Tulsa Lawyer
August 2017
Labor & Employment Law
Magazine
2
TULSA LAWYER
A Message from
Matt Farris
In this Issue
August 2017
2016-2017 TCBA President
5 VP's Corner - Ann E. Keele 6 Paralegal Section Year in Review Debra Baker 8 Personal Injury and Wrongful Death: Part III Ken Underwood 10 Estate Planning CLE 11 CLE - NEWS WORTH REPEATING 12 Misclassifying Independent Contractors Kristen L. Brightmire 14 Fighting the Workplace Bully Stefan Mecke 18 Litigation Section News TCBA Cover Photo Contest 20 Avoiding Disputes after a Settlement Conference or Mediation Kimberly Lambert Love & J. Miles McFadden 22 Membership Renewal Announcement 23 Exploring Our Community-Theatre Pops 24 The Changing Legal Landscape of Sexual Orientation Discrimination Under Title VII? ~ Rebecca D. Bullard 28 Grapevine 31
Classifieds
Tulsa Lawyer 1
A Message from the President
Matthew S. Farris
Coming in Hot It’s August. It’s the end of the TCBA fiscal year. It’s hot. The heat makes me tired. So I’ll be brief. As I enter my final month as TCBA President, our association has just completed its first ever (and very successful) TCBA Membership Appreciation Month. Inasmuch as we tried to plan various events appealing to all TCBA members during the month of July - headshots at the Bar Center (I know I need an updated headshot), a Pinot’s Palette painting night (for our art and/or wine enthusiasts), an Ethics CLE/lunch featuring OBA general counsel Gina Hendricks (who doesn’t need more ethics CLE credit?), a Tulsa Drillers baseball night (for our sports enthusiasts), the Tulsa Zoo Event (a family friendly event), and a No Suits Allowed rooftop party on Cherry Street (not a family friendly event) – I hope TLM readers were able to attend and enjoy one or more of these complimentary events (all events were filled to capacity!). Furthermore, I want to extend a heartfelt Thank You to the Kara Pratt (my Membership Committee chair) and the TCBA staff who organized and executed these events in honor of our association’s extraordinary membership. 1 If you perused any of my previous TLM President’s articles, you may have noted that my primary goal during 2016-2017 was to focus on serving our members well. As I stated in last month’s TLM article, I am both pleased and grateful to have had the privilege of serving as TCBA President during 2016-2017 wherein the association’s membership rolls increased AND membership benefits expanded; with a particular point of pride accompanying this year’s TCBA Board of Directors’ historic decision to offer the vast majority of TCBA CLE offerings free of charge to all dues paid members next year. As a result of the Board’s decision,
the cost of a TCBA membership will now include the ability for TCBA members to obtain all of their required, annual CLE credits by attending CLE programs offered by the TCBA for less money than the cost of acquiring the requisite individual CLE hours from other sources! That, my fellow TLM readers, is value for money. I also mentioned in last month’s article that I could not be more pleased that President Elect Christina Vaughn will succeed me as our association’s President. In addition to her capabilities and competence - readily apparent to those who interact with Christina - she intends to continue the TCBA’s rededication to serving its members in an exemplary fashion during her tenure as President. As Christina recently stated in an article appearing in multiple local publications, “If there is one area on which I intend to focus during my tenure, it is membership satisfaction. At a recent bar leadership conference, I attended a presentation on the future of voluntary bar associations where a bar leader extolled the virtues of shifting the focus from membership recruitment to membership retention. She spoke about her bar’s motto of ‘bright, shiny, happy members.’ This philosophy resonated with me.” 2 For obvious reasons, I have no doubt the TCBA is in good hands next year. As we wrap up the 2016-2017 fiscal year, the TCBA annual meeting will be held at the Hyatt Regency Hotel (100 E 2nd St, Tulsa, OK 74103) on August 24, 2017 (doors open at 11:30 and the program begins at noon). The keynote speaker at the annual meeting is Tracy L. Spears, who is the co-founder of the Exceptional Leaders Lab and the author of What Exceptional Leaders Know. Tracy is a native Oklahoman and she is regularly engaged by Fortune 500 companies to speak to their employees and other similarly impressive audiences…she is not to be missed and I hope to see you there! Seating at the annual meeting will be limited, so please remember to make your reservations by calling the Bar Center (918-584-5243) on or before August 21, 2017.
1 If you enjoyed one or more of these events - as I did - please
2 See,
consider dropping by Bar Center or sending the TCBA staff a
questions-with-christina-vaughn-tcba-to-focus-on-member-satis-
quick ‘thank you’ for their efforts in planning and executing the
faction/article_03ca1bd1-5104-5802-b322-e34d55a0ede8.html,
TCBA Membership Appreciation Month events.
as of July 3, 2017 (emphasis added).
2 Tulsa Lawyer
e.g,
http://www.tulsaworld.com/business/5questions/
I promised to be brief, so I will close my last President’s article by thanking the membership for allowing me to serve as TCBA President in 2016-2017. Additionally, and I have said this many times in private, I was blessed this year with a combination of luck and foresight with regard to the TCBA leadership. With regard to luck, I cannot express how fortunate I was to enjoy the counsel and confidence of this year’s elected officers serving on the Executive Committee (Christina Vaughn, Zach Smith, Ann Keele, Rick White, Kara Greuel, and Jim Milton). These attorneys are exemplary individuals and servants to the bar, and I am lucky to count them as friends and colleagues. As for foresight, I must extend my gratitude to the committee and section chairs who agreed to serve our association this year (most with minimal arm-twisting). The day-to-day and month-tomonth business of chairing sections and committees - the public face of our association - is no small task, and I truly appreciate the committee and section chairs’ dedication of time and talent for the benefit all TCBA members. Finally, I would be remiss if I did not publicly thank the TCBA staff (Kevin Cousins, Julie Cook, Bethany Lyon, Jody Geiger and Milly Dunlap for their tireless efforts on behalf of our association).
Without question, the TCBA has made progress this year in terms of its membership numbers and the tangible benefits made available to TCBA members. Moreover, the association has improved its internal functions and processes through, among other things, the acquisition and implementation of new software which will enhance critical internal functions such as membership processing/ tracking and the TCBA Lawyer Referral Service, as well as the adoption and implementation of revised procedures intended to help the TCBA ‘keep up with the times’ as our association evolves to meet the demands of serving modern legal practitioners. I am confident that as long as the TCBA serves the needs of its members in meaningful ways, our association will continue to thrive as it has done for generations. I am truly honored to have served as President of our association.I hope TLM readers are enjoying the ‘lazy’ days of summer; but be careful, it’s hot out there. Sincerely,
Matthew S. Farris TCBA President 2016 – 2017
We have Moved to a New Location To Better Serve You!
Come see us at our new location! 15 East 5th Street, 100 First Place Tower, Tulsa, OK 74103 Corner of 5th & Boston
918-583-3353
Tulsa Lawyer 3
VP's Corner Ann E. Keele, 2016-2017 It’s hard to believe that it is August already. August 31 ends the TCBA fiscal year, so this is my final VP Corner article. This year has gone by so quickly, and I am thankful for the opportunity to have served as your Vice President. I want to thank Matt Farris for his outstanding leadership this year as our President. His vision was focused on the new membership, and improving membership benefits. We hope you enjoyed Membership Appreciation Month, and got to participate in the free activities like getting a headshot, taking a CLE, going to the Zoo, Pinot’s Palette, The Driller’s game, and the Roof Top mixer. Christina Vaughn, our incoming-President, spear-headed the task of updating the bylaws, which was a much needed project – though not one that gets much attention. Thank you, Christina for your leadership and
tireless diligence. I’m excited for this next year – and if new free live CLE is an indicator of where you’re leading us, then we should all be in for an amazing year! I’d like to also thank the rest of the Executive Committee team: Zach Smith, our Past President – who showed his dedication even in the face of adversity; Rick White, our Secretary – who did not miss a beat even after a serious health scare; Kara Greuel, our Treasurer – who poured over our numbers and spent hours each month to be certain that new and better practices were implemented; Jim Milton, our Budget Chair and “parliamentarian” – who kept us on target and showed his brilliance in crafting needed documents; and last, but not least, Kevin Cousins, our Executive Director – who helped bring all of our ideas into fruition. Thank you to all of our committee chairs and Board of Directors for your excellent work and dedication! Also, thank you to the TCBA staff
The TCBA
w i ll b e c lo s e d
M o n d a y,
S e p t e m b er 4 t h fo r La b o r D a y
members: Bethany Lyon, Jody Geiger, and Julie Cook who take care of our association every day. Thank you to all of you! Your membership and participation are so appreciated. Without you we would not have a bar association. If you have any ideas for new projects or membership benefits, or ways we can improve the association please feel free to contact us. We’d love your input, and are here to serve you. Don’t forget our annual meeting is this month, so be sure to register early! I look forward to seeing you there. Thank you for a wonderful year serving as your Vice President, and I’m looking forward to this next year serving as your President-Elect. Ann E. Keele TCBA Vice-President 2016-2017
Interested in contributing? Contact
Larry Yadon larryyadon@cox.net or Michael Taubman mptaubman@taubmanlawoffice.com to talk about our future topics.
