Featured Case: Bigelow v. Bullard - Legally Fired for Racial Tolerance

The Nevada Supreme Court decision in Bigelow v. Bullard  may be used to illustrate two important concepts in a Legal Environment course. Michael Bullard was an employee of Bigelow Holding Company.  According to the court's decision:

It could be inferred from the evidence in this case that the Bigelow company had in fact adopted a rental policy of discriminating against African-Americans. It has been claimed that agents of Bigelow were instructed to use deception and subterfuge to prevent African-Americans from becoming tenants in Bigelow rentals.

Testimony of the plaintiff Bullard revealed the following incident:

Q. How were you terminated? A. We had three black males came [sic] on the property. Carol Swenson radioed Donna Dollman [sic] on her radio — ... I told Carol that blacks had rights, too. Approximately five to ten minutes passed. Donna came into the office. Carol and Donna conversed. I don't know what they said. Donna walks up to where I'm sitting, picks up the piece of paper that I'm writing on, and she said, "What's your f--king problem?" I said, "I don't have a problem." She said, "I think you do." She said, "I think you're a f--king ni--er lover. Sit your God damn ass down on that f--king stool, shut your mouth, and do your f--king work." Q. What happened next? A. Then she said, "On second thought, get your f--king ass out of here. I don't want you working for me anymore." Q. And what was the time span between those two statements by Mrs. Dollman [sic]? A. Not even 30 seconds. Q. Why did you make the statement, "Blacks have rights, too"? A. Because I knew that they were fixing to physically assault the black males to get them off the property. 1. Wrongful Termination:  Bullard claimed that his discharge should be deemed wrongful under the public policy exception to the employment-at-will rule. The court disagreed, overturning a jury award of compensatory and punitive damages: In sum, then, we do not deem it to be consistent with the employment law of this state to hold that an employee's merely expressing to a fellow employee or some third person disapproval of or "objection" to company policy that is claimed to be contrary to pubic policy (as distinguished from refusal to carry out that policy) can be the predicate for a tortious discharge action. Dallman fired Bullard not for what he did (such as refusing to carry out ugly and unlawful racist policies for the company or even for "objecting" to such policies) but rather, at worst, for what, in her mind, Bullard was, namely a person she deemed to be unworthy of further employment because of an expressed sympathy for black tenants. Dallman had, under our at-will employment law, the right to fire Bullard because she did not like people like him, people who are sympathetic to African-Americans. She had the right to fire him for any reason. 2. Stare Decisis: The court considered a precedent (Western States v. Jones) that recognized a public policy exception to at-will- employment. In that case, an employee who had recently undergone surgery and returned to work with a bandaged surgical wound was fired after he refused to follow his employers direction to enter an area where hazardous fumes had been released. The court distinguished Bullard's case on the facts, since Bullard had not refused an order from his employer, but rather, had merely expressed his opinion. The court's opinion may be characterized as a choice to read the public policy exception narrowly. Had the court been inclined otherwise, the  Western States case could have been used as precedent to support the finding of a broader public policy exception. Merely having a precedent did not require the court to  find either for or against Bullard. Interpretation of law can be, ultimately, a matter of choice. The dissenting opinion relies on persuasive precedent from California. CASE NOTE: Public Policy and Wrongful Discharge: The Continuing Tragedy of Bigelow v. Bullard The case was also featured in Ruth Colker's, American Law in the Age of Hypercapitalism; The Worker, The Family and the State - a highly recommended read. Robert Bigelow, Defendant:

image source: http://materialintangible.blogspot.com/2011/09/robert-bigelow-wings-over-worldand.html

State v. Federal Power: Conflict Over Legal Marijuana Dispensaries

Under the Supremacy Clause of the Constitution, where state and federal law conflict, the federal law is supreme.  However, that presumes that the federal government is acting within its enumerated powers rather than intruding on the police powers of the states. As discussed previously in this blog, over two hundred years has passed since the ratification of the Constitution and we are still trying to figure these issues out.

