Articles Posted in Harassment, Sexual

The employment-discrimination laws have been expanding since their creation.  And, most of the time, that’s a good thing.  But there are times when I wonder, “Have we gone too far?”  There was the bullying craze a few years ago, when there was a push to make bullying in the workplace unlawful.  Although no decent employer (or human being) thinks that bullying is an endorsable attribute, I am of the opinion that it cannot be regulated via statute. unpaid intern_3

And there are the recent cases that have found that individuals who are in the country unlawfully have standing to sue under the wage-payment laws.  I fall on the side of the employees on this one, in case you are wondering.

I defended a harassment case once that was brought by the former employee and her company, which had done business with the employer and which she claimed was subject to retaliation in violation of Title VII.  I tried to explain to my opponent that Title VII-an employment law-applies only to employees.  And, although the statute defines employees very, very broadly, I felt pretty confident that entities cannot be “employed” in this sense of the word.  Thankfully, my prediction proved true in that case and the court dismissed the claims brought on behalf of the company.

Being a jerk is a legal defense, so to speak.  An “equal opportunity jerk” is a boss who treats everyone badly, regardless of race, religion, gender, etc.  If his subordinates sue, alleging an unlawful hostile environment, they’ll likely have trouble establishing that the jerk was more of a jerk to one particular group of employees based on a protected characteristic.

It is a defense that defense lawyers prefer to not to have to invoke. Nevertheless, when the facts are there, even an unattractive defense can be a winner. Take, for example, the Third Circuit’s decision in Clayton v. City of Atlantic City. 

people backstabber_3The plaintiff was a police officer in the Atlantic City Police Department, who alleged that she was subject to the sexual advances of a senior officer.  This went on for a number of years until, eventually, she came under his direct supervision.

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.

Harassment knows no boundaries. Unfortunately, it occurs in workplaces of any shape and size and can be effectuated by persons in positions of every variety and in every industry. Even a quick look at the story reported in today’s News Journal makes this very clear.

According to the story, a partner at a prestigious law firm in Indianapolis became seemingly obsessed with a female intern, who was later hired as an associate.  The associate filed suit based on the partner’s conduct, which, if to be believed, is outrageous, bordering on horrifying.

Some of the conduct alleged includes that the partner sent an email to the law firm, pretending to be the firm’s managing partner, claiming that the associate had acted in pornographic movies and suggesting that she had been awarded her job at the firm as a result of performing sexual favors.  The email also included a video clip of a young woman dancing topless-the video was not the female associate.  The email was one incident in a string of similar aggressions by the partner. 

Sexual harassment, retaliation, and constructive discharge. The trifecta of employment-discrimination claims. And all three were the subject of a recent decision from the 3d Circuit. The decision contains lots of interesting discussion points but I’ll limit myself to just one for the purposes of this post.

The plaintiff-employee contended that she resigned because her boss called her a “bitch” during a meeting. The court explained that, to establish a constructive discharge, the employee must show that “the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.” In determining whether the employee was forced to resign, the court looks to several factors, including whether she was threatened with discharge, encouraged to resign, demoted, subject to reduced pay, involuntarily transferred to a less desirable position, subject to a change in job responsibilities, or given poor performance evaluations.

So is being called a “bitch” at a meeting so bad that it could force an employee to quit?

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.

I’ve posted more than my share of stories involving allegations by employees that they were terminated because they were “too sexy” for the job. For example, there was the female banker who sued Citigroup, alleging that she was terminated for being “too sexy for her job.” Then there was the data-entry employee who was terminated from her job in a lingerie warehouse for, she alleged, wearing what her employer considered to be clothing that was “too sexy.”

Usually, this type of allegation involves at least some level of grandiose delusion and almost always involves the employee’s belief that everyone hates her for being so darn good looking. But today’s post goes much closer to the realm of the legitimate. Because this post involves an actual court decision. On December 21, the Iowa Supreme Court unanimously ruled that there was no unlawful discrimination where a dentist terminated his dental assistant of 10 years after his wife became jealous.

