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BARBWIRE
by
ANDREW BARBANO

Nevada workers get help from trans-sexual Ohio firefighter

Expanded from the Sunday, 6-13-2004, Daily Sparks, Nev., Tribune
and the 6-18-2004 Comstock Chronicle

"The '(fire) at will' doctrine is not abused by employers."

                — Juice lawyer/lobbyist Harvey Whittemore
as quoted in the Las Vegas Review-Journal March 22, 1995

###

A few days thereafter, my testimony against his Tailhook Bill made Harvey so angry that he threatened to take me outside the legislative building and punch me out. (Harvey calmed down when reporter and former Tribune columnist Dennis Myers showed up with a camera.)

The Tailhook Bill was the gambling industry's attempt to legislatively reverse Navy Lt. Paula Coughlin's multi-million dollar win against the Las Vegas Hilton after she was sexually molested at the infamous naval aviators convention.

Harvey cynically used Coughlin as a bargaining chip. By setting up a phony compromise, he "allowed" Coughlin's judgment to stand while getting the law changed so that a future victim would find it almost impossible to sue a hotel under similar circumstances. After all, what's wrong with a little gang-groping in rowdy Vegas? Gov. Schwarzenegger would undoubtedly understand. (In recent years, a much tamer Tailhook convention has been held at John Ascuaga's Nugget in Sparks.)

Harvey's above statement came with respect to Assemblyman Bob Price's bill to change Nevada law to permit employers to fire workers only for just cause rather than at whim. (Price, who served 28 years in the legislature as a Democrat representing North Las Vegas, relocated to Sparks after his retirement and is now a candidate for the Rail City seat on the Board of Regents of the University & Community College System of Nevada.)

Price tried to get Nevada's fire-at-will law changed many times without success because Harvey and the Wallbangers own all the right people. Civil rights groups chirped about their success a couple of years back in getting the gambling-industrial complex to support a bill banning workplace discrimination against gays. Harvey's army only helped put lipstick on a pig because the new law did not change the fire-at-will statute, which still allows the boss to fire a gay person for no reason at all.

Over the years, I have chronicled the many permutations of the fire-at-will monster. When two female casino dealers sued the Reno Sands Regent Hotel-Casino, the Nevada Supreme Court ruled that while Nevada has a public policy against age discrimination (commonly referred to as the law of the land), we don't have a "strong" public policy. So the firing of the two longtime workers was upheld. Testimony in the case alleged that they had been intentionally replaced by younger women. (Sands Regent vs. Valgardsen, 1987)

The Supremes have usually required horrendous cirumstances to carve out an exception to the fire-at-will doctrine. The best example came when a worker at an Elko County mine refused an order to go back to work in a cyanide heap-leaching pit because he had still had stitches in his arm from an unhealed wound. The company's own handbook forbade such employees from laboring around the poison which extracts gold from tons of ground rock.

However, other instances have made the court a laughingstock. A few years back, some workers at a Las Vegas apartment house refused to carry out management's illegal orders not to rent to black people. They were fired and the Nevada Supremes upheld their terminations. Mississippi West is alive and well.

About 10 years ago, the Reno Hilton fired cocktail waitress Ha Jenny Ngo for the crime of giving birth. She sued and won a pitifully small amount of money (about $12,000 in back pay) because Federal District Judge Howard McKibben (an old political crony of U.S. Sen. Paul Laxalt, R-Nev., appointed to the bench by President Reagan at Laxalt's nomination) would not allow punitive damages. If her union had not paid for her lawyer, she could never have taken the case to court.

The U.S. Ninth Circuit Court of Appeals backed up the Nevada decision, stating punitive damages in sex and race discrimination cases require "conduct more egregious than intentional discrimination," adding that proof of "an evil motive or a conscious and deliberate disregard" for the victim's civil rights is needed.

Huh? I suppose the operative question remains "when is the law not the law?" The answer seems to be "whenever we say it's not," the George Bush-John Ashcroft school of jurisprudence.

Nevada workers are such second-class citizens that they don't even have equal access to the courts. In 1986, Harrah's-Reno fired Charles Yeager, a 21-year employee. He sued, stating that he had been promised lifetime employment by Bill Harrah himself.

The Supremes threw Yeager out of court before he could even make his case. They ruled that he needed to provide corroborating evidence of his assertions at the time of filing, something no other type of plaintiff is required to do.

"Nevada now becomes the only state in the nation that puts this burden on its employees," stated Justice Charles Springer, the lone dissenter.

Among the latest workers bludgeoned by the system is Darlene Jespersen of Sun Valley. Like Yeager, she was fired after 21 years at Harrah's-Reno. I have written often about the unfairness of terminating her for refusal to paint her face the way Harrah's wanted. The Lipstick Litigation has made waves around the world. Nothing gets web traffic to NevadaLabor.com like news of the Jespersen case.

Last week, the Nevada Supremes, in a typical morally obtuse decision, again disregarded evidence of blatant discrimination and ruled in favor of Harrah's right to fire her at whim. (Maybe the lipstick needs to have cyanide in it before they act.)

In Nevada, absent a union collective bargaining agreement or a personal services contract, employees basically have no rights, just like in the days of the wild, wild west.

Lo and behold, recent developments in a faraway place have given new meaning to "you go, girl!"

Jespersen's attorney, Ken McKenna, informed me that the Sixth Circuit Court of Appeals last week ruled that a trans-sexual firefighter was unjustly fired by Salem, Ohio. (Scroll down to the second story at the link.) The court held that she was a victim of gender stereotyping, which is illegal under federal law. Makeup was used as an example by the judges: "...an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination…." Smith v. City of Salem, Ohio, 2004 U.S. App. LEXIS 10611 (6th Cir., June 1, 2004)

This is the same issue upon which hinges Jespersen's civil rights case now before the Ninth Circuit in San Francisco.

McKenna is licking his chops "for a jury trial right here in Reno" if the western judges agree with the precedent set back east. If not, Jespersen and McKenna should start planning for a trip to see the Ubersupremes in Washington, DC, in a few years. Meanwhile, McKenna wants changing the fire-at-will law made an election issue this year. I'll help.

Much more on the web, including Jespersen's world-famous "Harrah's Personal Best" photos.

Be well. Raise hell.

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