1. The Right to Leaflet

The 1930s labor song "Talking Union" begins: "If you want to have a union here is what you have to do, You've got to talk to the workers in the shop with you." Everybody knows that doing anything on the job begins with communication. The law distinguishes between talking to other workers ("solicitation") and leafleting them ("distribution"). Passing out union authorization cards is considered "solicitation."

So long as one stays on the public sidewalk or easement, leafleting is governed by the First Amendment and the law is fairly clear. No permit is needed to leaflet on public property. The leafleter who takes reasonable care not to block people crossing the public property, and does not become involved in incidents of violence, has the right to leaflet undisturbed.

(Of course, the police may interfere regardless of the law. The leafleter has a better chance to be left alone if within the law, however.)

Once the leafleter leaves public property and enters on to the property of the employer, a new law governs. (If the employer is a public employer then the First Amendment continues to apply.) If the company engages in inter-state commerce of any significance, leafleting on its property comes under Section 7 of the NLRA. Section 7 does not mention speech specifically but the NLRB and the courts have decided that it protects speech activities such as leafleting.

In general, a private employer can restrict the right to communicate on company property only by showing that the restrictions are necessary to maintain production or discipline. But it is always important to clarify: who is doing the communicating (employee or outside organizer); when is the communication happening (working or non-working time); where is the communication happening (outside the plant, in non-working areas inside the plant, or in working areas); what is the subject matter of the communication (wages, hours, and working conditions in that particular plant, or something broader). Once you have clarified these four issues, you will be able to offer Preliminary answers to the following common questions about leafleting on company property. Do not act on the basis of the general answer provided here without first consulting an experienced fellow worker or a lawyer.

Can I leaflet anywhere I want on company property?

No. Assuming that you are an employee and not an outside organizer, you may leaflet in non-working areas such as the parking lot, locker rooms, clockhouse, or cafeteria. Leafleting in working areas is unprotected even during non-working time. The theory is that such leafleting would cause litter that might interfere with production.

What if I do not work at the plant where I want to leaflet?

The Supreme Court changed the law on this question in 1992. In a decision that severely limits non-employee organizing, Lechmere, Inc. v. NLRB, 139 LRRM 2225 (1992), the Court overturned an NLRB ruling allowing non-employee organizers to handbill in a shopping mall parking lot. As a result, outside organizers have a right to leaflet on private property only in remote settings such as lumber camps where no other means of communicating with employees are available.

Can I leaflet on company property even if I am off-duty or laid-off?

Probably yes, but only in outdoors non-working areas. The leading NLRB decision on this question is Tri-County Medical Center, 91 LRRM 1323 (1976).

Can I leaflet about political questions?

Yes, if the political question has some connection with the interests and welfare of workers. In Eastex v. NLRB, 437 US 556 (1978), the Supreme Court held that Section 7 protected passing out a newsletter that urged workers to register to vote and to write to their legislators opposing incorporation of the state "right to work" statute into a revised state constitution. (Notice that the citation to this decision is to "US" rather than to "LRRM." Supreme Court decisions are collected in a series of volumes called United States Reports, or US for short, as well as in the LRRM series. 437 US 566 refers to a decision in volume 437 of the United States Reports beginning on page 566. There are also collections of Supreme Court decisions known as the Supreme Court reports, or "S.Ct.," and Lawyers' Edition, "L.Ed." When in doubt ask the librarian!)

Can the union bargain away my right to distribute leaflets?

In a case called NLRB v. Magnavox Company of Tennessee, 415 US 322 (1974), the Supreme Court held that the union cannot bargain away or "waive" the right to distribute leaflets critical of the incumbent union, so long as the leafleting is by employees to employees and in non-working areas. The law is not as clear about giving away the right to other kinds of leafleting.

What about bulletin boards?

There is no Section 7 right to use bulletin boards. The bulletin boards belong to the company and can be used only with its permission, unless the union has expressly bargained for the right to use them. If the contract gives the union that right, the union must allow rank and filers to post material critical of the union. Also, an employer may not discriminate in whatever use of the bulletin boards is permitted. If a company permits workers to post material about blood donor drives or personal "for sale" items, it must allow them to post notices about caucus meetings.

