Issues in Employment Law
April 2002
An agreement containing a promise to refrain from competition is an unreasonable restraint on trade if (1) the restraint is greater than necessary to protect the promisee's legitimate business interests, or (2) the promisee's need is outweighed by the hardship to the promisor and likely injury to the public.
In Deutsch v. Barsky, Nos. 00-CV-114, 00-CV-168 (Apr. 11, 2002), the D.C. Court of Appeals held that the trial court should apply a reasoning test to determine reasonableness of restraint, where the dentistry partnership contract contained a agreement not to compete for 2 years following departure within a 5-mile radius of the business. Summary judgment was not appropriate because the promisee's legitimate business interests had to be weighed against hardship to the promisor and injury to the public.
Covenants not to compete that are part of a valid transaction or agreement do not violate trade per se. However, courts generally do not favor non-compete clauses in contracts. Non-compete clauses must be as narrow as possible in terms of scope, time, geography, and must not cause a certain amount of hardship to the promisor in seeking employment, as well as not cause injury to the public. Please consult us when drawing up a non-compete agreement.
Sexual harassment may be committed by a person who is of the same sex as the victim. An employer should fully investigate and take seriously every single complaint of sexual harassment, regardless of the circumstances.
In Davis v. Coastal Int'l Security, No. 00-7293 (Jan. 11, 2002), the D.C. Circuit Court of Appeals held that a male employee failed to make a claim of workplace sexual harassment where he alleged that two male co-workers made sexually lewd comments and gestures to him, because he made no showing that the co-workers actions were motivated by the victim's sex. The Court lists several examples of evidence which would support a finding of same-sex sexual harassment: (1) the harasser or victim is homosexual or is making a sexual advance, (2) the harasser is harassing workers only of one sex, which would require a comparison of both sexes in a mixed-sex workplace, or (3) the harasser is using sex-specific or derogatory terms that clearly show the harasser is motivated by general hostility to one sex.
Any
harassment motivated by the sex of the
victim constitutes sexual harassment. To
avoid a Title VII hostile environment
claim, an employer must not ratify any
sexual harassment conduct by their
employees. This is why it is important
for employers to fully investigate each
complaint of sexual harassment.
