Halloween is one of my favorite times of the year.  I am a big fan of the horror genre.  When I was in undergrad, I took an entire semester-long course on the Vampire in Slavic Culture.  I saved every one of the books that I had to buy for that course.  I own the complete 30-film collection of Universal Studios’ Classic Monster movies on blu-ray.  I have gone on many ghost tours in different cities and have stayed in supposedly haunted hotels.

In Texas, since it is a conservative state within, arguably, the most conservative federal appellate circuit, plaintiff’s side employment law can be a horror show.  And so, with that masterful segue, let’s do something kind of fun . . . for a legal blog.  Let’s look at haunted houses and vampires through the lens of employment law.

1. Haunted Houses.

One of the scariest stories I know is Shirley Jackson’s The Haunting of Hill House and the 1963 black and white film adaptation, The Haunting.  In the story, Dr. Montague hopes to prove the existence of the supernatural and so rents Hill House, a gothic mansion with a grisly history involving suicide and violent death.  He and his assistants intend to spend the summer sleeping there to see what happens.  Spoiler alert – lots of scary things happen, including one unsettling scene where Eleanor, one of the assistants, sees writing on the wall: HELP ELEANOR COME HOME.  She immediately asks for the writing to be wiped away and accuses the others of writing what could be a threat.

This writing on the wall, along with many of the other terrors that Eleanor experiences at the house have all of the hallmarks of a hostile environment.  But if it’s all done anonymously, does Dr. Montague have any responsibility to do something to stop it?  Under a normal hostile environment situation, an employer must take action to fix it.  But how can Dr. Montague do that if it’s anonymous?

Courts have actually already addressed this issue.  In Pryor v. United Airlines, 791 F.3d 488, an African American flight attendant found a racist, death threat anonymously left in her work mailbox.  The court held that United Airlines was required to take prompt remedial action reasonably calculated to end the harassment even if the harassing conduct was done anonymously and “even if a diligent response would not have been successful.”  Because United did not take appropriate steps to end the harassment, the airline could be held liable for the hostile environment the flight attendant had to endure.

So, if you are being harassed at work, even if its anonymously, report it to the company and talk to an employment lawyer about your options.

2. Vampires

How would this creature of the night fare under modern employment laws?  I think a vampire would be able to get the accommodations it needs to successfully hold down a job.

First, do employment laws like Title VII and the Americans with Disabilities Act cover working vampires? I see no reason to think they wouldn’t.  Those statutes prohibit discrimination against “individuals” or “employees,” but do not say that to be in those categories one must be a living, breathing human.  In fact, even the word person is not defined as a living, breathing human being but instead as “one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under title 11, or receivers.”  42 U.S.C. § 2000e.  Therefore, if a vampire is employed by an employer with 15 or more employees, it is protected by Title VII and the ADA.

Second, what about the fact that most vampires are only able to function at night?*  Would that cause a problem?  I don’t think so as long as the vampire took a job at a place that had a night shift and the vampire was qualified for the night shift position.  But what if the vampire’s boss wants to transfer it to the day shift?  Well, in that case, the vampire could simply make a request for a reasonable accommodation based on the disability of vampirism.  See 42 U.S.C. § 12112.  An employer must make reasonable accommodations for an employee with a disability.  Vampirism would certainly qualify because under the ADA, as amended, a disability is anything that substantially limits a major life activity such as eating, breathing, or the operation of the respiratory, circulatory, or reproductive functions.  See 42 U.S.C. § 12102.

Discrimination laws are meant to apply broadly.  They are meant to enable individuals to work in an environment free from discrimination, whether it is anonymous harassment or an employer’s unwillingness to reasonably accommodate a disability.  If you have experienced harassment based on a protected characteristic or are not being reasonably accommodated, please contact an employment lawyer to discuss your options.

*In Bram Stoker’s famous novel, Dracula actually walked around in the daylight, but his powers were limited.  Bonus fun fact:  in the novel, Dracula was defeated by a lawyer and a Texan!

    

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Photo of Colin W. Walsh Colin W. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh 

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh carries.

1. What do you like most about being an employment lawyer?

I enjoy getting tangible results for my clients and being involved in an area of law that affects everybody every day.

2. What is the most important issue to you of being an advocate?

One of the most important issues to me as an advocate is to not only zealously represent my clients, but also the law.

3. What kind of clients do you like best?

I like the clients that I am able to help who were not able to find help elsewhere.  On a couple of occasions now, a client has told me that my firm is the first one that has listened to his or her issue and offered any kind of assistance.

4. What do you think is the most important part of a good case?

The client.  If the client is not invested, then the other side won’t take it seriously and neither will the jury.

5. What labor and employment issues do you think are currently trending?

The biggest employment discrimination issues I see right now are related to age, disability, and pregnancy discrimination.  For some reason, these types of discrimination seem to be acceptable to employers.  The other issues right now are minimum wage and overtime pay.

6. Who is your favorite Supreme Court Justice?

Justice William Brennan.

7. What would you say to HR of a company about how to treat employees?

It would be to listen to your employees.  Most employees are not looking to sue when he or she goes to Human Resources.  These employees are sincerely looking for help.  Nothing makes an employee seek legal counsel like when he or she complains about something and HR starts investigating the employee instead of the complaint.

8. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

The most interesting job I’ve had is working as an extra in film and television.  I should have known that I was destined to be a lawyer at that point because two of my biggest gigs were the TV show “Boston Legal” and the film Charlie Wilson’s War.

9. What is your favorite food?

Meat pies.  I first discovered them when I studied abroad in undergrad.  I can’t believe these have not caught on in the U.S. because they are brilliant.

10. What’s the best part of living in Austin?

All of the outdoor festivals.  And the Longhorns.

Colin W. Walsh is a Trial Attorney in the Austin office of Rob Wiley, P.C.  He graduated from The University of Texas at Austin with a bachelor’s degree in theatre in 2006.  Mr. Walsh then graduated from The University of Texas School of Law with honors in 2011.