The Employer Handbook Blog

I've been searching for gold recently. So, I knew I was on to something good when I started reading this opinion last week, and wasn't sure whether what I was reading was a sexual harassment case or a porno script.

What can I say? I like the plots.

Folks, if you click through, I promise you a great read after the jump...

Continue reading "Horniest boss ever? His employee still can't prove sexual harassment." »

Of all employment claims presented to the Equal Employment Opportunity Commission, retaliation numero uno. It's been that way since 2010.

There are three essential elements of a retaliation claim: (1) protected activity -- opposition to discrimination or participation in the statutory complaint process; (2) adverse action; and (3) causal connection between the protected activity and the adverse action.

This post focuses on "opposition to discrimination." Specifically, is withdrawing from what one perceives to be a sexual advance by one's employer opposition to discrimination and, thus, a protected activity?

The answer after the jump...

Continue reading "Is rejecting a sexual advance, without reporting it, protected activity?" »

Or sexually harass your co-workers.

Unless, of course, you consider my working Hollywood manuscript: "An EEOC Complaint Is Your Free Pass to Sexually Harass." I know, the title needs work, but with C. Thomas Howell, Tawny Kitaen real star power and a producer.

** Immediately regrets sixth shot of Drambuie with breakfast **

There's a point to all of this, and some employer tips too, after the jump...

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Continue reading "An EEOC complaint is not your free pass to goof off at work" »

Duh, right?

Still, a federal appellate court recently reminded us (here) that, indeed, bad things happen when, every week for several months, a male supervisor tells his female subordinate that her husband is "not taking care of [her] in bed."

Though not threatening, they were more than merely offensive. For a male to say to a female employee under his supervision that her husband was "not taking care of [her] in bed" is the sort of remark that can readily be found to be a solicitation for sexual relations coupled with a claim of sexual prowess and can just as readily be found to have been perceived as such by the female employee. The weekly repetition of such a remark over several weeks only served to reenforce its offensive meaning and to make sexual intimidation, ridicule, and insult a pervasive part of Desardouin's workplace, effectively changing the terms and conditions of her employment....The allegations of repeated solicitation of sexual relations in a vulgar and humiliating manner suffice to warrant a trial.

I'll use this obvious blunder to raise a subtle screw-up of which you may unwittingly be guilty. Check the complaint procedure in your non-harassment policy. Does it provide that an employee who feels that he/she is being harassed must report the harassment to an immediate supervisor or manager? Because that wouldn't do much good in the situation discussed above. 

Instead, make sure that your complaint procedure affords employees a variety of reporting options (e.g., a direct supervisor, another supervisor, Human Resources, etc.).

The original working title for the post was "The Third Circuit takes a deuce on my 'Pottymouths' post." I meant it in the figurative sense. Otherwise, I would be at a loss for words with IT. 

More so than usual...

{Napalms browser history}

But, fortunately, good taste and high morals -- we're all about that here at the Handbook {cough} {fart} -- prevailed.

Click through to see what a federal appellate court had to say about whether a female plaintiff with an apparent propensity for the cursey-cursey may successfully pursue her sexual-harassment claims.

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Continue reading "Who are YOU to tell ME that I'm not offended by sexual harassment?!?" »

I assure you that what inspired this post had nothing to do with the facts of the case; namely:

1. the female plaintiff claiming that her female-lawyer boss groped her; or


2. the plantiff's Facebook posts about pole-dancing and calling her breasts "milk factories".

That's all purely coincidental. Indeed, it sounds like something out of Costanza's desk drawer. 

Actually, I'm posting this to share a very well-reasoned social-media-discovery judicial opinion that is a big win for employers. You'll see what I mean after the jump...

Continue reading "This is my new go-to social-media-discovery judicial opinion" »

When an employer is faced with a sexual-harassment lawsuit, one of its best defenses is that the company took reasonable care (e.g., policy, training) to prevent sexual harassment (and then addressed complaints in a manner that is reasonably designed to end the sexual harassment)

In EEOC v. Spud Seller (opinion here), the employer had an anti-harassment policy that detailed what constitutes sexual harassment and how to report it. Further, it specifically advised employees that, "You can feel state that your complaint will receive immediate attention and if the facts support your complaint, the offender will be disciplined."

Sounds good to me.

Except...the policy was printed only in English. And in Spud Seller, nine Spanish-speaking employees claimed that they were victims of sexual harassment. So, did the company take "reasonable care" to prevent sexual harassment? According to a Colorado federal court, maybe not...

The Handbook that contained the policy was in English, and there is no evidence that its provisions were translated into Spanish or that written translations were supplied to Spanish speaking employees...Second, there is a question as to whether the policy itself was sufficient - both on its face in English, and as to whether it provided a meaningful remedy for Spanish speaking employees...Due to the makeup of the workforce, assuming that a Spanish speaking employee had a complaint, she could not bring it directly to the persons identified in the policy because they did not speak Spanish.

The court further noted that the primary bilingual person who customarily explained the policy and interpreted for Spanish speakers was the alleged harasser.

If you have a multilingual workplace, please make sure to have your anti-harassment policy translated into multiple languages. Also, make sure that non-English speaking employees know to whom they can report claims of unlawful harassment.

You've got an anti-harassment policy. All managers and employees have copies and you just completed training on the policy for your entire workforce.

Sweet!

But is your policy bulletproof? I mean really bulletproof? 

And if an employee claims that a harasser lurks in your workplace, if sued, will a court agree that the steps you have taken were reasonably designed to end the harassment?

Just how confident are you?

After the jump, some not so obvious pitfalls from a recent federal-appellate-court decision and six ways (5 from the court; 1 from me) to help you stay legal and out of the courtroom.

