Delaware Employment Law Blog

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.”

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.  

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:

• A clear explanation of prohibited conduct;
• Assurance that complainants or witnesses will not be subject to reprisal;
• A clearly described complaint process that provides alternative avenues for complainants;
• Assurance that the employer will protect the confidentiality of the reporting employee to the extent possible;
• A prompt, thorough, and impartial investigation process; and
• Assurance that the employer will take immediate and appropriate remedial action if it determines that harassment has occurred.

Each of these elements are essential if you want your policy to be effective against a claim of harassment by an employee.   Employers cannot take advantage of an effective policy, though, without additional workplace safeguards.   The most important of these safeguards is periodic training.

Managers and supervisors should receive annual training to ensure that they understand their responsibilities under the company's anti-harassment policy and complaint procedure.  Training should review:

• The types of conduct that violate the policy;
• The seriousness of the policy;
• Their responsibilities when they learn of a claim of harassment; and
• The prohibition against retaliation. 

Employees should also receive periodic training.  After all, what good is a complaint mechanism with which employees are unfamiliar.  One important benefit of training employees on the organization's anti-harassment policy is the ability to communicate that harassment is not limited to sexual conduct alone.  Instead, an anti-harassment policy should cover all forms of harassment, including race, color, gender (both sexual and non-sexual), age, national origin, disability, and religion. Many employers' harassment policies are limited to sexual harassment, which is insufficient under the law. 

Employer's Nightmare.  A true story about the real dangers of summer internship programs--the social events.  First featured first by Jeremy Hodges at Law.com.

Act I: The Woes of Employer

Employer hires summer interns.

Employer pays summer interns a lot of money.

Employer requires very little work from summer interns.

Employer ensures summer interns are wined and dined.

Employer hopes summer interns will return for full-time work.

Act II: A Night On the Town

Employees organize a Friday-night gathering.

Employer may or may not have sponsored said gathering.

Gathering ends up in a strip club.

In strip club, one male employee gets too close to summer intern.

Summer intern, disgusted, rebukes employee's advance. 

Act III:  Back at the Office

Intern reports employee's conduct.

Employee's conduct is investigated by Employer.

Employee leaves Employer

Intern accepts position with different Employer.

Tragic Ending

Employer is faced with lose-lose scenario.

Morale of the Story 

Don't let the kids out without a chaperone and make sure you know which employees are still kids.

Savvy employers know the potential value of a sexual harassment policy.  Without an effective harassment policy, employers may not avail themselves of the most common (and successful) defense.  Employers take pains to ensure that their sexual and other types of harassment policies are thorough, are communicated to employees, and are capable of remedying the conduct as promptly and effectively as possible.  

So you can imagine the disappointment of Temple University when the Court of Appeals for the Third Circuit recently struck down the University's sexual harassment policy.  The court held that the policy was overly broad and improperly infringed on the free-speech rights of students.  Public employers should heed this warning--an overly broad harassment policy runs the risk of being invalidated.

And are you wondering what it was that the plaintiff claimed he could not say because of the sexual harassment policy?  The former graduate student who filed the lawsuit claimed that the policy prevented him from expressing his opinions about the role of women in the military.

The plaintiff, Christian DeJohn, was enrolled in Temple's Masters program, where he was pursuing a degree in Military and American History.  The topic of DeJohn's masters thesis was the role of women in the military.  DeJohn argued that the policy restricted his ability to voice his opinions.  After DeJohn commenced his litigation, Temple voluntarily amended the policy.

The Third Circuit found two problems with the school's sexual harassment policy.  First, the policy, which prohibited "all forms of sexual harassment," specifically targeted “expressive, visual, or physical conduct of a sexual or gender-motivated nature when… such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or . . . of creating an intimidating, hostile, or offensive environment.”  The problem with this language is that the policy barred such conduct regardless of whether it actually had such an effect.

Second, the Court found that the language of the anti-harassment policy prohibited too wide a range of activities, noting that the use of words such as "'hostile,’ ‘offensive,’ and ‘gender-motivated’" were so broad and subjective that they could be applied to just about any speech that is "gender motivated" and that someone finds offensive. 

The U.S. Equal Employment Opportunity Commission ("EEOC") has filed suit against Philadelphia-employer, Verizon, alleging unlawful retaliation.  The complaint was filed on behalf of former service technician, Theresa Allen, who worked at the company's Bryn Mawr facility until last year.  Allen, who is in her 50s, was the only female employee at that location until October 2006. 

According to the EEOC's complaint, Allen was sexually harassed during the 21 years of her employment by being exposed to pornographic magazines, which were commonly left out in the open in the workplace.  She was also subjected to inappropriate physical contact.

Philly.com reports that, in August 2006, Allen began to complain to management about the various offenses.  In September, Allen claims, after the conduct had not ceased despite her complaints, a plastic rat was hung in the service technician's garage.  She removed the rat but it reappeared several times.  Phrases like "Ratteri" and "Stop telling on everybody" were written in various places around the garage.  Allen was fired in February 2007, allegedly for taking home two cups of rock salt, which she claims to have later replaced with a 10-pound bag. 

