Tag Archives | retaliation

A reminder: retaliation claims can (and often do) succeed even where the underlying harassment claim does not

By on April 15, 2013 in discrimination, harassment, Our Blog, retaliation

Here’s the thing about retaliation claims: they are relatively easy to get to a jury.  And once that happens, well, examples abound of juries sending punitive messages to employers about how they feel about retaliation (recall the $44 million verdict for a single plaintiff levied by a Cuyahoga county jury a few years back).  It is right around when an employee complains about harassment or discrimination that retaliation claims are ripest.  And it does not matter whether the underlying claim – the one that triggered the retaliation – has merit or not.

Westendorf v. West Coast Contractors was decided earlier this month.  Ms. Westendorf made an internal complaint of harassment (in essence, male employees made sexually demeaning comments to her over a three month period).  Shortly thereafter, the company president (who she had complained to) confronted her with an alleged performance issue, told her she obviously could not get along with her supervisor (one of the alleged harassers), and suggested it would be best if she left the company.

One lawsuit and a lot of money later, the appellate court upheld the dismissal of the harassment claim, finding the evidence was insufficient to show a hostile work environment.  The retaliation claim, now that’s another story.  The evidence was sufficient to let a jury decide if Ms. Westendorf was fired for complaining about retaliation.  And we all know how risky letting a jury decide can be.

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Workplace investigation tip: be careful when it comes to interim action

By on March 21, 2013 in Best Practices, discrimination, Our Blog, workplace investigations

investigateWhen an employer receives an internal complaint of discrimination or harassment, it has a legal duty to investigate.  Sometimes, the employer needs to take action pre-investigation, to keep the complaining party safe (aka interim action).  Consider the case of Al-Birekdar v. Chrysler Group, decided by the Eighth Circuit earlier this month.  The plaintiff complained about religious and racial harassment.  What did the employer do?  Place him on an indefinite leave of absence.

Are you scratching your head?  I hope so!  This is a clear “Don’t” in the world of workplace investigations.  The decision to separate the parties was a good one.  Why keep an alleged harasser and an alleged harass working together?  However, this decision should never be implemented to the complainant’s detriment.

What should the employer have done?  One obvious option would have been to place the alleged wrongdoer on a paid leave of absence pending the investigation.  Why paid, you ask?  Because the alleged wrongdoer has rights too, and you don’t yet know if he or she violated any of your policies.  So hedge your bets, think paid leave, and make sure the complaining party is not out a dime.

Not surprisingly, the court upheld the jury’s almost $200,000 retaliation verdict.

 

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The EEOC’s top three of 2012: retaliation, discrimination, and harassment

By on January 30, 2013 in Our Blog

Earlier this week the EEOC issued a press release reporting some of its FY 2012 numbers.  Notably, the agency obtained $365.4 million in relief from employers – the highest amount ever.  Topping the EEOC’s list of most common charges were those alleging retaliation, discrimination, and harassment (race and sex were the biggies in the last two categories).  This tells me something.  People are still perceiving these kinds of discriminatory treatment in spades, and running to the EEOC complaining about it.  What is an employer to do?

It’s as easy as A,B,C..  TRAIN your managers.  INVESTIGATE any complaints of such types of conduct.  And take REMEDIAL ACTION if appropriate.

 

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Timing is everything when it comes to retaliation claims

By on November 20, 2012 in Our Blog

Remember that after an employee has lodged a complaint of unlawful conduct (discrimination, harassment and the like), employers enter a “retaliation danger zone.”  That is to say, most retaliation claims germinate in the days, weeks and even months following the complaint.  Why?  Human nature.  Someone alleges you discriminated against him.  You know you didn’t.  How do you feel?  If you’re human, probably pretty angry.  It’s what you do with that all too natural anger that will determine the merit of a subsequent retaliation claim.  Take it out on the complainant?  Might be momentarily satisfying, but the satisfaction may dissipate all too quickly when the complainant wins a retaliation claim against you.

Case in point: In Trainor v. HEI Hospitality, the plaintiff, a senior executive, sent a letter to the powers that be complaining about age discrimination.  The employer responded by immediately rescinding an outstanding offer to transfer to a lateral position.  The plaintiff then filed an EEOC charge.  Three hours after the employer received the charge, it terminated the plaintiff.