Tulsa Lawyer 5
Year in Review
Debra Baker, 2016-2017 Chair
As outgoing Chair of the Paralegal Section, I wanted to thank our membership for another great year. This past year I have enjoyed serving as Chair of a section that started back in 2010. There have been many changes throughout the years in our profession as well as our Paralegal Section. The fact that the TCBA has a Paralegal section is a testimony to the Tulsa area legal profession in that they recognize Paralegals as a part of the legal profession. As members of the TCBA, we are so very excited about what lies ahead for our section and our profession. I wanted to recap some of the events of the 2016 and 2017 year. Several members of the TCBA Paralegal Section met this past September to discuss activities and topics for the monthly meetings. Our focus would be on meetings that contained helpful information to assist our membership in personal and professional growth. As Chair of the section, I attended Tulsa Community College’s Orientation meeting for Paralegal Studies. It was exciting to learn how the program is conducted and to see so many students preparing to work as paralegals. I also represented our Paralegal Section on a panel at the University of Tulsa’s Focus Group for ABA approval of the Paralegal Program for the University of Tulsa. Our first meeting of the 2016 - 2017 year was on October 6th with Litgistix presenting a program on Searching Techniques for E-Discovery Review. This presentation included information on using new Cloud based software, CloudNine. Luke Harris presented demonstrations on the software and its benefits in management of a case.
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At our November 3rd meeting, Karlyn Apon, from Doerner Saunders Daniel & Anderson, presented a slide presentation on Due Diligence in Corporate Transactions and Related Searches. Karlyn also prepared a handout that included public websites for searching for corporate documents. Our section had an evening meeting on December 1st at the Spaghetti Warehouse. There was a round table discussion on current topics and issues in the legal profession. We also agreed to adopt a family through the Family & Children’s Services 2016 Holiday Challenge. We adopted a single mom with three children and with the generous donations from our membership, we were able to provide a special Christmas for this family. On December 13th there were several members that met to wrap gifts and the gifts were presented to Family & Children’s Services to be delivered to the family. On January 12, 2017, Meredith Lee, Online Document Review Supervisor from Avansic, presented information on E-Discovery Cost Strategy for Small, Medium and Large Cases. There were numerous questions asked about the different e-discovery methods and cost effectiveness. Ms. Lee presented several different case scenarios and ideas for cost effectiveness using E-Discovery. The February 2nd meeting was a round table discussion on Paralegal Professionalism led by Beth Nellis. Other topics and issues concerning paralegals were also discussed. On March 2nd, Mr. Tom Vincent, from Gable and Gotwals, spoke on “Practical Cyber Security: The First Line of Defense.” Mr. Vincent spoke on the review of security requirements for different types of information, and how to apply them; understanding the risks applicable to that information, and the different ways information may be lost or compromised; and learning practical steps one can take to increase the security of that information for clients, firms or companies.
At our April meeting we discussed the upcoming election of officers. We also had Deidra Kirtley, from Resonance Center for Women, speak to us on helping female offenders find a pathway to success. Ms. Kirtley provided insight as to how women have difficulty getting back in the workplace after exiting from the criminal justice system. During the May meeting, we had a candidate forum with the following declaring their intention for office: Beth Nellis as candidate for Chair; Rhonda Ford candidate for Vice-Chair and Lorena Wensauer as Secretary. We discussed issues regarding the paralegal section for the upcoming year and each person’s vision for the section. Throughout the year, the Paralegal Section has participated in activities with TCBA as well as the OBA. Several members have submitted articles for the Tulsa Lawyer. I would like to thank Debbie Woodruff as Vice Chair and Gloria Jones as secretary for making this a great year for our section. We are looking forward to the 2017 – 2018 year for our section with a new slate of officers with new vision and excitement for our profession.
Please share your photos of TCBA events with us! Send your snapshots to tulsabarnews@yahoo.com and be sure to include a caption with who, what, when & where.
The TCBA Paralegal Section would like to thank Litgistix, Doerner Saunders Daniel & Anderson, Avansic, The University of Tulsa Paralegal Program and Summit Recruiting for sponsoring lunch for our monthly meetings.
Tulsa Lawyer 7
Personal Injury and Wrongful Death: New Statutes, Pending Appeals, Current Limitations and Perspectives from the Plaintiff Part Three of a Three Part Series
OTHER DAMAGE CLAIMS The law provides for the recovery of damages for future pain and suffering and future medical bills. Although there are some instances where future pain is evident and an expert is not needed, the better practice is to always have an independent expert, or treating physician, testifying as an expert to give the foundation for future medical bills and future pain and suffering. Reed v. Scott, 1991 OK 113 and Godfrey v. Meyer, 1996 OK CIV APP 124. In instances where there will be significant future medical bills, a foundation needs to be established through the use of treating physicians or a retained expert so that a qualified life care planner can establish a care plan and anticipated costs for the life of the client. These costs should be reduced to present day value through the use of a qualified economist. Otherwise, these damage claims might never be allowed into evidence by the Court and never be considered by the jury. Lost income is typically calculated by using 1099s, W-2s or tax returns. However, the Oklahoma Supreme Court has allowed some unique forms of evidence to serve as a foundation for lost future income. West v. Board of County Commissioners of Pawnee County, 2011 OK 104. This case offers an example of how a creative lawyer presented a scenario which led the Supreme Court to conclude that the jury award was insufficient based upon the anticipated earnings of a young woman who died leaving minor children. In the case of Holland v. Dolese Co., 1982 OK 43, the Oklahoma Supreme Court determined that a Plaintiff was not only entitled to recover loss of future income but also the increase in earnings and earning capacity due to merit raises and probable advancements in employment. If the case warrants, these damage claims are best presented with evidence from a vocational rehabilitation specialist and an economist. An experienced economist can also help establish economic losses by putting numbers on household services which can no longer be performed by a man or woman with a catastrophic injury. Loss of consortium and destruction of a relationship between husband and wife or parent and minor child or adult child is a recognized component of non-economic damages arising from a wrongful death or catastrophic personal injury. Williams v. Hook 1990 OK 136 and Nelson v. Four Seasons Nursing Center 1996 OK CIV APP 93. The non-economic damages for loss of consortium arguably constitute separate 8 Tulsa Lawyer
By Ken Ray Underwood claims and warrant separate damage calculations up to the current $350,000 cap. This issue is pending in the case of Beason v. I.E. Miller Services, Inc., Supreme Court No. 114,301. In a wrongful death claim, conscious pain and suffering and the grief arising from the loss are also components of the non-economic damage claim. A wrongful death claim is never subject to any cap on damages. Article 23 ยง 7 of the Oklahoma Constitution. The case of West v. Board of County Commissioners of Pawnee County, 2011 OK 104, has references to the Trial testimony in that case with an analysis of the facts and law for these damage claims as provided by the Supreme Court. This discussion provides direction and guidance. In appropriate circumstances, experts should be considered to demonstrate conscious pain and suffering, grief and destruction of the parent child relationship through the testimony of treating physicians, pathologists, psychologists and/or family counselors. An element of damages that is often overlooked occurs when a consequential injury arises from the initial negligent act. Atherton v. Divine, 1979 OK 132. Carmichael v. Beller, 1996 OK 48. The consequential injuries and damages can arise from negligent medical treatment, a reaction to medication, or a subsequent fall from a loss of balance due to the original injury. Many injury victims have been treated with nonsteroidal anti-inflammatories which caused gastrointestinal bleeding and ulcers requiring surgery. This is the type of consequential injury which should be considered for completeness when evaluating and presenting a personal injury damage claim. LIENS, LIENS AND MORE LIENS Although this paper is not about liens and time will not permit us to discuss the extensive array of liens and subrogation claims which exist in a personal injury and wrongful death claim, it is an important issue to consider in every case and it is best considered at the earliest opportunity. A partial list of potential liens or subrogation claims include Medicare, Medicaid, Champus for Veterans, Indian Health Service, the Oklahoma Health Care Authority, statutory liens from doctors and hospitals, and ERISA plans with health insurance coverage. In some circumstances, these liens and
