Articles Posted in Harassment, Other (Title VII)

The U.S. Supreme Court issued two important employment-law decisions this week and, surprising to many of us, both came out in favor of employers. Both cases will have significant impact on employment lawsuits but one of the two is of of particular interest to me because it has been an issue I’ve faced in prior cases of my own.

In Vance v. Ball State University, the Supreme Court was asked to decide what it means to be an employee’s “supervisor” for purposes of Title VII.  In short, the Court held that an individual can be considered to be a supervisor only if he or she has been empowered by the employer to take “tangible employment action” against the employee who claims to have been harassed. 

And what, exactly, is a “tangible employment action,” you ask?  Basically, it means the power to effectuate significant change in the victim’s employment status.  So the power to hire, fire, demote, etc., is the power to effectuate a tangible employment action.  If the individual does not have the authority to fire, transfer, or demote the victim, then the individual is not considered to be the victim’s supervisor.

The EEOC has enjoyed several victories in recent months. For example, the EEOC was granted summary judgment in a hostile-environment claim filed on behalf of a class of black construction workers. Even more recently, the EEOC was awarded summary judgment in an age-discrimination lawsuit against the City of Baltimore. But things haven’t been all peaches and cream for the EEOC.

In EEOC v. McPherson Cos., Inc., a federal district court in Alabama granted summary judgment to the defendant-employer in a sexual-harassment lawsuit brought by the EEOC on behalf of an unnamed male employee. The employee worked in a warehouse with an all-male workforce.

The EEOC alleged that, after being subject to a constant barrage of “ugly talk,” the employee complained to his supervisor about the allegedly hostile work environment. About a year later, the employee confronted his co-workers, who apologized and, thereafter, stopped directing rude comments his way. About a year after that, the employee complained to HR, which investigated the complaint, resulting in discipline for several workers and two supervisors. After this last complaint, the comments ceased.

Workplace anti-harassment training can be summarized with the title of this post. The fact that an employee laughs at an inappropriate joke is not a legal defense to a later claim at harassment. Nor is an employee’s failure to object to inappropriate workplace conduct. One employer recently learned this lesson the hard way.

In the case of EEOC v. Holmes & Holmes Industrial, Inc., the EEOC filed suit against a construction company on behalf of several Black employees, alleging hostile work environment claims. To succeed in a case alleging discrimination based on a hostile work environment, a plaintiff must prove that he or she was subject to (1) intentional discrimination, that was (2) severe or pervasive (3) and subjectively offensive to the plaintiff, and (4) that would be objectively offensive to a reasonable person in the plaintiff’s position.

In support of its claims against Holmes & Holmes, EEOC asserts that the employee-claimants faced frequent, racially-charged comments from their managers and co-workers. EEOC also contended that supervisors frequently told racial jokes. In response, the employer argued that the employees engaged in similar conduct, frequently using racial slurs and terms.

The EEOC announced last week that large grocery store chain Albertsons has agreed to pay $8.9 million to settle three lawsuits in which the EEOC alleged that it had engaged in race, color and national origin discrimination, and retaliation, at a distribution center in Aurora, Colorado. eeoc logo

According to the EEOC lawsuits and a news report, 168 minority employees were subjected to racist and anti-Semitic derogatory epithets, slurs and graffiti. Allegedly, supervisors were aware of and even participated in the harassing conduct. One African-American employee whose leg was broken by a piece of equipment at work was allegedly left lying on the warehouse floor for thirty minutes by a white supervisor who told him that was what he got for being black. Albertsons denied that it had engaged in discrimination or harassment.

The $8.9 million settlement will be divided among the 168 employees who complained about harassment between 1995 and 2008 (an average of about $53,000 per person).

A legally effective anti-harassment policy is an absolute requirement for any employee handbook.  There is not a single reason to not have a policy that effectively establishes the organization’s prohibition against harassment and related retaliation.  But there are millions of reasons to make sure that your handbook includes such a policy and that the workplace is set to manage a complaint of harassment should it receive one.   Employee Handbooks

To make sure your employee handbook includes a legally effective anti-harassment policy, a great place to start is with the EEOC itself.  In 2005, the EEOC issued the findings of a limited review of the anti-harassment programs in 43 federal agencies and one component’s 64 sub-agencies.  The findings that were published included an excellent overview of the purposes of an anti-harassment program and the legal requirements of an effective policy.  The EEOC’s report is as relevant and accurate today for private-sector employers as it was three years ago for federal-agency employers. 

