Tag Archives | harassment

A common sense decision: you can fire an employee for making a false claim of harassment. But . . .

By on April 3, 2012 in Our Blog

In Joaquin v. City of Los Angeles, a California court of appeals upheld the termination of an employee for making a false harassment claim.  Joaquin, a police officer, believed he had been propositioned by his supervisor.  The supervisor allegedly made comments such as “we should go out some time” and “you have nice arms.”  A short while later Joaquin realized he was on the verge of being disciplined for leaving his shift early.  He complained the impending discipline was retaliation for his rejection of his supervisor’s advances.  Internal Affairs investigated the complaint and concluded it was unfounded.  Thereafter, the supervisor filed an official misconduct complaint against Joaquin, claiming he intentionally made a false complaint.  Internal Affairs agreed and Joaquin was terminated.

In the subsequent lawsuit for retaliation, the court framed the question as follows: “the relevant legal question is whether an employee may be disciplined if his or her employer concludes that the employee has fabricated a claim of sexual harassment, or whether such a complaint is insulated from discipline even where, as here, the employer determines that it was fabricated.”  The common sense answer prevailed: an employer can take disciplinary action if it determines an employee made a false complaint of harassment.

As with most things in the world of employment law, there is a big “but.”  Don’t conclude an employee made a false complaint haphazardly.  Expect that determination to be subject to a judicial microscope, so make sure it is rock solid.  An erroneous complaint, in contrast to an intentionally false one, does not warrant a termination.

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“Harassment” claims – why is this term so misused?

By on March 5, 2012 in Our Blog

I’m frequently asked to investigate employee complaints of harassment.  Once the investigation is underway I sometimes find the alleged “harassment” is nothing more than a “this-isn’t-fair” type of concern that is unrelated to anyone’s protected categories (race, gender, religion, etc).  So what is an investigator to do?  Don’t throw in the towel and assume there is no work to be done.  Go ahead and interview witnesses, review documents, and make factual findings.  Assuming there is no true harassment lurking beneath the surface, the conclusion will always be that the allegations of harassment are unsubstantiated.  (Still, there may be plenty of workplace dynamics to explore, perhaps pertaining to respect in the workplace or adherence to company policy.)

This kind of scenario presents a conundrum of sorts for employers.  Ignore the leveling of “harassment” claims at your own risk.  But when the term is simply misused, count on spending time and resources on a perhaps unnecessary investigation.  What is a proactive way to avoid this situation?  Make sure your policy spells out what, exactly, harassment is.  And what it is not.  And when you train your workforce on your policy, be sure the trainer invests a significant amount of time in explaining what harassment is not.

 

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Invoking the affirmative defense in harassment cases

By on February 15, 2012 in Our Blog

The recent case of Crawford v. BNSF Railway Company illustrates when and how an employer can invoke the Ellerth/Faragher “affirmative defense” to avoid liability.  Five mid-level supervisory employees claimed they were subjected to sexual and racial harassment by their supervisor.  They endured the alleged harassment for months and then collectively filed an EEOC charge.  Then, they reported the alleged harassment internally.  As soon as they did, the employer initiated an investigation that resulted in the termination of the alleged harasser.  The plaintiffs claimed they waited to report the conduct because they (a) feared retaliation and (b) wanted to build up evidence against the alleged harasser.

In response to the subsequent lawsuit, the employer invoked the affirmative defense.  First it claimed it exercised reasonable care to prevent and promptly correct any harassing behavior.  Next it claimed the employees “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.”  Both the lower court and the Eighth Circuit agreed.

With respect to the first prong of the defense, the employer distributed and trained on a comprehensive anti-harassment policy that contained a specific complaint procedure for would-be victims to follow.  Interestingly enough, the court held the plaintiffs needed to follow this procedure, notwithstanding the fact that the alleged harasser was himself a supervisor.  Their claim that they did not because, in part, they wanted to collect more evidence against the alleged harasser was not a valid reason to delay reporting.  Accordingly, the employer also satisfued the second (and typically harder to prove) prong of the defense.

The upshot:  Have a comprehensive policy that outlines a specific complaint procedure.  Distribute it to all employees and train them on it.

