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Pretend for a minute that it’s 1960 and you’re the manager of a grocery
At 9:00 a.m., a cashier calls and says she won’t be in because a UFO
is hovering above her car. A second cashier calls at 9:30 and says she’ll be
an hour late. By 10:30, four customers — three women and a black male
— say they’ve been cussed out by one of the baggers. At 11:00, you
find a stock boy sleeping behind a pallet of paper towels. At noon, an
employee in the donut department screams when she goes into the back room and
spots a baker working in the nude.
In 1960, a good manager would have tossed the whole bunch out the door.
Today, all of these late, nutty, lazy and naked employees are walking time
bombs protected by an invisible shield, armed by America’s Kafkaesque
employment laws to go off at the slightest perceived infringement of their
“rights,” as illustrated by the following cases — all real and none
atypical in today’s touchy and litigious environment where Congress has
succeeded in “protecting” over 70 percent of American workers from workplace
First, there’s the case of Karl Petzold, a 22-year-old grocery bagger at
Farmer Jack in Michigan who was fired after he “offended women and blacks,”
targeting them with his “stress-induced fits of vulgarity,” reports the
Detroit News. Petzold is suing, saying Farmer Jack should accommodate his
disability, “the type of Tourette syndrome that produces uncontrollable
“I don’t believe any court would say Tourette falls outside the protection of
the Americans with Disabilities Act,” says San Francisco lawyer Jeff
Tanenbaum, a specialist in labor law. Farmer Jack’s attorney argues that the
store has “a duty and a right to shield customers and employees from
Petzold’s uncontrolled outbursts of racial epithets and profanity,” citing a
Michigan law that makes it illegal to swear in front of women and children.
The two sides could compromise, of course, and give Petzold a job working in
the back of the store, away from customers, but then he might run into the
undressed baker and call him a @#%*$ pervert, kicking off a lawsuit for
Just get rid of the nude baker? Not so simple. Boeing is currently being sued
for religious discrimination by a former employee who was fired for working
in the nude at the office on Thanksgiving when he thought he was alone. A
security guard turned him in for “violating the company’s dress code.” The
plaintiff, Mark Bziga, is claiming his termination was illegal because Boeing
should have provided “reasonable accommodation” for his religion, Shamanism.
Shamanism is about “journeys to hidden worlds,” says shamanism.org, achieved
most commonly “by entering an altered state of consciousness using monotonous
percussion sound” — and, in Bziga’s case, with zero clothing.
And the cashier with the UFO? The Equal Employment Opportunity Commission
ruled last September that belief in odd scientific notions, such as cold
fusion or mysterious encounters from UFOs, may be entitled to
anti-discrimination protection on the same basis as religious belief.
And the other late cashier and the kid sleeping in the warehouse? Last week’s
New York Observer reported on what medical professionals are calling
“delayed-sleep-phase syndrome.” Explained Dr. Michael Thorpy, head of the
sleep-disorders clinic at Montefiore Medical Center: “It can strike anyone at
any time, but it is found primarily in young, carefree, Manhattan singles.
More and more people seem to have it. No one knows what causes it. Nothing’s
been proven, but the timing of the syndrome, starting in adolescence and
lasting until adulthood, leads some scientists to speculate that it has
something to do with sex hormones.” How about something to do with sex
hormones, alcohol, and getting home at 4 a.m.?
Simply put, today’s manager operates in a setting that’s riddled with rules
and lawsuits, a world where he’s precluded from making common-sense decisions.
In his book “The Death of Common Sense: How Law Is Suffocating America,”
attorney Philip K. Howard draws a resemblance between this over-regulated and
litigious milieu and the failed central planning in the communist bloc: “The
Soviets tried to run their country like a puppeteer pulling millions of
strings. In our country, the words of law are like millions of trip wires,
preventing us from doing the sensible thing.”
The way out? For starters, no small number of us have been saying for years
that we shouldn’t be making a federal case out of every employment dispute,
that arbitration can handle most grievances in a cheaper and less
confrontational way than the high-stakes legal brawls at the courthouse.
The good news is that the Supreme Court has taken an important step in that
direction, ruling in a 5-4 decision that employers can require workers to
resolve labor disputes through arbitration rather than litigation, saying
mandatory arbitration clauses in employment contracts are enforceable, even
if an offer of employment is contingent upon signing such an agreement.
After enough UFOs and nude bakers, the high court, it seems, is finally
beginning to get it.