Recently, the Departmentof Justice has sent leters to marijuana dispensaries in Colorado that are located within 1000 feet of schools, they they must immediately shut down or face federal prosecution. The dispensaries are selling marijuana legally under Colorado state law and operate out of facilities licensed and permitted by the municipalities in which they are located. This is another symptom of an ongoing state vs. federal conflict that shows little sign of being resolved anytime soon - and which makes for an outstanding opportunity to discuss the parameters of state and federal power in class.

Law Music Video: So Sue Us

This week's installment in the "Law Music Videos" series is So Sue Us by Dance Hall Crashers. Law music videos played before your class starts will positively contribute to learning.

Shot Girls: Employees or Independent Contractors?

You are in a bar, enjoying an evening with some friends. One friend has clearly had too much enjoyment and is loudly calling attention to himself and his condition. He is approached by a young woman, barely 18years old, who you have seen many times during the evening carrying a tray of brightly colored shots through the bar, selling them to customers.  She approaches your friend and in a matter of a few minutes, she manages to sell him 3 shots at $6 each, which he downs in succession.  He slips the "shot girl" a generous tip as she moves on to approach another group of revelers. Later that night, your friend drives his car into an intersection against a red light and paralyzes the driver of another car. Certainly, there must be dram shot liability under these circumstances! But wait - the bar owner says that the "shot girl" was not his employee.  Rather, she is an independent contractor - an entrepreneur - earning tips for her services. Is this a scam to avoid liability or is it a legitimate "yellow cab" arrangement? As with most situations in law, it depends . . . on the details of the relationship.

Some of these arrangements sound a but sketchy from a liability standpoint.  Others seem to be better organized from a legal standpoint to take advantage of the independent contractor liability rules. Do the shot girls have to carry dram shop insurance?

The Legal Environment of Business is indeed a landscape of craggy hills, leaving a cache of caves and crannies for the clever to covet.

Contract Cases and Lyrical Learning

R.B. Caswell's youtube channel features songs about cases in Contracts Law. What a great way to introduce or wrap up a concept or case discusssion!

Here is another youtube channel with a similar idea.

Wood v. Lucy, Lady Duff Gordon from R.B. Caswell's perspective:

"Frivolous" Lawsuit Stories Exposed by Cracked.com

The website Cracked.com reports on 6 Famous "Frivolous Lawsuit" Stories That Are Total BS. Undergraduate students are very familiar with the Cracked website which provides a healthy dose of humor and sarcasm to the youger generation.  Warning! Cracked does not hesitate to express its ideas in language that you would otherwise try to avoid in class. So, I wouldn't put this up on the projector, but I might assign it on a syllabus.

A sampling of other Cracked articles of interest:
5 Awesomely Sarcastic Supreme Court Decisions
7 Bullshit Police Myths Everyone Believes (Thanks to Movies)
The 5 Most Wildy Illegal Court Rulings in Movie History
7 Brilliant Movie Lawyers (Who Suck at Their Job)
6 Judges Who Went Completely Insane on The Bench

Guest Blogger - Henry Lowenstein: Proximate Cause or Cable Remote?

Henry Lowenstein from Coastal Carolina University shares the following video resource:

A colleague of mine (Professor Mark Mitchell, Marketing) passed on some of the new TV ads being run by DirectTV to encourage consumers to switch from cable TV to their direct service.  They are hilarious.  The one below had me thinking on the issue of "proximate cause" when we teach about torts in our legal environment classrooms.  Who really is responsible for injury?  Who really should pay?  What are the limits of the logic?  Is the cell phone company responsible for the distracted driving that leads to an accident or is it the maker of the device itself, or the road, or the car company who didn't warn not to look at the GPS screen while driving?  The road to netting potential tortfeasors could be endless and only the courts, juries and legislators put some limitations on it.  Common sense and personal responsibility often get lost in the legal "static." 

The big complaint about the U.S. legal system and raised in debates on tort reform is the expansion of tort theories, by plaintiff attorneys seeking new ways of making cases and cashing-in for "victims" and themselves.  So the DirectTV might be a funny way to approach the topic.   Is the cable tv company the proximate cause of this individual's "assault."  Does he have a cause of action against his cable company for various forms of tort liability and compensation?

Editor's Comment: Maybe this guy could sue Direct TV for not speedily convincing him to switch from cable?