Recently in Sexual Harassment Category

April 3, 2014

2 million reasons to avoid the EEOC's same-sex-harassment crosshairs

Thumbnail image for cashpile.jpgLast night, I read this press release from the United States Equal Employment Opportunity Commission, announcing a $2 million recovery for 50 male employees of a New Mexico automobile dealership.

What happened, you say? From the press release:

"In its lawsuit, the EEOC charged a former lot manager, James Gallegos, under the direction of Charles Ratliff, Jr., then general manager, with subjecting a class of men to egregious forms of sexual harassment, including shocking sexual comments, frequent solicitations for oral sex, and regular touching, grabbing, and biting of male workers on their buttocks and genitals. The EEOC also alleged that Pitre retaliated against male employees who objected to the sexually hostile work environment. During the pendency of the lawsuit, the retaliatory actions of Pitre raised such concern that a U.S. District Court judge granted a preliminary injunction against Pitre, prohibiting the dealership and all of its agents from threatening or engaging in retaliatory actions against case participants."

Now, that is some messed up ish.

(Gawd, if I had a nickel for every time I used that line in a court filing...)

So, here's my HR pro-tip of the day: Grab your employee handbook. Turn to the anti-harassment policy. If it doesn't specifically reference same-sex sexual harassment, then update that jawn right away.

Because the EEOC is taking it hella-seriously

(that nickel thing again...)

March 17, 2014

Is it unreasonable to tell your boss to stop sexually harassing you?

sexharass.jpegI can actually feel the daggers that some of you are staring into me.

So, please allow me to reintroduce myself. My name is H-O explain.

How to demonstrate sexual harassment

When an employee sues for sexual harassment, he/she must show four things:

  1. he or she was subjected to conduct of a sexual nature;

  2. the conduct was unwelcome;

  3. the conduct was severe or pervasive; and

  4. objectively and subjectively altered the conditions of employment and create a discriminatory abusive working environment.

Often, even if the employee meets this burden, the employer can still prevail if it can show that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the plaintiff/employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Is complaining only to the harasser reasonable enough?

In this recent sexual harassment case, the employee met her four-element burden of establishing that her manager had sexually harassed her. The employer; however, maintained a sexual harassment policy in which it condemned the behavior and further encouraged employees to report sexual harassment.

But the plaintiff did complain -- to her manager/harasser only. She didn't go to HR. She didn't tell another supervisor. Instead, she told the manager to knock it off. Indeed, the manager promised that he would resign if the plaintiff didn't turn him in to HR.

Except he never did. Rather, it was the plaintiff who ended up resigning because she claimed that the workplace had become so intolerable to continue to working there.

So, did the plaintiff "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise?" According to the federal court hearing the plaintiff's case, maybe, but, maybe not:

"It may not be reasonable for an employee complaining of the sexual harassment to believe complaining to the very manager who is sexually harassing said employee would satisfy the goal of allowing an employer to investigate and respond to complaints of sexual harassment....This is in light of the fact that the policy provides for the complaint to alternatively be made to the human resources department."

Thus, this case will proceed to trial.

Steps employers can take to reduce sexual harassment.

Do I think that the plaintiff acted reasonably by telling her manager to knock it off? Heck yes! That's a staple of my respect-in-the-workplace training. However, complaining cannot stop there, because a complaint to a harasser won't necessarily end the offensive conduct and it generally won't put the employer on notice of the offensive conduct.

So, check your anti-harassment policy and training materials. Do they suggest only that victims of sexual harassment report the offensive conduct to their direct supervisor or manager? If they do, get rid of them. Because, like in the case above, the direct supervisor/manager may be the harasser. And complaining in that case didn't do much good, did it?

While you should also encourage victims to tell the harasser that the offensive conduct is not welcome, it's not always easy for the victim to stand up for himself/herself. So, don't require it. Instead, require that victims (and witnesses) of sexual harassment complain to HR and a manager/supervisor who is not the harasser. That should allow you to respond in a manner that is reasonably designed to end the harassment.

March 6, 2014

Employee wins sexual harassment case. (Employee is a prostitute)

[Cue music]

"Yes! Meyer is finally playing Five Finger Death Punch!"
-- Not a single one of you

We've had some pretty wild, prurient, "where does he get his material" workplace posts here at The Employer Handbook. Remember the one about the female accountant who won the right to legally masturbate at work? And then there was the one about "exotic dancer" harassment.

