violence victim has faced discrimination at work because of that status or because the domestic abuser is harassing the victim at work. These types of cases are so personal, and you really get a sense of the trauma the victim has suffered. We also have a sense of the difficulties custody proceedings have on breastfeeding mothers who, because of a joint-custody order or other reason, may have to spend time away from their child, which can affect the ability of the mother to continue breastfeeding. Because our office advocates for the workplace lactation rights of nursing mothers, we sometimes get queries about the rights of nursing mothers in the midst of custody battles.

Why is it so important to advocate for the rights of working parents these days?

We live in a time where there are more rights protecting working parents than ever before, and it is so important to make (them) and their employers aware of those rights. Despite there being protections in place, there is still an attitude that persists in some workplaces that goes along the lines of “I had it this way, so you should, too.” “I had to pump in a bathroom, so you should, too.” “I got by with six weeks of leave, so you should, too.” These attitudes run contrary not only to the law in many cases but fly in the face of the work so many workers and advocates have done to advance employee rights. Certainly, these attitudes are not shared by every employer or supervisor, but they exist, even in our legal community. Educating workers and employers and eradicating outdated, harmful notions and stereotypes about what it means to be a working parent can only create healthier workplaces.

As a busy legal professional and a mother yourself, do you identify with challenges they face?

Absolutely! I work from home two days a week, and though I would not trade the time with my son for anything, it is a constant balancing act. I count my blessings because I work for a progressive, understanding employer who values me as an employee and helped ease my transition from attorney to attorney and mom. However, even under the most optimal circumstances, being a working parent still has its challenges. I give so much credit to parents who are out there without the same resources and support. I definitely struggle with the guilt many working parents feel. Even when I have to focus on a task while working at home, I feel guilty that my son has to share my attention with my phone or laptop. I still have to contend with unexpected sick days, doctor’s visits and getting by on little sleep. I understand the complex thoughts, emotions and experiences working parents face, so with every stumble or new lesson learned, I believe I become a better mom, a better attorney and a better advocate.

What’s the best part of coming home to your toddler after a long day at work?

The best part is definitely seeing how happy he is to see me. As a working parent, there is always the concern about the relationship you have with your child and whether you are bonding enough or spending enough time together. My son recently started part-time day care on the days I am at the office, so now I’m so excited to see what he was up to that day and learn about the relationships he’s forming with friends and caregivers. If I’ve had a stressful day, there is nothing better than arriving and seeing his happy face. Those are the moments I know it’s all worth it.


Apr 11, 2016, 10:02am EDT

By Michael Petro

Article appeared in Buffalo Law Journal

As a new mother, Buffalo attorney Candace Alnaji understands now more than ever the importance of spending those early months with your baby.

Through her employer, the Law Office of Lindy Korn PLLC which represents employees in workplace discrimination matters, Alnaji was allowed to take four months of paid leave. She was offered a flexible schedule upon her return to work, as well.

She worried less about the adjustments she would have to make personally because professionally she was covered. And she didn’t face the question of whether she could make ends meet financially or whether she would keep her job; she was able to focus solely on being a mom.

Alnaji and co-workers at the law firm who have gone through the same experience say they realize how fortunate they are to be part of a company considered ahead of the game. Male and females employees alike have benefited from founder Lindy Korn’s policies on paid family leave.

Alnaji said she appreciates that Korn practices what she preaches as an attorney. Everyone at the firm is a working parent, including Korn, who has grown daughters. Four of the six attorneys there have children under age 6 and three of them have toddlers. One employee is on paid family leave after having a baby recently.

Alnaji’s son just celebrated his first birthday. She works from home on Wednesdays and feels comfortable taking a day off here and there to tend to his needs.

“I feel very comfortable balancing my obligations as a mom and attorney,” Alnaji said. “I don’t have the fear that somehow I’m going to be punished or reprimanded or lose out professionally. It’s something we talk about at the firm, and we know we’re lucky because this is not the norm. It should be but unfortunately it is not.”

Expect that to change soon, at least in New York state.

The federal Family and Medical Leave Act allows for 12 weeks of leave time for employees, but it is for businesses with work forces of 50 or more and doesn’t require that the leave be paid. At this point, accrued paid time or disability must be used during the leave.