subrogation claims could prevent any recovery at all for a person with catastrophic injuries and prevent any recovery for attorney fees and costs for the lawyer who vigorously pursued such a claim. U.S. Airways, Inc. v. McCutchen, 133 S.Ct. 1357 (2013). The failure of a lawyer to consider a certain class of these liens and subrogation claims can result in an assessment of financial penalties against the lawyer who ignores them. In addition, the failure to consider these liens can also be the source of an ethics complaint for failure to protect funds subject to a lien claim. Prospective clients are never pleased to receive this news and it is certainly not a pleasant thought for the lawyer who genuinely wants to help someone put their life back together when they have suffered catastrophic injuries at the hands of another. Still yet, for the benefit of all concerned, it is best to address these issues up front and in cases where clients have medical bills paid through an ERISA plan and there is a limited source of recovery, an early agreement should be reached with the plan administrator or representative on how money recovered will be divided among the plan, the client and the lawyer. LAST THOUGHTS ON DAMAGES I leave you with one of my favorite quotes from the case of Cartwright v. Atlas Chemical Industries, 1978 OK CIV APP 23 where the Court states “There is no fixed rule where damages for pain and suffering alone can be measured. Compensation for pain and suffering rests in the sound discretion of the jury because there is no market where pain and suffering are bought and sold nor any standard by which compensation for it can be definitely ascertained or the amount actually endured determined.� Juries seem to have a sense of fairness when calculating damages for personal injury and wrongful death. As often as not, the dangerous, outrageous or reckless conduct of a Defendant can be the most important aspect of damage calculations by jurors. However, as a matter of law, there must be sufficient proof through admissible evidence to establish a foundation for the damages awarded by a jury. Good luck, I hope all of your clients are made whole because of your good work on their behalf. If I can ever help you at any time, please do not hesitate to call.
Ken Underwood ken@ulawok.com www.ulawok.com
This is News Worth Repeating!
Fall/Winter CLE Now FREE to TCBA Members
The TCBA Board of Directors is extremely excited to announce that the TCBA’s entire live Fall/Winter CLE schedule will be free to all TCBA dues paid members. With the demands on our members’ time and financial resources ever increasing, it is more important than ever that the TCBA provide unquestionable value through unbeatable benefits. TCBA members frequently cite the TCBA Annual Free Spring CLE as the most valuable TCBA member benefit. The free Spring CLE provides six hours of CLE, but is offered only a single day in the Spring. While any free CLE is a good value, the TCBA wanted to do more for our members.
are committed to providing our members with an outstanding membership experience at a remarkable value. Be on the lookout for additional new benefit announcements in the coming months.
We would love to have your feedback about the new free CLE benefit and your suggestions for additional ways in which we can improve your membership By offering the entire live Fall/Winter CLE schedule experience, so please feel free to contact any TCBA free to TCBA members, our members will have a Officer or the Executive Director with your feedback variety of topics from which to choose (last year’s and suggestions. schedule offered over 50 hours on an assortment of topics), will be able to take free CLE on a variety of dates throughout the Fall and Winter, and, will be able Christina Vaughn to obtain all of their annual required CLE hours for free. Perhaps the best aspect of this new benefit is the financial value it adds to a TCBA membership. For example, the member cost of the annual six hour Family Law Seminar and that of the annual six hour Hodgepodge of Criminal Law Nuggets Seminar has been $135 for each seminar. Accordingly, these twelve CLE hours have, in the past, cost members $270 in addition to the cost of membership dues. Beginning in the upcoming membership year (2017-2018), these CLEs and many more will be free to dues paid members; making the cost of membership less than the cost of purchasing the annually required 12 hours of CLE. TCBA members asked for more and the TCBA has delivered, and we are just getting started. The TCBA Board of Directors and Executive Director
2017-2018 TCBA President
Find us on Facebook to keep up with Tulsa County Bar Association events and news! Tulsa Lawyer 11
Misclassifying Independent Contractors: So Many Legal Ramifications By Kristen L. Brightmire Defining a person as an employee or independent contractor used to be clear. If your company called a plumber, the person was a contractor. If your company had someone onsite doing the books, the person was an employee. Today, companies have “employees” who work remotely and “independent contractors” who are regularly onsite. Should people care whether the person is an employee or a contractor? Absolutely. Why? Money, of course. This is a huge issue for taxing authorities, and it has become a mainstream claim for plaintiffs. Companies and workers often don’t consider the legal ramifications of classification when initially making the determination. Workers may ask to be treated as a contractor, wanting perceived freedom or additional dollars in their pocket. Companies may prefer a contractor relationship to keep headcount low or to maintain a more flexible workforce. Invariably, the company will face potential legal liability. Wage and hour laws. This is a common claim. The contractor sues alleging she was actually a nonexempt employee under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Nonexempt employees are entitled to minimum wage and overtime pay. Because the company treated the worker
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as a contractor, it likely did not maintain FLSA-required timekeeping records and will not be well-situated to defend against FLSA claims. Thus, the company’s first line of defense will be to prove the person was not an employee. Under the FLSA, an employee “means any individual employed by an employer.” 29 U.S.C. § 203(e)(1) (exceptions excluded). Despite hundreds of regulations, none provide guidance on that definition. Instead, the Department of Labor (DOL) has issued guidance (and there are court decisions which apply the law and guidance to individual fact patterns). Interestingly, in July 2015, the DOL issued new guidance on this topic unapologetically designed to move more workers to “employees.” However, on June 7, 2017, it withdrew that guidance. Under the DOL’s earlier (and now presumably controlling) guidance, it outlined non-exclusive, non-controlling factors to consider: (i) the extent to which the work performed is an integral part of the employer’s business; (ii) whether the worker’s managerial skills affect his or her opportunity for profit and loss; (iii) the relative investments in facilities and
equipment by the worker and the employer; (iv) the worker’s skill and initiative; (v) the permanency of the worker’s relationship with the employer; and (vi) the nature and degree of control by the employer. The DOL notes the existence of an agreement stating the person is an independent contract is immaterial to its determination, and whether the person is incorporated, etc., is of little consequence as well. The latter are comments to remind all that labels and lawyering will not determine the outcome. It is the work and the relationship between the person doing the work and the entity for which the work is being done which will determine whether there is an employer/employee relationship subject to the FLSA. To read more about the DOL’s earlier, now-reinstated, guidance, refer to DOL Fact Sheet #13 (Revised May 2014). Taxes. The IRS is also understandably interested in this topic. It issued a Fact Sheet in August 2015 reminding employers to withhold income taxes, withhold and pay Social Security and Medicare taxes, and pay unemployment tax on wages paid to employees. The IRS looks to the common law rules to determine whether a person is an employee: (1) Behavioral – “Does the business owner control or have the right to control what the worker does and how the worker does his or her job?” (2) Financial – “Are the business aspects of the worker’s job controlled by the business owner? (these include things like how the worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)” (3) Type of Relationship – “Are there written contracts or employee type benefits such as pension plan, insurance or vacation pay? Will the relationship continue and is the work performed a key aspect of the business?” IRS, FS-2015-21. The IRS also has a built-in mechanism for raising this issue, Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding. This form may be completed by an individual or a business. The filer uses Form SS-8 to seek a determination by the IRS as to whether a person is an employee. The questions on this four-page form may be seen as a roadmap of the IRS’s thought process as to the tests described above. Unemployment insurance. The Oklahoma Employment Security Commission (OESC) determines whether a worker
Ms. Brightmire is an expert in labor and employment, representing employers in every practice aspect. In non-litigation matters, she proactively counsels numerous clients on employeerelated matters, plus drafts and reviews policies, handbooks, employment contracts, severance programs, severance agreements and relocation programs. She represents clients during every step of the litigation process – from the administrative agency through trial and appeal.
