Rudolph the Red-Nosed Reindeer – a study in employment law

December 9, 2010 at 4:01 am | Posted in ADA, discrimination, Employee, Employer, Employment Law, FLSA, harassment, Legal, retaliation, union, wage & hour, Workers' Compensation | 5 Comments
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I am an unabashed fan of the old Rankin/Bass movies.  There is something about the old stop motion fuzzy puppets that sends waves of nostalgia over my usually unsentimental soul.  Watching my favorite holiday movie of all time, “Rudolph the Red-Nosed Reindeer,” again last week provided me with a different perspective on this old holiday favorite – an employment lawyer’s perspective.  Please know that this blog is written with love, and a sense of humor.

Rudolph has an obviously different nose from the other reindeer; Rudolph’s nose is red and it glows.   Does Rudolph’s red nose make him a qualified individual with a disability?  Such an inquiry under the new ADA revolves around whether Rudolph’s red nose limits one or more of his major life activities. The potential mitigating factor of Rudolph’s awful black fake nose no longer matters.  Rudolph certainly has a record from birth of having a glowing red nose.  His reindeer training coaches and fellow Santa’s Sleigh trainees certainly regarded Rudolph as having an impairment – and treated him differently as a result by not letting him join in any reindeer games.  Even if Rudolph’s red nose did not materially impact his daily activities, perhaps his depression and post-traumatic stress from the differential treatment would qualify him under the ADA.  Does Santa provide an EAP that Rudolph could access?  Does Santa even offer health insurance benefits such that Rudolph could explore potential surgical correction of his red nose?  At the very minimum, I would think Rudolph could file an EEOC charge based upon being perceived as disabled.

Speaking of perceptions, Hermey the Elf is treated differently by his elf co-workers as a result of expressing his individuality.  There are hints of perceived sexual orientation discrimination due to the fastidious hairstyle and detectable lisp.  Sexual orientation discrimination is actionable in several counties in Florida, and quite possibly in the North Pole.  Does Hermey have an Oncale claim due to male on male discrimination and harassment?  Perhaps a claim under Title VII or the Florida Civil Rights Act is in order?  Hermey is treated differently by the Elf who I deem the Union Steward Elf and denied his breaks so perhaps a Union grievance requesting a new Steward is in order?  Does the Collective Bargaining Agreement specify breaks, and is Hermey being denied his rights under the CBA?  As a toy maker, is Hermey entitled to overtime pay due to having to work more than 40 hours in a workweek based upon his employer’s seasonal production demands?  Or does toy making qualify under the Artistic exemption to the FLSA?

Santa also appears to have some management style issues.  His employees gather to perform for him, as instructed by management and Santa, and Santa abruptly cuts them off.  The Union Steward  Elf may be filing a grievance against Santa for his refusal to engage in good faith bargaining about performances and toy production.  Santa needs to read “Good to Great” and “Blink” to have a better idea as to how to properly hire his management team, and manage and motivate his workforce.  Santa should consider signing up his leadership team for some team-building exercises.  Anti-harassment and anti-discrimination training – with Santa present – is warranted.

Gender discrimination is very obvious throughout the movie by the fact that Clarice and the other does are separated from the young bucks in the reindeer games – why can’t girl reindeer fly?  After all, Vixen is on Santa’s team.  Thank you Vixen for breaking that glass ceiling!  Direct evidence of gender discrimination is shown by the remark from Rudolph’s Father Donner that Clarice and Rudolph’s Mother cannot go looking for Rudolph in the snow storm because it’s much too dangerous “for girls”.

Need I discuss the Island of Misfit Toys?  Toys perceived as disabled are sent off to live far away from their able-bodied colleagues in a most discriminatory fashion.  Each toy sadly tells its tale of why the toy is different, and bemoans the fact that “no child wants to play with them” like they play with normal non-disabled toys.  I picture a seven-figure jury verdict here……

The Abominable Snow Monster, affectionately called “The Bumble” is either the poster-child for successful anger management or rehabilitation programs, or is the victim of national origin and religious discrimination due to his following the rituals of his ancestors and eating deer meat.  As a result of his religious practices, The Bumble is then subjected to harassment and even maiming due to discrimination.  His conforming to the standards of others is presented in a positive manner due to his participation in the tree lighting ceremony, but is he participating out of fear of further retaliation?  All of his teeth were pulled, what physical torture could result out of further practicing his sacred rites?

Donner suffered injuries while in the cave of The Bumble.  Was Donner’s search for Rudolph – conducted with the consent and approval of Santa – within the course and scope of employment such that a workers’ compensation claim could be filed against Santa’s Workshop?  Or was the trip to the known hazardous area surrounding The Bumble’s cave outside of Santa’s instructions such that a frolic and detour could be alleged?

While Santa comes around to recognizing the hard work of his employees at the end of the movie, you have to wonder if his change of heart is due only to the fact that the Christmas Eve Special Project assignment was successfully completed.  Santa needs to recommit to ensuring a discrimination and harassment free environment to comply with his Workshop’s mission statement of bringing joy and happiness to all.

I plan to sing along with Sam the Snowman, a.k.a. Burl Ives, clutching my cup of hot cocoa – and cup of cheer – as I watch Rudolph again this year.  I assure you I will enjoy every single politically incorrect moment.

Happy Holidays!

Chris Sensenig

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