Archive for the 'Sexual Harassment' Category

Everything is bigger in Texas . . . . Even when it is in Ohio.

You have heard the old saying “Everything is bigger in Texas,” right? Seems that’s true for settlement amounts, even when they aren’t really in Texas. Yesterday, the EEOC issued a press release announcing that the owners and operators of a Texas Roadhouse Restaurant in Columbus, Ohio, had agreed to pay $1.4 million to settle a class-action sexual harassment suit filed by the Equal Employment Opportunity Commission (EEOC) against the owners and the management company of this particular restaurant. The settlement also included mandatory reporting and training among other affirmative relief for the victims.

“So what,” you say? I mean really, apart from the fact that $1.4 million is a lot of money, what’s the news, why should you care? Well, let me tell you. First, occasionally I get the impression that we think this sort of thing surely doesn’t happen anymore. After all, we are grown and are more sophisticated (can you read the sarcasm dripping from my fingers?) and surely we are beyond such behavior. If the facts the EEOC alleges are true, you can see that is not the case. And second, if you look at the facts the EEOC alleges, you get a really nice example of why you should take allegations of harassment seriously and make sure you investigate them fully.

Here is what the EEOC alleged in its complaint:

According to EEOC’s lawsuit, the manager of the restaurant . . . harassed women and teen girls working in server, hostess and other front-of-the-house positions. In the suit, EEOC identified 12 victims of his abuse who suffered unwelcome touching, humiliating remarks about their and other females’ bodies and sexuality, and pressure for sexual favors in exchange for employment benefits or as a condition of avoiding adverse employment action. EEOC charged that the harassment began in 2007, continued for over three and a half years until the manager was fired in May 2011, and was coupled with retaliation against employees who opposed the abuse.

Although the companies’ owners and individuals with high-level authority received multiple complaints about the manager’s abusive conduct throughout his employment, they failed to take prompt, effective action to put a stop to the abuse, EEOC said. [The manager] was not fired until May 2011, when he was seen on a surveillance video touching a 17-year-old female employee in his office at the restaurant during work hours, the agency charged.

Get the picture? Not your run-of-the-mill he said, she said hostile environment case—twelve victims, multiple complaints over three and a half years. And the company apparently did nothing about it. In fact, the EEOC thought the conduct was so bad the company had to agree as part of the settlement never to hire the manager back.

So what is the lesson, I mean besides not hiring people like this? The lesson is to take these kinds of allegations seriously, especially if you happen to be in a business that hires kids. When somebody complains, you need to investigate, and by investigate I don’t mean talk to one or two people, I mean investigate.

But before you even get to that point, you need to make sure you are creating a culture where people feel free to approach you when they have an issue—an atmosphere that encourages people to speak up. And that goes way beyond just complaining.. It means creating a work environment that encourages questions and maybe even dissent. It won’t just help when something like this comes up; it might make your workplace a better place to work.

If you want to read the entire EEOC press release, you can find it here. If you need help with training or investigation, give us a call.

An Employment Lawyer’s Take on Valentine’s Day. Keep the Cards at Home.

You know, we employment lawyers and HR professionals generally get a really bad rap. Kill joys. Party Poopers (can I say that in this thing?). Fuddy-duddies (my grandma used to say that). Every time someone wants to have some fun in the office, in we come, looming over everyone saying NO! Guess what, nothing in this post is going to make you think anything different. I’m going to spoil all of your Valentine’s Day fun at the office. Valentine’s Day may be a time for you and your spouse or you and your significant other or you and your boyfriend or girlfriend, but it is decidedly not a time for you and your subordinate. And I have written about this before, not in this blog, but I have written about it. You’re going to have to trust me. I even was quoted in Above the Law. Now to most of you that is not a big deal, but to lawyers it is. Even a bigger deal than the TV interview I once did on this very topic. But enough ringing my own bell, back to good old St. Valentine. To start with, who exactly is St. Valentine and why do we have a holiday celebrating him? Let’s ask the History Channel:

“Every February 14, across the United States and in other places around the world, candy, flowers and gifts are exchanged between loved ones, all in the name of St. Valentine. But who is this mysterious saint, and where did these traditions come from?”

See http://www.history.com/topics/valentines-day/history-of-valentines-day

What a great question, in fact I just asked it and I want to know too. And then what I usually do after I find out, is make some strained connection to some employment law point and call it a post. But not this time. Oh, I’m still going to make an employment law point, but the connection here is just not that strained.

