Delaware Employment Law Blog

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.

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).

The lesson for employers is clear, according to the EEOC’s press release. “EEOC Acting Chairman Stuart J. Ishimaru said, ‘Employers simply cannot overlook or tolerate this kind of outrageous discrimination and retaliation. The EEOC certainly won’t. We will aggressively pursue employers who violate the laws we enforce. And we’ll insist on substantial and meaningful relief for the victims before settling these cases.’” Albertsons also agreed to four years of court-supervised monitoring and a training program for its managers.

Employers who suspect or know about harassing behaviors in the workplace must act promptly to stop them to avoid liability, and should train all employees regarding compliance with equal employment opportunity laws.

Two high-profile sexual-harassment cases are in the news.  One is just beginning, the other has come to a close.

Liza Minnelli settled a lawsuit brought five years ago by her former chauffeur M'Hammed Soumayah that had sought $100 million in damages. The amount of the settlement was not disclosed, but the settlement meant that Ms. Minnelli would not be required to give a deposition in the case. The chauffeur claimed that his boss got drunk, beat him, and forced him to have sex with her. These allegations, if true, would state a claim for sexual harassment under Title VII of the Civil Rights Act of 1964. This case shows that women are sometimes also accused of being sexual harassers.

In another interesting development, the U.S. Equal Employment Opportunity Commission has just filed a class action against a Brooklyn fish seller, M. Slavin & Sons, accusing it of harassing a group of African-American male employees based on their sex, race and/or national origin (African). This case is getting attention not because of the employer’s fame, but because of the sordid nature of the accusations.

According to the Complaint, the owners and managers engaged in a variety of uncouth acts, including grabbing, pinching and sticking fish hooks (!) into the buttocks of male employees, making crude sexually explicit comments to their employees, using racial slurs (including the “N” word), saying derogatory things about Africa, and retaliating against an employee who complained. This is a textbook example of what not to do, even in a rough-and-tumble workplace like a fish market, and is another case of sexual harassment that differs from the more common male on female pattern.

Last night’s shocking revelations by David Letterman about an extortion plot threatening to expose his affairs with subordinates reveal to the larger public something human resources professionals have known for years: Romantic workplace relationships can lead to trouble, legal and otherwise. As a result, you should review your policies and practices to ensure that a failed romance ends with only a broken heart, not an empty bank account.

Workplace romance

The typical scenario unfolds like this: A supervisor begins to date a subordinate. They go out, have a good time, and continue to see each other socially. The two employees interact every day at work, and as the relationship grows, some of their romantic behavior seeps into the workplace. They are frequently together behind closed doors, e-mails are exchanged regularly, other employees take notice and begin talking about their questionable conduct, and the office suffers decreased efficiency and productivity.

When two employees having a romantic relationship are in the position of supervisor and subordinate, others become resentful and charges of favoritism arise. The couple may have sexual contact at work or elsewhere, sometimes with embarrassing consequences.
After a few months, one of the employees decides things aren't working out and breaks it off, much to the other's chagrin. The supervisor then unsuccessfully attempts to pick up their business relationship where it left off before the affair or to retaliate against the subordinate.

Things get out of hand, and the subordinate files a sexual harassment claim.
Sexual harassment claims can be extremely expensive, even if you eventually prevail. They're also divisive and sabotage productivity. For an individual employee — victim or accused — a sexual harassment claim can be "professional suicide." Since as many as a third of all consensual romantic relationships begin at the workplace and many end badly, what's a beleaguered employer to do?

When romance sours

Most employees instinctively know when to draw the line on behavior that could be viewed as sexual harassment toward people they know only casually at work. The line gets blurry for some, however, when the questionable behavior was at one time consensual.
Your obligation to stop harassment in that situation is clear. You have no responsibility to seek out a dating couple daily and inquire about the status of their relationship to determine if it's still consensual. But the minute one of them indicates he or she wants the other to stop the contact and makes that known to the company, your duty to stop what has arguably become sexual harassment begins and the liability meter starts ticking. Just because the victim consented to the same or similar conduct at one time, that doesn't absolve your company from liability. The troublesome aspect is, you often may not fully appreciate the fact that the relationship has now become sexual harassment.

Other concerns include the sexual favoritism claims that frequently follow on the heels of a workplace affair. Those claims involve a type of sex discrimination that stems from one employee being treated unfavorably because he or she isn't in a personal relationship with the supervisor. The employee who's involved with the supervisor receives favorable treatment to the detriment of other employees in the department.

Continue reading "Not So Funny Business: What Employers Can Learn from the David Letterman Affairs?" »

In July, Delaware Governor Jack Markell signed into law an amendment to Delaware’s employment-discrimination statute. The amendment prohibits discrimination based on sexual orientation. Not surprisingly, many employers are concerned about the potential for increased litigation in light of the new law. Some employers may be surprised to learn that current federal law has been used to achieve a similar level of protection. A recent decision from the federal appeals court demonstrates the extent that such protection is provided under Title VII of the Civil Rights Act (Title VII).