However, last week the state passed what is called the longest and most comprehensive paid family leave policy in the nation. Legislative leaders reached an agreement on the 2016-17 state budget, which includes a bill enacting 12 weeks of paid family leave.

The new policy, which would be phased in at the start of 2018, will cover those caring for an infant, a family member with a serious health condition or to relieve family pressures when someone is called to active military service. It would be funded by employee contributions.

Gov. Andrew Cuomo said this bill affects the quality of life for millions of state residents. They should be there when family needs them most, he added.

“The budget includes paid family leave, which is something I am very excited about,” he said. “You shouldn’t have to be in a position where you have to choose between a paycheck and being there for your family — and paid family leave does just that. … It’s literally a life-changer.”

The legislation may be a big step on a national level, as well Alnaji said. New York, the fourth state to enact this type of law, could set an example for other states.

“I’m excited for this legislation to pass,” she said. “I’m excited for new families down the line to have this benefit and I’m sure it will help them. Maybe people who were afraid or didn’t think they could have children before because of the financial sacrifice will decide that they can.”

Beginning in 2018, benefits would start at 50 percent of an employee’s average weekly wage, capped to 50 percent based on average weekly wage for state workers. It would be fully implemented in 2021 at 67 percent of their average weekly wage, capped to 67 percent of the statewide average weekly wage.

The program would be funded entirely through a nominal weekly payroll deduction, similar to what is done for disability. Employees are eligible to participate after working for an employer for six months.

In the state bill, eligibility for paid leave would include more people and expand to those planning to care for grandparents and grandchildren.

Attorney Christina Akers-DiCenzo had four months of paid leave from the Korn firm after her baby was born. She gradually eased her way back into the workforce. When she initially returned to work, she stayed home on Wednesdays to be with her baby. She said the time off is essential, whether it’s to take care of a baby or a sick loved one.

“It’s been nice to be back at work the last three months,” said Akers-Dicenzo, whose son is 6 months old. “People ask, ‘How are you. Was it really traumatic to come back?’ When you have a supportive partner, family, friends and employer, it’s OK. Is it hard being away from my child? Yes. But the fact that I had paid leave meant a lot for our family because we didn’t go into financial ruin and we didn’t have to worry.”

The time off allowed Alnaji to focus on her new routine, as well, and gave her confidence in her parenting abilities. By the time she returned to work, she had a close bond with her son and felt better about leaving him with a caregiver. She also felt recharged as an attorney.

“If I had to return after six or eight weeks, that would have been impossible,” she said, adding that she is able to better channel her energy in cases, especially those concerning clients who are or were pregnant and claim they were discriminated against.

“I was able to take something personal and kind of incorporate it into my professional life,” said Alnaji, who became co-chair of the Working Parents Committee for the local chapter of the Women’s Bar Association.

Akers-Dicenzo added: “The paid leave law is really meaningful for me because of the work the firm does. To help advocate for these people, these rights that are coming down the road are really going to be huge. It’s going to change people’s lives.”

Cuomo has said the policy will not cost businesses anything, but Harter Secrest & Emery attorney Amy Hemenway warns there may be an additional obligation on employers to figure out how to cover a worker’s job responsibilities over 12 weeks. Many employers are used to this because of the federal law, but before it was in an unpaid manner, she said. It may cost employers to bring in someone on a temporary basis.

Employers with fewer than 50 employees that hadn’t before been covered by the federal law may feel the biggest impact, according to Hemenway, a partner in the firm’s labor and employment practice.

“Those are the employers that will find it difficult to fill the gap for that extended period of time because they may only have one or two people who perform a particular function. And it could be a critical function to the organization,” she said.

It’s difficult to determine the impact of the provisions just yet, she said. California, Rhode Island, New Jersey and Washington are the only other states with a similar policy in place.

She wouldn’t be surprised to see guidance provided to help employers comply.

“This is the most expansive paid leave scheme in the nation,” she said. “There are only four others states that have any type of family leave in place and they have not had those provisions in place for any extended period of time, so it is difficult to say what the impact might be over the long term. … It’s something that we’ll just have to see how it plays out for the next few years.”

While some businesses have given employees paid leave ahead of the new law, like Korn, many still have to address the issue, according to Alnaji.