Minimizing retaliation claims
There are a number of ways you can reduce your likelihood of being faced with a retaliation claim, including the following:

1. Ensure that you have a policy prohibiting retaliation included in your harassment and discrimination policies.
2. Make sure your policies clearly state that suspected retaliation must be reported, and provide employees several avenues through which they can do that.
3. Train all supervisors and managers so they know that it's unlawful to retaliate against employees for protected activity. That includes formal charges of discrimination as well as internal complaints about harassment or discrimination.
4. When you receive a complaint about unlawful activity or are charged with discrimination, protect the source of the complaint as much as possible. One of the best defenses to a retaliation claim is to be able to show that the person who supposedly retaliated wasn't even aware of the charge or complaint in the first place. Of course in many situations, the employee's immediate supervisor must be told about a complaint so that an adequate investigation can be conducted.
5. Treat the complaining employee like nothing has changed.  Of course, filing a charge or internal complaint doesn't insulate the employee from future disciplinary action.

Sexual harassment in the workplace is considered inappropriate and unlawful.  Well, at least in this country it is.  But, according to a Russian judge, it is absolutely okay, and even an act of chivalry, to sexually harass your female workers. He reasoned that without harassment, the human race would come to an end. 

Russia has no laws against sexual harassment, and only two Russian women have ever won a sexual harassment case.  And that’s not because it doesn’t happen there.  A recent survey found that “100% of female professionals said they had been subjected to sexual harassment by their bosses, 32% said they had had intercourse with them at least once and another 7% claimed to have been raped.”

How this serves to preserve the human race I'm not sure.  But it does give me another reason to appreciate the American workplace.

NASCAR has been sued for race discrimination, gender discrimination, and sexual harassment.  The plaintiff, a black female former official, seeks $225 million in damages.

The plaintiff, Mauricia Grant, worked as a technical inspector in NASCAR's second-tier Nationwide Series until she was fired in October 2007. She'd been with the organization since 2005, when she alleges the harassment and discrimination began. 

Her complaint, filed in federal court in New York, lists 23 specific instances of alleged sexual harassment and 34 specific instances of alleged gender and racial discrimination.

Despite an increasingly female fan base, NASCAR has long been a "man's sport" with women's involvement traditionally limited. 

Grant claims that she was harassed based on her race and her gender, as well as subject to a sexually hostile work environment.  In support of her racial discrimination claim, she alleges that she was referred to as "Nappy Headed Mo" and "Queen Sheba" and was told that she worked on "colored people time. 

One official, Grant alleges, routinely made references to the KKK.  And, while riding with coworkers at Talladega Speedway, she was told to duck as they passed by race fans because, one said, "I don't want to start a riot when these fans see a black woman in my car."

As for the sexual harassment, she says that she was accused of being gay when she ignored advances of co-workers.  She also claims that those same co-workers exposed themselves to her and made graphic and lewd jokes.

Grant also alleges that she routinely complained about the conduct to multiple supervisors, who responded that she should just "deal with it," and dismissed the conduct as attributable to "former military guys" with a rough sense of humor.

Source:   ESPN: Ex-NASCAR worker alleges racial discrimination in lawsuit

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

The Department of Justice has been sued by an employee who alleges racial discrimination and sexual and race-based harassment. 

A 13-year veteran paralegal in the Civil Rights Division of the Department of Justice (DOJ) has filed suit claiming she was discriminated against and harassed by managers who repeatedly passed her over for advancement because she is African-American. Joi Hyatte alleges that the DOJ "actively" sought only white and Hispanic candidates for higher-paying analyst positions.

The complaint also says that the section chiefs failed to rein in or discipline three white male lawyers who "behaved in a racially and sexually offensive manner" toward two female analysts -- one white, the other black. 

The attorneys mocked the Caucasian analyst for displaying pictures of prominent African-American civil rights activists and leaders on the walls of her office. They also commented that she had a 'tight ass' and referred to both women as 'lesbians' and 'carpet munchers.'

David Vladeck, a professor at Georgetown University's law school, is representing Hyatte.  He says at least six other African-Americans in the voting section have complained of similar treatment, filing internal complaints with the DOJ's EEO Office.

Hyatte does not seek the normal damages.  She wants to be promoted to analyst and seeks back pay for the period that she had been performing analyst work without receiving the title or the pay that goes with it.  Law.com has complete coverage of this developing story, Civil Rights Division Employee Sues DOJ, Alleges Discrimination.

It's not very common, but it does occasionally happen that a government agency is charged with committing the very same offenses that it is charged with eradicating.  See my earlier post, Some Might Consider It Ironic:  EEOC Charged With Violating the Overtime Exemption of the Fair Labor Standards Act.

Several EEOC settlements have made the news lately. Here's another one to add to that list.

