- The Washington Times - Sunday, April 21, 2002

A federal appeals court astounded lawyers last week with a ruling advising a company it has a "moral obligation" to financially aid employee Linda Gray even though the company defeated her sexual-harassment claims in court.
"I have never seen a gratuitous comment like this," said Dan Fuller, general counsel for the Louisville-based Genlyte Group, which includes among its 5,500 employees Miss Gray's Lightolier division in Fall River, Mass.
"Linda Gray had her day in court, and we had ours, and we won," Mr. Fuller said of Thursday's ruling by a three-judge panel of the First Circuit Court of Appeals in Boston.
"Genlyte may have no further legal obligation to Gray, but it ought carefully to ponder its moral obligation to assist her recovery and re-employment," said the 3-0 ruling, written by Chief Circuit Judge Michael Boudin, which acknowledged the law of the case is on the company's side.
"If an employer's sense of humanity is limited to what the law demands, it will find to its regret that the law will demand more and more," Judge Boudin wrote.
Judge Boudin, a 1992 Bush appointee, was joined in the opinion by two Clinton appointees, Circuit Judge Sandra Lea Lynch and District Judge Nancy Gertner, who was designated to sit on the Circuit Court panel for this case.
"We did everything we could for her. That's the essence of humanity, and I don't know what else the court would have us do under these circumstances," said Larry Powers, president, chairman and CEO of Genlyte. He told The Washington Times his company rejects the court's advice, which lawyers for both sides called unprecedented.
"We never fired her and consider her an employee. If she's physically able, under her union contract she's entitled to come back to work," he said. Technically, Miss Gray remains on unpaid leave while seeking disability pay.
Fairfax lawyer Gilbert K. Davis, who represented Paula Jones in her sexual harassment lawsuit against President Clinton, said it is highly unusual and out of bounds for a court to advise on ethics.
"A court has a duty to judge and to leave the preaching to pastors," said Mr. Davis, who is not a party to the Gray case. "It's very presumptuous. In America we leave the determination of what is ethical to our conscience."
Barring Supreme Court intervention or rehearing by the full Circuit Court, both of which are unlikely, the decision ends Miss Gray's lawsuit charging Genlyte condoned harassment by fellow factory worker Jose Hermenegildo, whose actions led her to stop coming to work in 1998 after 18 years on the job.
Miss Gray's attorney, Mark D. Stern of Somerville, Mass., said he expects continued resistance from the company. He said he doubts Genlyte feels any "moral obligation" to his client, who he said visits a therapist and is too emotionally disabled to work.
"I never heard of anything before like that in my life," Mr. Stern said. "Though the panel makes that unusual statement at the end of the opinion suggesting they have great sympathy for Ms. Gray's plight and therefore so should the employer, their actions at every turn belie their words."
He said he had no idea what the company will do, but "its pattern to this point has been not only to fight this case but to fight her workers' compensation case."
The Circuit Court dismissed claims of judicial error and upheld a jury verdict. Among other unusual comments, the court took pains to note the company's "skillful defense" by Boston lawyer Timothy VanDyck, who deferred to Mr. Fuller for comment.
"We found it inappropriate for the First Circuit to suggest that the company had somehow acted immorally in its employment practices on the allegations of one employee. Morality is a side issue, but the jury ruled morally," Mr. Fuller said.
Miss Gray said that as far back as 1981 Mr. Hermenegildo, who remains a Genlyte employee, was staring at her, making tongue gestures that mimic oral sex, and followed her home. She did not report those first instances and said they stopped when her boyfriend threatened him. She complained after he resumed his attentions in 1995.

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