is a contractor or an employee pursuant to Okla. Stat. tit. 40, § 1-210(14). The OESC established regulations to assist in this determination: (A) Any person who performs services according to their own methods and without control except as to results is a contractor, if they are: (i) Customarily engaged in an independently-established business; or (ii) Performing service outside the usual course of the contractor's business and outside the places of such business. (B) In order to be considered "without control" the individual providing the service shall: (i) Provide their own tools and equipment; (ii) Pay their own ordinary and customary business expenses; (iii) Risk losing money from the contract; (iv) Be free to hire their own assistants; and (v) Be responsible for obtaining and maintaining all business, tax registrations and all business occupational licenses required by federal, state, or local laws or ordinances. (C) A written contract relating to such services shall be considered under 40 O.S. Section 1-210 (14), along with all other pertinent evidence in determining employment status and shall not be accorded any greater weight than any other evidence. OAC 240:10-1-2. A person paid as a contractor may apply for unemployment benefits at the cessation of the assignment and, if proven that the individual was truly an employee according to the definitions under Oklahoma state law, force the company to correct the error such that the individual receives unemployment benefits. And the beat goes on. For each employment law, there is a test to determine whether a worker is an employee who can benefit from that law. The tests are similar, but they are not identical. For each “contractor,” there is a different fact pattern which could yield a different result. Employment counsel should be mindful of the complications involved in independent contractor misclassifications and wisely apply all of the facts to the applicable test(s) before making legal recommendations.
In her field, Ms. Brightmire is recognized by Best Lawyers, Super Lawyers, Chambers USA and has an A-V® Preeminent™ Martindale-Hubbell Peer Review Rating. She was selected for the Top 25 Women Attorneys for Oklahoma by Super Lawyers® in 2010-2011 and 2013-2016. She was also named by Best Lawyers as 2017 Tulsa Litigation – Labor & Employment “Lawyer of the Year” and is a Fellow with the Litigation Counsel of America.
For over a decade, she has represented employers at Doerner before she joined CITGO Petroleum Corp. in 2002 as in-house counsel responsible for its employment, labor and employee benefits legal matters. She remained with CITGO until its corporate offices relocated to Houston. Ms. Brightmire returned her practice to Doerner, and now leads the firm’s Employment Law Practice Group, which publishes a free monthly newsletter, The Employer’s Legal Resource, Preventing Problems, Providing Solutions™. Tulsa Lawyer 13
Fighting the Workplace Bully By Stefan Mecke, Co-Chair of the TCBA Employment Law Section Co-contributor ~ Kylie Ray, Law Clerk
Photo credit: Stefan Mecke
“Get Out of ‘Here,’ You're Boring Me” Some years ago I found myself immersed in a controversy stemming from a fairly routine annual corporate budget meeting. Months before the annual Board “budget” meeting was scheduled to convene at corporate headquarters, division heads were given a common directive to prepare and submit budget proposals and budget presentation to senior management. A new twist was introduced on this particular cycle, rather than the presentations being handled by senior management as had been the practice in the past, the division heads would present their budget proposal presentations directly to the Board of Directors. The division heads were visibly anxious and logged a tremendous amount of staff time preparing presentations for the Board. One division head in particular, Louis Litt, became somewhat obsessed with the pending presentation and exhibited quite a bit of anxiety in the months, weeks and days leading up to the presentation. Louis, not typically considered a micro-manager by his staff, became particularly focused and controlling regarding the presentation’s preparations. Louis scrutinized every line item and every number, even calling for adjustments to the colors on various graphs multiple times. 14 Tulsa Lawyer
Eventually, with the final presentations in hand, Louis slowly sauntered upstairs to the Board meeting. As Louis was nervously powering through his slides he heard seven words uttered by a Board Director (Harvey Specter) that quickly changed the course of the presentation. “Get out of ‘here,’ your boring me.” Louis, not knowing what Harvey meant by the term “here” reflected for a moment. Louis was not sure if he was being asked to leave the company or just the Board room, but either way, he determined leaving the Board room was the appropriate course of action. Louis walked back down the stairs, entered his office and requested assistance from his Administrative Assistant. Shortly thereafter an ambulance pulled up to the company’s front door and quickly ushered Louis to the hospital. Bullying in the Workplace Unfortunately, Louis’s experience is all too common in today’s workplaces. The Healthy Workplace Campaign (“HWC”), a group pushing for anti-bullying legislation nationwide, defines bullying as:
Repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes the following forms: • • • •
•
Verbal abuse, Threatening, intimidating or humiliating behaviors, Work interference (sabotage) which prevents work from getting done, or Yelling, screaming or throwing tantrums or things (e.g., throwing a stapler across the room; or throwing a cell phone against an office cube wall causing the phone to break). Some combination of one or more of these items. Source: http://healthyworkplacebill.org
According to a 2014 survey conducted by the Workplace Bullying Institute, an advocacy group dedicated to antibullying awareness: • • •
27% of American employees have experienced workplace bullying. 21% of American employees have witnessed workplace bullying. 72% of American employees are aware that workplace bullying exists. Source: http://bullyinginstitute.org
Bullying’s Toll on the Workplace The Bullying Institute was created by the female co-founder after she encountered a female “boss from hell” and realized that there was little concern from employers when the source of harassment was a person of the same gender or race. Surprisingly, legal protections exist when abusive behavior is directed toward a protected class such as race, color, religion, sex, national origin, disability or age. However, that same abusive behavior, when directed toward co-workers but not tied to a protected class, is not actionable and is simply considered legal bullying rather than illegal harassment. Despite bullying in itself being legal, workplace bullying can expose employers to operational, financial and legal risks. Operational risks at the workplace can include (i) talent flight, (ii) loss of moral and productivity, (iii) decreased trust in Management, (iv) increased stress, and (iv) increased absenteeism. While there is no federal law specifically prohibiting workplace bullying, employee plaintiffs are beginning to introduce the concept of workplace bullying into the court systems and they are combining the concept with other legal claims such as (i) harassment, (ii) hostile work environment (iii) retaliation, (iv) intentional infliction of emotional distress (IIED), and (v) assault. Liability on these grounds requires plaintiff employees to demonstrate a
connection between membership in a protected class and the questionable activities. Title VII of the Civil Rights Act of 1964 and the ADAAA are the most commonly cited federal protections cited in bullying related cases. No Civility Code for the American Workplace Employers have successfully defended against hostile work environment claims based on bullying behavior by distancing the abusive conduct from protected classes. Essentially, if a workplace abuser is an abusive jerk to all employees equally (an equal opportunity bully), then the workplace abuser is not considered by the courts to be abusive based on an element of a protected class. Many cases fail due to the employee plaintiff’s inability to tie abusive & hostile workplace behavior to a specific protected class. The US Supreme Court has clarified that in Title VII and other laws recognizing a hostile work environment harassment claim, the prohibition is only on harassment that is discriminatory and the laws like Title VII do not create “a general civility code for the American workplace”. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Employers have also successfully defended against hostile work environment claims based on bullying behavior by showing the abusive conduct in question was not “severe and pervasive” enough to meet the standard for harassment. The severity of harassment is judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances, including the social context in which particular behavior occurs and is experienced by its target. The Supreme Court has provided the analogy below to clarify this point. Id. at 81: “A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field – even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.” Bullying and the Cat’s Paw Legal Theory Under the Cat’s Paw legal theory, Employers can be held vicariously (strictly) liable for negligence of co-workers and supervisors under Title VII and the ADAAA if an employee is adversely impacted (e.g., demotion, termination or reassignment) due to the co-workers or supervisors actions, even if the employer did not know of the discriminatory intent involved. The term “Cat’s Paw” originated in the fable “The Monkey and the Cat”. The monkey wanted chestnuts from a roasting fire and convinced the cat to scoop them up, only to be gobbled up by the monkey. In the workplace context, the cat represents an unbiased decision-maker who disciplines an Tulsa Lawyer 15
employee (or initiates another type of adverse impact such as demotion or termination) unknowingly due to a co-worker’s or supervisor’s bias, represented by the monkey. Staub v. Proctor Hospital, 562 U.S. 411 (2011). Retaliation in the Workplace Bullying Context Employers are particularly vulnerable to retaliation claims in the workplace bullying context because even if the underlying claim of harassment is dismissed, the retaliation claim can still be successful for plaintiff employees. For example, Wal-Mart was awarded a victory in defense of a discrimination claim filed by a store Manager, only to be hit with $5.5M million in damages on the retaliation claim (even though the court found in favor of Wal-Mart on the underlying discrimination claim). Hannah v. Wal-Mart Stores, Inc., No. 3:2012cv01361-(D. Conn. 2017). Bullying and IIED Plaintiffs typically allege Intentional Infliction of Emotional Distress (IIED) claims when alleging workplace bullying. IIED is a tort claims recognized by state laws, including Oklahoma’s. IIED claims have proven very difficult to win for employee plaintiffs, despite their regularity before the courts. For example, the Oklahoma Court of Civil Appeals affirmed a trial court’s decision that a supervisor’s lewd comments and rudeness did not rise to the level of “severe or outrageous” as required in an IIED claim. The Oklahoma court referenced § 46 Restatement of Torts in highlighting the court’s perspective on actions required to cross the line in regard to an IIED claim: “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community…mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities [are not enough]…plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.” Mirzaie v. Smith Cogeneration, Inc., 962 P.2d (Okla. Civ. App. Div. 1, 1998).