Back to the History Channel.com

“The history of Valentine’s Day–and the story of its patron saint–is shrouded in mystery. We do know that February has long been celebrated as a month of romance, and that St. Valentine’s Day, as we know it today, contains vestiges of both Christian and ancient Roman tradition. But who was Saint Valentine, and how did he become associated with this ancient rite?”

Id.

Now before we go any further, let me point out a couple of things from those quotes: Look, “gifts exchanged between loved ones” and “celebrated as a month of romance.” Starting to get the picture? See, “romance” and “office” equal “bad.” Not that strained after all. OK good, now back to the History Channel. I’m not going into all the stories of the Saints who may or may not be the real St. Valentine. But I am going to talk about some of that Roman tradition they mention. Again, according to the History Channel:

“While some believe that Valentine’s Day is celebrated in the middle of February to commemorate the anniversary of Valentine’s death or burial–which probably occurred around A.D. 270–others claim that the Christian church may have decided to place St. Valentine’s feast day in the middle of February in an effort to “Christianize” the pagan celebration of Lupercalia.”

Id. (again).

What do we care about “Lupercalia”? Really nothing, but get this, according to the History Channel on Lupercalia Roman priests would go to a cave where the founders of Rome (Romulus and Remus for those of you that didn’t know) were supposedly raised by a wolf, sacrifice a goat (and a dog), cut the goat hide into strips, dip the strips of goat hide into the blood and walk around town “gently slapping” people with the goat hide.” Id. (for those of you who wonder what Id. means, it means same cite as the last cite.) So what does this have to do with love and Valentine’s Day? Well, getting smacked with a blood dipped goat hide was a fertility rite, not really romance, but close. Oh those wacky Romans. So, I told you that story to ask you this: Does anyone think it is appropriate to walk around the office slapping people with goat hides? Of course not! All right, that one was a bit strained, but on to more recent history.

Seems as though Valentine’s Day was first associated with romance and love in the middle ages.

“The oldest known valentine still in existence today was a poem written in 1415 by Charles, Duke of Orleans, to his wife while he was imprisoned in the Tower of London following his capture at the Battle of Agincourt. (The greeting is now part of the manuscript collection of the British Library in London, England.) Several years later, it is believed that King Henry V hired a writer named John Lydgate to compose a valentine note to Catherine of Valois.”

Id. (one more time).

Now you have to admit, that is pretty romantic isn’t it? Much more romantic than being slapped with a goat hide. Plus, it has to do with Agnicourt, which I think is kind of cool because I happen to be a fan of that particular period of history.

And so we get to modern times. See, I always thought that greeting card companies invented Valentine’s Day, like I thought they invented Mother’s Day and my favorite fake holiday, Sweetest Day, just to sell more cards. Wait, that didn’t come out right, Mom, I don’t really think Mother’s Day is a fake holiday. According to Wikipedia about 190 million valentine cards are sent each year. And some of them have those little candy hearts in them and those cards and those little hearts say things like “BE MINE” and “LOVE YOU” and even “TRUE LOVE.” And that is where we get to the punch line and tie this whole thing back to you ending up in HR because your subordinate feels like you are being “Creepy.”

You see, a holiday that is dedicated to romance and love and, as young boys everywhere would say, all that “icky stuff” is not a holiday you want to be celebrating at work. Want to bring in heart shaped donuts for the staff? Go ahead, how very nice of you. Here is what you don’t do. You don’t buy your subordinates a card. And you don’t buy presents. As I famously said once before, there is no Valentine’s Day exception to the sexual harassment laws. And just like it is bad form to smack your subordinates with a goat hide, it is also bad form to buy them a card for a holiday dedicated to love. You’re right, it was a bit strained, but I told you I was going to spoil all your fun.

Finally, Facebook Can be an Employer’s Friend, too

or Don’t invite people to play ‘naked Twister’

It has been a long while since I have posted anything.  Mostly that is because I just hadn’t found anything out there that interested me or that I thought might interest you. But that has changed.  I just found a case from Tennessee where Facebook posts by an employee might actually help an employer avoid liability for sexual harassment.

Before I start, I want you to know that this might get a bit racy, so don’t let your young kids read it. On the other hand, I promise not to say anything that the court didn’t put in its opinion. So really, how bad can it be?

The case , Tarnongski v. City of Oak Ridge (No. 3:11-CV-269) is out of the Eastern District of Tennessee and the court’s memorandum opinion comes from the defendant’s motion for summary judgment. The plaintiff in the case, a former police officer, brought a 12-count complaint against the city claiming, among other things, that she was subjected to a sexually hostile work environment.

