Recently in Sexual Harassment Category

September 29, 2014

Court: It's ok to try to hit a co-worker with your car after grabbing her crotch (twice)

The opinion contains the words "fingered," "genital area," and "sexual assault," plus an allegation that the assailant tried to hit the plaintiff with her car in the mall parking lot. But, the court concluded that there was no sexual harassment, because none of these events "affected the conditions of her employment."

** napalms Washington-bound resume; shreds ashes **


July 23, 2014

Real and Spectacular! A true Seinfeld-ian claim of sexual harassment

Before law school was even on the radar for me, I knew that coitus on office furniture was a workplace no-no. And ignorance is not a defense.

But, maybe Seinfeld isn't a thing in Indiana.

You see, Connie Orton-Bell worked at a maximum security prison in Indiana. One day, she learned that night-shift employees were having sex on her desk.

The investigator who discovered the prison procreation, told Ms. Orton-Bell, "he was not concerned about night-shift staff having sex but suggested she should probably wash off her desk every morning."

(I recommend Endust. It's no-wax formula removes dust, soil and surface wax buildup).

The prison superintendent too learned of the nighttime nooky and said that, "as long as inmates were not involved, he was not concerned either."

And then there's Ms. Orton-Bell herself.

Immediately after the superintendent shared his thoughts on sexy-time in the slammer, he discovered that Orton-Bell was having an affair with the Major in charge of custody (which, ironically enough, allegedly involved sex on his desk).

And, for that, Ms. Orton-Bell lost her job.

Both she and the Major separately appealed their terminations because, apparently, the Indiana State Corrections System is bacchanalia, so, why should they lose their jobs?

*** give me a sec, my head is spinning ***

Well, the prison cut a deal with the Major. He testified against Orton-Bell and yadda, yadda, yadda, she sued alleging, among other things, a hostile work environment based primarily on the night shift constantly using her desk as a giant Petri-Dish experiment.

No sexual harassment because the desk sex wasn't based on...sex.

Now, I was ready to predict that the Seventh Circuit Court of Appeals would have denied the claim (in this opinion) by concluding that a reasonable person in Ms. Orton-Bell's shoes would not have been offended by the sex on a desk.

However, the court went in a different direction in dismissing Ms. Orton-Bell's hostile work environment claim; namely, the lack of evidence that Ms. Orton-Bell's gender caused the harassment:

The notion that night-shift staff had sex on her desk because she was a woman is pure speculation. The only evidence of any motive held by the night-shift staff (who have not been identified) for having sex on her desk is that her office had curtains and was in a lockable suite near the infirmary, but accessible with the master key that a night-shift lieutenant would have.
* * *
The conduct was certainly sexual intercourse on her desk, but that does not mean that night-shift staff had sexual intercourse on Orton-Bell's desk because she was of the female sex. There is no evidence to indicate that, had her conveniently private and secure, but accessible, office belonged to a man, it would not have been used in the same manner.

So, what can we take away from this post...other than our appetites?

  1. No sex on desks at work.

  2. No sex at work.

  3. No sex on desks. (Splinters)

UPDATE: It appears that I'm not the only blogger to put a tv-spin on this sex romp. So, for more on this case and, what I trust are far keener legal insights, check out Jon Hyman's post "Orange is the new sexual harassment"at the Ohio Employer's Law Blog.

Friends, it's hard-hitting Pulitzer-Prize commentary like this that won me the 2013 ABA Blawg 100 Amici for Labor and Employment. Hey, don't blame me. You voted for it, suckers. Just be sure to nominate this ridiculous blog for the ABA Blawg 100 Amici again.

July 2, 2014

Dating app maker Tinder sued for, you guessed it, sexual harassment

tinder.jpgI'm often asked, "Eric, where do you find this stuff?"

Why TMZ, of course. Break 'em off TMZ:

"Whitney Wolfe claims in a new lawsuit -- obtained by TMZ -- she was mercilessly brutalized by the other execs who wanted to remove her title because no one would take a site like Tinder seriously if they knew it was founded by a 24-year-old chick.
Wolfe says one of the execs made a romantic play for her and she eventually dated him ... but it didn't end well and she claims he then waged a harassment campaign against her.
She says the guy also texted her when he found out she was interested in someone else, saying, 'I will s**t on him in life. He can enjoy my leftovers.' She says she was also talking to some Muslim men and he texted her, 'You prefer to social climb middle-aged Muslim pigs that stand for nothing.'
And Wolfe says the guy referred to one of her girlfriends as 'a liberal, lying desperate slut.'"