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“All-American Muslim” and Lowe’s: an HR perspective

By on December 13, 2011 in Our Blog

The TLC reality t.v. show “All-American Muslim” follows the lives of five Muslim families in Dearborn, Michigan.  One of the show’s themes is the lingering discrimination American Muslims confront in the post 9/11 world.  Home improvement retail giant Lowe’s demonstrated just how spot on this theme is last week when it pulled its advertising from the show in response to pressure from Florida Family Association, a conservative Christian group that lobbies companies to promote “traditional, biblical values.”  The Christian group apparently objects to the show because it portrays Muslims too positively, making them look like normal Americans.  Lowe’s caved to the group’s pressure and pulled its ads, claiming the show has become a “lightning rod.”

The public reaction has been pretty swift and severe, which in my opinion is a good thing.  The Florida Family Association’s objection to the show is bigotry, plain and simple.  Many consider Lowe’s decision to be swayed by the group’s lobbying efforts to be spineless, at best.  As one Muslim community leader analogized, imagine the reaction if a company pulled its ads from “The Cosby Show” or “Seinfeld” based on objections that they portrayed African Americans or Jews as normal people.  Society would be outraged.

It’s undeniable that stereotypes about Muslims are pervasive.  How does this fact impact employers and HR?  They must tread carefully when confronted with such prejudices and remember a couple of important rules.  First, customer bias is not an excuse for discrimination.  The courts are unanimous on this point.  Second, they must be vigilant in preventing and responding to any potential harassment issues in the workplace.  As in football, a good defense can be the best offense.  If you see these issues brewing, act quickly to train your employees on your (hopefully impeccably written) anti-discrimination and harassment policies in particular, and on respect in the workplace in general.

 

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Make sure the “C-suite” really gets the retaliation rules

By on October 10, 2011 in Our Blog

Everyone in HR knows that you cannot fire someone for engaging in protected activity like complaining about harassment.  A big question for many HR professionals, though, is do the top executives really understand this?  If not, the results can be costly.

In a case decided by the Seventh Circuit Court of Appeals last week, a bank president got the company headed for a jury trial because of exactly this kind of oversight.  The plaintiff in Egan v. Freedom Bank was a vice president of retail banking who reported to HR that she had been propositioned by a member of the Board.  Somehow word of the complaint reached the incoming bank president, who made an oblique comment to another senior member of management about the issue.  A short while later, the new president eliminated the plaintiff’s job, allegedly for operational reasons.

The court held the timing was fishy, at best, and is permitting the case to proceed to trial.  Bad news for the bank.  Great news for the plaintiff and her lawyer.

What can you do to prevent a repeat scenario in your organization?  Train.  From the top down.  And make sure you get executive buy-in.  Large jury verdicts can be persuasive to executives that might not otherwise be interested in the ins and outs of retaliation law.

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Take steps to separate complainant and accused

By on October 3, 2011 in Our Blog

When an employee complains about harassment by a supervisor, it is almost always a good bet to separate the parties, at least during the investigation.  Wal-mart Puerto Rico learned this simple lesson the hard way in August, in Perez-Cordero v. Wal-mart Puerto Rico.  Mr. Perez-Cordero worked for a female team leader.  He complained to his employer that his supervisor was harassing him, claiming she made overt sexual overtures.  When he rejected them, she began a campaign of treating him poorly at work: she held his work to higher standards, constantly criticized him, made him work more and unpopular shifts, and even grabbed him and forcefully kissed his neck in front of others.  Perez-Cordero repeatedly asked to be transfered to another supervisor, to no avail.  Only when the employer learned that Perez-Cordero had filed a complaint with the Department of Labor did it take steps to move the supervisor.

Seems like an obvious solution, right?  The employer’s failure to do so in this case will cost it.  The First Circuit held Perez-Cordero can proceed to trial on two theories: hostile work environment harassment, and retaliatory harassment.  I anticipate the jury will scratch their heads when plaintiff’s counsel questions the employer on why it did not take that easy step of separating the parties to end any harassing conduct.  Employers – you don’t want to be in that position.  Think about remedial actions you can take when faced with a complaint.

