Labor and the Law:

News and Current Events from the IRRA Section on Labor and Employment Law (LEL)

July 1999

Labor and Employment Law News

Workers Compensation and Claims for Intentional Infliction of Emotional Distress

The workers compensation bargain traded an injured worker’s right to sue the employer for a simple, no-fault recovery. If an injured worker were to sue an employer, the employer can assert the affirmative defense that workers compensation provides the exclusive remedy. The exclusive remedy defense applies whether or not the worker files for compensation and even if the workplace injury is compensable under comp. For example, it is difficult for workers to recover under comp for mental stress caused by work. A more troubling issue involves injuries to reproductive capacity. About 14 million US workers a year are exposed to reproductive hazards in workplace. In Cole v. Dow Chemical, 112 Mich App. 198 (1982), the Michigan Court of Appeals held that infertility caused by on-the-job exposure to toxic chemicals was barred by workers compensation even though the injury was not compensable under that statute.

Over the years, development of the exclusive remedy has created certain inequities in coverage and prompted workers and attorneys to develop theories to escape comp. For example, although employers these days are more likely to try to escape liability by claiming a worker is an independent contractor and not an employee, the reverse is more likely in the area of comp. An important theory has been based on non-exclusivity for intentional acts, such as assault and battery. Some litigants have argued that they suffer from the employer’s intentional infliction of emotional distress and can pursue this claim in court. States have taken different positions on this sort of claim. California has held that claims for intentional infliction of emotional distress are barred by exclusivity.

Most recently, Texas has taken the opposite position in GTE Southwest, Inc. v. Bruce, No.98-0028 (July 1, 1999). For years, workers complained that a certain GTE supervisor engaged in constant humiliating and abusive behavior. They claimed about his daily use of profanity, short temper, abusive, vulgar and dictatorial manner, yelling, screaming, and charging at them. GTE investigated on several occasions but failed to take action which ended the conduct. The plaintiffs sought medical treatment for the emotional distress caused by the supervisor’s conduct and eventually sued GTE for intentional infliction of emotional distress. A jury awarded plaintiffs each from $75-100,000.

GTE argued that the injuries were barred by comp exclusivity. The court held that because the trauma were caused by repetitive actions, there was no recovery under workers compensation. Because they were not compensable under the Act, the court claims were not barred.

Union Liability for Picketline Harassment

The New Jersey Superior Court has held in Baliko v. International Union of Operating Engineers, Local 825, No.A-5950-96T2 (June 22, 1999), that a union can be liable for the conduct of its picketing members who sexually harassed female members of a rival union under the New Jersey Law Against Discrimination. The court remanded the case for a new trial.

The plaintiffs testified that they were subjected to daily obscene gestures and language which was humiliating and degrading. The defendant union argued that the pickets were engaged in protected free speech, that the conduct was not severe and pervasive, and that it did not affect plaintiffs’ job performance.

The court held that the comments were clearly directed towards women and would be humiliating for a woman. Thus, women were clearly targeted for harassment because of their sex. The question whether the comments were severe or pervasive was a factual decision reserved to the jury. Furthermore, the law did not require plaintiffs to show that they experienced a negative impact on their jobs. Finally, the court held that the union can raise its first amendment argument in a post-judgment motion, because it should be considered in the light of a full factual record and had also not been fully briefed or argued by the parties..

Research in Progress

Sheldon Leader, Dept of Law, University of Essex (UK) leader@essex.ac.uk

I have been investigating principles that are shared by the law governing employment relations; the relationship between shareholder and corporation; and the relationship between workers’ co-operatives and their members. Common to all three are forms of justification and control of power that have been ignored by those political theories concerned with regulating power in civil society. These three forms need to be worked into an adequate body of principles. The practical results of this work are an attempt to re-formulate some of the terms in which we balance rights against claims to enterprise efficiency; in which we think about the place of stakeholders; and in which we think about the place and legitimate controls over structural change. The results so far are in "Three Faces of Justice and the Management of Change" Forthcoming in the Modern Law Review (UK) (end of 1999) and "Participation and Property Rights" in Journal of Business Ethics (Kluwer) (Forthcoming 1999).