The U.S. Court of Appeals for the Third Circuit, which has jurisdiction over the federal courts of Delaware, Pennsylvania, New Jersey, and the Virgin Islands, ruled in late August that a homosexual employee could proceed with his claim that he was harassed and fired because of his “effeminate behaviors.” The unanimous decision of a three-judge panel in Prowel v. Wise Business Forms, Inc., has made headlines across the country as an extension of Title VII’s sex-based discrimination provisions. Brian D. Prowel brought the claim after he was terminated by his employer after 13 years with the company. He alleges that Wise told him that he was being terminated for lack of work as part of a workforce reduction. 

According to Prowel, his termination actually was a result of “gender stereotyping.” Unlawful gender stereotyping in the workplace occurs when an employer discriminates against an individual because the individual fails to conform to a certain perception about how the gender should look and act.

Prowel claims that his coworkers called him “Rosebud” and “Princess” because he was well dressed and well groomed and did not engage in rowdy and distasteful behavior like his male colleagues. Coworkers, Prowel claims, left items such as a pink, feathered tiara and anti-gay religious pamphlets on his desk. In other words, Prowel claims that he was harassed and eventually terminated because he didn’t act “manly enough.”

Although the Prowel Rule May Be New, A Much Older Rule Still Applies

Organizations with employees in Delaware, Pennsylvania, and New Jersey should be mindful of the court’s ruling in Prowel, not because it stands for an expansion of the anti-discrimination laws, but because it strongly supports a principle that is much older than Title VII: Do unto others as you would have them do unto you. If an individual is being harassed, he will likely be able to characterize the harassment as being based on some protected characteristic. If no harassment occurs in the first place, there will be no need to split hairs over the true reason that he harassment occurred. Thus, to avoid being faced with a claim of unlawful harassment, the best practice is to strictly prohibit any kind of taunting, mockery, or from occurring in your organization’s workplace.

Employers in Delaware, Pennsylvania, New Jersey, and Virgin Islands, who are within the jurisdiction of the Third Circuit Court of Appeals, have the benefit of a new decision from that court providing guidance on a key issue in harassment law.  The case, Huston v. Procter & Gamble Paper Products Corp., issued on June 8, is good news for employers and offers important precedent in a critical area of employment law. 

Some context . . .

When an employee files a sexual or other harassment claim involving allegations of harassment by a co-worker, the employer often invokes what is known as the Ellerth-Faragher defense.  To utilize this defense, the employer must show that it took reasonable steps to prevent harassment in the first place.  This is normally accomplished by showing that the organization had an anti-harassment policy, which was communicated to the employees.  (See my previous post for more information on what exactly constitutes an effective anti-harassment policy). 

If the employer can meet this burden, then the employer must demonstrate that it took reasonable steps to correct and mitigate the harassment.  Usually this means that the employee followed the steps outlined in the organization's anti-harassment by reporting the offensive conduct.  Next, it's up to the employer to act on the information that the employee has provided.  This requires the employer to follow the steps enumerated in its policy and to do so quickly.  At the end of the day, the employer must investigate the claim and take whatever steps necessary to cure any ongoing harassment.  And the employee must cooperate in the investigation and, within reason, accept whatever remedy the employer implements.

If the employer fails to promptly investigate or otherwise act once it knows or "has reason to know" of the allegations of harassment, the defense is not available.  The case often becomes one of "he-said, she-said" evidence and the employer will likely find it quite difficult to present an effective defense. 

Therefore, one of the most critical points is when the employee first makes its report.  If the employee tells only a friend, family member, or coworker, the employer is not deemed to have knowledge of the allegations and is not required to take any action.  If, however, the employer makes a complaint of harassment, formal or informal, to a member of management, including HR, the company is deemed to have knowledge of the allegations and its duty to act is triggered. 

In Huston, the 3d Circuit addressed the question of just who qualifies as a managerial employee sufficient for the purposes of imputing knowledge to the employer.  The employee-plaintiff, Huston, worked on a team of employees who operated large paper machines and claimed that the machine supervisors knew of the harassment but failed to take action in accordance with P&G's policy. She argued that, because "supervisors" had knowledge of the conduct, the organization also was imputed to have knowledge, triggering its duty to act.

The Third Circuit disagreed.  The court found that the machine supervisors did have some, limited supervisory functions but those functions were limited to  supervising work on the machines, which was insufficient to trigger liability for the employer.  Only two types of employees will be sufficient to impute knowledge of co-worker sexual harassment.  First, where the employee is "sufficiently senior" to the complainant or otherwise "in a position of administrative responsibility over employees under him, so that such knowledge is important to his general managerial duties.  Department or plant managers are examples of this first type of employee. 

Second, where the employee "is specifically employed to deal with sexual harassment" will be imputed to the company.  "Typically such an employee will be part of the employer's human resources, personnel, or employee relations group or department."  The court explained that just because an employee has "supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status [in this context].”  Instead, the court explained, “to the extent that such a supervisor does not have a mandate generally to regulate the workplace environment, that supervisor does not qualify as management level.”