 

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False allegations of harassment

By on September 23, 2011 in Our Blog

I’ve been getting a lot of questions about this one lately, as I am in the middle of a big anti-harassment training project.  I’ve heard from a couple of participants that they were the subject; others have asked if it could happen and what they can do about it.  In my experience investigating harassment complaints, it does happen, but not very often.  And just to be clear, by “false allegations” I mean someone intentionally making a story up out of whole cloth, not just a simple misunderstanding, as often happens in the world of harassment.

So what are steps employers and individuals can take to mitigate the risk?  Train on appropriate workplace behavior and make sure everyone in the workforce understands how to stay out of the looming “gray zone” of behavior.  There’s obviously behavior that is perfectly fine.  At the other end of the spectrum there is behavior that is clearly a no-no.  In the middle is most of the stuff that makes up harassment claims.  By steering clear of that ambiguous zone, individuals can dramatically reduce the likelihood of getting hit with the “h” word.  In addition, the specter of false allegations is one more reason it’s critical to conduct thorough investigations and not to just take anyone’s say-so.

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The dangers inherent in dating at work

By on September 12, 2011 in Our Blog

It’s a fact that many employees meet their significant others at work.  Long hours and similar interests/skills are just two factors that contribute.  There’s nothing necessarily wrong with this.  Oftentimes, relationships that germinate in the office develop into healthy long-term arrangements with no negative impact on the workplace, and often just the opposite.  Sometimes, though, dating relationships at work go south and the results can be disastrous: allegations of harassment, disruption to group dynamics, even violence.  As a recently filed case illustrates, we need to add favoritism to the list.

A model on the long-running game show The Price Is Right recently sued the show’s producers for harassment.  According to the complaint one of the producers started dating another model on the show and became abusive and demeaning to the plaintiff.  In other words, he allegedly showed favoritism to his new shorty.

We employment law types could have seen this problem coming from a mile away.  Dating a subordinate and treating other subordinates differently?  That’s just asking for a lawsuit.

So what’s the best practice in a scenario where a working relationship turns into something more?  Separate the parties involved, at least so that one is not supervising the other (or her colleagues/competitors).

 

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A new California case you should know about (because what starts west often moves east)

By on September 7, 2011 in Our Blog

My friend and colleague Allison West just blogged about a new California Court of Appeal case concerning harassment.  It’s noteworthy because it addresses a new kind of harassment claim: one where the plaintiff doesn’t even have to witness the harassment!  Sounds radical, but in my experience, case law trends that begin in California have a surprisingly consistent way of trending eastward.

The case is Pantoja v. Anton and it involves a plaintiff who did not witness the harassment she complained about.  In fact, some of the alleged conduct occurred even before she was employed.  Nonetheless, the court held such conduct was relevant to prove the harasser’s intent.

So what’s the lesson?  Two important ones come to mind.  First, don’t ignore complaints made by someone who did not observe the conduct.  That means rumors may be enough to trigger the duty to investigate.  Second, make sure your employees (supervisors especially) understand that what they say and do can come back to bite them, even if they think no one is around, no one is listening, or no one cares.  In other words, remember at all times that you are at work and expected to act accordingly!

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When’s the last time you rolled out harassment training?

By on September 6, 2011 in Our Blog

I hope you didn’t say never.  Harassment training for your workforce is legally required.  If you don’t do it and get sued for harassment, you’ll be down a few defenses and the court will not be pleased.  Recent Ohio cases make this very clear.  So what do you need to do?  Ideally, bring in an outside trainer, someone with subject matter expertise.  Roll out two types of training sessions: one for employees with supervisory responsibilities, and one for non-supervisors.  Depending on the size of your workforce, this does not need to be time-consuming or expensive.

How often should you train?  The EEOC suggests every two years.  Personally, I think if you do it every three, you’re in good shape.  Within three years time, you likely have had some turnover, which means new, uneducated employees.  And, you probably have employees who moved up the ranks to supervisory positions; these individuals especially need to know the rules.

In the area of employment practices, prevention is critical.  Training is a key step in any proactive approach to employee relations (and lawsuit avoidance).