Fighting for Life Employee plaintiffs who have been bullied at work face challenges when alleging assault claims due to the availability of remedies under workers’ compensation laws that provide compensation to employees for injuries that occur at work that cause employees to lose worktime. Despite this challenge, the Supreme Court of Indiana upheld a claim of assault based on workplace bullying. The court upheld a $325,000 jury award in response to the defendant “aggressively and rapidly advancing on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, while screaming and yelling at plaintiff. The court allowed a “bullying” expert to testify on plaintiff’s behalf and also entertained a jury instruction referring to workplace bullying. Interestingly, the surgical tech plaintiff was attempting to operate a heart/lung machine for the surgeon defendant during an open heart surgery procedure. These two colleagues were literally fighting while fighting for life. Raess v. Doescher, 883 N.E. 2d 790 (Ind. 2008) Bullying in Violation of Public Policy Some employee plaintiffs have unsuccessfully alleged a violation of public policy based on workplace bullying. One plaintiff alleged conduct of an employer rose to the level of systematic mistreatment when the employer (i) denied time off requests, (iii) subjected the employee to a barrage of criticism, and (iii) ultimately terminated the employee which allegedly constituted wrongful discharge in violation of public policy on the basis of bullying. The plaintiff further asked the court to recognize an employer’s public policy obligation to provide a safe workplace. Jaber v. FirstMerit Corp., 2017-Ohio-277. While the Jaber court ultimately declined to expand the current state of the law to recognize a claim for a violation of public policy on the basis of bullying, it is an interesting argument to consider here in Oklahoma in light of a string of Oklahoma cases that have expanded the exception to the Oklahoma employment at-will doctrine based on violations of public policy, even instances of a mere “alleged” violation of public policy. Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989); Todd v. Frank’s Tong Service, Inc., 784 P.2d 47 (1989); Moore v. Warr Acres, 376 P.3d 894 (2016). Techniques and Training Tips for Fighting the Workplace Bully Although bullying is not considered illegal unless directed at a protected class, employers should be aware of the potential legal liability, financial exposure, and operational decline that can stem from allowing bullying and harassment to continue in the workplace. Employers should take complaints of workplace bullying seriously and train their people.
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Employers facing bullying and harassment claims may be able to defend themselves and limit liability by showing their proactive efforts to cure and combat harassment and bullying. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. Boca Raton, 524 U.S. 775 (1998). Specifically, employers should train supervisors and managers on the types of behaviors that constitute unacceptable bullying and provide them with tools & techniques for handling and responding to reports or observations of unacceptable bullying. Employees should be trained on (i) identifying bullying in the workplace and (ii) techniques for avoiding and responding to bullying. Training employees on identification of bullying is important. Workplace bullies can be hard to detect because they work within the rules of the organization. Employers should strive to create an environment that is safe and healthy for each team and employee within the overall organization. Employers may want to consider introducing an anti-bullying policy into a larger pre-existing anti-harassment policy to (i) define bullying, (ii) provide examples of such behavior, and (iii) communicate a dual bullying reporting procedure for employees to follow. Employers should consider banning the following activities from workplace: (i) constant and unfair criticism, (ii) excessive teasing, (iii) aggressive e-mails, (iv) malicious gossip, (v) actions that intimidate or undermine employees by demeaning their work standards, (vi) refusal to give credit for work, (vii) monopolizing work and excluding others from receiving work, and (viii) setting employees up for failure or continually reminding them of old, minor or isolated mistakes/errors.
TCBA HOURS Effective August 1st 8:30am - 5:00pm
Louis Litt Got Out of There‌But Not Alone The introductory vignette involving division head Louis Litt is typical of a bullying scenario in the workplace. Like Louis, the typical targets of workplace bullying are not the weakest players, they are actually the strongest. A common misunderstanding is that targets of workplace bullying are loners or losers that don’t fit in. The Workplace Bullying Institute suggests that people actually become targets because something about them is threatening to the bully. In reality, targets are typically more skilled, more proficient and have a greater social intelligence than that of the bully. People in the workplace may just seem to like them better (annoying the bully). According to the Workplace Bulling Institute, research findings and conversations with thousands of targets have confirmed that targets appear to be the veteran and most skilled person in the workgroup. When the bully is unable to compete on their own merits they resort to bullying the target in an attempt to feel more powerful. Employers that allow bullying in their workplace risk creating a toxic culture subject to reduced performance and morale. In that type of environment, people being bullied and those witnessing the bullying are forced to choose to side with the bully (or risk being bullied for speaking out), leave or remain passive by avoiding the bully. Louis Litt chose to leave the organization to work for a competitor. Several of his key Managers left as well, followed out the door by several key employees.
Stefan Mecke, TCBA Employment Section, Co-chair
Kylie Ray graduated from TU law school recently in May, 2017 and is preparing for the August Bar exam. She also served on the TU Law Review
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TCBA LITIGATION SECTION NEWS Joe Farris presented for the TCBA Litigation Section in June and shared insight, tips, and secrets on Voir Dire. We want to thank him for taking the time to teach and help us all improve.
Aaron Bundy
Shane Henry
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After two years of serving as co-chairs Aaron Bundy and Shane Henry are stepping down And Ryan Fulda and Trevor Hughes are taking over.
Ryan Fulda
Trevor Hughes
We also want to thank Shannon McMurray for speaking to us about lessons learned from the Betty Shelby trial in July.Â
There will not be a meeting in August, but we look forward to their continued leadership with a common goal of helping us all improve as trial lawyers. Please join us at our next meeting.
The Litigation Section was founded by trial lawyers for trial lawyers of all practice areas with a goal of improving as advocates.
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AVOIDING DISPUTES AFTER A SETTLEMENT CONFERENCE OR MEDIATION By Kimberly Lambert Love and J. Miles McFadden
and mistake.” The parties also agreed to commonly-included language that they would sign all documents necessary to achieve a full and final settlement of all claims.
