Delaware Employment Law Blog

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.

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 part of the settlement, Peters will receive $315,000. 

The real lesson here is not about pregnancy discrimination or even gender-based harassment.  The real lesson is about respectful conduct in the workplace.  Employers who fail to recognize that respect is an essential component of every job will eventually have to face the fallout of a distrusting workforce who feels they were thrown to the wolves by the organization that turned a blind eye to bullying and disrespectful treatment by management.

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.

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. 

Kessler was hired in 1999 and investigated crimes against the elderly.  Kessler claims that, when he took office in January 2007, Dann installed new aides and things went downhill from there.  He claims that he was targeted because he had been hired during the prior administration, which Dann had defeated to take office.  Kessler says that he was told that he could either quit or be fired, so, in January 2008, he quit.

Then, in April 2008, Dann admitted to having an extramarital affair with a staffer and resigned amid allegations of a sexually hostile work environment.  Two female employees claimed that their supervisor had made sexual advances and comments toward them.  Those allegations triggered an investigation leading to other unsavory discoveries.

From a legal perspective, this recent claim is quite different than the original claims of sexual harassment.  Those claims were based on the allegation that the women were being treated less favorably because of their gender.  Here, Kessler seems to really be claiming that he was treated less favorably because of his political affiliation with the prior administration.  Unfortunately for Kessler, such discrimination in politics is often legal, depending on the nature of the position.  If Kessler was a top aide, in a position of trust and authority, then the AG likely did have the right to "discriminate" against him if the AG believed that Kessler's political affiliations prevented him from giving his full loyalty to his new boss. 

And that is where the age-discrimination claim comes in.  If Kessler's claim for political association (a constitutional claim brought pursuant to the First Amendment's Right to Freedom of Association), is tossed by the EEOC or the courts, he'll have the age claim to fall back on.  However, given his actual age (49), the "back-up" argument may be hard to swallow.  Especially if the alleged harassers were older than Kessler.  If an employer really does harbor an age-based bias against employees aged 49 and above, it will soon run out of people to employ.

Then again, the allegation of direct evidence of age-based hostility, i.e., the "dinosaur comment" might be enough for the age-discrimination claim to survive, for now.

See also:  Delaware District Court Awards Summary Judgment to Employer in EEOC Suit for Age Discrimination

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.

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.

A lesson for employers:  As part of the settlement agreement, the company has agreed to modify its anti-harassment policy to exclude playing racially derogatory music in the workplace. 

Does your anti-harassment policy include this type of prohibition?  Are your employees permitted to play music at their work stations?  If the answer is "yes," maybe you should consider a policy review to make sure you're covered.

P.S.  The Gangsta Rap Coloring Book pictured above is, indeed, a real coloring book, available for sale at Amazon.com for $8.95.

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

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."

The Allegations Were Many

The suit alleged a whole host of claims including discrimination, harassment, and retaliation.  The alleged harassment was said to include groping female staff members, the regular use of graphic sexual comments, and demands for sexual favors.

The discrimination allegations involved Hispanic employees, who were allegedly ridiculed and name-calling.  Black employees were alleged to have received similarly hostile treatment. 

As could be expected, the iconic restaurant denied any wrongdoing as part of the settlement. Representatives also claimed that the target of the suit, the managers accused of engaging in severe and pervasive harassment, separated from the restaurant several years ago.

The conduct is said to have stemmed primarily from one long-time manager who has since left the restaurant's employment. 

Take Away

What can employers learn from this case?

Well, for one, even the giant can fall.  The Tavern is legendary--a Goliath in a city of Goliaths.  After nearly 75 very successful years in operation, even the Tavern was not immune from the EEOC's watchful eyes. 

But there's another lesson to be learned here.  The idea that just one supervisor, if left unchecked, can cost your business a lot--a lot of money, a lot of time, and a lot of bad publicity.  Had this supervisor been trained in employment laws, would he have chosen not to engage in such conduct?  Likely not.  But perhaps others would have recognized the serious repercussions of his conduct and put a stop to it before it turned into major liability.

This case is a very good advertisement for harassment and discrimination training for managers.  By setting ground rules for managers to enforce and to follow, employers can take action in preventing this type of detrimental lawsuit.

N.Y. Times: Tavern on the Green to Pay $2.2 Million to Settle Harassment Claim

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.