Is the law the same for talking as for leafleting?

No, "soliciting" (which includes passing out union authorization cards) is protected in working areas during non-working time, that is, during coffee breaks, at lunch time if you eat near your machine, etc.

What about buttons?

Buttons, as well as T shirts, badges, and other insignia, are broadly protected so long as they express participation in union or other protected activity. Union buttons can be worn anywhere in the plant, during work time as well as during breaks. The only restriction is on buttons that the NLRB or a court finds so provocative that they disrupt production. Thus workers for the Bell system who wore buttons that said "Ma Bell Is A Mother" were found unprotected by Section 7 when the telephone company fired them. On the other hand, I know a group of steel workers who were dissatisfied with a strike settlement imposed by the union, and ordered T shirts that portrayed a large screw above the word "again." They wore the T shirts at work as well as in the community without problems.

2. The Right to Refuse Unsafe Work

Both contract and statute may be helpful to the worker asked to do unsafe work.

Some collective bargaining agreements contain language permitting a worker to refuse an unsafe work assignment. And in a case called NLRB v. City Disposal Systems, 465 US 822 (1984), the Supreme Court held that it was "protected concerted activity" under Section 7 of the NLRA for a single worker to refuse to drive an unsafe truck when his contract contained such language.

James Brown, the worker, was all alone when he told two supervisors that truck No. 244 "has got problems and I don't want to drive it." One of the supervisors responded that the company had "all this garbage out here to haul," to which Brown replied: "Bob, what are you going to do, put the garbage ahead of the safety of the men?" Brown had initially become aware of the defective brakes on truck No. 244 when, two days before, he had been driving a different truck with which truck No. 244 nearly collided. He and the driver of the other truck had taken No. 244 to the employer's repair facility. This helps to explain why Brown told his supervisor that he refused to drive No. 244 not just for his own sake, but because of "the safety of the men" (emphasis added).

The Supreme Court agreed with James Brown that although acting by himself, he was engaged in concerted (group) activity and could not be discharged. According to Justice Brennan's opinion, Brown did "not stand alone" but brought "to bear on his employer the power and resolve of all his fellow employees." When James Brown refused to drive a truck he believed to be unsafe,

he was in effect reminding his employer that he and his fellow employees . . . had extracted a promise from City Disposal that they would not be asked to drive unsafe trucks. He was also reminding his employer that if it persisted in ordering him to drive an unsafe truck, he could reharness the power of the group to ensure the enforcement of that promise. It was just as though James Brown was reassembling his fellow union members to reenact their decision not to drive unsafe trucks. [Emphasis added.]

Not all collective bargaining agreements contain language like that available to James Brown, and only a minority of workers are covered by collective bargaining agreements. But statutes as well as contracts provide helpful language.

Section 7 of the NLRA on which the Court relied in City Disposal protects non-unionized workers, too. For example, in NLRB v. Washington Aluminum, 370 US 9 (1962), a group of workers complained that their workplace was too cold to work, and in the end walked off the job. The Supreme Court held that they could not be discharged because their walkout was protected concerted activity.

The NLRA also contains a Section 502, 29 U.S.C. §143, which can help unionized workers whose contract contains a no-strike clause. Section 502 states: ". . . nor shall the quitting of labor by any employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this Act." If you can show that you refused work because your workplace was abnormally dangerous, you cannot be discharged on the ground that your action violated a contractual no-strike clause.

Finally, the Secretary of Labor has promulgated a regulation interpreting OSHA to provide that an employee has a right not to perform an assigned task because of a reasonable apprehension of death or injury coupled with a reasonable belief that no less drastic alternative is available. The regulation should be cited as 29 Code of Federal Regulations §1977.12(b)(2).

In Whirlpool Corporation v. Marshall, 445 US 1 (1980), the Supreme Court held that this regulation was lawful. In that case two workers named Deemer and Cornwell were ordered by a foreman to step onto a wire mesh screen 20 feet above the plant floor to do some cleaning. Less than a month before, a maintenance employee had fallen through the screen to his death. Deemer and Cornwell had met with the plant maintenance superintendent and the plant safety director to voice their concern about the safety of the screen. They had asked the plant safety director for the telephone number of the local OSHA office, and Deemer had contacted an OSHA representative and discussed the screen. When the foreman ordered the men to go out onto the screen, they refused, claiming that the screen was unsafe. As a result they were reprimanded. The Supreme Court said that the OSHA regulation was lawful, and sent the case back to the trial court to consider whether the reprimands should be removed from the mens' files.