But those were David Wooderson compare to today's Ron Woodroof.

redlightd.jpg

In what has been dubbed a "world's first" -- ya think?!? -- a prostitute has prevailed in a sexual harassment action against her boss, a brothel owner.

Insing.com reports here about a case in which a brothel owner reportedly told one of his prostitutes that he could do what he liked with the women who worked for him. Over a three-month period, the older man allegedly belittled and frightened the woman until she felt unsafe and on edge, became depressed and turned to alcohol.

Based on these facts, the tribunal found in favor of the prostitute and awarded her a little of $26,000.

Now this case was decided in New Zealand where prostitution is legal. But let's assume that a similar case arose in a Nevada county where prostitution is also legal. Title VII of the Civil Rights Act of 1964 protects women (and men) against sexual harassment in the workplace.

In the New Zealand case, the tribunal underscored, "Sex workers are as much entitled to protection from sexual harassment as those working in other occupations. The fact that a person is a sex worker is not a licence for sexual harassment - especially by the manager or employer at the brothel."

This maxim would apply with equal force to a brothel worker in Nevada. Title VII, like the New Zealand law, protects employees from unwanted sexual advances, comments, etc. Having sex with customers is a prostitute's job. Getting harassed because of her sex by the boss is not and could easily be considered unwelcome.

Whew...I can't believe I just pulled off a post on prostitution and employment law.

Where's my Pulitzer!!!

(h/t Employment Discrimination Report)

March 3, 2014

Choking a female co-worker and telling her she likes it rough could be sexual harassment

But, faced with those facts, that didn't stop one employer from moving for summary judgment and asking the court to dismiss a female employee's claims of sexual harassment.

Could the company have possibly prevailed? Find out after the jump...

caveman.jpgOh wait, before we jump, I left out the part where the plaintiff claimed that her male co-worker also told her, "I'll have you cum before you get your pants off."

And then there's the time when that same co-worker said, "Hey! we got your Christmas present!" whereby he held up a vibrating tool and thrust it towards the plaintiff's genitals.

And what about the other male co-worker who would routinely come up from behind the plaintiff, lean in and smell her in a sexual fashion while pushing his groin into her?

Or when another male co-worker said to the plaintiff, "I just like fucking with you, why would I want to get you fired? I would miss watching that ass of yours!"

Ok, now we can jump and play did the employer get the case dismissed on summary judgment?

* * *

Continue reading "Choking a female co-worker and telling her she likes it rough could be sexual harassment" »

January 30, 2014

Employee's sexual harassment claims advance to trial because boobs

bikini.jpg

Recently, I've focused blog posts on some quirky cases that make you think a bit. Yesterday, was the FMLA in Vegas case. Last week, was the EMT who argued that getting fired for groping a co-worker was discriminatory in light of his employer's decision not fire an employee who hit a patient.

Today is not one of those cases.

This one is some OG sexual harassment.

Call it a little reminder from your blogging savior that when a male supervisor: 

  • tells a female report that she has "perfect breasts,"
  • comments that she has a "nice rack,"
  • remarks that he is only with his girlfriend because of her breasts,
  • stares at the female report's breasts on multiple occasions, and
  • tells another coworker that the perfect woman had the female report's "tits,"

A jury could find that this behavior constitutes unwelcome sexual harassment. Why?

  • Breast fixation = mommy issues behavior based on gender;
  • numerous booby comments over a few months qualify as pervasive;
  • That ish is creepy both objectively and subjectively; and
  • If the employer learns about the problem and doesn't take reasonable steps to correct it, then it's really on.

Unless you operate a gentlemen's club, don't allow this kind of behavior in your workplace.

January 21, 2014

GUEST POST: What legal rights do unpaid interns have?

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Samantha Hopkins. Samantha is a law student who just received her big break.

She gets to guest blog at The Employer Handbook!

(Want to guest blog on an employment-law topic at The Employer Handbook? Email me).

* * *

Continue reading "GUEST POST: What legal rights do unpaid interns have?" »

January 17, 2014

Why a single kiss could have one employer in boiling hot legal water

sexharass.jpegI give a lot of "respect in the workplace" trainings. And I generally tell the audience that, while a single offensive comment or act in the workplace is one incident too many, one instance generally does not create a winning lawsuit. That's because a plaintiff must show that he/she was subjected to either severe (really, really bad) or pervasive (a lot of bad) behavior to establish a hostile work environment.

Now, there are some exceptions. New Jersey is one of the few states that has held that a single discriminatory comment can create an actionable hostile work environment claim.