She claimed that “she told her supervisor…  that she suspected [an officer] was spreading sexual rumors about her. Plaintiff claims that [the officer] also directly told her that her ‘husband [was] trying to get him [the officer] to have an orgy’” involving a female acquaintance and that “he felt like I was a lesbian and I wanted to be part of it.’  Plaintiff further testified, ‘After that, of course, that’s when people started saying, we know what [the officer] is saying about you. That’s when the rumors start[ed] coming to me.’” (In case you are wondering, all those words in brackets are where I changed the names to protect the innocent.)

So far, nothing special right?  Your run-of-the-mill hostile work environment case with rumors of sexual misbehavior, suggestions of orgies and rumors about sexual preference. And no big surprise that the plaintiff was upset.  In fact, according to the court, the plaintiff stated in her deposition:  “I’m a Christian and I strive really hard to be a moral person. So for someone to start thinking of me as someone who has orgy parties at my house while my son is home, that’s severely humiliating to me.” Plaintiff further testified that she would never “go out and talk to people about such things, even in a joking manner.” Again, no big surprise.

But that is sort of where this case goes off the tracks.  The plaintiff had a Facebook page – and a penchant for posting. Want to guess what she posted?  Well, we will just let the court tell you. In his opinion, the judge said “Curiously, [That’s the judge’s word, not mine] however, on February 23, 2010, plaintiff was herself discussing on Facebook her desire for a female friend to join her ‘naked in the hot tub.’ The previous day on her Facebook page, plaintiff was discussing ‘naked Twister.’ May 22, 2010 postings on plaintiff’s Facebook page by her Facebook ‘friends’ talked about female orgies involving plaintiff, [], and others, to be filmed by plaintiff’s husband.”

With this Facebook evidence in hand, the city argued in a motion for summary judgment that there was no way that the plaintiff could have been offended by the comments made by the officer and, thus, there was no hostile work environment. The plaintiff, on the other hand, testified that “the Facebook postings were ‘obviously’ jokes” and that the “‘jokes’ were not embarrassing or humiliating to her because they were ‘between friends.’”

With all of this in mind, the court granted the city’s motion for summary judgment on all but the hostile work environment count and it seemed like the court wanted to get rid of that count too.  But the court noted: “Defendant presents a very enticing argument but — again — at summary judgment the non-movant’s evidence is to be believed, . . . ”  About the Facebook evidence the court noted:  “the jury will have ample opportunity to consider the Facebook evidence and reach its own conclusions in this matter.”

So what is the lesson of this little story?  For employees, it is the same lesson I have been trying to hammer into the heads of my kids since they got on Facebook:  INVITE PEOPLE TO PLAY NAKED TWISTER ON FACEBOOK AND IT MAY JUST COME BACK TO BITE YOU.  Well, that’s not really it but you get my drift.  The lesson for employers:  If you get sued, Facebook can be your friend, too.

Party Time – Is the Holiday Office Party Really Dead?

…or is it just so darn boring it seems that way?

I keep reading articles that say the time-worn tradition of the office holiday party, is dead. Dead, you say? Yes, dead. One article I read (really a very good one in Business Week—you can see it at http://www.businessweek.com/lifestyle/content/nov2010/bw20101117_106457.htm ) is even entitled “The End of the Office Holiday Party.”  As proof positive that the traditional office party is dead, the author, Joel Stein, reports that the Queen of England has decided to cancel “Buckingham Palace’s biannual Christmas party.”  Mr. Stein then cites a bunch of statistics from a bunch of studies showing how companies from BNA to, well, the Queen of England, are either not having a party at all or are cutting way back on how much they spend. 

Here is what is weird though. Mr. Stein then goes on to describe many companies that are having what you can conservatively describe as all-out bashes. One Internet company, he reports, is renting a football stadium, hiring bands and flying in celebrity endorsers of its service. Another company (a personal injury law firm, according to the article) is reported to have hired Sting to play its company holiday party. I have said it before and I’ll say it again, I might be on the wrong side of the v.

So is the office party dead or not? I don’t know. I DO know our office is having one, and Sting will not be performing, but it would be nice. Here is what I do know: I’m an employment lawyer, and while my job may not be to kill the office holiday party, it is my job to make it so darn boring that it seems like it is dead (just in case you didn’t get it, that was a joke).  With that in mind, here are some things to consider when setting up your holiday party. And instead of giving you my own thoughts on the matter I am going to borrow some thoughts from our esteemed associate Greg Kilby.  Greg wrote an article on this topic last year. If you want to read the full article you can find it athttp://www.wnj.com/office_holiday_parties–a_legal_minefield-12-4-2009_labor_law/. In short, here is what Greg suggested: 