A worker who decides to refuse a direct order because he or she believes it creates an imminent danger, should act together with other workers if possible; should take advantage of any contract language available; should refer to Sections 7 and 502 of the NLRA, and to the Supreme Court's interpretation of OSHA in the Whirlpool case. Obviously, your case will be more persuasive if before refusing an order you tried to use less drastic alternatives--the grievance procedure, personal appeal to management representatives, OSHA--to get the problem resolved.

3. The Right to be Represented

There are times when every one wants access to a lawyer, or other representative. The right to representation is just as important at work as in the larger society. This is especially so where discharge is involved.

Discharge has been called the "capital punishment" of the workplace. It can also be compared to arrest. When a person is arrested for a serious crime on the outside, the government must make a lawyer available. Similarly, when an employee is discharged, it is critical that before leaving the workplace he or she have access to a representative. If the representative gets to the scene early it may be possible to resolve the dispute, and avoid serious discipline. Even if discharge cannot be prevented, the representative's presence makes it possible to interview witnesses on the spot, advise the dischargee of his or her appeal rights, and otherwise increase the chances of getting the discipline reversed.

In 1975 the Supreme Court held that Section 7 of the NLRA gives an employee the right to demand union representation at an interview with management that the employee reasonably fears may result in discipline. The name of the case is NLRB v. Weingarten, 420 US 251 (1975).

Weingarten offers an important resource. The key to using it effectively is not to wait too long before asking for a union representative to be present. The law does not require you to be sure that a conversation will lead to discipline. It only asks you to have a reasonable belief. If you wait until the supervisor gives you a direct order, the supervisor may be held to have rightly denied you representation because your insubordination created an emergency.

Here are some fine points about Weingarten as its holding has been interpreted by the NLRB and lower federal courts.

The right to be represented includes the right to consult a union representative before the interview. The most recent decision to this effect is U.S. Postal Service v. NLRB, 140 LRRM 2639 (1992), by the Federal court of appeals for the District of Columbia.

Weingarten does not apply where a meeting is called solely to notify an employee of previously determined disciplinary action. Weingarten applies only to an investigatory interview. If the employer decides to carry on an inquiry without interviewing the employee, or if the employer asks to speak with the employee only to inform him or her of discipline already determined, there is no Weingarten right to representation.

The NLRB originally extended Weingarten rights only to employees in unionized workplaces. This was an illogical and unfair position. Workers in non-union shops need to have a fellow worker present when talking to management, as a spokesperson, or just as a witness, at least as much as do unionized workers. If the right to representation for unionized workers can be derived from the Section 7 right to engage in concerted activity, why should this be less so in a non-union shop? Fortunately, the NLRB reversed this policy on July 10, 2000.

It is the employee's responsibility to request the presence of an available union representative. The employer has no duty to suggest or provide union representation. If the union representative an employee seeks is unavailable for reasons for which the employer is not responsible, the employer need not postpone the interview or suggest alternative representation. And while an incumbent union can waive (give up) employees' Weingarten rights, only the employee (not the union) can request the presence of a union representative.

Denial of Weingarten rights does not cause the discipline to become invalid. The Reagan NLRB held in Taracorp Inc., 117 LRRM 1497 (1984), that suspension or discharge following an investigatory interview at which Weingarten rights are withheld does not automatically call for reinstatement or back pay. Reinstatement and back pay are appropriate only when the discipline resulted from the employee's assertion of a right to union representation, but not when the discipline resulted from the alleged misconduct that was the subject of the interview.

Weingarten provides a right to union representation, but not to representation by an attorney. An employer need not postpone an investigatory interview to give an employee time to consult a private attorney. Also, Weingarten does not entitle a union member to representation by an attorney in an arbitration hearing. The courts have held that an employer has the right to deal only with the union in arbitration proceedings, because the arbitrator interprets a contract made between the union and employer.