Apart from that, I am working in the areas of international trade and labour rights, and will pursue further issues concerning the place of labor/employment law within debates about corporate governance.

Recent Labor Law Publications

Alexander Abbe, Comment: "Meaningful Access" to Health Care and the Remedies Available to Medicaid Managed Care Recipients under the ADA and the Rehabilitation Act, 147 U. Pa. L. Rev. 1161 (1999)

Norma Jean Almodovar, For Their Own Good: The Results of the Prostitution Laws as Enforced by Cops, Politicians and Judges, 10 Hastings Women's L.J. 119 (1999)

Matthew Ammon, Case Note: Gilbert v. Homar, 36 Duq. L. Rev. 951 (1998)

Christopher Bailey, Comment: Reconciling Alexander and Gilmer: Explaining the Continued Validity of Alexander v. Gardner-Denver Co. in the Context of Collective Bargaining Agreements, 43 St. Louis U. L.J. 219 (1999)

Stephen Bainbridge, Corporate Decisionmaking and the Moral Rights of Employees: Participatory Management and Natural Law, 43 Vill. L. Rev. 741 (1998)

Juan Balboa, John Teeples & Philip Wood, Employment and Labor Law:1997 in Review, 1998 Det. C.L. Mich. St. U. L. Rev. 327

Margaret Baldwin, "A Million Dollars and an Apology": Prostitution and Public Benefits Claims, 10 Hastings Women's L.J. 189 (1999)

Scott Barbakoff, Note: Application of the Public Policy Exception for the Enforcement of Arbitral Awards: There Is No Place like "the Home" in Saint Mary Home, Inc. v. Service Employees International Union, District 1199, 43 Vill. L. Rev. 829 (1998)

Elizabeth Bernstein, What's Wrong with Prostitution? What's Right with Sex Work? Comparing Markets in Female Sexual Labor, 10 Hastings Women's L.J. 91 (1999)

Siobhan Brooks, Sex Work and Feminism: Building Alliances Through a Dialogue Between Siobhan Brooks and Professor Angela Davis, 10 Hastings Women's L.J. 181 (1999)

James Brudney, To strike or Not to Strike: Reviewing Julius Getman, The Betrayal of Local 14: Paperworkers, Politics, and Permanent Replacements, 1999 Wis. L. Rev. 65

Stephen Canner, The Multilateral Agreement on Investment, 31 Cornell Int'l L.J. 657 (1998)

Vednita Carter & Evelina Giobbe, Duet: Prostitution, Racism and Feminist Discourse, 10 Hastings Women's L.J. 37 (1999)

Sarah Chan, Note: An Uncommon Alliance: Finding Empowerment for Exotic Dancers Through Labor Unions, 10 Hastings Women's L.J. 231 (1999)

Cynthia Chandler, Feminists as Collaborators and Prostitutes as Autobiographers: De-constructing an Inclusive Yet Political Feminist Jurisprudence, 10 Hastings Women's L.J. 135 (1999)

Elizabeth Chang, Note: Who Should Have it Both Ways? The Role of Mitigating Measures in an ADA Analysis, 64 Brook. L. Rev. 1123 (1998)

Matthew Chapman, Note: Who Can Afford Common Sense? The Illinois Supreme Court Rejects Time-honored Exception to Statute of Frauds One Year Rule, 43 St. Louis U. L.J. 137 (1999)

Debra Christenson, Comment: Chronic Serious Health Conditions Covered by the Family and Medical Leave Act of 1993 Create Administrative Headaches for Employers, 43 Vill. L. Rev. 973 (1998)

Paolo Clarotti, Supplementary Pensions in the Single Market: The Commission View, 64 Brook. L. Rev. 955 (1998)

Lance Compa, The Multilateral Agreement on Investment and International Labor Rights: A Failed Connection, 31 Cornell Int'l L.J. 683 (1998)

