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Newsflash: Youth and Good Looks Work Well on TV.

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In 2010, seasoned Southern California weatherman Kyle Hunter got wind of a weather anchor opening at KCBS, a Los Angeles-based television news station. Mr. Hunter, who at 42 had accumulated 22 years of broadcasting experience and has a degree in geosciences and broadcast meteorology, contacted the station’s management about the job immediately. He never heard back.

Instead, KCBS hired Jackie Johnson, a 32-year-old female weather forecaster from its sister station, KCAL. Eager to fill the new void at KCAL, Mr. Hunter then contacted that station, but was told in an e-mail that there was “not an opening for you here now.” He later learned that 25-year-old weather anchor Evelyn Taft snagged the spot.

Mr. Hunter, an award winning, certified meteorologist, claims the stations hired young, attractive females, instead of qualified males like himself, in an effort to hook more male viewers. He is suing CBS Broadcasting in California state court for gender and age discrimination in violation of California’s Fair Employment and Housing Act (FEHA), seeking money damages, punitive damages, and attorneys’ fees for the alleged discrimination and his “pain and suffering.”

Well-known discrimination attorney and active feminist Gloria Allred is representing Mr. Hunter in what she says is a “trail blazing lawsuit” because “most victims of gender discriminatioin are female.” According to the Huffington Post, CBS maintains that the accusations are “frivolous” and predicts “an early dismissal” of the lawsuit.

FEHA prohibits employers from either refusing to hire or firing someone based on gender, but let’s face it, Ms. Taft and Ms. Johnson weren’t hired just because they are female. They were hired because they are attractive, too.

This might not sound fair or just, but television is a visual medium – and television news is a business that relies on viewers and advertisers to make a profit. So, was Mr. Hunter not being hired an exercise of sound business judgment or age and gender discrimination?

The media accurately reported the facts, but it didn’t analyze the legal issues. LASIS will.

In a 2004 California Court of Appeals case, Holly Hallstrom, a model on the television game show “The Price Is Right,” sued Bob Barker, the host of the show, for gender discrimination claiming she was fired from her on-air job for gaining weight. The court found no gender discrimination because Ms. Hallstrom could not prove that a male “of comparable qualifications” replaced her or that she was let go when similarly situated male co-workers were not (there were no similarly situated male co-workers). And evidence that the show’s 300-pound male announcer wasn’t fired was “to put it politely, unpersuasive.” He’d been hired because of the unique sound of his voice. It was no secret why the women on the show had been hired. It was because they looked beautiful. People tuned into the show just for the ladies (who had fan clubs devoted to them).

The record shows that a KCAL manager told Mr. Hunter that he “wouldn’t be the type men would want to look at,” since the station was trying to “cater to its many male viewers.” Indicating that the station sought to hire females. And it would be hard for KCAL to argue that Ms. Taft was as qualified as Mr. Hunter for the gig. In fact, the record shows that the station dropped its preference for American Meteorological Society certified weather anchors in order to hire Ms. Taft, a 25-year-old blonde beauty with only a few years of experience in front of the green screen.

So it’s possible that Mr. Hunter might succeed on his gender discrimination claim, and get some money for his litigation efforts. But keep in mind: KCAL is a business; the station was seeking to increase its male viewership. In this sense, Ms. Taft’s qualifications for the job far surpassed Mr. Hunter’s.

Mr. Hunter is also suing for age discrimination.

Last year, LASIS wrote about a 60-year-old former New York City-based news reporter who sued for age discrimination when a younger, less experienced newscaster replaced him. Reporter Asher Hawkins predicted that an aging anchor would likely lose on an age discrimination claim because a station can argue that “it had other, nondiscriminatory reasons” for ousting on-air talent.

In a 2010 California Court of Appeals case, an assignment editor at a California newspaper sued her employer for age discrimination when younger employees were promoted over her. But while the editor believed she was qualified for the promotions, her employer disagreed, and the court found that the “actual motive” for promoting the junior employees was not necessarily the discriminatory one claimed by the plaintiff.

This seems to cloud the chances of Mr. Hunter’s age discrimination claim, as the stations could argue that although he has a flood of forecasting experience, the young and female weather anchors were hired to help the stations soar ahead of the local competition.

Note that we believe the outcome would be different if Mr. Hunter had a contract and was fired and replaced by a young, inexperienced woman.

And yes, the stations’ hiring practices seem to teeter on the edge of gender and age discrimination, when looking at the law out of context. But when looking practically at the matter, news outfits can’t be forced to hire on-air talent who would garner them lower ratings – and hurt their bottom line.