Recently, in Tucker v. Mercy Tishomingo Hospital Corporation, the Tenth Circuit Court of Appeals considered an issue related to the scope of releases commonly given by plaintiffs in settlement agreements for employment-related lawsuits.1 The case highlights the need for all counsel, mediators, and settlement judges to be sure that plaintiffs settling employment-related claims know the scope of claims being released by their agreement. In Tucker, the plaintiff asserted claims under Title VII and the ADEA, in addition to a claim that the defendant breached his employment contract. The district court granted summary judgment in favor of the employer on the plaintiff’s discrimination claims, but allowed the breach of contract claim to move forward. The parties then participated in a mediation where, as is the common practice, the parties were placed in separate rooms, and the mediator communicated offers back and forth. Ultimately, the parties reached an agreement. At the mediation, the parties signed a written settlement agreement whereby the plaintiff agreed to a “full settlement of all his claims in Case # CIV 14-877M.” The plaintiff agreed to execute a full release and dismissal with prejudice. Plaintiff also agreed that the agreement was entered into “without coercion, fraud, duress, undue influence 1 Tucker v. Mercy Tishomingo Hospital Corp, No. 16-6364, 2017 WL 2376551 (10th Cir. June 1, 2017) (not selected for publication and is not binding precedent, but may be cited for persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1). Image - © eelnosiva/adobe.stock.com
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The parties subsequently notified the Court that a settlement had been reached, and the case was administratively closed “without prejudice to the rights of the parties to reopen the proceeding for good cause shown” within 30 days. Plaintiff moved to reopen the case on the basis of a dispute concerning the scope of the release he was required to execute under the settlement agreement. The plaintiff asserted that the settlement pertained only to the breach of contract claim, effectively preserving his right to appeal the summary judgment ruling on Plaintiff’s Title VII and ADEA claims. Defendant, of course, disagreed, arguing that the settlement covered all the claims asserted in the action. Plaintiff’s attorney withdrew from the case, and the Court extended the administrative closure period to provide the parties a chance to resolve their dispute or return for an in camera review of the settlement agreement. The parties could not reach an agreement, and the plaintiff, now proceeding pro se, moved to vacate the settlement agreement. Plaintiff’s main issue was that the parties were kept in separate rooms during the mediation, which precluded him from negotiating with the defendant’s counsel directly. Plaintiff also contended that his attorney had failed to advise him that he would be waiving his right to appeal the district court’s summary judgment ruling. Affidavits from defense counsel, plaintiff’s counsel, and the mediator were submitted to the district court. After an evidentiary hearing, the district court denied the motion to vacate the settlement agreement. On appeal, the Tenth Circuit reviewed the decision under an abuse of discretion standard. The Circuit Court affirmed the decision, finding that a trial court may summarily enforce a settlement agreement entered into by the litigants while the litigation is pending. State contract law applies when considering the formation and construction of a purported settlement agreement. Summarily rejecting arguments by the plaintiff that the Oklahoma Dispute Resolution Act applied to the claims pending in federal court, the Circuit Court found that the structure of the mediation was common and did not preclude a meeting of the minds. The Court further found that the district court’s decision that the plaintiff understood the
scope of the release being given in the settlement agreement was not clearly erroneous, given declarations from the plaintiff’s attorney and the mediator that the plaintiff understood he would be releasing all claims against the defendant under the settlement agreement. The terms of the written settlement agreement were also consistent with that understanding. While Tucker involves a mediation that occurred after the resolution of some but not all claims on summary judgment, the case highlights the importance that counsel and the mediator must place on attending to the details of the agreement, even though these details may seem to be relatively minor during the negotiation process. One approach to reduce the potential for conflict after a mediation is to have the full, complete, and formal settlement agreement ready to be presented and modified during the mediation itself. The presentation of the full, typed settlement agreement containing the precise releases that the plaintiff must agree to while still at the mediation may reduce the potential for differing opinions about what claims are being released. If there is a good possibility that the case may be resolved at a mediation or settlement conference, this extra step may be worthwhile. In any event, this case is a good reminder of the need to be meticulous in the settlement process in making sure the plaintiff knows exactly what claims are being released.
Kimberly Lambert Love is a Partner with Titus Hillis Reynolds & Love. With over thirty years of experience, Ms. Love practices in all areas of employment law. She is the past chairperson of the labor and employment section of the OBA, has been repeatedly selected for inclusion in The Best Lawyers in America and named to Oklahoma Magazine’s list of Top 25 Women Super Lawyers. J. Miles McFadden is an associate attorney with Titus Hillis Reynolds & Love, primarily practicing in civil litigation, including employment law. He received his bachelor’s degree summa cum laude from the University of Oklahoma in 2007 and graduated from the University of Oklahoma College of Law in 2010, with honors.
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©razihusin/stock.adobe.com
Theatre Pops - A Season in Revelation Examining love, loss, petticoats, Presidents & apocalypse
By Michael P. Taubman
What possibly could Kung Fu movies and Cosmology or Milk & Cookies and String Theory have in common? I found out on a Saturday night in July when I took the chance to see the two season opening performances of Theatre Pops 2017/18 season. It started with Every Brilliant Thing and led me into the Constellations. Every Brilliant Thing by Duncan Macmillan and Jonny Donahoe examines depression and suicide from the survivor's perspective - a 7 year old in the beginning. Reacting to his mother's first attempt, the boy begins a list of all brilliant things, in no particular order or ranking, but each must be unique, substantial and, of course, brilliant. He lists for his mom things such as "Ice Cream", "Laughing So Hard You Shoot Milk Out Your Nose", "People Falling Over" and "Me". Mom's depression is unabated by his list. As the boy grows to a man, he discovers a partner in college, accidentally sharing his private list with a love who understands his struggle, and he continues the list with her encouragement, climbing in excess of 826,000+ before stalling out in the search for more brilliant things to alleviate mom's depression and his own. Tragically, he cannot save his mother, nor the relationship with his love, but he discovers himself, continuing the list to 1,000,000 things of brilliance. The task of conveying the story fell upon the shoulders of one actor, Rick Harrelson, and several audience members plucked out at times to read and improv scenes with the star. The story, while tragic, really conveys a sense of hope as you hear the brilliant things that surround our lives, from colors ("Yellow") to sounds ("The Way Ray Charles Sings You" in Drown in My Own Tears) to actions ("Waking Up Next To Someone You Love"). Harrelson, a native of Broken Arrow and graduate of OCU, performed in New York City and Seattle before returning to Tulsa. He's starred as Galahad and the Black Knight in Monty Python's Spamalot, as well as directing The Last Days of Judas Iscariot, which won a 2017 TATE award. His engaging performance in Every Brilliant Thing connected with the audience, conveying a sense of a real, personal journey during this one act play. After a brief intermission and a wonderful Old Fashioned cocktail by bartender Haley Grant, Theatre Pops resumed with the second play, Constellations. This play begins simply enough with two strangers, meeting at a party, yet it quickly fractures into an examination of how unified string theory, beekeeping and two lives interlace. Through
Exploring
sometimes passionate and other times violent scenes, the actors explore their love, pain and loss in different hues and rotating perspectives, and their performances held audience members rapt with attention to the frenetic pace of the dialogue and action. The two actors, Chris Williams and Monica Tate, brought this near-schizophrenic story of multiple, simultaneous existences to life with vigor. From the start, you quickly lose track of how many simultaneous events of the same moment occur, with the multitude of changes in dialogue, effect, and emotions. I asked Williams after the play about how much ad lib and improvisation occurred in the dialogue, and he informed me that it really is all scripted, and quite taxing to prepare for the role. Williams and Tate's performances were brilliant from my vantage point, as they conveyed a present sense of their relationship that invested the audience in their story. Williams, a Tulsa native, won a 2017 TATE award for Excellence in Acting for his performance in The Last Days of Judas Iscariot, and he certainly will be an actor to continue to watch in years to come. Monica Tate, a recent Tulsa arrival, demonstrated great emotional range, and I expect her star will continue to rise as she heads to the northwest this fall to pursue her acting career, which is surely Tulsa's loss. Speaking with the 2017/18 artistic director for Theatre Pops, Meghan Hurley stated that the troupe's focus for this season is “all about pulling back the curtain and revealing what’s behind it." Theatre Pops plans will start with a trio of plays dealing with matters of the heart, with presentations of Every Brilliant Thing, Constellations and their adaptation of Sense and Sensibility. "We will continue to explore exciting new ways to tell the story and add new definitions to immersive theatre. And we will strive to make your theatregoing experience more enticing” said Hurley. Some performances have passed by the time of this publication, but it's not too late to get tickets to see their upcoming productions of Mr. Burns, a Post-Electric Play by Anne Washburn (directed by Hurley), running September 8-17, 2017, and Assassins by John Weidman with music & lyrics by Stephen Sondheim (directed by Harrelson from Every Brilliant Thing), running February 9-18, 2018. Visit www.theatrepops.org to support our local arts and explore the excellent performances in Tulsa's theater community.