Naturally, a jury trial ensued.  The jury considered the timing of the termination direct evidence of retaliation.  About two million dollars later (that was the number the jury awarded the plaintiff), the First Circuit affirmed.

So please, make sure your managers understand this retaliation danger zone.  It is not that they cannot manage employees who have complained.  To the contrary, I believe they can and must.  But they must do so with an extra layer of caution.

 

 

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Sixth Circuit holds a casual comment to HR can support a retaliation claim

By on November 14, 2012 in Our Blog

An employee was on a business trip in Europe when he suggested to a colleague that another employee should soften his style when dealing with Latin American employees, who considered his style unnerving.  The colleague, a senior manager himself, in turn made racially derogatory comments about the Latin American employee in question and stated “F— that cultural bull—-!”  He also referred to African American employees as “brothers.”  Taken aback, the employee relayed this exchange to the VP of HR, during a casual conversation.  A short while later, the employee was terminated.  When he sued for discrimination and retaliation, the lower court held he had not engaged in any “protected activity” to support a retaliation claim.  Not so fast, held the Sixth Circuit.  The fact that the employee relayed the offensive remarks to HR was a hook to hang his retaliation hat on.

Takeaway:  If you work in HR, there is no such thing as a “casual conversation.”  If you hear something that could constitute a complaint, take some action and remember that the prohibitions against retaliation have been triggered.  This line of reasoning would apply to management level employees as well, so make sure they know this.

Trujillo v. Henniges Auto Sealing

 

 

 

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Case alleging EEOC discriminated based on disability set to proceed

By on August 1, 2012 in Our Blog

Mary Bullock, who suffers from multiple sclerosis, worked for the EEOC as an Administrative Law Judge (ALJ).  She filed an internal complaint against the agency in 2006.  A contract judge found against her on her discrimination claim but concluded the EEOC had retaliated against her for filing the claim.  Bullock eventually filed a civil lawsuit in federal court, which was put on hold while the parties fought over whether Bullock had fulfilled her administrative prerequisites to filing suit.  The Ninth Circuit Court of Appeals held last week that Bullock is free to proceed.

Alanis Morisette’s tune “Isn’t It Ironic” comes to mind.  The EEOC discriminated against one of its own based on her disability?  And then retaliated against her for complaining?  Stay tuned.

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Need another reason to investigate internal complaints? Avoiding retaliation claims.

By on June 13, 2012 in Our Blog

Earlier this month the Eleventh Circuit decided a case that highlights the importance of conducting prompt investigations when an employee complains of harassment.  In Kurtts v. CSG, receptionist Crystal Kurtts received a flood of “sext” messages from her supervisor, including a request that they have sex in the office after hours and a suggestion that she would receive a better schedule in exchange for “small favors.”  She complained to the corporate office and expressed her extreme discomfort in having to continue to work with the supervisor.  The employer stated the supervisor would remain at work but assured Kurtts it would investigate.  Then, before commencing any kind of investigation, the employer called her back and asked if she just wanted to leave the company’s employ and be sent her final paycheck.  Kurtts said yes.  She then sued, big time.

The most interesting of Kurtts’s claims is retaliation.  The basis?  The employer’s failure to investigate and concurrent suggestion that she take her last paycheck.  The Eleventh Circuit agreed, reversing the grant of summary judgment (meaning a jury trial will be happening soon).

One thing employers should be acutely aware of is retaliation claims are very persuasive to juries.  The employer in this case should be pretty darn nervous.  What can you take away from this?  If someone complains about harassment, take it seriously.  And investigate.  And take interim action if appropriate (such as placing the accused party on a paid leave pending the results of the investigation).  Capiche?

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One more reason to consider an outside investigator

By on May 21, 2012 in Our Blog

Earlier this month the Second Circuit dismissed the retaliation claim of an HR executive who was fired after she investigated the harassment claim of an employee.  In Townsend v. Benjamin Enterprises, Inc., the court held the HR Director’s investigation was not “protected  activity” under Title VII.  This case strikes me as wrong.  It seems contrary to the intent of Title VII that an HR professional doing his or her job — namely investigating an internal claim of harassment — could be summarily fired simply because he/she tried to fulfill the employer’s obligation under Title VII.  Nonetheless, HR professionals in every jurisdiction should take note.  Perhaps your state law provides protection.  But if not, your job may just have gotten a whole lot dicier.  This is just one more reason to consider using an outside investigator (i.e., someone with no stake at all in the outcome) when serious allegations of harassment or discrimination come to light.