Here is a link to Ms. Wolfe's complaint against Tinder, and another link (here) to a press release about the complaint from the law firm representing Ms. Wolfe.

For those who don't know, Tinder describes itself (here) as "the fun way to connect with new and interesting people around you." More bluntly, TMZ describes Tinder as "an online dating app best known for hooking people up who want to bang."

It is against this backdrop that I offer a takeaway. To establish sexual harassment, one must show that, among other things, not only was he/she offended, but that a reasonable person in their shoes would have been offended by the same workplace behavior. When measuring what is offensive, the nature of the workplace matters. Indeed, what may be offensive in a law firm environment, may not be, say, in a writing meeting on the set of the television show Friends.

Still, there are limits. And just because someone works at Tinder, which apparently helps users bang, doesn't mean that she consents to being the target of nasty, insensitive comments.

So, kindly remind your employees that, no matter the environment, sexual harassment won't fly.

June 6, 2014

Court: Two butt grabs from a male boss would not offend an objectively, reasonable female

buttgrab.jpgWelcome to Alabama, where they see your one-grope rule and raise you two grabs of the derriere.

Why? Because, according to this recent federal court opinion, the average female employee would not find getting her ass grabbed twice by a male supervisor to be offensive.

Now remember, that for a woman to prove sexual harassment, she must show five things: 

  1. she was subjected to harassment because she was a woman
  2. the harassment was severe or pervasive
  3. she was offended
  4. a reasonable woman in her shoes would also have been offended
  5. there is a basis for holding the employer liable

Usually in cases involving discrete behavior (one or two events of harassment), the court focuses on the second element to say that the harassment was neither severe nor pervasive. In Stallworth v. Guyoung Tech USA, Inc., Ms. Stallworth claimed that a VP/Supervisor grabbed her butt twice in the same day. Well, not only did Judge Kristi DuBose find that this behavior was neither severe nor pervasive, but she concluded that the offense Ms. Stallworth took to this conduct showed that she had a thin skin:

"Arguably, Cho touching Stallworth's butt in front of her co-workers may have been humiliating. However, the June 28, 2012 touching incident and the incident where Stallworth saw Cho hit himself in the head and make an ugly face toward her on July 10, 2012, are not conduct that was frequent, severe, or physically threatening, or of a nature that would unreasonably interfere with Stallworth's work performance."

Although the record indicated that Cho had given a thumbs up the second time he grabbed the plaintiff's butt, and that he had allegedly touched three other female employees on the butt, this was not enough to sway the court that a woman in Stallworth's shoes would have been offended at getting her butt grabbed.

I'm at a loss as to how even one butt grab from a male supervisor wouldn't be offensive to the average female employee, but two?!?

So, here's my advice: Unless you practice law in Alabama, disregard this opinion entirely. Do not assume that there is a two-butt-grab rule that will allow a company to get summary judgment in a sexual harassment case. Instead, don't condone even a single grab.

May 7, 2014

Yes, you can have a hostile work environment based on sexual stereotyping.

We've talked a fair amount about sexual stereotyping at the ole Handbook.

Here I discussed the cluster created by offering crap assignments to a male employee because he fails to conform to a male stereotype.

And of course, we have my "Ravishing Rick Rude" theory of same-sex harassment, which a federal appellate court crapped all over.

And on Monday, while some of you were out celebrating Cinco de Mayo -- I'm a Siete de Mayo guy myself, so hold my calls -- a federal court in Pennsylvania determined (here) that a male plaintiff can state a valid sexual stereotyping claim by alleging that his same-sex harasser believed that the plaintiff did not conform to the stereotype of a heterosexual male.

Put another way, the plaintiff claimed that his failure to laugh at his co-worker's infantile penis jokes and other oversexed comments, in conformity with how a "real man" should react, caused his co-worker to make additional lewd, hostile and unwelcome actions and comments.

Well, are you thinking what I'm thinking?

Putting sea salt on the fried Oreos I had for breakfast was a master stroke of genius.

Why did the Defendants argue that, because the harasser allegedly told plaintiff "you gotta get it in," he was "attempting to encourage and support plaintiff, not demean or tease him?"