  • Hire professional bartenders: Even if you have an open bar, it is better to have someone such as a bartender dispensing the alcoholic drinks. Instruct bartenders on when to limit alcoholic service. That way, gatekeepers limit the access to the alcohol and can prevent inebriated people from further imbibing.
  • Serve food: Make sure there are plenty of things to eat so that people are not drinking on empty stomachs; avoid having too many salty foods since these encourage people to drink more.
  • Have plenty of soft drinks: Provide sodas, sparkling juices, bottled water and lots of other appealing “soft” drink options.
  • Hand out drink tickets: Give all attendees a limited number of tickets for the open bar; once the tickets are gone, they can purchase their own drinks (reducing your liability) or drink the plentiful soft options.
  • Skip the alcohol altogether: Have an earlier holiday gathering, such as a lunch banquet, and do not serve alcohol.
  • Offer shuttles or taxis: Distribute free taxi passes, making it easy for employees to get to and from the party without driving. This way, employee can ride home that evening and back to work the next day in a cab.
  • Remind everyone of the policies: Before the party, circulate a memo reminding people of your sexual harassment policies; let them know that the policies apply to events outside of the 9-5 environment. Remind supervisors of the rules and what to do if they witness or hear of potential harassment.
  • Have a dress code: Suggest a dress code for the party that keeps things professional. Avoiding provocative dress can alleviate some forms of harassment.
  • Host a family event: Instead of limiting attendees to employees, invite their spouses or families. Consider inviting clients or business partners. The presence of other people may help keep the event appropriate.
  • Avoid certain traditions: While mistletoe may be your favorite decoration of the season, it really doesn’t belong in the office. Avoid anything that could contribute to an environment of harassment.

 

Happy Holidays.

WHAT ARE YOU DOING ABOUT SEXUAL HARASSMENT?

What is he doing?! Why is he writing about sexual harassment, again? Haven’t we beat this mule to death over the years? Come on, there can’t be anything new about sexual harassment, can there? Nobody does this stuff anymore. We all know better.

Oh, if that were only true. TRUTH: Nothing is new in sexual harassment law. FALSE:  Nobody does this stuff anymore. I was flipping through the EEOC’s website this morning to see what is going on. The EEOC website has something new the EEOC calls the “Newsroom.” It is a page on which the EEOC tells us all about all the lawsuits they are filing and all the settlements they have “won.” The current edition of the page lists 20 entries of things going on at the EEOC. Nine of those entries (if my math is correct that’s 45%) involve either sexual harassment suits the EEOC has filed or settlements of sexual harassment suits the EEOC has “won.” So much for learning our lesson.

The most recent entry, dated 11/27/09 tells the tale of a suit filed against a Dunkin Donuts in N.Y. The suit alleges that the manager of this particular Dunkin Donuts “grabbed female employees’ buttocks and breasts, kissed them on the neck, and hugged them against their will.  He told them they were “hot” and told them he preferred virgins. He asked about their sex lives and described in explicit detail the sexual acts he wanted to perform on them, the EEOC said. He warned them not to tell anyone about what he said to them.” Are you kidding me?! The article indicated that some of the women subjected to this behavior were “teenagers”.  Now don’t forget, these are just allegations, not facts, but WOW. Really?!

How can this happen (if it really did happen)? Surely this company has a policy against sexual harassment. Of course they do, or at least I would assume they do. But what happens is we write the policies and put them in the handbook and then we sort of forget them. Can’t do that. You have to train your managers and supervisors. And then you have to train them again. And you have to have them trained by someone who knows what they are talking about. Yes, I know that doing harassment training is a pain and repeating it every year or every other year is even more of a pain. Managers and supervisors are busy and don’t want to attend. It costs money and takes time. Let’s go back to the EEOC website for a second and see how really expensive it is.  Let’s see now:  “Jury Awards $105,000 . . .”;  “. . . to pay $175,000 for Sex Harassment of Man by Female Co-Worker.”; “. . . to pay $200,000 for Sex Discrimination . . .”;  “. . . will pay $255,000 to Settle EEOC sexual harassment lawsuit involving teens.”

A few bucks for some really good training doesn’t seem quite so expensive now does it?  You can see the EEOC website at http://www.eeoc.gov/eeoc/newsroom/index.cfm

LATE NIGHT SEXUAL HARASSMENT?????

We’ve all heard about David Letterman’s “confession” on his show last week.  Admit it, you either saw it live or you went on You Tube and checked the video out.  So, Mr. Letterman had an office romance with a woman who worked for him.  Big deal you say, lots of people do that.  True.  But it is not often that we lawyers get to use such a big celebrity as an object lesson.  Besides, there are a bunch of legal issues associated with this thing that must be giving bloggers like me heart palpitations.