[Hat Tip: Allison West]

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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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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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Breaking news: Supreme Court allows associational retaliation claims under Title VII

By on January 25, 2011 in Our Blog

Yesterday, the United States Supreme Court decided the case of Thompson v. North American Stainless, which hailed from the Sixth Circuit.  In Thompson, the employer fired an employee who happened to be the fiancee of another employee who had recently filed an EEOC charge.  The fired employee, Eric Thompson, sued under Title VII claiming he was retaliated against based on his relationship with the employee who engaged in protected activity.  The Sixth Circuit had held that Thompson did not have legal recourse, for he himself had not engaged in any protected activity.

Not so, said the Court, in an opinion written by Justice Scalia.  The purpose of Title VII’s retaliation provision is to combat employer conduct that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  Firing one’s fiancee clearly falls under that “reasonable worker” standard, the Court held.  The opinion did not elaborate on just what the relationship between the employee who engaged in protected activity and the employee who suffered an adverse employment action needs to be.  For sure, this will be a topic of much speculation and, indeed, litigation.  

For now, though, there is one thing employers should do immediately in response to yesterday’s decision.  TRAIN your managers on retaliation, so they know the deal.  It’s usually managers who get employers in trouble on this front.

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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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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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Seventh Circuit refuses to expand anti-retaliation protection to employees who merely “participate” in a workplace investigation

By on October 25, 2010 in Our Blog

In the recent case of Hatmaker v. Memorial Medical Center, the Seventh Circuit held that an employee’s participation in an internal investigation was not protected activity under Title VII.  The statute’s retaliation provision protects employees from retaliation when they oppose unlawful activity (under the provision’s “opposition” clause) or when they participate in Title VII proceedings (under the “participation” clause).  

The plaintiff in Hatmaker complained about her supervisor’ ability to work with women.  Accordingly, the employer launched an internal investigation.  During the course of the investigation, the plaintiff made disparaging remarks about her supervisor, calling him a “good ole boy” and, as such, inherently sexist.  She also compared his workplace conduct to Don Imus in the Rutgers basketball debacle (where Mr. Imus referred to the members of the women’s team as “nappy headed hos”).  The investigation did not substantiate the allegations and concluded there was no hostile work environment (though the plaintiff never used this term).  Subsequently, the plaintiff was suspended for thirty days to give her a chance to put her negative feelings about her supervisor behind her.  Since she did not, she was eventually fired.  She then sued under Title VII, alleging she had been retaliated against for participating in an investigation.

The Seventh Circuit noted that while the plaintiff “participated” in an investigation, the investigation was “purely internal.”  It held that Title VII’s reach extends only to formal investigations, such as those initiated with the EEOC.  In addition, the court found that the plaintiff was not terminated for her participation, per se, but for comments she made which, in her employer’s estimation, displayed poor judgment.  The court went on explain that a complainant who engages in misconduct — such as lying during the course of the investigation or even filing a baseless charge — is not immune from disciplinary action under Title VII.

The decision stands in contrast to the 2009 Supreme Court case of Crawford v. Metro. Gov’t of Nashville & Davidson County, Tenn., which upheld the retaliation claim of an employee who participated in an employer’s internal investigation into a co-worker’s claim of sexual harassment.  (See our earlier post about the case).  The Crawford plaintiff shared her own experiences of harassment at the hands of the accused, and was subsequently terminated.  The high Court held that under the opposition clause of Title VII’s retaliation provision, the plaintiff was protected.

I am not quite sure how to reconcile Crawford with Hatmaker.  While the Crawford plaintiff relied on the opposition clause, the Court’s holding involves the fact that she participated in an investigation.  Moreover, while the Hatmaker plaintiff primarily relied on the participation clause, she did invoke the opposition clause too, to no avail.  Reading the decision, it seems that the Seventh Circuit really disliked the plaintiff’s statements about her supervisor and found her conduct in complaining reprehensible.

So what’ the moral of the story for employers?  In the Seventh Circuit, at least, participating in an internal investigation does not render an employee bulletproof.  I still urge caution in meting out discipline to employees who complain or who participate in internal investigations, as retaliation claims have a way of coming back to bite employers.  The Crawford  plaintiff, as just one example, won a jury verdict of 1.5 million dollars when she eventually got to trial following her Supreme Court battle.  If in doubt, consult with counsel.  Despite the employer’s victory in Hatmaker, this area is still a legal minefield.