“Hopefully with the state taking notice and normalizing this a bit, maybe the trend will change,” she said. “But right now I feel very lucky to be at the place where I work. I feel a true loyalty to my employer because she’s fantastic and makes this possible. … It works. We get our work done and we do well for our clients. And business still moves.”

While every employer must take into consideration what works best for them, in the long run, she said, the new law can help with retention, save on the cost of retraining and rehiring employees and promote loyalty and satisfaction.

“It’s really a win-win,” she said. “Even at our firm, which is a small firm, Lindy has found a way to make it work.”

Akers-Dicenzo said her father was a small-business owner so she can relate to the concern about paid family leave, but the benefits should outweigh the costs.

“Both Candace and I just enjoyed this leave in the past year and a half and nothing bad happened to the firm. It is still here,” she said.

Published in Buffalo Healthy Living, April 2016

by Lindy Korn, Esq.

Do you remember your first job? Were you excited and eager to make a great impression? Did you look up to and respect your employer, believing in promises that your employer made to you? Did you know that if you are touched inappropriately you can say something about it? Were you ever afraid to talk about what happened to you?

Getting a first job can be exciting, as is being able to support yourself for the first time. Often, however, youth and innocence can invite manipulation. Consider a recent situation involving a girl I will call Jane.

Jane was locked in a closet, sexually assaulted, and raped daily for 14 months by her 43-year-old coworker. She was threatened and told not to report what was happening because it was entirely her fault. The continued abuse finally led Jane to attempt suicide.

When management was informed of the incident instead of doing anything to remedy the situation, they warned Jane against filing a complaint, telling her to quit her job if she had a problem with coworkers.

Now Jane struggles with depression, anxiety and nightmares, and finds it difficult to show and receive affection, especially with male family members. She hasn’t been able to find a new job because of her lack of trust of strangers and employers. Her doctor testified that she would have life long susceptibility to resurgent symptoms of post traumatic stress disorder. Jane’s mother said her daughter started isolating herself from family and friends soon after she began working. Following her suicide attempt, Jane continued to isolate herself, became more nervous and tense, losing her temper and crying regularly. Her mother found her Jane crying in the fetal position on more than one occasion. What Jane experienced has changed her life, and these incidents happen more often than you think.

As a parent, it is important to talk to teens going to work for the first time about what it means to be an employee. Ask them to show you the employee manual that employees like Jane would have been asked to sign. Discuss their available options if someone tries to touch them in an unwelcomed manner. If you notice that their behavior at home has changed since they began working, it may be important to let them know you are concerned for their safety and ask them about their co-workers and supervisors.

Many times an employer establishes a pattern of behavior and teenagers only stay for a certain period of time after which they become sick. Watch out for these patterns and talk to other parents whose children have been employed at the same place. Remember, complaining about workplace sexual harassment is very difficult for a victim and shame and blame keep them silent. This is especially true of teens who want to keep their jobs!

Article appeared in The Daily Record

The Second Circuit held in Pippins v. KPMG LLP, (No. 13-889-cv, decided on 7/22/2014), audit associates for a large accounting firm were learned professionals exempt from the FLSA overtime requirements because they performed work requiring advanced knowledge and that required consistent exercise of discretion and judgment, and that they had customarily received this advanced knowledge through a prolonged course of specialized intellectual instruction.

Plaintiffs-Appellants were employed as Audit Associates by their employer, KPMG LLP. They brought this action on behalf of themselves and others similarly situated, alleging that they regularly worked more than forty hours per week yet did not receive overtime compensation as required by the FLSA.  KPMG LLP argued that because plaintiffs worked as accountants, one of the learned professions specifically identified in the regulations as “a field of science or learning,” they were exempt from the FLSA overtime provisions, and thus were not entitled to overtime compensation.

The Court examined the advanced knowledge requirement to determine if Audit Associates practice professional skepticism, in the sense of judgment characteristics of accountants. Here, the Court held:

“Plaintiffs’ fundamental error is to confuse being an entry-level member of a profession with not being a professional at all. Audit Associates are the most junior members of the team, and it is hardly surprising that they do not make high-level decisions central to KPMG’s business. Yet unlike the administrative worker or executive exemptions to the FLSA, the learned profession exemption does not require that the professional reach conclusions that guide or alter the course of business. The critical question is whether the workers act in a manner that reflects knowledge and requires judgments characteristic of a worker practicing that particular profession. Here, by testing controls, performing inventory reviews, and ultimately replicating the audit process in each work paper, Audit Associates clearly did so by engaging with the audit process in a critical manner.”