 The alleged extortion angle is interesting, but it is a bit outside of my area of expertise.  I don’t know what happened with Mr. Letterman and I sure don’t know all the facts, but I do want to talk about office romances between supervisors and subordinates, so we are going to focus on the office romance side of this thing.  What if a supervisor has a sexual relationship with a subordinate?  Is it sexual harassment?

 Well, that depends. 

 The federal definition of sexual harassment is:

 Sec. 1604.11  Sexual harassment.

“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”

Now we don’t have to get too far into that definition to pause.  It says “Unwelcome” sexual advances blah, blah, blah.  A consensual relationship between two adults isn’t “unwelcome” is it?   Generally, no.  But here is where the whole thing gets complicated by the supervisor subordinate thing.  The EEOC says:

 “In Vinson, the Supreme Court made clear that voluntary submission to sexual conduct will not necessarily defeat a claim of sexual harassment. The correct inquiry “is whether [the employee] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.” 106 S. Ct. at 2406 (emphasis added). See also Commission Decision No. 84-1 (“acquiescence in sexual conduct at the workplace may not mean that the conduct is welcome to the individual”).”

 See http://www.eeoc.gov/policy/docs/currentissues.html

You see, whenever a supervisor and a subordinate have a relationship, it is possible for the subordinate to feel pressured, to feel like he or she needs to comply with the bosses “requests” or bad things will happen.  If that is the case, then the conduct is unwelcome. 

 The moral of this little story is what then?  Let me tell you (I read this in a handbook once):  Think before you enter into that office romance.  It probably seems like a really good idea right now.  It probably won’t seem like such a good idea when it ends or when someone you work with finds out.  And if you are a supervisor, don’t date your subordinates.  It’s a bad idea, don’t do it.

GATESGATE . . .

Or don’t judge a book by its cover.

 

By now we have all heard about the case of Harvard Professor Henry Gates and Sgt. James Crowley.  You haven’t?  Where the heck have you been?  Well let me give you a summary.  Seems Sgt. Crowley was called to investigate a 911 call on Mr. Gates’ block.  A woman had called the police to report that she thought she had seen two men breaking into a house.  What had really happened is that Mr. Gates had just come home from a trip to China and found his door jammed.  His driver tried to help him un-jam the door.  That’s when the passer by saw them “trying to break into the house.”  Police were called. Mr. Gates was cranky (he just got off a plane from China for goodness sake, you’d be cranky too).  Words were exchanged between Mr. Gates and Sgt. Crowley.  Mr. Gates went to jail.  The President said something he shouldn’t have said and then everyone had a beer at the White House.  Even then they could not all agree on one beer, they each had something different. 

 

I don’t know what happened at the scene and neither does anyone else.  Except of course Sgt. Crowley and Mr. Gates and they seem to have widely divergent views of the events.  But here is what we do know.  The 911 caller made some assumptions that turned out to be wrong; no one was breaking into any house.  Sgt. Crowley made some assumptions that turned out to be wrong; Mr. Gates was not a robber, it was his own house.  Mr. Gates made some assumptions that turned out to be wrong; yelling at a police officer who thinks you are a crook is probably not that good an idea whether you are in the right or not.  So what should we learn from this?  We all make assumptions based on a bunch of stuff including our background and our job experience.  And often those assumptions can get us into trouble.

 

Happens at work too. In Sassaman v. Gamache, No. 07-2721-cv, slip. op. at 5 (2d Cir. 2009) the Second Circuit Court of Appeals held that relying on gender based stereotypes to resolve a sexual harassment matter amounted to discrimination under Title VII.  The defendants came up with a bunch of clever arguments for why what they said (basically “you’re a man and you probably did what she said you did”) was proper.  The court shot them all down and held “From this evidence, a jury could reasonably construe [the boss’s] statement as persuasive evidence that he pressured Sassaman to resign because of his discriminatory assumptions about the propensity of men to sexually harass their female co-workers.”   The Court also was not amused by the lack of an investigation into the allegations.  “The allegation that defendants made minimal—if any—efforts to verify [the accuser’s] accusations could be construed by a reasonable jury as further evidence that Sassaman’s forced resignation occurred under circumstances giving rise to an inference of discriminatory intent.”

 

We’ve talked about this sort of thing before in other contexts like, oh maybe yesterday and the ADA.  The lesson is each circumstance is different, and one size fits all does not fit anyone very well.  You can see Liz Von Eitzen’s excellent article on this case on our website at http://www.wnj.com/publications/detail.aspx?pub=599