Dial "O" for outrage - employment-related cases

Reason, Dec, 1998 by Walter Olson

Tales from The Excuse Factory's cutting-room floor

One of the less friendly reviews of my book The Excuse Factory came from a leftish law professor who accused me of spending too much time on unusual cases from the frontiers of employment law, and further complained that I kept recounting such cases in "tones of incredulity."

I'm sorry. I've tried, I really have, but I just can't repress those tones of incredulity. In fact I wish I could have included even more of the bizarre cases I kept running into while researching the book.

For instance, I regret that there wasn't room to tell about the Oregon woman who sued after co-workers kept leaving rubber spiders on her desk. A jury voted her a large award, most of which was later thrown out when an appeals court ruled that she had failed to establish that she "was terminated for resisting harassment relating to her spider phobia."

Nor was there space to discuss what happened after the University of Connecticut's athletics department was accused of wrongfully insisting on petiteness in its cheerleading squad, thus violating the rights of plumper pom-pom wavers. Yielding to the legal pressure, school authorities announced plans to abandon a popular "human toss" routine and decreed that pyramid formations would henceforth be limited to two levels high.

And with the book approaching 400 pages, I likewise had to omit any mention of the job applicant who filed an official complaint after being turned down on medical grounds. "I have a microchip embedded in one of my molars," explained the complainant, which "speaks to me and others." "You have to remember," said a spokeswoman for the local human rights agency about the decision to launch an investigation, "what's crazy to you might not be crazy to someone else." (The case actually did make history in its way: The late columnist Mike Royko made such merciless fun of it that the federal Equal Employment Opportunity Commission dropped its practice of insisting that every bias complaint be investigated, however dubious.)

With the pundit class stuck on Monica, Monica, Monica 'round the clock, this is hardly the time to attempt a serious column, so let's head down to the archives for a tour of a few cases that got away.

Some lawsuits fascinated me, though I was never sure what point they proved or which side I favored. New York law instructed local police forces to give preference to recruits in their 20s - they're physically fitter and likelier to stay on duty long enough to justify their training costs. A court knocked down that policy as inconsistent with the (then) state of federal age-discrimination law, with the result that it became unlawful for local governments to turn away middle-aged rookies. There was a twist, however: The Age Discrimination in Employment Act protects only workers who've reached their 40th birthday. This left John Doyle and numerous other applicants hanging: They were too old for Suffolk County's 29-year-old cutoff, but too young to invoke the ADEA.

Inconsistent? Maybe, but not to worry, said the U.S. Court of Appeals for the 2nd Circuit, ruling that the county could lawfully turn away Doyle himself even as it was being forced to accept older applicants who - both the county and Doyle agreed - were less suitable recruits than he was. After all, the court pointed out, the county's wish to favor younger applicants was wholly rational, even if, thanks to the ADEA, it was no longer allowed to act on that rational wish with respect to a wide sector of the work force. And Doyle's consolation was the knowledge that he could mark time in some less desired job until he turned 40, at which point - though he'd be less fit and several years closer to pensionability - the county would presumably have to hire him as a cop after all.

Other cases I discarded on grounds of overkill or redundancy. To establish the proposition that some civil servants are so well dug into their jobs that even convicting them of crimes isn't enough to get them out, I felt one real-life example would suffice, and used the one about the New York City teacher convicted of selling drugs (from his school office, according to the authorities) who kept drawing his salary even while he served time upstate in prison. That meant omitting cases like that of the Minneapolis cop who, thanks to a civil service commission's ruling in his favor, stayed at his beat by day even as he served nights in a nearby Wisconsin jail; the well-placed official found to be still at his desk at the U.S. State Department two years after getting convicted of attempted extortion; and the two prominent District of Columbia officials who wouldn't give up their jobs in the housing department despite felony convictions on bribe-taking charges: "All civil avenues open to her will be explored in contesting her termination," said the attorney for one of them.

There wasn't room for a proper chapter tracing the effects of OSHA and similar workplace-safety agencies, so there went the lovely vignette, lifted from Dan Seligman's much-missed "Keeping Up" column in Fortune, about how regulation has gradually suppressed the one-man "backyard" mines that used to be found in mountain areas. "Twice a month I was to search myself for cigarettes and matches before I entered the mine," said Ralph Bloom, who finally closed his all-by-his-lonesome coal operation after 37 years. "Then I was supposed to check in and check out, so I'd know if I was in or out of the mine."