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Complaints about management style are not protected activity, per Sixth Circuit

By on October 7, 2010 in Our Blog

In August 2010, the Sixth Circuit upheld the dismissal of Gary Love’s claims against his employer in Love v. Electric Power Board.  Prior to his termination for not being honest about his whereabouts during working hours, Mr. Love had  complained to his direct supervisor about the confrontational management style of more senior managers.  He pointed to these complaints as the basis for his subsequent retaliation claim.  In upholding the district court’s grant of summary judgment on the retaliation claim (as well as a claim for age discrimination), the Sixth Circuit held that Mr. Love’s vague complaints about management style were not “protected activity” for purposes of a retaliation claim.

This case is a nice reminder that while retaliation claims are certainly growing by leaps and bounds and often succeeding, there are limits on what types of conduct can trigger these claims.

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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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After the investigation: what to do when the complainant is unhappy with the results

By on July 22, 2010 in Our Blog

We all know that employers have a legal obligation to conduct a prompt and thorough workplace investigation when an employee complains of discrimination or harassment (or any other policy violation, for that matter).  Once the investigation is over, though, what is an employers obligation?  As I will be discussing at length at next week’s HR Star Conference in Cleveland, there is still much to be done.  

One scenario that can arise is that the complainant is unhappy with the investigation’s results.  This is exactly what happened in the recent Ohio case of Davis v. Omni-Care, Inc.  The Davis plaintiff complained about what he thought was a noose hanging from a co-worker’s bulletin board.  The employer immediately commenced an investigation.  The co-worker explained the string was not a noose, but was rather a contraption he designed to relieve stress by tying the loop around his finger and pulling it tight.  The employer nonetheless removed the string, concluding it was disruptive to the workplace.  It also provided sensitivity training to prevent further instances of misunderstandings and conflict.  

The complainant, however, was not satisfied, as his co-worker was not terminated.  Accordingly, he began to ignore his supervisor’s instructions and refused to return phone calls.  Management scheduled a meeting to address this break-down in communication, but the complainant refused to attend.  Thus, he was terminated for insubordination.  Predictably, he sued for retaliation.  The court ruled in the employer’s favor, concluding the complainant had been terminated for the legitimate, non-retaliatory reason of insubordination.

This case demonstrates that employers have some leeway in handling the results of an investigation.  The complainant does not always get to call the shots, and can still be expected to behave professionally.  Still, employers should tread carefully (i.e., call your lawyer!) when dealing with potential disciplinary action against an individual who recently engaged in protected activity, such as complaining about alleged discrimination.

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A retaliation claim in the making: Loranzana’s new employer on thin ice

By on June 9, 2010 in Our Blog

On Monday, I blogged about the termination of Debrahlee Loranzana, who was allegedly fired from Citibank for being distractingly good-looking.  According to recent reports, she now faces possible termination from her new employer, J.P. Morgan Chase.  Chase is apparently threatening to terminate Loranzana for speaking out publicly against her former employer.  Her public appearances, including the morning talk-show circuit, are said to unfairly bash the banking industry and allegedly violate Chase’s code of conduct.    

Chase would be wise to slow down, consult with counsel, and consider the legal implications of firing Lorenzana for speaking out against her former employer.  Firing an employee for what could be considered opposing sex discrimination smacks of retaliation.  And we all know what juries think of employers who retaliate.  Just recall the 2008 Cuyahoga County jury verdict of over 40 million for a single plaintiff alleging retaliation for opposing unlawful discrimination.  

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Request for new office denied: retaliation?

By on April 12, 2010 in Our Blog

Last month, a federal appeals court held that an employer’s denial of an employee’s request to move her office could amount to illegal retaliation.  In Lockridge v. University of Maine, the plaintiff professor sued the university for, among other things, retaliation.  After filing a sex discrimination charge with the state anti-discrimination agency, she asked to move her office from a satellite building to the department’s main building.  Her employer denied her request, and in doing so made a reference to the plaintiff’s “continuing legal issues.”  The court held that the denial could be an adverse employment action under retaliation law.