This blog originally appeared in Legal as She is Spoke, a project of the Law and Journalism track at New York Law School, on April 9, 2012. Reprinted with permission

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N-Word Lesson for Students and for Teacher

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Jaclyn-Tyndorf-photo-265x300I still remember my fourth grade teacher, Mrs. Ross, standing in front of me, hand outstretched, a stern expression on her face. Becky had passed me a note and I hadn’t opened it yet, and wasn’t even sure what it said, but there I was, holding the incriminating evidence. I was terrified.

I bet this is how one student at Chicago’s Murray Language Academy, felt last October, when he was caught holding a passed note in class. The teacher confiscated the note and read it. As it turned out, the note included rap lyrics with the “N-word.”

The teacher, Lincoln Brown, who is white, felt that this was a “teachable moment” to discuss racism and the implications of using such words with his predominately black class. Mr. Brown grew up in a home active in the civil rights movement; his parents even named their son after their favorite president.

During the ensuing discussion with his sixth grade class, Mr. Brown discussed the history of the N-word, and discussed its use in Mark Twain’s “Huckleberry Finn.” The school’s principal, who is black, happened to stop in that day, and heard some of the lesson.

Mr. Brown thought nothing more of the matter. But two weeks later, he received a “Notice of Pre-Discipline Hearing” from the principal on behalf of the school board accusing him of violating school policy for “using verbally abusive language to or in front of student.” Hearings and more notices followed, including a “Notice of Disciplinary Action” that informed Mr. Brown he would be suspended without pay for five days.

Under the “Suggestion(s) for Improvement” section of the notice, the principal wrote, “Do not use the word ‘N—–’ with students at Murray at any time; whether a ‘teachable moment’ or not; the word is not appropriate for this age group.”

Mr. Brown appealed the disciplinary action and a hearing was conducted with the school district’s Office of Employee Relations in early December, but the appeal was denied.

In January, Mr. Brown, who has been teaching for more than 25 years and who had never been disciplined before, sued the Chicago Public School’s Board of Education, its CEO, and the principal of the school for violating his first and fifth amendment rights, alleging that he was punished for talking about a matter of public concern, and that his due process rights were violated in disciplining him. He also claims that the school was behaving inconsistently; he cited to use of the word by the principal himself when discussing the incident.

The media reported that Mr. Brown is suing the school district and presented his account of what occurred, but didn’t analyze the matter from a legal standpoint. LASIS will.

In 2007, an Indiana public school teacher sued on first amendment grounds when her contract wasn’t renewed after a current events class discussion in which she expressed her personal opinions about the Iraq War. The court held that even though this was a matter of public importance, the first amendment didn’t provide support to primary and secondary teachers to discuss positions or matters that deviate from the established curriculum..

This decision was in line with the Supreme Court’s reasoning. In the 2006 case Garcetti v. Ceballos, the Court held that, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

So Mr. Brown’s first amendment arguments won’t help him.

He also claims that the discipline he received violated his due process rights because there was no written or verbal rule against what he did presented to him by the school district. To obtain relief under the fifth amendment, which states that, “No person shall be…deprived of life, liberty, or property, without due process of law,” a person in Mr. Brown’s position must show that he was harmed without the benefit of notice of what he did wrong or a hearing to decide the matter.

In a 2004 Illinois District Court case, a kindergarten teacher spoke publicly and criticized both the kindergarten program and the renewal of the school principal’s contract. She then received a “Warning Resolution” for insubordination and other violations, including not finishing tasks and not assigning grades to students, and after that, her contract was not renewed. She sued, alleging that the school had violated her due process rights, but the court held that the warning she received had amply satisfied those rights.

Mr. Brown’s due process rights appear to have been equally satisfied.

We believe he meant well. But in using class time to talk about the history of a word that the media only refers to by its first letter, he stepped outside the official curriculum. At least one student was reportedly uncomfortable with the discussion. And he was given notice and the opportunity for a hearing.

The law is not on this veteran teacher’s side.

This blog originally appeared in Legal as She is Spoke, a project of the Law and Journalism track at New York Law School, on March 17, 2012. Reprinted with permission.

About the Author: Jaclyn Tyndorf is a (2L) majored in Broadcast Journalism at Syracuse University. She is active at New York Law School, and is a member of the Media Law & Policy Center, the Institute for Information Law and Policy, and the Program in Law & Journalism. Jaclyn spends her free time exploring the neighborhoods of New York City and enjoys attending New York Jets games.

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Starbucks Served Venti-Sized Discrimination Lawsuit

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Leah BraukmanTwenty-five year old Eli Pierre has only one full arm, but he says he’s never been told there was something he couldn’t do.

That is, until last month, when a San Diego, California Starbucks interviewed and then refused to hire him. Mr. Pierre is now suing the Seattle-based company in California state court alleging discrimination and wrongful failure to hire “despite his capable work history,” in violation of California’s Fair Employment and Housing Act (FEHA). He’s also claiming failure to prevent discrimination, to make reasonable accommodations, to engage in the interactive process in violation of FEHA, wrongful failure to hire in violation of public policy, and intentional infliction of emotional distress.

