Wooden surfaces are under closer scrutiny these days due to the potential to slip with non-metal spiked shoes.

What You Don't Know Can Hurt You:How to Use the Law to Protect YourselfA top trial lawyer discusses common legal issuesfacing course officials and superintendents.by J. MICHAEL VERON

TIERE ARE MANY who claimthat America has become anoverregulated society. If recent

trends in the world of golf are anyindication, it is difficult to argue withthat assessment. In virtually everyaspect of golf course operations, thelaw has become increasingly intrusive.And while ignorance may be bliss tosome, it's downright dangerous if itmeans being unaware of legal require-ments for hiring and firing employees,sexual harassment on the job, liabilityfor injuries to golfers, and many otherissues that are commanding our atten-tion these days, whether we want themto or not.

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It is impossible, of course, in thespace of one article to discuss any ofthese issues in any meaningful detail.My goal is less ambitious. The intenthere is to acquaint you with the lawgoverning certain key areas of golfcourse management so that you willbe sensitive to potentially troublesomeissues if they arise. After all, identifyingproblems is the first step to solvingthem!

Hiring and FiringUnless an employee has a written

contract, he or she is generally con-sidered to be an "at will" employee.This means that the employee serves at

the will of the employer and can beterminated at any time.

You generally can hire and fireemployees for whatever reason youwish - or for no reason at all. Youjust can't refuse to hire someone or firehim or her for the wrong reason. The"wrong" reasons can be summarizedas follows:

• You cannot make an employmentdecision (hire, fire, promote, or de-mote) based on an individual's race,gender, religion, age, or national origin,unless that status is somehow related toa bona fide occupational qualification.Both federal and state laws prohibitthat kind of discrimination.

Potential liability situations should be evaluated throughout the golf course. Thissituation, with golfers exiting the cart path to reach the tee, is an accident waiting tohappen.

• You cannot refuse to hire some-one because of a disability unless itprevents the employee from performingan essential part of the work. This isprohibited by the Americans with Dis-abilities Act, which requires you tomake reasonable accommodations foran employee's disability.

• You cannot fire someone in retali-ation for filing a worker's compen-sation claim. This is usually prohibitedby state law.

• You cannot fire someone for re-porting an environmental violation toregulatory authorities. This is knownas "whistleblower" protection and is aprovision in many environmental laws.

When making any employmentdecision, it is very important to docu-ment why you acted as you did. If youare dismissing an employee for poorwork performance, having a writtenrecord of specific instances in whichthe employee failed to report for work,failed to do assigned work, violatedwork rules or safe practices, or engagedin other unacceptable conduct willprotect you against an unfounded claimthat the termination was based on anillegal motive.

How to Protect YourselfYou can negotiate your own arrange-

ment with your employer in the formof an employment contract. Instead ofbeing employed at the will of youremployer, your contract can providefor a set term, such as one or two years.It also can provide for other terms ofyour employment, such as your com-pensation and the conditions underwhich you can be terminated (i.e., for"cause"). If you are terminated beforethe end of the contract without cause,

you are usually entitled to be paid forthe remainder of the term of youragreement.

The typical provisions in an employ-ment contract include:

• Compensation: Salary, includingbonus for exceptional performance.

• Performance Standards: The mea-sure or criteria by which you will beevaluated.

• Term: Length of your employment.• Cause tor Termination: Condi-

tions that would justify your dismissalbefore the end of your term of employ-ment.

• Fringe Benefits: Health insurance,retirement benefits, work vehicle, con-tinuing education opportunities, ex-pense account, etc.

This list is by no means exhaustive.Your work contract can contain vir-tually anything to which you and youremployer agree. You should, of course,retain an attorney to make sure every-thing in the agreement is wordedproperly so that it is enforceable in thestate where you work.

Sexual HarassmentFederal law (specifically Title VII of

the Civil Rights Act of 1964) makes it"an unlawful employment practice foran employer ... to discriminate againstany individual with respect to his ...conditions of employment becauseof [his] sex " The Supreme Courtof the United States has determinedthat this law is violated when the work-place is "permeated" with "discrimina-tory intimidation, ridicule, and insult"that is "sufficiently severe or pervasiveto alter the conditions of the victim'semployment and create an abusiveworking environment."

Drainage projects should be clearlymarked to alert golfers of a potentiallyhazardous area.

The trick, of course, is to identifywhen that occurs. It is not a simplequestion. In fact, our courts havewrestled with a variety of situations inwhich an employee complained ofsexual harassment, and the results werenot always clear. Ultimately, the onlygeneralization that can be made aboutthis is that there is no distinct lineseparating right from wrong conduct.

According to the Supreme Court, the"mere utterance of an ... epithet whichengenders offensive feelings in anemployee" does not violate the law. Inthe words of the Court: "Conduct thatis not severe or pervasive enough tocreate an objectively hostile or abusivework environment," or "an environ-ment that a reasonable person wouldfind hostile or abusive - is beyond[the law's] purview." Moreover, "if thevictim does not subjectively perceivethe environment to be abusive, theconduct has not actually altered theconditions of the victim's employment,and there is no ... violation."