William Corbett, Faragher, Ellerth, and the Federal Law of Vicarious Liability for Sexual Harassment by Supervisors: Something Lost, Something Gained, and Something to Guard Against, 7 Wm. & Mary Bill Rts. J. 801 (1999)

David Culp, Age Discrimination in Employment Act: Life after St. Mary's Honor Center v. Hicks -- Rolling the Dice Against a Stacked Deck, 36 Duq. L. Rev. 795 (1998)

Jill Dorancy-Williams, Comment: The Difference Between Mine and Thine: The Constitutionality of Public Employee Drug Testing, 28 N.M. L. Rev. 451 (1998)

Aileen Dowd, Comment: Filling the Regulatory Void after ERISA: the Third Circuit's "Employer First" Rule in Coordination of Benefits, 43 Vill. L. Rev. 999 (1998)

Employment-Related Crimes, 36 Am. Crim. L. Rev. 475 (1999)

Noel Evans, Comment: Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257, 75 N.D. L. Rev. 87 (1999)

Gertrud Fremling & Richard Posner, Status Signaling and the Law, with Particular Application to Sexual Harassment, 147 U. Pa. L. Rev. 1069 (1999)

Joseph Frabizzio, Comment: Black Lung Claims and Appeals in the Third Circuit: Which Way Do I Go? 43 Vill. L. Rev. 1023 (1998)

Catherine Fisk & Erwin Chemerinsky, Civil Rights Without Remedies: Vicarious Liability under Title VII, Section 1983, and Title IX, 7 Wm. & Mary Bill Rts. J. 755 (1999)

Leanne Mashburn Foster, Note: Asymptomatic HIV-infection and its Place Within the Americans with Disabilities Act, 43 St. Louis U. L.J. 177 (1999)

Julie Freeman, Comment: ERISA Preemption of Medical Malpractice Claims Against Managed Care Organizations, 36 Duq. L. Rev. 863 (1998)

David Gantz, Dispute Settlement Under the NAFTA and the WTO: Choice of Forum Opportunities and Risks for the NAFTA Parties. 14 Am. U. Int'l L. Rev. 1025 (1999)

Anjli Garg, Note: A Child Labor Social Clause: Analysis and Proposal for Action. 31 N.Y.U. J. Int'l L. & Pol. 473 (1999)

Kimball Gilmer & Jeffrey Anderson, Zero Tolerance for God? Religious Expression in the Workplace after Ellerth and Faragher, 42 How. L.J. 327 (1999)

Ronald Gilson & Mark Roe, Lifetime Employment: Labor Peace and the Evolution of Japanese Corporate Governance, 99 Colum. L. Rev. 508 (1999)

Edward Gramlich, The United States: How to Deal with Uncovered Future Social Security Liabilities, 64 Brook. L. Rev. 739 (1998)

Melissa Hall, Comment: Foreigners Funding the Future: Investment Opportunities in Mexico's Privatized Pension System, 34 Tex. Int'l L.J. 151 (1999)

Economic Justice for Sex Workers, 10 Hastings Women's L.J. 1 (1999)

Camille Hebert, Establishing and Evaluating a Workplace Mediation Pilot Project: An Ohio Case Study, 14 Ohio St. J. on Disp. Resol. 415 (1999)

Marvin Hill & Tammy Westhoff, "No Song Unsung, No Wine Untasted" -- Employee Addictions, Dependencies, and Post-discharge Rehabilitation: Another Look at the Victim Defense in Labor Arbitration, 47 Drake L. Rev. 399 (1999)

Rymond Hogler & Steven Shulman, The Law, Economics, and Politics of Right to Work: Colorado's Labor Peace Act and its Implications for Public Policy, 70 U. Colo. L. Rev. 871 (1999)

Nicole Huberfeld, Three Generations of Welfare Mothers Are Enough: A Disturbing Return to Eugenics in the Recent "Workfare" Law, 9 UCLA Women's L.J. 97 (1998)

Maria O’Brien Hylton, Evaluating the Case for Social Security Reform: Elderly Poverty, Paternalism and Private Pensions, 64 Brook. L. Rev. 749 (1998)