According to ABC News, Mr. Pierre, a former bartender, claims he wasn’t hired because he is missing half of his left arm, and that throughout his interview, he was told that he wouldn’t be able to work there – besides being teased about a previous job he’s held at Victoria’s Secret. (“Maybe he can help you find the right bra size”, the interviewer allegedly said to another Starbucks employee.)

A spokesperson for the coffeehouse chain contends that Mr. Pierre’s version of the interview is “vastly different” from what actually took place, and that he wasn’t hired because of his qualifications and answers to interview questions.

While ABC and the rest of the media provided plenty of information about Mr. Pierre’s lawsuit, it didn’t size up the strength of his claims. LASIS will.

ABC had what little law it did report, wrong. It stated that Mr. Pierre sued for discrimination in violation of the Federal Employment and Housing Act. Such a law doesn’t exist.

California has a state law, the Fair Employment and Housing Act, that is more expansive than federal employment discrimination laws, and that is what Mr. Pierre is relying on.

FEHA prohibits an employer from either refusing to hire or for firing someone based on a physical disability, defined in part as any anatomical loss that affects a body system and limits a major life activity. Not having an arm certainly qualifies as a physical disability, but it hasn’t stopped Mr. Pierre from working, a major life activity under the Act. A former boss even told ABC that Mr. Pierre “can carry more than somebody…with two arms.”

Even so, Mr. Pierre is clearly disabled and his discrimination argument seems pretty solid. Especially if what he said of the interview is true. In a 2002 California Court of Appeals case, a man with a prosthetic leg sued the Los Angeles Police Department when he wasn’t hired as a police officer. The court found no discrimination because the man didn’t meet the physical requirements of the job. And this makes sense. It would be ineffective for a police officer with a prosthetic leg to chase after a fleeing suspect by scaling fences and jumping over obstacles.

It’s harder for Starbucks to argue that it requires both arms to pour coffee. On the other hand, doing some field research I watched the baristas make my drink at a local Starbucks recently, and using two hands surely helped them work as quickly as they did.

But the crux of Mr. Pierre’s argument isn’t that Starbucks should have hired him on the spot, it’s that it didn’t engage in the “interactive process” of identifying reasonable accommodations that would allow him to work there.

In 2008, the California Court of Appeals said an employer is liable if the workplace could be modified to allow an employee to perform the essential functions of the job. For Starbucks, it wouldn’t take much. The interviewer had told Mr. Pierre it would never work out for him at Starbucks because he wouldn’t be able to reach certain syrups while making the drinks. Well, one place for Starbucks to start in trying to accommodate Mr. Pierre would be to move the syrups within reach.

Mr. Pierre also claims that when Starbucks didn’t give him the job or explore any potential accommodations, it violated public policy. The California Court of Appeals recognizes this as a separate claim, but as violations of FEHA are automatically violations of public policy, Mr. Pierre will likely succeed on this public policy argument, as his discrimination claims are rather robust.

Aside from the alleged FEHA violations, Mr. Pierre is suing for intentional infliction of emotional distress. To win on an emotional distress claim, Mr. Pierre would have to prove that Starbucks’ conduct was “outrageous” and exceeded “all bounds…tolerated by a decent society.” In 2006, the California Court of Appeals ruled that unlawful discrimination doesn’t necessarily lead to a successful emotional distress claim. That’s not to say a Starbucks interviewer should have treated Mr. Pierre as he did, but what happened during the interview doesn’t amount to the extreme behavior the court is probably looking for.

As a frequent Starbucks customer, I was disappointed when I heard of these accusations, especially as this isn’t the first time the company has been accused of discrimination. Last year, a Starbucks employee with dwarfism was fired after asking for a stool or stepladder because, the company said, “she could be a danger to customers and workers.” The Equal Employment Opportunity Commission sued the company for discrimination and Starbucks shelled out $75,000 to settle. I’ll keep going to Starbucks for now because I’m hooked. But if I hear of more offensive behavior like this, I might just try Dunkin’ Donuts instead.

This blog originally appeared in Legal as She is Spoke, a project of the  Law and Journalism track at New York Law School, on March 5, 2012. Reprinted with permission.

About the Author: Leah Braukman (2L) is first and foremost a proud graduate of the University of Florida — Go Gators!  While a “Gator” at heart, she is thrilled to be in New York City and studying law at New York Law School, and is equally excited about contributing to this blog. Leah is a member of Law Review, the Institute for Information Law and Policy, the Media Entertainment Fashion Law Association, and the Program in Law and Journalism.

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