But what if, instead of a slur, we have an assault; one which the plaintiff claims was not only unwelcome, but particularly disturbing?

A single incident may be sexual harassment.

In this recent case, the plaintiff alleged that her boss grabbed her, "forcibly" pulled her back and, kissed her on the neck. This alleged behavior caused the plaintiff emotional distress.

Undoubtedly, an objective person would find this alleged behavior offensive. But, is this single act severe enough to create a tenable hostile work environment claim?

According to a NY federal court analyzing the claim under state and local law, maybe yes:

There can be no disagreement that, if true, the event Plaintiff describes is disgusting and unacceptable. Whether the objective character of Plaintiff's allegations rise to the level of extraordinary severity, however, is a close and difficult question. Nonetheless, the Court cannot conclude that, taken as true, they are so inadequate as to warrant dismissal. Though these allegations may not ultimately lead to liability, they are not deficient as a matter of law; assessment of such intermediate allegations is best left to a jury. The Court accordingly will deny Defendants' motion to dismiss.

Employer takeaway:

While this decision does not involve Title VII, a federal anti-discrimination statute that protects employees from sexual harassment, it's nonetheless a wake-up call for employers to educate and train their employees about behaviors that are not acceptable in the workplace. Because, even if a single incident is not enough to create a winning lawsuit, it may be enough to create a lawsuit that you'll have to spend valuable time, money, and resources defending.

December 2, 2013

Employee legally fired for complaining on Facebook about the boss' "creapy hands"

5cake.jpgGenerally speaking, those who wait five years to complain about perceived sexual harassment in the workplace, don't win lawsuits if they are eventually fired.

But what happens when the complaint takes the form of a status update on Facebook? Does that offer the employee extra protection?

Find out after the jump...

Continue reading "Employee legally fired for complaining on Facebook about the boss' "creapy hands"" »

November 25, 2013

Woman fired after getting sniffed by men 24 times may have a retaliation claim

nose.jpgPlay some Skynyrd, man!

(Just pretend the song is about reckless indulgences in the workplace, rather than drugs and needles and such, k?)

Well, this is a new one for me.

A woman claimed that she was employed as a leasing manager for four days. And during those four days, two male co-workers sniffed her 12 times each.

*** Carries the one, curses, grabs calculator ***

The woman further claimed that, shortly after she complained to her supervisor about the sniffing, she was fired without explanation.

Sounds like we may have viable retaliation claim: (1) complaint about sexual harassment; (2) termination; (3) complaint caused termination.

Amazingly, the United States District Court for the Northern District of Texas granted summary judgment to the employer, concluding that no reasonable juror in the woman's shoes would have viewed herself as a victim of sexual harassment. To paraphrase the lower court's logic: "It's not like these guys grabbed her or anything. And besides, it was harassment, not sexual harassment."

The Fifth Circuit Court of Appeals in this opinion was all like, "WTH!" Wait, the court actually said this:

We hold that there is a genuine dispute of material fact whether the maintenance men's behavior violated Title VII....The sniffing and hovering over a woman, by two men, in a small, confined space could be viewed by a reasonable jury as harassment based on Royal's sex. Indeed, it is difficult to imagine the maintenance men sniffing and hovering over Royal if she were a man.

Remember, sexual harassment can take many forms in the workplace. When you train your employees, and especially your supervisors who are tasked with receiving complaints of sexual harassment, educate them about the many ways in which an employee may be sexually harassed.

Including sniffing.

November 6, 2013

No pants in the office leads to sexual harassment claims, you guys.

pantsdown.JPGi·ro·ny (noun)
/ˈīrənē,ˈiərnē/
1. the expression of one's meaning by using language that normally signifies the opposite, typically for humorous or emphatic effect.
"The irony of this blog post is that I am typing it with no pants."

Look folks, in all seriousness ***waits patiently while you napalm your brains***, I was reading this case last night, which even by my scorched-employment-lawyer prurient standards strikes me as shocking. Sure, I could restate all of the tawdry facts in this post to transparently boost my SEO. Instead, I'll just sum it up in with a single paragraph from the opinion:

On May 18, 2012, the sales team played a mix of music containing sexually explicit lyrics. One co-worker "ripped off his pants and strutted around the office in his peach colored briefs. When [Plaintiff] implored him to put his pants back on, [the co-worker] replied 'put that in your lawsuit.'"

So, she did. And, she also included the semen on the office bathroom sink.

(Ok, a touch gratuitous...)