Regina Jefferson, Medical Savings Accounts: Windfalls for the Healthy, Wealthy & Wise, 48 Cath. U. L. Rev. 685 (1999)

Maureen Jordan, Age Discrimination in Employment Act (ADEA) -- Older Workers Benefit Protection Act (OWBPA): Oubre v. Entergy Operations, Inc., 37 Duq. L. Rev. 157 (1998)

Roberta Karmel, The Challenge to Financial Regulators Posed by Social Security Privatization: 64 Brook. L. Rev. 1043 (1998)

Tara Kaesebier, Comment: Employer Liability in Supervisor Sexual Harassment Cases: The Supreme Court Finally Speaks, 31 Ariz. St. L.J. 203 (1999)

Eileen Kaufman, Discrimination Cases in the Supreme Court's 1997 Term, 15 Touro L. Rev. 935 (1999)

Anthony Lamanna, Employment law -- Federal Employees' Liability Act -- Metro-North Commuter R.R. Co. v. Buckley, 36 Duq. L. Rev. 993 (1998)

Catherine Lanctot, The Plain Meaning of Oncale, 7 Wm. & Mary Bill Rts. J. 913 (1999)

Julie Lefler, Note: Shining the Spotlight on Johns: Moving Toward Equal Treatment of Male Customers and Female Prostitutes, 10 Hastings Women's L.J. 11 (1999)

Carol Leigh, A First Hand Look at the San Francisco Task Force Report on Prostitution. 10 Hastings Women's L.J. 59 (1999)

Justin Lesky, Note: Workers' Compensation -- The District Court Should Make the Initial Determination of Jurisdiction in Workers' Compensation Cases Involving Intentional Tort Claims -- Eldridge v. Circle K Corp., 28 N.M. L. Rev. 665 (1998)

Scott Liljegren, Note: Winning the War Against Sexual Harassment Battle by Battle: Why the Military Justice Model Works – A Proposal for Federal and State Statutory Reform, 38 Washburn L.J. 175 (1998)

Vicki Limas, Significant Employment Law Decisions in the 1997-98 Term: A Clarification of Sexual Harassment Law and a Broad Definition of Disability, 34 Tulsa L.J. 307 (1999)

Jeffrey Lipman & Hugh J. Cain, Evolution in Hostile Environment Claims since Harris v. Forklift Systems, Inc., 47 Drake L. Rev. 585 (1999)

Goodwin Liu, Social Security and the Treatment of Marriage: Spousal Benefits, Earnings Sharing, and the Challenge of Reform, 1999 Wis. L. Rev. 1

Bevis Longstreth, The Profile: Designer Disclosure for Mutual Funds, 64 Brook. L. Rev. 1019 (1998)

Mary Ellen Maatman, Choosing Words and Creating Worlds: The Supreme Court's Rhetoric and its Constitutive Effects on Employment Discrimination Law, 60 U. Pitt. L. Rev. 1 (1998)

Robert McArthur, Note: Arbitrary Civil Rights? Duffield v. Robertson Stephens & Co., 32 Loy. L.A. L. Rev. 881 (1999)

David Mellon, Note: Individual Liability as an "employer" under the Family and Medical Leave Act, 22 Am. J. Trial Advoc. 449 (1998)

Carmelo Mesa-Lago, Comparative Features and Performance of Structural Pension Reforms in Latin America, 64 Brook. L. Rev. 771 (1998)

Kathryn Moore, Redistribution under a Partially Privatized Social Security System, 64 Brook. L. Rev. 969 (1998)

Andrew Morriss, Private Amici Curiae and the Supreme Court's 1997-1998 Term Employment Law Jurisprudence, 7 Wm. & Mary Bill Rts. J. 823 (1999)

Richard Nobles & Julia Black, Pensions Mis-selling -- The Lessons for Regulating Privatised Social Security, 64 Brook. L. Rev. 933 (1998)

Joseph Norton, Privatization of Public Pension Systems in Developing Nations: A Call for International Standards, 64 Brook. L. Rev. 817 (1998)