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An employee’s disagreement with a performance evaluation is not harassment

By on September 1, 2011 in Our Blog

Do you hear the “H” word, harassment, thrown around loosely these days?  Many of my clients do, and it’s a problem.  I recently conducted a workplace investigation where an employee cried harassment.  The “harassment,” it turned out, was based on the fact that the employee got a terrible performance review and was then placed on a PIP (performance improvement plan).  Where’s the harassment, you ask?  The employee is 100% positive that his performance is great.  Anyone who thinks otherwise must be out to get him, de facto.  Further, said manager must be committing illegal harassment.  The employee truly believes this to be the case.  Could he be right?  Only if the bad review is not based on actual performance, but instead on a protected category, such as sex, race, national origin, religion, age, disability, etc.  Otherwise, the manager’s conduct may be many things (e.g. appropriate, unfair, intelligent, stupid), but one thing it certainly is not is harassment.

When I conduct harassment training, my goal is to educate my audience on what constitutes harassment and how to avoid it.  Just as important, though, is educating participants on what is not harassment.  If you have not rolled out harassment training in the past couple of years, it’s time to revisit it.  (More on that in an upcoming post).  Make sure when you do, you include what harassment is not on the agenda.

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Harassment allegations loom large for Favre

By on January 5, 2011 in Our Blog

Monday, a sexual harassment lawsuit was filed against the New York Jets and Brett Favre.  The suit, filed by two former massage therapists, alleges that Favre sent them sexually explicit text messages, contributing to a culture they describe as “a hot bed of sexual harassment, sexism, and inappropriate behavior.”  While Favre has not made any comments about the suit, the Jets issued a statement criticizing the plaintiffs for never complaining about any alleged harassment.  Query what their policy provided, and whether the plaintiffs knew to whom to complain.

Coincidentally (or not), Favre was recently fined $50,000 by the NFL for refusing to participate in an investigation into allegations made by a former Jets gameday host that Favre sent her sexual pictures and left inappropriate voicemails.

It is far too soon to opine on the veracity of the allegations against Favre and the Jets.  But I’ll be watching the case, to see if we can learn any lessons.  As in most high-profile harassment issues, there will likely to be a nugget or two of wisdom to extrapolate.  In the meantime, remember to follow my resolutions pertaining to harassment policies and training.  As they say in football, the best offense is a good defense (at least I think that’s what they say).

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Disciplining a harassment complainant: tread carefully but it can be done

By on December 14, 2010 in Our Blog

Last month, the Eighth Circuit upheld the dismissal of a sexual harassment lawsuit against Des Moines Bolt Supply Inc.  The plaintiff, Veronica Alvarez, complained to her supervisor that she was being harassed by a co-worker.  The employer promptly investigated Ms. Alvarez’s claim, and concluded both she and the alleged harasser had participated in conduct which violated the company’s harassment policy.  Accordingly, both Ms. Alvarez and the alleged harasser were suspended.  Not surprisingly, Ms. Alvarez subsequently sued for harassment and retaliation.  The district court dismissed her case, and the appeals court affirmed.  

According to the court, the employer took prompt remedial action by investigating Ms. Alvarez’s complaint.  In terms of its decision to suspend her, the court deferred to the employer.  “As long as DMB honestly believed that Alvarez violated company policy, and acted on that basis, DMB is not liable for discrimination, even if a trier of fact would disagree with its finding.”    

This case highlights two key points in harassment litigation.  First, responding to internal complaints swiftly is imperative to a subsequent defense.  Second, it can sometimes be appropriate to discipline complaining employees, despite the obvious risk of a retaliation claim.  If you are considering doing so, though, I highly recommend consulting with counsel to make sure the risk is minimal and the action defensible.  Employers need not be hamstrung in managing their workforce, even those that have engaged in protected activity.  They just need to exercise good judgment and caution.

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Steak and sex: Fleming’s settles male-on-male harassment claim

By on December 8, 2010 in Our Blog

National restaurant chain Fleming’s Prime Steakhouse has agreed to pay a quarter of a million dollars to three male employees who complained about harassment.  The EEOC was investigating their claims when the settlement was reached.  According to the men, a male chef repeatedly harassed them by touching their private parts and even using kitchen utensils to touch them through their clothing.  According to the EEOC, several managers were aware of the harassment but did nothing to stop it.

The case highlights two important things to remember about harassment law.  First, harassment can be between members of the same sex and does not have to involve romantic interest.  Second, supervisors who become aware of potentially harassing conduct but do nothing place their employers at great risk for being found liable for harassment.  The best way to manage both these pomits is to TRAIN!