In plain English, this much is clearfrom the Supreme Court's language:Isolated instances of offensive remarksor jokes in poor taste do not constituteunlawful conduct. At a minimum, thesupposedly offensive conduct mustoccur frequently. Moreover, it must besomething that the offended employeecannot reasonably avoid. In addition, itmust be severe enough to offend aperson of normal sensibilities to such adegree that he or she cannot performwork without unwarranted stress. Thecourts do not require that the employeeprove psychological injury. In otherwords, they need not have a nervousbreakdown in order to have a claim.

Just as an innocent remark is clearlynot sufficient to create a hostile work

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Fungal growth indicates structuraldecay in this tree. Regular inspection ofgolf course trees is important to identifypotential hazards.

environment under the laws prohibit-ing sexual harassment, there are certainkinds of conduct at the other extremethat clearly are not allowed. Anemployer who requires an employee tosubmit to sexual advances as a condi-tion of employment clearly violates thelaw. On the other hand, it is obviouslypermissible for an employer to datean employee. Much depends on thenature of the relationship and theextent to which the employee consentsto the arrangement. Each case is de-cided by its own facts.

This is, of course, different from sex,or gender, discrimination, which con-sists of making employment decisionsbased upon the sex or gender of theemployee. That kind of problem iscovered in the first section of thisarticle.

Golf Course Liabilityfor Injuries to Others

Litigation involving golf courses is agrowth industry. In this day of politicalcorrectness, golf courses are an invitingtarget to those who see golf as a gameplayed only by the rich and privilegedin our society. Leaving aside the factualinaccuracy of that view (the mostcrowded golf courses are daily-feecourses), the fact remains that we havebecome a litigious society. Prudent golfcourse managers must plan accordinglyto minimize their liability.

Of course, the most common causesof injury or damage are from slips andfalls on the premises, golf cart col-lisions, and errant golf shots. In eachinstance, the liability of the golf course

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usually turns on whether it has causedan accident because it did somethingwrong. Put in more legal terms, a golfcourse will usually be held responsiblefor the damages arising from an acci-dent if a court determines it hasbreached its duty of care to the injuredparty. That duty of care is usuallydescribed as the duty to act reasonablyunder the circumstances.

In the case of a slip and fall, the issueis whether the accident was caused bya defective condition, such as a slipperysurface. If so, the next question iswhether the golf course created thecondition. In some jurisdictions, thecourse will still not be liable unless ithad notice that the condition existedand failed within a reasonable time tocorrect it. If the condition could not becorrected, then the course ordinarilyhas a duty to warn those encounteringthe condition of the danger it poses.

Classic examples of potentially dan-gerous areas would be newly soddedareas, low-strung ropes, holes or con-struction areas that are not open andobvious, and any other conditionwhere it is foreseeable that a personcould be injured. Any such conditionshould be marked in a conspicuousmanner until it can be eliminated ormade safe.

Golf cart accidents are a growingsource of litigation. Although the pri-mary responsibility for collisions lieswith the operator of the cart, somecases also have placed blame on thecourse for over-serving the cart driverwith alcoholic beverages or for danger-ous conditions on the course, usuallythe design or construction of cart paths.In that respect, the issue is whether anunusually sharp turn or steep cart pathcaused or contributed to the accident.As with other dangerous conditions,the first objective should be to identifyand eliminate them. If a danger cannotbe eliminated, cart operators shouldbe warned about them and instructedwith a conspicuous sign what to do toavoid the danger (e.g., "Caution: Steepgrade - drive slowly").

Obviously, no golfer is perfect. Sinceeven the world's greatest players hiterrant shots on occasion despite theirbest efforts, doing so is not consideredto be a negligent act. Accordingly, agolfer who accidentally injures anotherwith a poorly struck shot is ordinarilynot liable to the injured victim.

However, the courts have imposedliability if it is determined that thegolfer - or the golf course - was guiltyof some other negligent act that caused

or contributed to the injury. Por in-stance, a golfer who injured a youngboy while playing through was heldliable for the boy's injuries because hefailed to warn the boy he was in a zoneof danger before he played his shot. Forthe same reason, it can be argued thata golf course that places people in azone of danger because of poor courserouting could share responsibility forresulting injuries.

These cases all come down to theirown facts. A court faced with this kindof claim has to determine from the factsof the situation whether the coursefailed to act reasonably.

This is equally true where a course issued because of injuries from lightningor other severe weather. Obviously, agolf course cannot eliminate the dangerof lightning or other severe weather.The question is whether it has takenreasonable steps to protect golfers fromthe danger, such as by posters thateducate them about the dangers, sirensand storm tracking equipment, andlightning shelters.

ConclusionKnowing the rules is like knowing

the line of a putt: It doesn't guaranteesuccess, but it certainly improves yourchances. Understanding the way inwhich courts evaluate the kinds ofclaims that may arise from your golfcourse operations certainly improvesyour chances of eliminating problemsbefore they occur.

J. MICHAEL VERON, a trial lawyer anda member of the USGA SectionalAffairs Committee, lives in Lake Charles,Louisiana. Michael has been a frequentspeaker at USGA conferences on legalissues pertaining to golf. His first golfnovel, The Greatest Player Who NeverLived, was published earlier this year.