Look folks, if you want a sure-fire way to end up at trial staring down the barrel of a sexual harassment claim with punitive damages at stake, read this opinion and do exactly what the employer-defendant did, right down to describing the work atmosphere as "good for morale and 'created a fun sales environment.'"

Then call me. And we'll chat about large retainers and such.

October 25, 2013

How not to respond when an employee complains about sexual harassment

If true, well then, good gawd, this!

October 7, 2013

Court destroys my "Ravishing Rick Rude" theory of same-sex harassment

Cut the music.

A little over a year ago, I wrote here about a steel worker named Kerry Woods. Unfortunately for Mr. Woods, he was on the receiving end of a constant barrage of "raw homophobic epithets and lewd gestures" from his supervisor. Notwithstanding, the Fifth Circuit Court of Appeals tossed out a $500K jury award for Mr. Woods, holding that Mr. Woods's same-sex sexual harassment claims failed because he failed to satisfy the Supreme Court's test in Oncale v. Sundowner Offshore Services, Inc.

Oncale was another same-sex harassment case involving employees at an oil rig. In Oncale, the high court held that a jury may infer that same-sex harassment occurred because of sex when the plaintiff can produce:

  1. credible evidence that the harasser was homosexual;

  2. evidence that makes it clear that the harasser is motivated by general hostility to the presence of the same sex in the workplace; or

  3. comparative evidence about how the alleged harasser treated members of both sexes in the mixed-sex workplace.

As Mr. Woods failed to satisfy any of the three Oncale elements, the Fifth Circuit overturned the jury award in his favor. This led me to dork out by likening employment law to wrestling develop the Ravishing Rick Rude / Adorable Adrian Adonis test: "Put simply, if the plaintiff is stereotypically masculine, like Rick Rude, a theory of sexual stereotyping will fail and so will a claim under Title VII."

Last week, the Fifth Circuit Court of Appeals (here) reconsidered, reversed itself and, in doing so, gave my theory the rude awakening. First, it held that a plaintiff may establish a sexual harassment claim with evidence of sex-stereotyping. Further, it recognized that the Supreme Court did not intend for its Oncale three-part test to be exclusive; but rather, illustrative. That is, to prevail on a same-sex sexual harassment claim, a plaintiff need only show that his harasser stereotyped him as "insufficiently masculine."

The recent opinion provides further reason for employers not to tolerate offensive remarks of any sort in the workplace.

Now, hit the music.

.
September 13, 2013

Body shots + booty shorts + live office sex = no sexual harassment

Sounds like one crazy party. Or just another Thursday at the Pine Woods Apartments.

Kristen Glemser had no idea...

On December 7, 2006, Kristen Glemser, a marketing/leasing agent for Pine Woods showed up for work, just like she would any other day. Except that some of the ladies in the office had planned a small party of one of Ms. Glemser's female co-workers.

And they decided to get started early.

officepartyshade.jpgBy 10 AM, many of the attendees were in the bag, and Ms. Glemser's supervisor was sending her on a vodka run. When Ms. Glemser returned to the office, the party goers were eating breakfast.

(Does the celery in a Bloody Mary count as breakfast?)

After concluding breakfast, you guessed it, time to model the booty shorts.

Then things got really weird...

Or as the ladies in the office dubbed it, a "fashion show," one in which Ms. Glemser testified at her deposition, she was not a willing participant:

The Plaintiff testified that Lorton asked her to wear the shorts. Lorton started to unbutton Glemser's pants and pull them down. Glemser testified, "I realized she [Lorton] was so impaired that my pants were coming off. They were - if I didn't take them off, she was taking them off." The Plaintiff testified that she did not leave the bathroom because she felt she was restrained because Kim was blocking the bathroom door and Lorton was in front of her with her hands on Glemser's pants. The Plaintiff did not ask Kim to move to the side so she could exit the bathroom. Glemser believed Kim was intoxicated at the time. Glemser testified she told Lorton, "Fine. I'll wear them for you. I'll put them on and that's it. And so I put them on myself."

It was right about this time that Ms. Glemser testified that she observed "multiple individuals engaged in actual or simulated sexual activity, while one of the men was pouring an alcoholic drink over a woman's belly button area and licking it off."

The next day, Ms. Glemser decided that working at Pine Woods just wasn't for her. So, she quit her job the next day. Then she sued for sexual harassment.

Quitting before complaining dooms her sexual harassment claim.

On Monday, a federal court in Illinois (here) dismissed Ms. Glemser's case.

Why, you ask?