4. The Right to be Fairly Represented

It's not enough to be represented. It is also essential to be represented well. Outside the workplace, there are remedies when a lawyer does a bum job of representing you: you can get another lawyer, or sue the first lawyer for malpractice. Changing representatives is not so easy in the workplace, however. Under Section 9 of the NLRA, the union chosen by a majority of workers in an appropriate bargaining unit becomes the "exclusive" representative of all the workers there.

Suppose the company violates the collective bargaining agreement. You write up a grievance but the union "forgets" to file it in time, or presents the case in a lackadaisical way, or takes the grievance through the first steps of the grievance procedure and then drops it before arbitration. Is there anything you can do?

The answer is, Yes and No.

Under Section 301 of the NLRA as amended by the Taft-Hartley Act, 29 U.S.C. §185, a union member has a right to go into state or Federal court to enforce a collective bargaining agreement against an employer. But there's a Catch-22. On top of all the other problems connected with a law suit, such as expense, to get into court the member must show that he or she was "unfairly represented" by the union.

The concept of unfair representation goes back to a case called Steele v. Louisville and Nashville Railroad, 323 US 192 (1944). A suit was brought by the National Association for the Advancement of Colored People on behalf of black railroad workers who were excluded from the union that was the exclusive bargaining representative for their workplace. The union was bargaining away the jobs of the black workers. The Court did not require the union to offer membership to the black plaintiffs. (This aspect of Steele is no longer the law. Today a union cannot legally exclude blacks.) But the Court said that the union had an obligation to represent black workers in the same way that it represented whites. Otherwise, as the Court pointed out, the Federal government would be in the peculiar position of obliging black workers to recognize as their exclusive bargaining representative a union that was unconstitutionally discriminating against black workers in violation of the Fourteenth Amendment.

Originating as a doctrine to protect racial minorities against white oppression, the fair representation concept has been broadened beyond race. It can be invoked by any person or group whom a union has failed adequately to represent.

The United States Supreme Court further defined "unfair representation" in a case called Vaca v. Sipes, 386 US 171 (1967). The plaintiff, Benjamin Owens, worked for Swift & Company in Kansas City. Owens suffered from high blood pressure and in mid-1959 took sick leave from Swift's. His family physician certified him to go back to work, but the company doctor refused to permit him to return, and the company finally discharged him for poor health. Owens filed a grievance, which was processed to the last step before arbitration. The union then asked Owens to see another doctor. This examination did not support Owens' position. The union refused to take the grievance to arbitration, over Owens' objection. Owens went to court and won. A jury awarded him money damages.

The Supreme Court reversed. There is no right to sue the employer in court, the Court stated, unless the union is guilty of unfair representation. And the union is guilty of unfair representation only if its conduct is "arbitrary, discriminatory, or in bad faith." Simply dropping a grievance is not in itself unfair representation, the Court ruled.

Vaca is still the law, and despite its limitations, it is an essential tool for the rank and filer. Here are some tips for using it effectively:

The courts have gradually been decreasing what a plaintiff must demonstrate to prove unfair representation by the union. Some courts have held that it is unfair representation if the union is "perfunctory" in its representation, for instance in failing to file a grievance when requested to do so by letter, or in failing to file a grievance on time, or in making an inadequate investigation of the grievance.

The period within which a Section 301 suit must be filed is six months from the date on which the grievant knew or reasonably should have known that the union would not advance the grievance further. This was decided in DelCostello v. Teamsters, 462 US 151 (1983). It may help you to remember this "statute of limitations" to keep in mind that all the critical limitations periods for a discharged worker--to file an NLRB charge; to file a discrimination charge under Title VII; or to file a Section 301 suit--are six months or 180 days.

It is possible to claim that the union was unfair in its representation (thus enabling the grievant to get into court) but not to make the union a defendant, potentially liable for money damages. By doing this the grievant-plaintiff gives up the chance of getting attorney's fees from the union. But grievants and their attorneys may still find this an attractive option, because it will minimize the hostility of the grievant's union. If the case is successful, the attorney can be paid a portion of the back pay won by the plaintiff. Financial risk can be minimized by making a "contingent fee" contract with the lawyer: if the case is a loser, the lawyer gets nothing (or only certain initial expenses); if the plaintiff wins, the plaintiff and the attorney each recover something.