The Court also considered whether Audit associates are learned professionals who employ advanced knowledge of accounting that is customarily acquired by a prolonged course of specialized intellectual instruction. Plaintiffs argued that while the core accounting education Audit Associates generally received might be helpful…. such education was not necessary to allow them to perform their work. They contend that Audit Associates learn the skills they need through initial training and on-the-job instruction provided by KPMG.

In contrast, the Court indicates that the Plaintiffs admit that the Audit Associates hired by KPMG are generally required to be either eligible or nearly eligible to become licensed as Certified Public Accountants, and that in actual fact the vast majority of Audit Associates had accounting degrees and were eligible to take the CPA exam. Further, “an examination of the training materials in the record make sufficiently plain that the average classics or biochemistry major could not understand the materials, or develop the requisite understanding of the audit function, on the basis of a brief training period.”

The Court holds “that Audit Associates while early in their career, are precisely the types of professionals the regulations seek to exempt from FLSA — well compensated professionals at a top national accountancy practice, performing accountancy tasks. They are learned professionals, and are exempt from the FLSA overtime requirements.”

This case also provides a reminder that FLSA was created to work as a shield to protect unwary workers, not a sword by which professionals at the pinnacle of accomplishment and prestige in their profession may obtain a benefit from their employer for which they did not bargain!

Here, Audit Associates are deemed learned professionals who perform work requiring advanced knowledge requiring consistent exercise of discretion and judgment, and who have customarily received this advanced knowledge through a prolonged and specialized intellectual instruction. They are learned professionals, and exempt from the FLSA overtime requirements.

Article appeared in Sports Litigation Alert

Jaclyn Salzwedel, a former softball coach at Clarke University, has filed a suit against her former employer claiming she was wrongfully fired after she rejected its efforts to make her more feminine.

Salzwedel began working for the university in August 2010 and says she would normally wear long cargo shorts and a polo or T-shirt to work, fixed her hair in a ponytail and avoided wearing makeup. She claims that by 2012, Vice President for Student Life Kate Zanger began encouraging her to wear makeup and more feminine clothing.

Salzwedel says she was given a new hairstyle and lessons on how to put on makeup. She also claims another female coach was selected to be her mentor to help work on her professional image and that she was asked to wear slimming undergarments and high-heeled shoes.

According to the suit, Salzwedel told Athletic Director Curt Long she was uncomfortable with the changes they had asked her to make. In May 2013, Salzwedel said she was fired “just hours after the softball season ended” and was not given a reason for her termination.

The suit was filed against Clarke University, Long and Zanger. University officials have declined to comment.

Experts Weigh In

While hesitant to comment until she could see the complaint, Donna Lopiano, a former athletic director and president of Sports Management Resources, offered the following:

“If they did not have a dress code for both male and female employees and required only women or this one woman to conform to a dress/appearance code, it would be sex discrimination, at least under Title VII, and possibly under Title IX.”

Attorney Lindy Korn, who has litigated her fair share of discrimination cases, noted that “since sexual orientation is not covered by federal law, sexual stereotyping is the only way to bring these claims in Federal Court. Thus, such claims are on the rise.”

She added that it is the responsibility of human resources professionals to train ADs on “issues of discrimination, including sexual stereotyping and the tension between religion and gay rights.”

Korn pointed to the following case as instructive:http://harvardlawreview.org/wp-content/uploads/pdfs/prowel_v_wise_business_forms.pdf

Warren Glover, 50, was fired as a security director in July, after ten years with the N.B.A., despite a glowing performance record, a recently filed lawsuit alleges (filed in New York State Supreme Court). However, after raising complaints of sexual harassment by his supervisor on behalf of women who were demeaned and harassed, Glover became the target of retaliation.

Glover, a former lieutenant commander for the New York Police Department joined the N.B.A.’s security team in 2001 and was promoted to director in 2004. He was in charge of security planning for several major events, including the N.B.A. finals, the draft, the Hall of Fame ceremony and the All-Star weekend Jam Session, which draws more than 100,000 fans.