Continue reading "Want 5 court-approved workplace anti-harassment tips? Read this..." »

Courts analyzing anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act mandate that employers educate employees about discrimination in the workplace and provide a way for them to complain. Then, once made aware of discrimination in the workplace, the employer must take steps that are reasonably designed to end the discrimination. That could mean anything from a verbal warning up to termination of employment. That decision is up to the employer.

In Phila. Housing Authority v. AFSCME, after investigating a complaint of sexual harassment, a unionized employer with a zero-tolerance policy for sexual harassment fired the alleged harasser. The union subsequently filed a grievance that eventually led to arbitration, at which time the arbitrator deemed the alleged harasser's behavior to be "lewd, lascivious and extraordinarily perverse." Notwithstanding, the arbitrator concluded that a verbal warning would have sufficed, rather than termination, and ordered the alleged harasser reinstated and made whole.

On appeal, the PA Supreme Court blasted the arbitrator's decision, while emphasizing the public policy against unlawful harassment in the workplace.

The issue before the arbitrator was whether there was just cause for this termination, and if not, what would be the appropriate remedy short of termination. The absurd award here makes a mockery of the dominant public policy against sexual harassment in the workplace, by rendering public employers powerless to take appropriate actions to vindicate a strong public policy. Such an irrational award undermines clear and dominant public policy.

The high court then emphasized that employers should have the discretion to determine what step(s) are most reasonably designed to discrimination in the workplace:

A public employer cannot be denied the power to impose consequences for this sort of inappropriate, and facially criminal, conduct. Indeed, with the general notion in mind that recognized rights must generally have some form of remedy, it is clear that there must be a power in public employers to take meaningful steps to vindicate dominant public policy. To allow an arbitration award which finds that an employee engaged in "extraordinarily perverse" physical sexual harassment of a co-worker, yet then simply dismisses the conduct as unworthy of an employer response beyond initial "counseling," and reinstatement with back pay, would eviscerate the ability of employers to enforce dominant public policy.

Learn from this decision. Employers should make sure that their anti-harassment policies emphasize zero tolerance. Then, err on the side of harsher discipline. There is no place in the workplace for unlawful discrimination.

In Mann v. Staples, Inc., a female employee received unwelcome comments about her appearance and physique, was kissed and groped, and called a "skank ass bitch." The New Jersey Superior Court, Appellate Division, described this as a "pattern of systemic sexual harassment" -- one in which the alleged harasser appeared to have never received any anti-harassment training.

So, what did the court do? It affirmed summary judgment for the employer and dismissed the plaintiff's Complaint.

What?!?

Find out why, after the jump...

Continue reading "Employer wins lawsuit despite a "pattern of systematic sexual harassment"" »

And some of you wonder why I enjoy blogging about HR and employment law.

More after the jump...

(What I won't do for my loyal readers....)

Continue reading "Facebooking about "naked Twister" may doom one's sexual harassment claims" »

Sounds like a bad batch of Pennyroyal Tea. Just another Tuesday here at the ole Handbook.

The San Francisco Chronicle is reporting here that Courtney Love, Kurt Cobain's widow, is reuniting the band ** thank you for sparing our ear holes ** being sued by a former assistant seeking, among other things, unpaid overtime. The plaintiff also claims that Love asked her to perform voodoo rituals ** not yet, next paragraph ** unethical duties such as hiring a hacker and forging legal correspondence. The San Francisco Employment Lawyer Blog has more on this case here.

From Hole to holes in a doll pin-cushion, with a hat-tip to @ChaimBook, the Madison St. Clair Record reports here that a Wisconsin woman is suing her former employer for sexual harassment and retaliation. The plaintiff claims that she was forced to look at nude female magazines, calendars and sexually explicit language used by her co-workers and direct supervisor. Fairly standard sexual-harassment fare. What makes this case blogworthy is that, after she complained, the plaintiff allegedly suffered retaliation in the form of two voodoo dolls in her desk, one of which had a black pin stuck into her chest.

Takeways:

1. Even for the savviest employers, wage-and-hour issues can rear up from time-to-time. If you have not done so yet, or if it's just been a while, consider bringing in outside counsel to conduct a wage-and-hour audit to make sure that your pay practices are squeaky clean.
   
   
2. Since the Supreme Court's decision in Burlington Northern, the bar has been significantly lowered as to the type of behavior that can constitute actionable retaliation. I have little doubt that a voodoo doll delivered to a complaining employee would effectively chill that employee from asserting federal-protected rights. Remind your workforce that behavior both subtle and overt can lead to a retaliation claim. 
   
   
3. Hole sucks.

A long-time county employee in Florida, who served as HR Manager, is set to file a federal discrimination complaint against her former employer, claiming that she was sexually harassed at work and later fired after complaining. The employer claims that it fired the employee for making false sexual discrimination claims to the U.S. Equal Employment Opportunity Commission.

And then there's the porn and dirty texts...which the employee's boss admits sending...to the employee...like 40 times...

Interest piqued? I thought so. Click through...

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Continue reading "Boss fires HR Manager to whom he sent w-2 (by w-2, I mean lots of porn)" »

A recent survey by Workplace Options, shows that most Generation-Y employees believe that an office romance will have a positive influence on performance and overall workplace morale.

Sounds like a Cialis commercial. 

Who says I need to wait for Valentine's Day for this post? Losers, that's who. Lock the broom closets and click through for more on this survey and ways to address the office romance...

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Continue reading "More office romances; more anti-harassment training" »

Allegedly, of course.

Details after the jump...

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Continue reading "What's cookin' in celeb chef Paula Deen's kitchen? Discrimination?" »