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The Changing Legal Landscape of Sexual Orientation Discrimination Under Title VII? By Rebecca D. Bullard Sexual orientation is not listed as a protected characteristic under Title VII of the Civil Rights Act of 1964, but some argue – and several federal district courts have held – the statute’s prohibition against discrimination based on sex encompasses sexual orientation. In recent months, the Second, Seventh, and Eleventh Circuit Courts of Appeals have joined in this evolving debate. The Tenth Circuit has not yet addressed the issue since same-sex marriage was legalized nationwide in 2015. Of the recent appellate decisions, only the Seventh Circuit found that discrimination based on sexual orientation is a form of sex-based discrimination prohibited under Title VII. In Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017), an openly gay professor alleged that her former employer failed to promote (and eventually terminated) her because of her sexual orientation. In a divided decision, the Seventh Circuit overruled prior case precedent and reversed dismissal of Hively’s claims, concluding “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” Slip Op. at 22. Hively alleged that she would have been treated differently if she had been a man married to a woman, which the court described as “paradigmatic sex discrimination” – she was disadvantaged because she was a woman. Slip Op. at 11. “Any discomfort, disapproval, or job decision based on the fact that the complainant – woman or man – dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.” Slip Op. at 14. According to the court, because our society “views heterosexuality as the norm and other forms of sexuality as exceptional,” Hively (as a homosexual) thus represents “the ultimate case of failure to conform to the female stereotype.” Slip Op. at 12.
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In rendering its decision, the Seventh Circuit focused on the changing landscape of the law and was not dissuaded by the fact Congress likely did not envisage sexual orientation as within the scope of Title VII when it was enacted, explaining that it must consider the law as it currently stands, “not what someone thought it meant one, ten, or twenty years ago,” and noting that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.” Slip Op. at 9, 21. In so doing, the court acknowledged it was not adding a new protected category to Title VII’s existing list, but rather interpreting discrimination on the basis of sexual orientation as “a subset of actions taken on the basis of sex.” Slip Op. at 6. In other words, sexual orientation is not a protected classification in and of itself, but falls under the umbrella of Title VII’s prohibition against sex discrimination. The Eleventh Circuit reached the opposite conclusion in Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir. Mar. 10, 2017), holding that Title VII’s protection against sex discrimination does not encompass sexual orientation. Evans, a former hospital security officer, was gay. Though she did not broadcast her sexuality, it was “evident” she identified with the male gender based on her uniform, haircut, and shoes. Slip Op. at 3. Evans claimed she was discriminated against because of her sexual orientation and targeted for harassment for failing to carry herself in a “traditional woman[ly] manner.” Slip Op. at 3. In ruling that sexual orientation was not an actionable basis for Evans’ discrimination claims, the court explained it was bound by prior case law holding that “discharge for homosexuality is not prohibited by Title VII.” Slip Op. at 12. But the Eleventh Circuit’s decision emphasized that a gender non-conformity claim was a separate avenue for relief – actionable under Title VII’s protection against discrimination
based on sex – and not “just another way to claim discrimination based on sexual orientation.” Slip Op. at 12. The court noted “all persons…are protected from discrimination on the basis of gender stereotype” and “because these protections apply to everyone,” homosexual or transgender individuals cannot be excluded. Slip Op. at 11. Thus, a Title VII gender stereotyping claim could survive even though a sexual orientation claim could not. The Second Circuit has adopted a similar approach. In Christiansen v. Omnicom Group, Inc., No. 16-748 (2d Cir. Mar. 27, 2017), and Zarda v. Altitude Express, No. 15-3775 (2d Cir. Apr. 18, 2017), the court ruled Title VII does not prohibit discrimination based on sexual orientation and refused to overturn existing precedent to the contrary. Rendered by three-judge panels, both decisions were based primarily on the conclusion that existing precedent can only be overturned by the entire Second Circuit sitting en banc. 1But those rulings may be called into question; the court in Zarda has granted a rehearing before the full panel to specifically address whether sexual orientation is covered by Title VII’s protection against discrimination based on sex. Oral argument is scheduled for September 26. Regardless of the Zarda case outcome, it is clear sexual orientation issues remain at the forefront of our current legal landscape. Many states already protect against sexual orientation discrimination under their state equivalents of Title VII, though Oklahoma is not one of them. Such protection extends to employees of federal contractors via executive order and non-binding Equal Employment Opportunity Commission guidance encourages the adoption of sexual orientation protections by all employers. Unless Congress passes legislation amending Title VII – which appears unlikely in the current political climate – the issue will remain in dispute for the immediate future. Courts appear reluctant to deviate from binding precedent and extend Title VII’s protection to include discrimination based solely on sexual orientation independent of any claim for gender stereotyping. With results constantly changing, many courts look for cases giving opportunities to revisit prior holdings – certainly an argument worth following. 1 Similar to Evans, the Christiansen decision recognized that there is “some confusion” about the relationship between gender stereotyping and sexual ori-
entation claims, though the two are distinct avenues of relief. Slip Op. at 11. The court explained that the gender stereotyping theory “would not bootstrap
protection for sexual orientation into Title VII because not all homosexual men
are stereotypically feminine,” but acknowledged that stereotypically feminine gay men (and stereotypically masculine lesbian women) could potentially pursue a gender stereotyping claim under Title VII in certain circumstances. Slip. Op. at 12. Thus, being gay or lesbian is not alone an actionable basis under Title VII
but may support a gender stereotyping claim when the individual is perceived as not being traditionally masculine or feminine enough. Image - © alexlmx/adobe.stock.com
Rebecca D. Bullard represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. She has represented large corporations, franchises, state agencies, and small businesses, including local and regional companies in a myriad of industries, international airlines, national utility companies, national retail chains, national health care providers, and national fast-food chains in commercial and employment related litigation, and she deals directly with client and in-house counsel to formulate litigation strategies and provide employment related and other legal advice and assistance. As a litigator, Rebecca represents employers in all aspects of litigation (including arbitrations, proceedings before state and federal agencies, and civil actions in state and federal court, throughout both the trial and appellate levels) in defending against employment claims, including discrimination, harassment, retaliation, wrongful discharge, whistleblowing, trade secrets, breach of contract, tort, wage and hour, OADA, ERISA, Title VII, FMLA, ADA, ADEA, and FLSA. In her transactional practice, Rebecca drafts employee handbooks, policies, and agreements, and regularly counsels and provides legal advice to employers regarding various everyday employment related matters. Rebecca also has experience conducting employee investigations in conjunction with whistleblower and other claims involving Nuclear Regulatory Commission regulations and performing cause of origin and litigation related inspections and investigations regarding potential or existing propane and other product liability claims. Tulsa Lawyer 25
REMINDER:
ADOPTED 04202017 BY MAJORITY OF DISTRICT JUDGES LOCAL RULE 10 IS HEREBY MODIFIED AS FOLLOWS:
RULE 10. Courtroom Attire Attorneys, as officers of the Court, should appear in Court in attire appropriate to practitioners of this honored profession. Men shall wear coats and ties and women shall wear suitable attire for all Court appearances. EFFECTIVE FROM JUNE 1, 2017 THROUGH SEPTEMBER 4, 2017 Local Rule 10 “Courtroom Attire” of the Rules for the District Court of Tulsa County is temporarily modified for the summer months. Acceptable dress includes short-sleeved collared shirts without ties, business casual slacks (no denim), socks and shoes (no sneakers). The attire should be “business casual” and applies to both men and women. Rule 10 IS NOT modified for any jury trial court appearance.