According to the EEOC, an anti-harassment policy and complaint procedure should contain, at a minimum:

Workplace bullying is not unlawful. The U.S. Equal Employment Opportunity Commission (EEOC), is not stopped by that, though.  It has entered into a consent decree with the State of Oregon, ending a lawsuit involving workplace bullying.  The case, filed by the EEOC on behalf of Sheri Peters, a former juvenile court clerk, was filed under federal employment laws but, at its core, alleged egregious workplace bullying. eeoc_logo

Peters claimed that her former boss, the juvenile justice center manager, Linda Simonson, engaged in a variety of hostile conduct towards her subordinates. Peters claimed that, after working at the center for a month, she told Simonson that she was pregnant.  Simonson responded that she felt Peters had concealed her pregnancy to get hired and called Peters at her unborn child “garbage.”  When Peters went to the hospital with a ruptured placenta in December 2004, she claimed, Simonson called her and chastised her for being not at work.

Court documents do not paint a pretty image for the center’s management style.  Several current and former employees testified about the “bullying conduct” of Simonson who, as one witness described, “managed the department like an abusive parent.”  Another employee reported that she was harassed “relentlessly” by Simonson while out maternity leave.  Another claimed that, while she was pregnant, she was subject to “harassing and intimidating behavior” by Simsonson.  And one employee stated that Simonson was harassing, “cruel and vindictive.”

As layoffs increase, so do claims of age discrimination. Age-based harassment, though, is less common.  A 49-year-old aide to former Ohio AG Marc Dann claims that Dann’s managers used profanity and called him a “dinosaur,” resulting in what he claims was harassment and age-discrimination.  This claim comes in the middle of an already scandalous period for the former AG, who has been accused of fostering an unlawfully hostile work environment.

Ohio AG Dann

This story comes from the Zanesville Times Recorder’s article, “Complaint: AG’s office discriminated and harassed.”

Dann (pictured) and some of his aides have been in the middle of a sexual-harassment scandal, resulting in the AG’s departure from office.  David Kessler, who has filed a complaint with the EEOC against the AG’s Office, said that the scandal supports his allegations of abusive behavior. 

Music may be an art form to some.  But some music may be a form of harassment.  The EEOC has reach an agreement with Novellus Systems wherein the San-Jose based employer will pay $168,000 to a former employee for race-based harassment.  The claim alleges that the employee was terminated after he complained about racially offensive music played by a co-worker.

Gangsta' Rap Coloring Book

Michael Cooke worked at Novellus Systems for more than ten years. Cooke, an assembly technician, claimed that he was terminated after he complained about racially offensive music played at work by a co-worker.  The suit alleged that a 27-year-old co-worker would play rap music and rap along, using lyrics that included derogatory racial slurs, including the “N-word.”

Cooke complained to the co-worker, a Vietnamese-American, and to his supervisors about the language in the songs.  But the co-worker continued to sing along using racial slurs within hearing distance of Cooke.  After a year and a half of the co-worker singing and Cooke complaining, the suit alleges, Cooke was dismissed in retaliation for his complaints.

The Equal Employment Opportunity Commission (EEOC) can add another major victory to the scorebooks.   Earlier this week, the Commission settled a discrimination lawsuit for $2.2 million.  The actions at issue are said to trace back to a supervisor who is no longer with the restaurant.  This should be a wake-up call for employers who don’t provide employment-law training to supervisors, helping to prevent and eliminate discrimination and harassment in the workplace. 

tavern on the green

Tavern on the Green

The hottest headline for EEOC settlements right now is the agreement reached with the legendary N.Y.C. landmark restaurant, Tavern on the Green. Earlier this week, the New York Times reported that the restaurant, located in Central Park, had agreed to pay $2.2 million to settle a sexual-harassment claim filed by the EEOC last September.

Tavern on the Green is a destination for many Big Apple visitors with discriminating tastes, as well as a regular dinner spot for the who’s who of New York’s social scene.  The restaurant opened in 1934 and, in the 50+ years since, has become the “highest-grossing independently owned restaurant in the United States with annual revenues in excess of $34 million and over half a million visitors a year.”

In this month’s edition of the American Bar Association’s pulication, the ABA Journal, is an article titled “New Troubles for Teens at Work.” The article reviews recent cases that seem to indicate the courts’ narrowing definition of what constitutes acceptable workplace behavior.

Restaurants, which tend to be a much more casual workplace enviornment, have been the source of a large percentage of teen harassment claims. In a recent decision by the federal appellate court for the Seventh Circuit, EEOC v. V&J Foods, employers were warned that they will not be excused from liability by the mere fact that they have a policy and reporting mechanism in place. Instead, the court warned the business community that, when it comes to teen harassment, the bar has been raised.

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