For his part, the dentist admitted that the assistant was a good employee and wasn’t fired for poor performance. Instead, he claimed that her tight clothing was too distracting and felt that he wouldn’t be able to resist her charms if she remained in his employ any longer, reports CNN.

The discoverability of social-media evidence is far from a settled question. Many of the few cases that have addressed the question are employment claims. And the latest such decision is no exception. In EEOC v. Original Honeybaked Ham Company of Georgia, Inc., No. 11-02560-MSK_MEH (D. Col. Nov. 7, 2012), the Colorado District Court granted an employer’s motion to compel and required the employee-class members to turn over their log-in and passwords to a special master, who would make an initial determination of discoverability.

The EEOC filed suit on behalf of approximately 20 female employees, who, the EEOC alleged, had been subject to unlawful sexual harassment and retaliation by their former employer. The defendant-employer sought to compel the class members to produce unredacted versions of their social-media accounts.

The court first reminded the parties that it was determining what was discoverable–not what would be admissible at trial. The court next acknowledged that discovery of social-media information is a “thorny and novel” area of the law. Then the court reached its first substantive conclusion:

Miseta v. Stardock, (E.D. Mich.), is a great example of what not to do as an employer in response to a claim of sexual harassment made by an employee.

The employer, Stardock, launched a new video game, Elemental: War of Magicm in August 2010. The game proved to be a complete failure. (I promise, it’s relevant.)

Weeks before the launch, Stardock’s Marketing Manager, Alexandra Miseta, quit. Shortly after she resigned, Miseta filed a Charge of Discrimination with the EEOC, and later instituted a lawsuit.

Claims of sexual harassment made by males has been on the rise. Allegations of male-to-male harassment, especially, are becoming increasingly common. Female-to-male harassment claims, though, are less common. And that’s why a recent decision from the Ninth Circuit is particularly noteworthy for employers.

In EEOC v. Prospect Airport Services, Inc., the male plaintiff and the female alleged harasser both worked as passenger assistants (helping passengers who need wheelchairs) at McCarran International Airport. The plaintiff, Rudolpho Lamas, was a recent widower.  His alleged harasser, Sylvia Munoz, was married.male and female silver

After Munoz propositioned Lamas repeatedly, Lamas reported her conduct to the company’s assistant manager.  The manager responded that Lamas (the victim), should tell Munoz to stop and let management know if she didn’t stop. Lamas had already told Munoz that he was not interested, but, following his supervisor’s advice, he told her again. This did not work; Munoz gave Lamas a second note expressing interest in a relationship with him and then tried to give him a picture of herself. Lamas next asked his immediate supervisor for help, but she did nothing.

Munoz gave Lamas a third note that was even more aggressive and explicit. By this time, Munoz had told other co-workers of her interest in Lamas, and they began lobbying him on her behalf. He told them he was not interested, and began feeling embarrassed. Lamas went to the next supervisor up the chain, gave him the note, and asked him to make Munoz stop. The supervisor said he did not want to get involved in personal matters but he agreed to speak to Munoz as a “favor” to Lamas, acknowledging that the latest “love letter” was a violation of the company’s sexual harassment policy. The supervisor spoke to Munoz and warned her to stop, but she didn’t stop.

Munoz began making suggestive remarks and gestures whenever she was around Lamas, on a daily basis. Lamas began to feel oppressed and offended by the constant pressure from Munoz. She had co-workers tell him that she was going to “get him” no matter what. Co-workers began to speculate that Lamas was gay because of his negative response to Munoz. Lamas consulted a psychologist about his emotional distress; he felt helpless and cried.

Lamas complained to four different managers. The company’s general manager said the situation was a joke and that Lamas should walk around singing to himself, “I’m too sexy for my shirt.”

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