In his lawsuit Glover maintains that his performance reviews were consistently positive until 2007, when he was given his lowest score, after making the following complaints:

  • An employee named Selman Allsop complained that she was subjected to offensive verbal remarks from another security director, John Daniels, after she rebuffed his unwelcome advance.
  • Another employee, Laurie McMurray reported that Daniels had displayed pornographic material on his computer and had made offensive and intimidating remarks. She brought these concerns to the Senior Director of Security, Gregory Robinson who refused to act, even when Glover reported it.
  • Glover’s administrative assistant complained about Bernard Tolbert, the league’s former senior vice- president of security, who was Glover’s immediate supervisor, and in a sexual harassment lawsuit that she brought, Glover testified on her behalf.

When Glover supported the complaints raised by women in his department he became the problem. In fact, he allegedly received a veiled threat from Tolbert that anyone who informed McMurray about Allsop’s previous allegations against Daniels would be fired. That summer, Glover received the lowest ever evaluation. Glover was also denied a promotion because he supported the complaints of women who had complained about a sexually hostile environment.

This is classic retaliation, where a person is punished for doing what the policies direct them to do—report sexual harassment. The termination of Mr. Glover was supposed to serve as a warning to others, don’t report high-level personnel, bury complaints of sexual harassment, and keep silent.

Glover, who lives in Queens, said he was still looking for work. He is living off his police pension, which he earned after 20 years with the department. In an interview, Glover said the sexual harassment problem in the N.B.A.’s security department goes pretty far and remains unresolved.

He is a courageous plaintiff, and a hero to those he tried to support and is a symbol of someone who spoke up to stop sexual harassment knowing he was the target of retaliation. He is a true leader.

Article appeared in The Daily Record

A federal judge has reduced a $1 million punitive damages award to $50,000 following a jury trial in which a black former employee of Memorial Sloan Kettering Hospital proved that management retaliated against him for complaining about racial discrimination in the workplace, Chisholm v. Memorial Sloan Kettering Cancer Center, 2011 U.S. Dist. LEXIS 130089, SDNY, Nov. 3.

Chisholm convinced a jury that a supervisor, Adamec, punished him for speaking out about workplace discrimination. This led to Chisholm’s termination. The jury awarded Chisholm more than $230,000 in back pay and authorized the judge to award him front pay, or future lost income. The jury also awarded plaintiff a million dollars in punitives under the New York City Human Rights Law. That million dollars has been remitted to $50,000.

The judge awarded $102,000 in front pay through 2014. Chisholm wanted front pay through 2020, when he turns 65. But the court said that awarding front pay for the next nine years would be speculative and that Chisholm probably would have been fired long before then because of performance deficiencies. The judge said:

“While the Court does not contest the jury’s finding that the April 2007 log-sheet incident was not the true reason for Chisholm’s termination, Chisholm’s behavior in connection with that incident is nonetheless relevant evidence of inappropriate workplace demeanor. That Chisholm had retained transportation department documents in his locked desk drawer was troubling and Defendants could justifiably regard as increasingly erratic behavior. Under these circumstances, the Court concludes that it is unlikely Chisholm would have remained an employee by Sloan-Kettering through 2020.

Although the jury said the log-sheet incident was not the real reason for plaintiff’s termination (and that the real reason was retaliation), the court used the incident as a means to limit Chisholm’s front-pay award. It seems speculative to this writer, that a judge can predict future behavior, based on pretext, to limit front pay awards.

On punitive damages, the jury awarded them because of Adamec’s reprehensible behavior. The jury was also told that the hospital would pay out the award under the NYCHRL. The court said the award shocks the judicial conscience. Even though the hospital pays the award, the court cited cases holding that a punitive damages award cannot “be so high as to result in the financial ruin of the defendant.”

Of course, this award would not ruin the hospital, but it would certainly ruin Adamec were he to pay the award — which he doesn’t. While Chisholm’s lawyers argued that this large award would deter an institution such as Sloan Kettering from doing this again, the district court rejected this argument as lacking in any case law. The court concluded, “while Adamec’s conduct was certainly reprehensible, as the jury found, it did not involve violence or the treat of violence. Nor did it involve racial slurs or other offensive language. Moreover, an award of $50,000 represents a significant financial hardship to an individual defendant.”