The court’s pronouncement in this regard is striking for a number of reasons.  First, it demonstrates that retaliation claims can be incredibly broad-based.  Actions far short of firing can support such claims.  Second, it reinforces that the law in this area is, in many instances, counterintuitive.  Finally, it suggests that employers who do not train their supervisors on retaliation law do so at their own peril.  Supervisors are on the front lines of their employers’ efforts to guard against lawsuits.  Don’t send them into battle unarmed.

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The long reach of retaliation

By on April 7, 2010 in Our Blog

In 2009, retaliation claims were one of the most common types of charges filed with the EEOC.  These increasingly popular and successful claims have a broad scope.  Just how broad, you may wonder?  In an upcoming series of blog posts, we’ll answer some specific questions in that regard.  

For today, let’s assume you have a current employee who has filed an EEOC charge alleging some kind of discriminatory treatment.  In the interest of a quick resolution, you’d like to settle the matter with a small monetary sum.  As part of the settlement, can you ask the employee to terminate her employment?

Almost certainly not.  Asking for a termination could look retaliatory.  It could also be used as evidence of a retaliatory motive if, for some reason, the employee remains but is later terminated for some reason.  It might seem like common sense to want to sever the employment relationship once relations have become so poor that the employer and employee have literally become adversaries.  But if there is one true thing about retaliation law, it is that common sense often does not rule the day. 

 Check with experienced employment counsel before taking potentially adverse employment steps against someone who has filed an EEOC charge.  Don’t make the mistake of many before you, being penny-wise but pound-foolish.

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National newsflash

By on March 29, 2010 in Our Blog

A couple of major employment/labor law developments happened in the last week, and I would like to thank my fellow blogger, Jon Hyman of the Ohio Employer’s Law Blog, for his timely recaps, which I summarize here (disclaimer: this is not my most original post, but it does contain some relevant and timely information for all you employment and labor law geeks out there, like myself).

Jon came out with a special, Sunday-edition post yesterday, wherein he chronicled President Obama’s recess appointment of attorney Craig Becker to the National Labor Relations Board.  Becker’s appointment is expected to have far-reaching consequences for the NLRB, as his admittedly pro-union stance (Becker is the associate counsel of the Service Employees International Union, one of the most powerful unions in the country) is well-established.  Expect lots of commentary in the coming weeks and months as this story develops.

In other news, the Supreme Court agreed to hear a case that will decide whether verbal complaints of violations under the Federal Labor Standards Act (“FLSA”) are covered by the statute’s anti-retaliation provisions.  There is currently a circuit split, which the Court will resolve.  A ruling that oral, unwritten complaints are protected would have significant consequences for employers, who would need to train all managers to appropriately respond to any such complaints.

Lastly, the Supreme Court heard oral arguments in another labor-related case, where the legality of decisions issued by a two-member NLRB over the past couple of years is at stake.  Stay tuned for the Court’s outcomes.

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Whatever happened to the plaintiff in last year’s Supreme Court ruling on retaliation?

By on February 9, 2010 in Our Blog

The 2009 Supreme Court’s decision in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee made a big splash in the world of employment law.  The Court expanded the reaches of Title VII’s anti-retaliation provision, holding an employee who participates in an internal investigation of a harassment complaint is protected from retaliation, even if that employee made no complaint of her own.  (For an excellent analysis of the case, see Jon Hyman’s post about it at the Ohio Employer’s Law Blog).  The plaintiff in the case was essentially thrown a lifeline by the Court and allowed to return to the trial court.  

Last month, a jury returned a verdict in her favor.  She was awarded 1.5 million dollars.  The case’s outcome serves as a reminder that retaliation claims tend to fare very well when they get before a jury.  Employers should make sure their supervisors understand their legal obligations in this respect.  Not doing so can be a very expensive misstep.

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EEOC ramping up for 2010

By on January 11, 2010 in Our Blog

Last week, the EEOC released its charge filing statistics for Fiscal Year 2009.  Here’s what they reveal, in a nutshell.  The EEOC received 93, 277 charges, down slightly from 2008, but still a record-setting high.  Retaliation was the most commonly claimed type of discrimination.  The EEOC recovered $294 million on behalf of alleged victims of discrimination.  These numbers suggest (correctly) that the EEOC is really sinking its teeth into enforcing the anti-discrimination laws.  In fact, in FY 2009, the agency began to expand its staff for the first time in nearly a decade, and will continue to do so throughout 2010.