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Too sexy for work?

By on November 15, 2010 in Our Blog

A newly filed case strikingly reminiscent of the lawsuit filed by Debrahlee Loranzana against Citgroup last year — and, in fact, filed by the same lawyer (see our earlier post on the case) — alleges that an employee was harassed for being “too sensual,” and then retaliated against for complaining about the alleged harassment.  Amy-Erin Blakely is suing the Deveraux Foundation, claiming she was told by supervisors that her “large breasts” were distracting to male colleagues.  She complained about this and was subsequently fired.  

This suit may end up like Loranzana’s did — dismissed, according to Time Magazine.  But regardless of the outcome, or the pithy media attention these cases have received, the issue of looks-based discrimination is one that will continue to vex employers.  Not a protected category in and of itself, looks-based discrimination often overlaps with protected categories, such as sex or disability.  It’s these intersections that employers need to be wary of.

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Non-sexual acts can support a sexual harassment claim

By on November 10, 2010 in Our Blog

The Second Circuit’s August 2010 decision in Pucino v. Verizon Communications Inc. serves as a useful reminder to employers and managers everywhere that non-sexual conduct can sometimes rise to the level of illegal sexual harassment.  The deciding factor will be whether the conduct in question was “based on sex.”  

Joan Pucino was a field technician for Verizon.  Her co-workers were mostly men.  In her lawsuit, she alleged she was often assigned less desirable work than her male counterparts, assigned to work alone in dangerous neighborhoods, denied assistance on difficult jobs, monitored excessively by her supervisors, denied access to tools and equipment she needed to perform her job well, and frequently called a “bitch” and “stupid” in front of co-workers, while male counterparts were reprimanded privately.

In letting the claim proceed to trial, the Second Circuit held that the evidence was sufficient for a jury to conclude Ms. Pucino had been subjected to a hostile work environment based on sex. The fact that none of the alleged conduct was actually sexual in nature did not alter the court’s conclusion.

Employers should remember this case the next time they roll out harassment training (ideally, every other year).  Managers and other employees are often under the misimpression that to constitute “harassment,” the victim had to have been hit on or otherwise inundated with sexual overtures.  The Second Circuit has just sent a stark reminder that it isn’t so.

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Thorough investigation saves employer’s day in court (again)

By on October 18, 2010 in Our Blog

Late last month, the Third Circuit Court of Appeals upheld the dismissal of Deborah Wood’s discrimination, hostile work environment, and retaliation claims.  Wood was a systems analyst at the University of Pittsburgh who was laid off, along with sixteen other employees, due to a decrease in funding.  She promptly sued the University, alleging (among other things) that its response to her internal complaints had been inadequate.  The court took the opposite view, however, characterizing the University’s response “extraordinary.”

A couple of years prior to her discharge, Wood complained that someone was tampering with her computer.  The University launched three separate investigations into the matter.  First the supervisor investigated the allegations, with the help of the computer department.  Then, when Wood elevated the complaint to HR, HR instigated a separate investigation.  Still not satisfied, Wood sought the assistance of the campus police, as she believed someone had broken into her office.  Again, an investigation was immediately commenced.  None of the investigations were able to substantiate Wood’s claims.

While it is certainly not essential for employers to conduct repeat investigations is the complainant is unsatisfied with the initial results, this case aptly demonstrates that courts look favorably upon employers who take action when confronted with employee complaints.  Make sure you know where to turn when an internal complaint arises (hint: Warren & Hays).

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Harassment complaints: don’t let your corrective action be the tree falling in the woods

By on September 21, 2010 in Our Blog

There is a philosophical riddle that wonders, if a tree falls in the woods but no one is around to hear it, does it make a sound?  The question is about our perceptions of reality.  In the world of employment law, perception and reality can sometimes be synonymous.  To prove the point, a recent Eighth Circuit case suggests that in the case of harassment complaints, employers need to make sure the complainant is kept apprised of the investigation and remediation process.  Otherwise, how will s/he know the employer has taken the complaint seriously?

In Sheriff v. Midwest Health Partners, the plaintiff complained of repeated harassment by a supervisor.  The employer investigated and took some remedial measures.  However, it failed to keep the plaintiff informed of the status of her complaint, or even who was investigating it.  According to the court, these failures supported the jury verdict in the plaintiff’s favor.

