News, Views and Legal Links
by Fortney & Klingshirn
Ohio employment and construction lawyers

Latest legal developments, legal links and commentary
about the Indians, Browns, and current events.

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What's new?

Mike Fortney was selected to chair the Construction Advisory Council of the American Arbitration Association.  The Advisory Council helps set AAA policy with regard to administration of construction industry arbitrations, arbitrator panels, education and seminar programs, and more.

For our many visitors to this site from outside of Ohio, we added a directory of employment attorney websites.  If you want us to add you to our site, contact Neil.  We will add your site if it is relevant to ours and has useful information.  Putting a link on your site to ours will go a long way towards getting a link back.

Latest legal developments

In a decision on April 23, 2001, the US Supreme Court reiterated the law regarding sex harassment based on isolated incidents. Simply stated, an employee will not be successful in a claim of sex harassment based on an isolated incident, unless that incident rises to the level of "extremely serious".

In Clark County School District v. Breeden, (US Supreme Court 04/23/2001), the employee-plaintiff based her claim on an incident that happened while she was reviewing job applications and psychological reports of job applicants with her male supervisor and a male co-worker. As the Court stated in its opinion,

"The report for one of the applicants disclosed that the applicant had once commented to a co-worker, "I hear making love to you is like making love to the Grand Canyon." . . . At the meeting respondent’s supervisor read the comment aloud, looked at respondent and stated, "I don’t know what that means." . . . The other employee then said, "Well, I’ll tell you later," and both men chuckled."

The employee's claim of sex harassment based in this incident was dismissed by the Court. The Court explained:

Title VII forbids actions taken on the basis of sex that "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment." . . . Just three Terms ago, we reiterated, what was plain from our previous decisions, that sexual harassment is actionable under Title VII only if it is "so ‘severe or pervasive’ as to ‘alter the conditions of [the victim’s] employment and create an abusive working environment.’" . . . Workplace conduct is not measured in isolation; instead, "whether an environment is sufficiently hostile or abusive" must be judged "by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’" . . . Hence, "[a] recurring point in [our] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment."

No reasonable person could have believed that the single incident recounted above violated Title VII’s standard. . . . Her supervisor’s comment, made at a meeting to review the application, that he did not know what the statement meant; her co-worker’s responding comment; and the chuckling of both are at worst an "isolated inciden[t]" that cannot remotely be considered "extremely serious," as our cases require.

If you would like more information on this recent case, contact Mike Fortney.

In Circuit City Stores v. Adams, the United States Supreme Court examined the enforceability of a mandatory arbitration agreement with respect to claims of employment discrimination.  The Court enforced the arbitration agreement, thereby forcing the employee to raise her discrimination claims in an arbitration.  In Circuit City, the plaintiff brought claims under state discrimination law and state common law. The employer moved to enforce the arbitration provision contained in an employment application, signed two years before the dispute arose.

The Circuit City case is noteworthy for many reasons.  First, it eliminates a legal challenge to arbitration agreements raised by employees.  Second, the arbitration provision was contained in an employment application signed two years before the dispute arose.  Also, Circuit City involved the type of claims frequently brought by employees against employers – claims under state employment discrimination laws and claims raising state law common law claims.

Employers should consider arbitration agreements with their employees.  In the event that you want more information about this subject, contact Mike Fortney.

Court of Appeals upholds claim of subcontractor against owner for unjust enrichment 

In order to recover under a theory of unjust enrichment, a plaintiff must prove that (1) the plaintiff conferred a benefit upon the defendant, (2) the defendant had knowledge of such benefit, and (3) it would be unjust for him to retain that benefit without payment.  In the construction setting, a subcontractor will usually not be successful in an unjust enrichment claim against the owner, if the owner can prove that it fully paid the general contractor for the project.

In North American Precast, Inc. v. Suram Construction Co.,  the Court of Appeals for Fairfiled County decided that the subcontractor could prove unjust enrichment, because of the facts of the case.  First, it was disputed whether the owner fully paid the general contractor, where the general contractor was terminated from the project by the owner before the project was completed.  Next, there was conflicting evidence as to the amount actually paid for the project by the owner.. Thus, the Court of Appeals reversed the trial court decision and upheld the appeal of the subcontractor.  Mike Fortney represented the subcontractor in this case. 

Our views

4-10-1.  Another Indians season, another summer of commentary.  I like the club, with Burks and Gonzales picking up the Manny slack.  Yes, we were not happy when Manny was not signed.  But the blame should be placed on not signing him up early.  Once they waited until after the season, it was too late.  I cannot fault them for not paying him the gross salary he got from Boston.  But we will miss Manny.   

Anyone who says that the Tribe will be better off without John Hart has a short memory.  I have a long memory.  100 loss seasons.  Hope that the Tribe can win half of their games.  Hope that the Tribe could be within 10 games of first by the all star break. Wondering what it would be like to have a .300 hitter in the lineup.  Thinking 20 home runs or 100 RBI was a great year.  John Hart brought baseball to Cleveland.  Two world series since 1995.  Five straight AL Central division championships.  Hopefully, one more to come.  It has been a great run.    

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Fortney & Klingshirn
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Akron, Ohio 44333
telephone 330-665-5445 - fax 665-5446

This site was last updated on November 02, 2006