So what do these numbers mean for you?  For starters, make sure your EEO compliance is up to speed.  This means having the most up-to-date policies, training your supervisors on their obligations under the anti-discrimination laws, and making sure you have a solid internal mechanism for receiving and resolving complaints before they ever get before the EEOC.  Beyond these compliance essentials, reflect on your corporate culture.  While having an open, fair and ethical workplace is not guaranteed to stave off discrimination complaints, it certainly helps.

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More Men are Claiming Sexual Harassment

By on November 19, 2009 in Our Blog

Male symbolAccording to EEOC data, the percentage of men filing sexual harassment charges nationwide has increased over the past decade from 12 to 16 percent of all charges involving sexual harassment. The EEOC recently got significant settlements in two lawsuits brought on behalf of men – one involving harassment by male co-workers, the other harassment by a female co-worker.

Cheesecake Factory agreed to pay $345,000 to settle a claim where, according to the EEOC, the evidence overwhelmingly showed that the men suffered sexually abusive behavior, including abusers directly touching victims’ genitals, making sexually charged remarks, grinding their genitals against them, and forcing victims into repeated episodes of simulated rape. Managers witnessed employees dragging their victims kicking and screaming into the refrigerator, the EEOC charged. in addition to the monetary relief for the six victims, the consent decree calls for the company to specifically train its employees and managers about sexual harassment and institute an ombudsman to field and address sexual harassment complaints by employees.

In the second lawsuit, the EEOC charged that the Regal Entertainment Group subjected a male employee to sexual harassment by a female co-worker and then retaliated against him for complaining about the unlawful conduct – along with two supervisors who tried to help. This case also involved “crotch grabbing.” The alleged retaliation consisted of unwarranted discipline, unfairly lower performance evaluations and/or stricter scrutiny of performance. The consent decree settling the case requires Regal Entertainment Group to provide annual anti-discrimination training to its employees; closely track any future discrimination complaints; and provide annual reports to the EEOC regarding its employment practices.  Additionally, Regal Entertainment paid $175,000.

What can employers can learn from these cases?

  • Touching is never acceptable in the workplace
  • Managers must be trained to identify and report harassing behavior
  • All employees should be trained annually on sexual harassment
  • Managers must be trained not to retaliate

While it is not known what type of policies Cheesecake Factory and Regal Entertainment had in place, it can safely be assumed that both had written anti-harassment policies. But having a policy is never enough. Employers must publicize and adhere to the policy, train on the policy and investigate claims promptly and thoroughly.

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Recap of this Week’s Employment-Related News

By on November 6, 2009 in Our Blog

Inspired by lawyer Jon Hyman’s weekly wrap-up on his Ohio Employer’s Law Blog, following is a recap of some of this week’s employment-related news:

  1. The Emergency Influenza Containment Act was introduced in the U.S. House of Representatives. The legislation, applicable to employers with 15 or more employees, would require employers to provide up to five days of paid sick leave per year to workers afflicted with influenza or other, similar contagious illness.
  2. President Obama signed legislation that expands coverage of “exigency leave” and “servicemember caregiver leave” under the Family and Medical Leave Act. The National Defense Authorization Act for Fiscal Year 2010 extends coverage for exigency leave to the family of all active-duty servicemembers who are deployed in a foreign country. The legislation also extends coverage of “servicemember caregiver leave” to include caring for a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.
  3. A Cuyahoga County jury has reminded local employers that retaliation will not be tolerated. (Recall last year’s $42 million jury verdict.) After a two-week trial, a former Dix & Eaton executive was awarded just over $1 million on her claim that she was fired in retaliation for complaining to HR that she believed she was being set up for a wrongful discharge claim because of her age. All supervisors should be trained on the importance of not retaliating, i.e. managing employees who have filed a claim or engaged in other protected activity.
  4. Employers must post a revised EEO poster by November 21, 2009. The EEOC’s revised “Equal Employment Opportunity is the Law” poster reflects current federal employment discrimination law (including the Americans with Disabilities Act Amendments Act of 2008) and adds information about the Genetic Information Nondiscrimination Act of 2008, which is effective November 21, 2009. The poster is available at: http://www.eeoc.gov/posterform.html.

Have a great weekend!

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