Should a complainant be kept in the loop as to every occurrence in the investigation?  Absolutely not.  But the complainant is entitled to an executive summary of sorts (e.g., HR investigated your complaint and we concluded that the harassment policy was violated.  Corrective steps have been taken).

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Helping a subordinate initiate a complaint of harassment is “protected activity”

By on August 17, 2010 in Our Blog

Earlier in the year we blogged about the United States Supreme Court case of Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, where the Court held that an employee who participates in an internal investigation of a harassment complaint is protected against retaliation.  Recently, the First Circuit decided a case under Crawford, finding that a supervisor who tried to help his subordinate initiate an internal harassment complaint was also protected against retaliation.  In Collazo v. Bristol-Myers Squibb Mfg. Co., an employee complained to her supervisor that a co-worker had sexually harassed her.  The supervisor spoke to the alleged harasser, initiated a meeting with HR and the complainant, and followed up with HR on two occasions concerning its lack of responsiveness.  Shortly thereafter, the supervisor was terminated.

Reversing summary judgment on the supervisor’s retaliation claim under Title VII, the court held that a reasonable jury could conclude the supervisor’s conduct constituted “opposition” to harassment.  The case will now proceed to a jury, unless the employer tried to settle the case.

The lesson here is clear: employers must tread lightly when it comes to potential retaliation claims.  Know the law and its breadth, and make sure your supervisors do too!


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Commuter harassment: is it an employment issue?

By on July 16, 2010 in Our Blog

There has been significant public dialogue about “street harassment” — men stopping women on the street to ogle, cat call, grope, or worse.  The website Stop Street Harassment  details cases of such harassment from around the world, as well as strategies to combat it.  The premise is that this type of conduct is harmful to women, both from a safety standpoint and in terms of their emotional well-being.  However, it is largely trivialized; women are expected to take it as a compliment or to simply ignore it.

In a recent article entitled Sexual Harassment During Commute Hurts Performance at Work, Holly Kearl, author of Stop Street Harassment: Making Public Places Safe and Welcoming For Women, makes a convincing case that commuter harassment is something employers should take note of.  As the title suggests, Kearl posits — based on her interviews of more than 800 women — that commuter harassment negatively impacts an employee’s ability to perform at work and contributes to absenteeism and even turnover.  Women who are harassed on their way to work may find themselves upset and distracted throughout the day.  Obviously, then, their ability to give 100% to their job duties is diminished.

Employers do not have a legal duty to protect employees from harassment experienced coming to or going from work.  And, in my view, employers cannot and should not try to address every source of employees’ stress in an effort to increase job-related focus and productivity.  But, Kearl does suggest some simple strategies proactive employers might want to consider.  Offering self-defense training, for example, could be an easy way to increase feelings of security for female employees.  Coordinating commuter groups, or carpools, is another.  These ideas are cheap or free, and can increase employee loyalty by demonstrating an employer’s commitment to keeping its workforce safe.

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The immigration debate and your workplace

By on July 1, 2010 in Our Blog

In April, Arizona passed an extremely tough immigration law that garnered a lot of national attention.  The law makes it a crime for immigrants not to carry immigration documents with them at all times, and requires police to question anyone they suspect of being in the country illegally.  It has generated a lot of outrage, as opponents call it an open invitation for harassment and discrimination against Hispanics and other minority groups.  Even President Obama weighed in, sharply criticizing the law, though it is highly unusual for a president to weigh in publicly on state legislation.  The law, according to Obama, threatens “to undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe.”

What does this have to do with the workplace?  The topic of immigration reform is politically “hot” now, in large part due to the spotlight placed on the Arizona law.  It is likely to find its way into workplace banter.  This can often take the form of risky conversations about national origin and race that can be offensive to some workers.  

Employees are entitled to their political opinions, to be sure.  But when expressing them at work intersects with protected categories under the law, employers should take heed.  Be proactive and train managers and employees on appropriate workplace speech, as it relates to harassment and discrimination laws.

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Are you planning on hiring teens this summer?