Since the concept of vicarious liability applies under the NYCHRL, the concept of holding an employer liable for retaliatory acts of supervisors as happened here, goes to the heart of preventing retaliation through dissuasion. The degree of reprehensible action included retaliation acted out by a supervisor, and goes to the heart of any affirmative defense in employment law.

Chisholm now has the choice of accepting the court’s award of $50,000 for punitive damages or the court will order a new trial on the issue.  Stay tuned!

Article appeared in The Daily Record

Obese employees are sometimes “regarded as disabled,” whether they suffer from a physiological impairment, and may have claims under the Americans with Disabilities Act.

Consider the case being litigated in federal court in Connecticut. The plaintiff, Warner, began working for the Asplundph Tree Expert Co. in 1985. A year later, he was promoted to foreman, and received positive performance evaluations. But the good times ended for Warner in November 2001, when he was laid off. The plaintiff claims a general foreman told him that he was being laid off because of a decline in business, and that he would be rehired a few months later.

However, a former co-worker allegedly told Warner he was let go because he was “overweight” and was “going to die on his job site.” Warner, who is 6 ft., 1in. tall and claims in his complaint that he weighs approximately 300 to 350 pounds, primarily directed tree removal services by other employees. H alleges that, although he continued to contact Asplundph Tree about coming back to work, his follow-up calls were not returned. Warner was never rehired by the company, although he alleges the company hired several new workers over the same time period.

The plaintiff filed suit July 23, 2003, asserting violations of the ADA and the Connecticut Fair Employment Practices Act. The suit was prompted by the plaintiff’s unreturned phone calls and the comment from his co-worker, which made him feel “angry, hurt and shocked.”

Weight-related litigation in the employment arena is on the rise and may be attributed to class action suits against fast food chains and lawsuits against school districts that welcome students to use their vending machines. Litigations over weight issues has been called the “condition du jour” by some employment lawyers representing management.

The risk management lesson here is that unreturned phone calls from recently laid off employees and comments connecting being laid off to being overweight may provide “pretext” for an obesity-base claim of discrimination.

The Power of an Apology

When a parent raises a child, he/she will tell the youngster at some point during childhood, to “say you are sorry” for some act of not sharing or being impolite. This occurrence may be repeated throughout the child rearing process. Query—at what stage do adults learn that apologizing is NOT the proper response and may indicate blame?

In a legal setting, parties often fail to make an apology out of their fear of adverse economic consequences, failing to consider the benefits of an apology. Ideally, an Apology should be rooted in responsibility and remorse, based on ethical considerations. By apologizing, parties assume responsibility for their mistakes rather than denying it. Our current system of litigation is based upon parties denying responsibility, thus forcing the opposing party to prove one’s fault.

Getting away from blame and fault based strategy; there may be both an economic and business reason to consider a safe process (negotiation, mediation, conciliation), to offer an apology. Most business owners want to retain control over any legal controversy, and the resolution process, having a direct impact on the outcome. This can occur in a mediation setting, and may, limit legal expenses.

When an organization expresses its willingness to accept responsibility for its errors by apologizing, it sends a message to employees that it is okay to err, and to be open about the information. Apology’s issued in this manner can also enlist employees contribution to the error reduction process. Prevention is often learned through errors, but only if there is a willingness to share and includes the possibility of learning.

Cultures throughout the world use apology. Apology’s importance in Japan is well established. New Zealand has been at the forefront in developing criminal victim-offender reconciliation programs in which apologies are often central. In China, a former lawyer with a long interest in psychology, decided that people need some help apologizing “as a way of relieving pressure, reducing barriers and the many negative feelings between people today”, and founded a company called “The Tianjin Apology and Gift Center. Thus, international trends can be instructive in the recognition of how others are resolving disputes.

Apologies extend to many areas of life; law, psychology, economics, culture, religion, ethics, and human relationships. Forgiveness and the direct assumption of responsibility may create a broader linkage amongst these disciplines, resulting in a different approach to dispute resolution.

During the High Holidays, thoughts of Apology, link our religious observances and our human relationships and disputes, which may become a continuous process as we become a more responsible society.

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