Juston O'Brien, Note: Johnson v. Wetherspoon: Survivor's Benefits, Whose Money Is it Anyway? 59 La. L. Rev. 637 (1999)

Eva Panchyshyn, Comment: Medical Resident Unionization: Collective Bargaining by Non-employees for Better Patient Care, 9 Alb. L.J. Sci. & Tech. 111 (1998)

Proceedings of the Seminar: United States Department of Labor National Administrative Office Seminar on International Treaties and Constitutional Systems of the United States, Mexico and Canada, 22 Md. J. Int'l L. & Trade 221 (1998/99)

Lawrence Rosenthal, Permissible Content Discrimination under the First Amendment: The Strange Case of the Public Employee, 25 Hastings Const. L.Q. 529 (1998)

Margo St. James, Economic Justice for Sex workers, 10 Hastings Women's L.J. 5 (1999)

Lothar Schruff, Pensions and Post-retirement Benefits by Employers in Germany, 64 Brook. L. Rev. 795 (1998)

Joanne Seltzer, Note: The Cassandra Complex: An Employer's Dilemma in the Genetic Workplace, 27 Hofstra L. Rev. 411 (1998)

David Schaibley, See No Evil, Hear No Evil, Be Vicariously Liable: Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, 22 Hamline L. Rev. 531 (1999)

Katherine Staton & Thomas Caswell, The Americans with Disabilities Act as it Relates to Employment in the Aviation Industry: Navigating Through Uncontrolled Airspace, 64 J. Air L. & Com. 459 (1999)

James Suddeth, Comment: "I Can't Have My Wages Garnisheeed!" 50 S.C. L. Rev. 525 (1999)

Symposium: Getting Ready for Individually Managed Pensions: A Global Perspective, 64 Brook. L. Rev. 739 (1998)

Audrey Tan, Comment: Employer Liability for Racist Hate Speech by Third-parties: Comparison of Approaches in Great Britain and the United States, 20 Loy. L.A. Int'l & Comp. L.J. 873 (1998)

Mark Vallianatos, De-fanging the MAI, 31 Cornell Int'l L.J. 713 (1998)

Gregory Vetter, Comment: Is a Personality Test a Pre-job-offer Medical Examination under the ADA? 93 Nw. U. L. Rev. 597 (1999)

Karen Volkman, Comment: The Limits of Coverage: Do Insurance Policies Obtained Through an Employer and Administered by Insurance Companies Fall Within the Scope of Title III of the Americans with Disabilities Act? 43 St. Louis U. L.J. 249 (1999)

Jenny Wahl, Protecting the Wolf in Sheep's Clothing: Perverse Consequences of the McKennon Rule. 32 Akron L. Rev. 577 (1999)

George Walker, United Kingdom Pensions Law Reform, 64 Brook. L. Rev. 871 (1998)

Deborah Weiss, The regulation of Funded Social Security, 64 Brook. L. Rev. 993 (1998)

Marley Weiss, Foreword: Proceedings of the Seminar on International Treaties and Constitutional Systems of the United States, Mexico and Canada: Laboring in the Shadow of Regional Integration, 22 Md. J. Int'l L. & Trade 185 (1998/99)

Steven Willborn, Taking Discrimination Seriously: Oncale and the Fate of Exceptionalism in Sexual Harassment Law, 7 Wm. & Mary Bill Rts. J. 677 (1999)

Rebecca White, There's Nothing Special about Sex: The Supreme Court Mainstreams Sexual Harassment, 7 Wm. & Mary Bill Rts. J. 725 (1999)

David Wukitsch, New York's Legal Restrictions on the Employer's Collection and Use of an Employee's Genetic Information, 9 Alb. L.J. Sci. & Tech. 39 (1998)

L. Michael Zinser, New Supreme Court Rules on Sexual Harassment Liability, 22 Am. J. Trial Advoc. 297 (1998)

Future Newsletters

To include your news related to legal issues and developments affecting labor and employment, contact Ellen Dannin (ejd@cwsl.edu) or California Western School of Law, 225 Cedar Street, San Diego, CA 92101 or (619) 525-1449 or fax: (619) 696-9999

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