If both the company and the union are defendants, the employer is liable for the back pay up to the point in time when arbitration would have occurred had the union arbitrated the grievance, and the union is liable for the remaining back pay. You may choose to make the union a defendant, or, even if you don't, the company may cause the union to be brought into the case. In Bowen v. United States Postal Service, 459 US 212 (1983), the Supreme Court decided that if a discharge is found to be unjust the company should be liable only for back pay up to the date when an arbitration would have occurred, had there been one. The Court reasoned that any additional back pay should be the union's responsibility because it was the union that failed to arbitrate the grievance. Under this doctrine, the union's share of the back pay will often be larger than the employer's, because, as every grievant knows, the time necessary to arbitrate a grievance is usually a lot less than the time necessary to complete a law suit.

A Section 301 suit can be filed even after an arbitration. In Hines v. Anchor Motor Freight, 424 US 554 (1976), the Supreme Court dealt with a group of truck drivers. They were fired for inflating what it had cost them to stay at a motel. A year after the arbitration decision went against the drivers, the motel clerk admitted in an unemployment compensation hearing that it was he who falsified the records. The Court held that the union unfairly represented the workers by failing to make an adequate investigation, and that therefore they could go to court even after arbitration.

You have a right to file a Section 301 suit in either state or Federal court. My experience is that state courts don't understand this area of the law. On the other hand, if as in Youngstown you have to go an hour and a half to get to a Federal court, you may be better off before a sympathetic local decisionmaker (who unlike Federal judges has to run for election).

A union can represent workers unfairly in collective bargaining as well as in grievance processing, but the courts will find a breach of the duty in bargaining only if the union's conduct was so far outside a wide range of reasonableness that it was wholly irrational or arbitrary. This was the Supreme Court's holding in Air Line Pilots v. O'Neill, 136 LRRM 2721 (1991). In that case the union's bargaining produced a contract that was worse than if the union had not bargained at all, and the company had simply obeyed the law. According to the Supreme Court even this was not unfair representation!

5. The Right to Equal Treatment

In a period when courts in the United States have been more and more restrictive in their interpretation of labor laws, the law of equal employment opportunity has been an exception. Title VII of the Civil Rights Act of 1964 has not been effectively enforced. But it has been, on the whole, liberally interpreted. And the right to equal treatment has been expanded to include persons with disabilities.

How can you tell when you have a discrimination claim that stands some chance of success at the EEOC or in the courts? There are some differences between the procedures in claims based on, for instance, race or sex, and claims based on age. (For example, remedies in age cases may be different: successful claimants are sometimes awarded "front pay," that is, what they would have earned from the date of the discriminatory act until retirement age.) The following comments apply to all discrimination claims, but before proceeding you should inquire about the requirements of the particular kind of claim you intend to file.

The first thing to remember is that the law does not protect you against any unequal treatment. The law only protects you against unequal treatment based on race, color, religion, sex, national origin, age, or disability.

If you believe you have been discriminated against on the basis of one of these suspect factors, you need to consider whether you have a "prima facie" (which means, "on its face") case. A prima facie case of discrimination based on any of the suspect factors requires a Yes answer to each of the following questions:

Am I a member of a protected group? A protected group is a group all of whose members share the same suspect factor, such as blacks, women, etc. For purposes of age discrimination, the protected class is persons 40 years of age or older.

Is there a job for which I am qualified? This question applies whether the discrimination occurred in hiring, in promotion, or in layoff. If you have been doing the job satisfactorily, that helps. But the employer may try to build a record against you and then argue you that you are therefore "not qualified."

Did the employer take an adverse action affecting my employment opportunity? Again, this action can be a failure to hire, a failure to promote, a layoff, or anything else adversely affecting your employment (such as a disciplinary suspension). There are some situations where you are not required to show economic harm. An unfavorable evaluation placed in your personnel file is illegal if based on race or sex or age, etc., even if it has not yet resulted in economic harm.