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G rapevine N ews Crowe & Dunlevy recently announced the addition of J a y Shanker as attorney in the firm’s Oklahoma City office. With more than 35 years of experience in entertainment and new media law, Shanker will lead the firm’s Entertainment Practice Group. After earning a bachelor’s degree from Yale University and a law degree from New York University, Shanker practiced law in Los Angeles for nearly 25 years before returning to Oklahoma City from which he’s based his international and national law practice since 2005. Throughout his career, he has focused on development, production and distribution of television and motion picture programming, recorded music projects, live stage and events, book publishing, interactive media and fine arts representation and entertainment and new media related startups for private, public and nonprofit organizations, as well as for individuals. His clients have been major recipients of industry commendations, including Academy, Grammy, Emmy and CLIO awards among others. In addition to serving as an adjunct professor at the University of Oklahoma College of Law and Oklahoma City University School of Law, Shanker is a nationally sought-after speaker on entertainment law. He has also authored or contributed to five published texts on the topic, and is author/editor for the new Essential Guide to Entertainment Law series to be published by Juris in 2017. He has been listed in the Best Lawyers in America publication since 2013 and included in the prestigious Who’s Who Legal – Sports and Entertainment 2015 publication.* An active member of the community, Shanker has been deeply involved in causes in California and in Oklahoma, serving currently as a World Neighbors trustee and Harding Charter Preparatory High School board member. Previously, he served as a board member for the Foundation for Oklahoma City Public Schools, deadCENTER Film Festival, as a Vice Chair of Creative Oklahoma, Inc. and other organizations.
Send Grapevine items to tulsabarnews@yahoo.com 28 Tulsa Lawyer
Hall Estill announces the addition of Sarah Miller to the firm’s energy law practice in the Tulsa office. Miller comes to Hall Estill with 20 years of legal experience. Prior to Hall Estill, Miller served in a variety of legal leadership positions for The Williams Companies, Inc. including Associate General Counsel and Corporate Secretary; and, most recently, Senior Vice President and General Counsel. In her role at Williams, Miller managed all aspects of Williams’ Legal Department, Ethics & Regulatory Compliance Team and Records & Information Management Team, as well as provided transactional, corporate governance, and securities law support for Williams. She also advised Williams’ board of directors through several transactions, including the spinoff of WPX Energy, Inc., the acquisition of Access Midstream Partners LP and its subsequent merger with Williams Partners L.P., and the terminated merger plans with Energy Transfer Equity, L.P. Before joining Williams, Miller was in private practice as a Litigation Associate. “We are thrilled to have such an outstanding leader in the industry join our team,” Managing Partner Mike Cooke said. “An attorney of Sarah’s caliber could work anywhere in the country and we are proud she chose Hall Estill.” Cooke went on to say, “Sarah will be a great complement to our services and an asset to our clients, one who will bring a depth of industry knowledge and enthusiasm to our firm. ”Miller is actively involved in the Tulsa community as the Board Development Chair for Transitional Living Centers of Oklahoma, where she has been a board member since 2013. She previously served as Advisory Council Chair for Marquette Catholic School and a board member for Neighbor for Neighbor. She is a graduate of Leadership Tulsa Class 36. "I am excited for the opportunity to work at such a prestigious law firm with an excellent reputation of client service," Miller said. "I look forward to working with the best attorneys in the state and contributing my knowledge and experience to Hall Estill’s energy law practice.” Miller earned her Bachelor of Arts degree in English with Honors from Oklahoma State University in 1993, and graduated Summa Cum Laude with her Juris Doctor from Oklahoma City University School of Law in 1997.
Faith Orlowski of Moyers Martin LLP was a presenter at the Sooner Association of Division Order Analysts 2017 Summer Seminar speaking on Trust Payee Problems; Transfer on Death Deeds; and Judicial Determinations v. Heirship Affidavits.
Sixteen GableGotwals’ attorneys have been recognized by Chambers USA, a leading national and international law firm and attorney ranking guide. Areas of law ranked include Corporate Commercial: Health Care, Energy & Natural Resources, Intellectual Property, Litigation, Native American Law and Real Estate. The overall firm has also been recognized and ranked in the areas of Energy and Natural Resources, General Commercial Litigation, Native American Law and Corporate/Commercial. The qualities on which Chambers USA rankings are assessed include technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment, and other qualities most valued by the client.
Vaughn were ranked Up-and-Coming; and Gayle L. Barrett and D. Kent Meyers were honored as Senior Statesmen. Attorneys also receiving high rankings include Zachary W. Allen (real estate), Adam W. Childers (labor & employment), Harvey D. Ellis Jr. (litigation: general commercial), Michael J. Gibbens (litigation: general commercial), Jimmy K. Goodman (Native American law), Susan E. Huntsman (Native American law), James W. Larimore (corporate/commercial), Greg McKenzie (energy & natural resources), Mack J. Morgan III (litigation: general commercial), Judy Hamilton Morse (litigation: general commercial), Drew T. Palmer (intellectual property), Donald K. Shandy (energy & natural resources: environment), Randall J. Snapp (labor & employment) and L. Mark Walker (energy & natural resources: environment). The Chambers guides have been ranking the best law firms and lawyers since 1990 and cover 185 jurisdictions throughout the world. Chambers ranks lawyers and law firms based on the research of its 170 full-time editors and researchers, as well as information submitted by law firms and in-depth telephone interviews with attorneys and firms. Law firms and individual lawyers are ranked in bands from 1-6, with 1 being the best. The qualities on which rankings are assessed include technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment and other qualities most valued by the client.
For the fifth year in a row international legal publisher Chambers & Partners has ranked Crowe & Dunlevy as the only Oklahoma law firm in its annual Chambers USA Directory in Band 1, the highest ranking, continued on next page... in all seven areas of legal practice in Oklahoma: corporate commercial, energy & natural resources, intellectual property, labor & employment, litigation: general commercial, Native American law and real estate.* Share your news with us! Additionally, 30 attorneys were honored as leaders in their respective practice areas. Moving, new jobs, births, Twelve Crowe & Dunlevy attorneys received Band 1 rankings: LeAnne Burnett (energy & natural weddings...let others know. resources: environment), Leonard Court (labor & employment), John J. Griffin Jr. (energy & natural resources), James H. Holloman Jr. (corporate/ commercial: tax), Michael S. Laird (real estate), Clyde A. Muchmore (litigation: general commercial), Karen S. Rieger (corporate/commercial: healthcare), Malcolm tulsabarnews@yahoo.com E. Rosser IV (real estate), Roger A. Stong (corporate/ commercial), David M. Sullivan (intellectual property), L. Mark Walker (energy & natural resources) and Terry L. Watt, Ph.D. (intellectual property). D. Michael McBride III was ranked as a Star Individual; Matthew B. Hickey and Christina M.
Grapevine!
Tulsa Lawyer 29
Hall Estill has once again received high marks from the respected law firm and attorney ranking guide, Chambers USA. The publication annually ranks law firms and individual attorneys across the country for their legal knowledge and excellence. For the tenth year in a row, Hall Estill was ranked in the following practice areas: Corporate/Commercial Law, Energy and Natural Resources, General Commercial Litigation, Intellectual Property and Labor and Employment Law. In addition, the firm is now ranked in the Real Estate Law practice area. “It is a great honor to have our firm and attorneys recognized for their level of legal expertise by this highly respected publication,” Hall Estill Managing Partner Mike Cooke said. “Our recognition by Chambers USA is a tribute to our attorneys’ commitment to providing excellent counsel and the broad range of experience at Hall Estill.” Individual Hall Estill attorneys recognized for excellence include: Mark Banner, James C.T.
Hardwick, J. Kevin Hayes, James D. Satrom and Michael E. Smith for Energy & Natural Resources; Steven A. Broussard, J. Patrick Cremin and Elaine R. Turner for Labor & Employment; Julianna P. Deligans, Phillip L. Free Jr., Randall K. McCarthy and Michael H. Smith for Intellectual Property; Robert D. Nelon for General Commercial Litigation; Timothy S. Posey for Native American Law; Stephen W. Ray for Corporate/Commercial Law; and Gregory W. Alberty for Real Estate Law. Bill D. McCarthy has also been posthumously recognized for his excellence in Intellectual Property Law.
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