(Yeah, no strikethrough there. The defendants actually made that argument with a straight face. ***facepalm***)

How is it that the plaintiff here is being sexually harassed "because of" his gender -- especially if the co-worker makes the similar sexual comments to other female co-workers?

Ah yes, the old equal-opportunity-pervert defense. Perfectly viable. 

But, the plaintiff in this case did not allege that his harasser was bringing sexy back with both men and women. Rather, he alleged that his male-coworker's comments and behavior were heterosexual in nature, but that he expected men, such as the plaintiff, to join in the lewd, promiscuous and predatory talk.

Add in allegations that the comments were pervasive and offensive and that complaints to management went unanswered and that, my friends, was enough to survive a motion to dismiss.

On a more complete record, the plaintiff's case may well fall apart. However, employers should use this decision as a reminder to their workforce that lewd comments of any kind, directed at any person, are forbidden.

* * *

If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

May 6, 2014

Your contractor is a sexual harasser? You may still be on the hook.

Generally, a typical sexual harassment claim involves a supervisor or manager or co-worker making unwelcome sexual advances towards another employee.

But what if, instead of the harasser being one of your employees, it's an independent contractor.

Does that absolve your company from liability? Is it a valid defense if one of your employees sues you for sexual harassment to point the finger outside of the company?

Yeah, well, if you knew about the harassment, and did nothing about it, then prolly not.

Consider this recent decision from the Fourth Circuit Court of Appeals, which serves as a reminder for employers that they cannot avoid liability for third-party harassment by adopting a "see no evil, hear no evil strategy."

What this means is that an employer will be responsible for a hostile work environment a third party (e.g., an independent contractor) creates if the employer knew or should have known of the harassment and failed "to take prompt remedial action reasonably calculated to end the harassment."

It's basically the same standard as would apply if the harasser was your own supervisor or manager

So, please do not tolerate offensive third-party conduct in your workplace. And encourage your employees to report it, so that it may be addressed promptly.

* * *

If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

April 28, 2014

Plaintiff demands that a court order her alleged sexual harasser to photograph his penis for inspection

As an employment lawyer, part of my practice involves training employees and supervisors on employee handbooks. Most often, my training focuses on respect in the workplace.

During these sessions, I employ many techniques to discourage the workforce from engaging in behavior that could create a hostile work environment. Usually, I'll put it like this:

"If you would feel uncomfortable sitting in a witness box while having to explain your behavior to a federal jury, then it's not something that you should do in the workplace."

But, now, thanks to this recent decision from a federal judge in Washington, DC, I have a new one.

Think twice before sexting.

Laverne Battle alleged that Sergeant Kevin Pope, her direct supervisor at the Metropolitan Police Department, sexually harassed her. Specifically, Ms. Battle alleged that Sergeant Pope texted her a picture of his left hand holding his penis.

[Editor's Note: Bad. But, could've been worse]

Ms. Battle produced a grainy color copy of the photograph for the court's inspection, and sought to compel Sergeant Pope to produce a photograph of his left hand and penis for the purpose of comparison.

The defendant won't have to produce a penis pic...yet.

As to the left hand, the court granted Ms. Battle's motion and ordered Sergeant Pope to produce to Ms. Battle and allow the court to review a photograph of his left hand (including thumb and forefinger) held in a similar position as that in the photograph at issue.

As to Sergeant Pope's penis, the Court made him SnapChat it to Ms. Battle denied Ms. Battle's request that Sergeant Pope "pose" for "photo-documenting" by plaintiff's counsel. Ewww!

And the Court otherwise held off on requiring him to photo his penis. Something about "the requested photograph is alone dehumanizing and embarrassing, notwithstanding whether the photograph is ever presented to a jury."

However, the Court did not dismiss altogether the possibility of another penis photograph. It deferred ruling on Ms. Battle's motion to compel Sergeant Pope to produce a photograph of his penis until the Court was satisfied that there is no less intrusive alternative to requiring Sergeant Pope to produce a photograph of his penis.

So, what can we learn from this?

Well, I suppose that I'll have to modify my anti-harassment training deterrent to address both testifying from the witness stand and possibly having to produce a picture of your penis.

Or vagina.

We don't discriminate here.

* * *

If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

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"" »