Did the employer treat differently a person who was not a member of my protected group but was otherwise equally situated? This person is sometimes called the "comparitor," meaning, the person whose treatment by the employer is compared with the way the employer treated you. If you are black and claiming race discrimination, the comparitor should be Caucasian. If you are female and claiming sex discrimination, the comparitor should be male. If you are 40 or over and claiming age discrimination, the comparitor need not be under 40 but the greater the age difference between yourself and your comparitor the greater will be your chance of success.

Once you have proved a prima facie case, the burden (as lawyers say) passes to the employer. The employer then has to show that there was some legitimate nondiscriminatory reason for treating you and your comparitor differently.

If the employer offers a nondiscriminatory reason for its action, you still have the opportunity to show that this alleged reason was a "pretext" (was not the real reason).

To give you a sense of how the process works, suppose you are black and apply for a job for which you are qualified. The employer tells you that the position has been filled. You find out that a Caucasian person showed up a few minutes after you did and was hired. The statement that "the position has been filled" is the employer's legitimate nondiscriminatory reason. But in this case that statement is a pretext because the employer hired your comparitor shortly after telling you there was no job.

There is a similar procedure where an employer's policies appear to be neutral but actually have an adverse impact on members of a group that is protected by law.

First, the group must establish a prima facie case of discrimination. This is usually done by statistics. For instance, it might be shown that the population within commuting distance of the workplace is 35 per cent black, but that the workforce is only 3 per cent black. In one actual case, my wife and I represented black operating engineers who were receiving only about 4 per cent of the total number of hours worked by operating engineers dispatched from a union hall in Youngstown. A Federal court ordered the union to dispatch first a black, and then a Caucasian, until the percentage of hours worked by blacks was over 10 per cent.

Once a prima facie case has been shown, the burden shifts to the employer to demonstrate some "business necessity." Thus the employer might try to show that its business requires a level of skill possessed by no blacks, or only a few blacks, in the area. (The question can still be raised whether the employer should be required to train minority applicants.)

Even if the employer appears to have justified its discriminatory practice by business necessity, the claimants may still rebut by evidence that the business need could be met in an alternative, less discriminatory way. As an example, an employer might argue that there was a business necessity in its packing department to lift heavy weights, hence it was justified in not hiring women for jobs in packing. The women might be able to counter by evidence that only some of the packages are too heavy for them, so that if the employer used men for the heavier packing, women could be hired for the remainder.

A very important kind of group discrimination case concerns seniority systems that "lock in" women or minorities. For instance, in steel the companies for years assigned new black employees to dirty work such as the coke oven or blast furnace departments. The death rate from cancer for persons who worked on top of the ovens was many times that for other steelworkers. Yet black steelworkers hesitated to seek transfer to other parts of the mill because under the prevailing system of departmental rather than plant-wide seniority they were required to give up their accumulated job seniority to make the change.

The law concerning such seniority systems is roughly as follows. Seniority systems that have the effect of disadvantaging minorities or women violate Title VII only if created after the date on which Title VII became effective (in 1964), or if shown to have been created with intent to discriminate. Under the 1991 Civil Rights Act a discriminatory practice involving a seniority system occurs "when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system." This language also applies to a challenge to an early retirement system alleging age discrimination. Finally, once a seniority system is found to violate Title VII, an appropriate remedy is retroactive seniority: providing the seniority an employee would have received "but for" the employer's discrimination.

How to get the facts you need: You may wonder how you are going to get the facts you need to compare yourself with another worker, or to show that the protected group of which you are a part is statistically underrepresented. The advantage of waiting for an investigation by EEOC or a state agency to run its course is that in this way you may be able to find out, at little or no cost, what evidence will support you and what evidence will support the employer. For example, if you are claiming that your employer promotes males but not females, EEOC can get records from the employer and find out how many males were promoted, how many females were promoted, whether the employer has guidelines for promotion, and if so, whether it follows them.

The Americans With Disabilities Act (ADA). This statute became effective in 1992 for employers with 25 or more employees. Employers with 15 or more employees are covered as of July 26, 1994. The ADA has been described as the most significant civil rights and fair employment legislation since the enactment of Title VII in 1964, affording new rights for an estimated 43 million persons.