Well, an employer can generally avoid liability for a hostile work environment if it promptly investigated complaints made by the plaintiff and acted to stop the harassing behavior. A prompt investigation is the hallmark of a reasonable corrective action.

Here, Ms. Glemser never reported the incident before she quit, despite being made aware of the Pine Woods {cough} sexual harassment policy. The one where it's not cool to sexually harass your co-workers. That was their policy. Or at least that's what Ms. Glemser read and signed when she worked there. And because Ms. Glemser never reported the party before she quit, management was never able to investigate and take corrective measures.

So, if there's a takeaway from this post (searching, searching, searching...): Please encourage your employees to report harassment in the workplace, be it relatively minor, or, as in Ms. Glemser's case, an "Anthony Weiner" on the inappropriateness scale.

August 26, 2013

Paula Deen discrimination lawsuit dismissed after parties settle

Thumbnail image for PaulaDeen.jpg

On Friday, a federal court in Georgia dismissed all of the remaining discrimination counts against Paula Deen and her brother, Bubba, after the parties reported to the court that the two sides had settled.

The settlement terms are undisclosed.

In a statement emailed to The Associated Press, Ms. Deen's publicist wrote:

We are pleased with the court's ruling today that Lisa Jackson's claims of race discrimination have been dismissed. As Ms. Deen has stated before, she is confident that those who truly know how she lives her life know that she believes in equal opportunity, kindness and fairness for everyone.

Somebody tell that to Ms. Deen's sponsors -- err, former sponsors. Just start typing the words "list of sponsors" (without the quotes) into the Google search bar and see how it autofills in the most popular searches once who put a space after the word "sponsors."

(I'll give you a hint, it's not "list of sponsors dying to empty the coffers on TheEmployerHandbook.com click-thru banner ads" ... yet)

But for Ms. Deen, at least she still has her loyal fans at -- wait, this can't be right, can it? -- sure enough: ButterForPaula.org.

August 14, 2013

A woman sharing topless photos at work prolly isn't an invitation to grope her

sexboard.jpg[Click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click]

* * *

Dear Google User Who Got Five Words Into The Lede And Clicked:

Sorry, this is an employment-law blog. From time to time we have some prurient (look it up) content. Like, this one time, I blogged about a former prostitute who sued for sexual harassment. Sure, I've also discussed Playboy-posing cheerleaders, and a place called the Wild Beaver Saloon. And then there was that post about the strip club. Make that posts (plural).

Hey, did I mention that my blog was once named a top Labor and Employment Law Blog by the ABA Journal?

Anyway, to those who got here looking for topless photos, again, I'm sorry. I cannot accommodate (look it up) you. Instead, what I plan to discuss today is this recent PA federal court decision, in which the court shot down another lame attempt by an employer to assert the "she was asking for it" defense in a sexual harassment case.

(Sorry, the court's opinion has no pictures and I've checked the case docket five times -- you know, to be thorough and stuff. No pix there either).

Everyone here engages in inappropriate workplace behavior.

The facts here are fairly straightforward. The defendants claimed that the plaintiff, a former employee, brought topless photographs of herself and others to the workplace, initiated sexual conduct by sharing those photos, sent sexually explicit text messages, and made sexually suggestive comments to male coworkers. For her part, the plaintiff admitted having shown co-workers a photograph of a topless woman who had participated in a "wet t-shirt contest" at a motorcycle rally known as "Mountainfest," but denied showing those employees inappropriate photos of herself.

(Go ahead. I'll pause while you Google.)

However, the plaintiff denied that she welcomed the subsequent groping and vulgar language that followed from her male co-workers. The defendants did not deny that employees behaved inappropriately. Instead, without citing any supporting case law, they argued that the plaintiff invited this reaction by voluntarily showing her co-workers a photograph of a topless woman.

The "she was asking for it" argument never works in defending a sexual harassment case.

Trust me. It ranks right up there with the "exotic dancer" defense and the "plaintiffs listen to rap music and rappers say 'n---a' a lot" defense in a race discrimination case. But some folks have to learn the hard way. And this time was no different, as the court denied the defendants' motion for summary judgment.

Takeaway

When conducting anti-harassment training -- you're doing that, right? -- please emphasize that behavior that your mother wouldn't tolerate is no good for the workplace either. It doesn't matter if the "harasser" didn't mean anything by that ass-grab. It only matters whether the "victim" is offended. And even if it appears that the "victim" is not offended, trust me, he or she will be once that lawsuit is filed.