By on May 11, 2010 in Our Blog

If so, pay attention to harassment issues.  The EEOC is!  In a press release issued on May 5, 2010, the agency announced that Cleveland-based Everdry Marketing and Management, Inc. paid over $500,000 in damages and interest to a handful of mostly teenage victims of sexual harassment.  

The case was originally filed as part of the EEOC’s Youth@Work Initiative, aimed at educating young people about their workplace rights.  Employers should take heed of this example.  If you plan on hiring teens, double check to make sure your harassment prevention plan is firmly in place.  This includes having an appropriate policy and educating workers and managers on all aspects of the policy (including to whom to complain if a situation arises).

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Recent court case emphasizes the need to conduct harassment training

By on May 3, 2010 in Our Blog

Last month, a federal court in Tennessee held that an employer’s failure to train its workforce on its harassment policy prevented it from utilizing the affirmative defense in a sexual harassment case.  In Bishop v. Woodbury Clinical Laboratory, the plaintiff claimed her supervisor harassed by making unwanted sexual advances and comments.  She conceded she never complained to anyone about the alleged harassment. The employer tried to have the case thrown out on the basis of a widely-used affirmative defense known as the Faragher/Ellerth defense (named after the United States Supreme Court cases that articulated it).  Under the Faragher/Ellerth defense, the employer needed to show (1) it exercised “reasonable care” to prevent/correct any sexual harassment and (2) the plaintiff unreasonably failed to take advantage of its corrective/preventive measures. 

The employer in Bishop had an anti-harassment policy and had disseminated it to all employees, including the plaintiff.  The policy even spelled out what employees should do if they had concerns about harassment.  However, the employer never trained its supervisors and employees on the policy, and therefore could not meet the first prong of the Faragher/Ellerth defense.  The case will now proceed to a jury.  Whatever the ultimate outcome, the employer faces an expensive legal battle.

We’ve said it before, but it bears repeating.  TRAIN your employees on your harassment policy!  (Warren & Hays can help).

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When it comes to harassment complaints, too little too late can be fatal

By on March 24, 2010 in Our Blog

Most employers know that when an employee complains about harassment, the employer must respond quickly and effectively.  Usually this means conducting a “prompt and thorough” investigation and taking appropriate remedial measures.  So when is this standard met?  What does “too little too late” look like?  The case of Watson v. Blue Circle provides a pretty good picture.

Lisa Watson was a concrete driver for Blue Circle for a number of years.  She alleged she was subjected to harassment by co-workers including: being offered money for sex, touching her breasts and buttocks, displaying pornography openly, and directing sexual comments at her.  Ms. Watson complained to her supervisor on numerous occasions.  When she did, the evidence showed the supervisor talked to the alleged offenders and told them to stop with the “horseplay.”  No discipline ever ensued, and the harassment continued.  Eventually, though, Ms. Watson complained enough that the supervisor took action to stop the harassment.  By then, though, the court decided that was too little, too late.

The case provides a cautionary tale to employers.  Don’t responded casually when someone complains about harassment.  Take all complaints (even ones in which you have doubts about their legitimacy), seriously.

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Messa’s mess sheds light on male-on-male harassment

By on March 15, 2010 in Our Blog

Last week, Representative Eric Massa (D-NY) resigned from Congress amidst allegations of sexual harassment, among other things (see the Ohio Employment Law Blog for a discussion on Massa’s shifting explanations and their relevance to employment law).  The allegations involved Massa’s behavior towards a male staffer at a New Years Eve staff party/wedding reception.  Massa admits he grabbed the staff member, tousled his hair, and made an inappropriate sexual comment.  Massa is also alleged to have “tickled” him.  A third party bystander complained to the House Ethics Committee, thereby initiating an investigation.

The media attention this story has received has been voluminous, ranging from the purely political to the somewhat humorous.  In my view, the story highlights a couple of important points about harassment claims.  First, harassment claims by males are indisputably on the rise and must be taken seriously.  Employers should make sure when they train their managers on harassment, they take care to include harassment against males, whether it be male-on-male or female-on-male.  Second, the fact that it was someone other than the alleged victim who made the complaint is noteworthy.  In the courts (as well as to the House Ethics Committee), bystanders can make viable claims of harassment.  So, even if the parties involved in the behavior are both consenting, that does not necessarily mean there is no harassment.  This is another important point employers should ensure is made in harassment training.

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