"Disabilities" are physical or mental impairments that substantially limit one or more of an individual's major life activities. Major life activities include walking, breathing, seeing, hearing, speaking and teaming. "An individual with a disability" may be a person who has an impairment, or has a record of an impairment, or is perceived as having an impairment.

A "qualified individual with a disability" is an individual who, although impaired, is nonetheless able to perform the essential functions of a job with or without reasonable accomodation.

"Reasonable accomodation" is action by an employer to enable an individual with an impairment to perform the essential functions of a job without undue hardship to the employer. Reasonable accomodations may include modifications of facilities and equipment, training, modified scheduling, job reassignment and job restructuring, and providing an interpreter or reader.

A "direct threat" is a significant risk to health or safety that cannot be eliminated by a reasonable accomodation. For example, employers will say of individuals who work at machines and must take medication that their condition poses a direct threat both to themselves and to co-workers.

The ADA prohibits discrimination at many points in the employment process. Under the ADA, an employer is prohibited from limiting the types of jobs for which a disabled person can apply; from using questions on a job application to segregate or classify a disabled person, and from screening out disabled job applicants with questions or criteria not related to the job; or from requiring medical examinations or inquiries to determine whether an applicant is disabled before offering the applicant a job.

The central problem for disabled claimants is to show a sufficient impairment to qualify as "disabled," but a sufficient ability to do the job to claim discrimination. You have to be able to do the job without danger to yourself or others. If an accomodation is required so that you can safely perform the job, you have a right to ask for it; but you, not the employer, have the burden of bringing up the need for accomodation. And the employer can lawfully refuse to provide an accomodation if it would be too expensive.

6. The Right not to be Sexually Harassed

Since the overwhelming majority of sexual harassment claims concern harassment of females by males, the right not to be sexually harassed is an aspect of the right to be treated equally regardless of one's gender. Sexual harassment is a form of sex discrimination. Sexual harassment in employment is recognized as a type of sex discrimination prohibited by Title VII.

For purposes of Title VII, sexual harassment is defined in 29 Code of Federal Regulations §1604.11(a) as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." The regulation goes on to say that sexual harassment will be found where submission to such conduct is made either explicitly or implicitly a tenn or condition of an individual's employment or where rejection of such conduct is used as the basis for employment decisions adversely affecting an individual or where such conduct has the purpose or effect of creating a hostile work environment.

It is sometimes said that there are two kinds of sexual harassment. One is quid pro quo (Latin meaning "this for that") harassment, where an employee is rewarded or punished by a an employer for how the employee responds to unwelcome sexual advances by a supervisor. The other is hostile environment harassment, where the injury is the creation of an intimidating or offensive work atmosphere. The employer is not held responsible for an offensive work environment unless the employer knew or should have known about the sexual harassment and did not take effective steps to stop it.

Title VII remedies for sexual harassment include an order directing the employer to stop sexual harassment, back pay, and attorney's fees and costs. Under the Civil Rights Act of 1991, a claimant can request compensatory and punitive damages for intentional discrimination. This may be especially helpful in sexual harassment cases where even if lost wages are not great there are often compensatory damages, such as the cost of mental health treatment, and punitive damages that express a jury's outrage. Compensatory and punitive damages under the 1991 Act are capped at $50,000 for employers with 100 or fewer employees; $100,000 for those with 101-200 employees; $200,000 for employers with 201-500 employees; and $300,000 for employers of more than 500 workers. Employers with fewer than 1.5 employees are not covered by Title VII but may be covered by a state or local law.

Complainants in sexual harassment cases should expect to be pressed as to whether the advances at issue were truly "unwelcome." In preparing for such examination, ask yourself: Was more than one person harassed? (If so, this will take the spotlight off yourself, and put it where it belongs on the sexual harasser.) Will witnesses be willing to say what happened? Consider also: Did the employer have a policy against sexual harassment? Was it posted? Did management discuss it with supervisors? If the answer to any or all of these questions is Yes, the harasser will have a harder time claiming that he "just didn't know."

The law does not require you to report sexual harassment to your employer. But in order to prove that the employer knew or should have known what was going on, you may have to show that you or someone else reported the offensive conduct to the employer and asked that it stop. Moreover, if the employer does have a policy against sexual harassment, it may require you to report such behavior. If the harasser is your immediate supervisor you have a right to report to someone else in management.

An effective remedy in sexual harassment cases may be elusive. If the employer fired the harasser or otherwise took action to stop the harassment, the government may require nothing more. Very few sexual harassment cases win anything significant. Cases may drag on for years. Yet the possibility of expensive litigation may make employers think twice about permitting "boys to be boys." And the fact that these laws exist, and that certain behavior is considered unacceptable, may give you leverage to change your workplace by other means.

7. The Right to be Radical

Openly being a radical in the labor movement is easier said than done. The subject is a large and complex one. Here our concern will be the clauses in many union constitutions that deny union membership, or eligibility for union office, to certain kinds of radicals, vaguely defined, and the common practice of removing elected or appointed union representatives who express disagreement with incumbent leaders.

So-called non-Communist clauses were characteristically added to union constitutions in the years just after World War II, when the Cold War began, and a number of unions were expelled from the CIO because they were allegedly Communist-controlled. As early as 1940 the CIO adopted a resolution stating: "The Congress of Industrial Organizations condemns the dictatorships and totalitarianism of Nazism, communism, and fascism as inimical to the welfare of labor, and destructive of our forms of government." Individual unions expressed the same sentiment in the form of eligibility requirements like the following:

No person shall be eligible for membership, or for nomination or election or appointment to, or to hold any office, or position, or to serve on any Committee in the International Union or a Local Union or to serve as a delegate therefrom who is a member, consistent supporter, or who actively participates in the activities of the Communist Party, Ku Klux Klan, or any fascist, totalitarian, or other subversive organization which opposes the democratic principles to which the United States and Canada and our Union are dedicated. (Article III, Section 4 of the Steelworkers constitution.)

Although these clauses were said to be directed at Communists, they were used to harass militants of any kind who questioned the policies of the incumbent union leadership. Unfortunately, the Federal courts continue to uphold a union's denial of membership to an individual who refuses to take an oath disavowing support for revolutionary causes.

Now that the Cold War is over, the problem for the union dissident is likely to take new forms. Elected union officials enjoy broad rights if they are sought to be removed because of their exercise of free speech rights. In Sheet Metal Workers v. Lynn, 109 SCt 639 (1989), the Supreme Court held that removal of a union member from an elected office obviously infringes the member's free speech rights by discouraging their exercise in the future, chills other members in the exercise of their rights, and harms the operation of democracy within the union by depriving the officer's constituents of their chosen representative.

Lynn was a business agent, but humbler elected representatives like stewards also are protected by the law. Dave Newman was elected as a steward of the Communication Workers of America. He was removed by the local union president for publicly criticizing the union leadership for its positions on union democracy and on upcoming contract negotiations. The court found that 1) in Newman's local union a steward had little direct contact with the president of the local, 2) Newman's views about the contract were expressed when the leadership had not yet adopted a bargaining stance and was soliciting membership opinion, 3) Newman had fairly explained the leadership's position on issues with which he disagreed and had supported fund-raising and petition drives that he did not believe to be in the members' interest. Under these circumstances, the court held, Newman's speech expressed his views as a member without interfering with his performance of his job as a steward. Therefore, the union violated Title I of the LMRDA when it removed Newman because it didn't like his ideas. Newman v. Communication Workers, 99 LRRM 2755 (1978).

Appointed union representatives have much less protection Appointed policymaking and confidential officials of a union serve at the will of their union superiors and can be removed without explanation. Finnegan v. Leu, 456 US 431 (1982). Removal of appointees who hold nonpolicymaking and nonconfidential positions is a much closer question. As an example, I have represented a woman who was appointed by the local union president to serve on two local union committees. She was a hard-working rank-and-file member of both committees. However, she was abruptly removed from these positions after she ran for the local union executive board without seeking the endorsement of the leadership caucus. The president's letter gave two reasons: first, "incompatibility between you and myself," and second, "your admitted opposition to the International Union Leadership." I argued that if the president's letter had said that he removed her because she was black, or because she was a woman, it would have seemed improper to every one. Why was it less offensive to remover her (at least in part) because of her exercise of her right to free speech?