Three Baltimore-area Kobe Japanese Steak Houses have agreed to pay $80,000 and implement anti-harassment policies to settle a discrimination lawsuit filed this month by the EEOC. The suit accused managers at the White Marsh and Largo locations, along with a Virginia restaurant, of sexual and racial discrimination toward Hispanic female workers. The settlement, which includes cash payments to four employees as well as anti-harassment rules and training at the restaurants, does not include an admission of any wrongdoing by the restaurant group.

Since June 2003, Marta Yolanda Elias Garcia, Francisca Elizabeth Carrillos Lopez and other Hispanic women were subjected to “unwelcome and highly offensive sexual advances, including groping, touching and constant taunts about their sex, race and nation origin,” according to the lawsuit filed in U.S. District Court in Baltimore City.

Garcia and Lopez were fired in retaliation for opposing these illegal actions, the Commision said.

Go to source web page: baltimoresun.com

Summer means an influx of teen workers for many employers. Teen employees bring with them a unique set of legal issues of which businesses should be aware. Here are some ways to get ready for this year’s youth initiative.

Department of Labor

The U.S. Department of Labor (DOL) has published a web page that’s loaded with information and suggestions to help employers keep their teen-aged workers safe and to keep themselves in compliance with child labor laws this summer. Not all employers are aware of state and federal restrictions on the activities in which teens are permitted to engage at work. Alert employers will want to review this page, click on the links, and plan the steps they will take to decrease the risk that their teen employees will be injured at work.

The Delaware Department of Labor (DDOL) also has information about state child labor laws available in booklet form. A brief summary is available on the DDOL's website.

Sexual Harassment Awareness

Employers should also take steps to address the special vulnerability of teen workers to sexual harassment. As an item on this blog noted a few weeks ago, an ABA Journal story reported that the number of teen-aged workers filing sexual harassment charges is on the rise. Teen workers are often part-time or seasonal, and may be in the workplace for the first time. They tend to fall between the cracks when it comes to training. Many restaurants, movie theaters and retail stores have teen-age supervisors and managers as well as workers. Teens tend not to realize that the standard of conduct at work is different from what’s permissible in a social setting.

Bottom Line

To minimize their risks, employers who hire teen-agers must make a strong effort to educate them (and their supervisors) about harassment, retaliation and workplace safety in a meaningful and understandable way.

Sexual Harassment Claim Based on Raunchy Radio Listening Leads to Liability

A female employee who quit her job when her employer failed to respond to her complaints about the offensive conduct of her male co-workers will see her day in court. A federal appeals court revived the sexual harassment claims, which alleged that the employer permitted the co-workers to enjoy the risqué humor on a daily radio and did nothing to stop the crude derogatory terms often employed when discussing women.

The outcome in Reeves v. C.H. Worldwide Transportation, Inc. (click the link for full-text of the opinon), seems to have surprised some employment law bloggers, including the Ohio Employment Law Blog, one of our favorite e-law blogs.

I think the outcome is consistent with prior cases.

Offensive Conduct

The employee, who was the only woman in her work group, was offended by being subjected to her co-workers’ choice of a daily morning radio show that featured sexually explicit content. They ignored her complaints to them and to her supervisor about the program, which included topics graphic enough not to post.

In addition, commercials broadcast during the program featured: “sexual favors; a bikini contest that instructed women to wear their most perverse bikinis; . . . a drug called Proton that promised to increase sexual performance, please a partner, and make the user a “’sexual tyrannosaurus rex.’”

The employee also complained about her male co-workers’ frequent use of the words “whore,” “bitch” and other, more colorful terms to describe women they disliked. And, all the while they continuously usedl sexually explicit “language, phrases, jokes, songs, comments, [and] remarks.”

Trial Court Finds "Not Based on Sex"

The district court granted judgment in favor of the employer, deciding that the harassment was not “based on” sex, since all the workers in the office were subjected to the same working conditions, and since the offensive conduct was not expressly “directed at” Reeves. The Eleventh Circuit Court of Appeals reversed.

Appellate Court Finds the Conduct Did Not Have to Be "Directed At" the Employee

In its decision, the Court of Appeals relied on a prior decision involving racial harassment. In that case, the Court held that racially derogatory language did not have to be “directed at” the complaining employee in order to create a racially hostile workplace. Similarly, said the court in Reeves, found that sexually derogatory language did not have to be directed at the complaining female employee. The degrading nature of the language could be sufficient to satisfy the requirement that the harassment be “based on” sex.

The court also held that Reeves had produced sufficient evidence for a reasonable jury to find that the harassment met the “severe or pervasive” requirement. The court noted that the offensive sex-specific language and the radio program were near daily occurrences for almost three years, (at which point Reeves quit). So the frequency of the conduct favored Reeves’ claim.

On the other hand, while the language was offensive, it was not directed at Reeves herself and therefore the court did not deem the conduct to be especially severe. Further, the conduct was not physically threatening to Reeves. But, it was objectively humiliating to her, particularly in light of evidence that Reeves’ male co-workers knew that their conduct made her uncomfortable but did not stop it.

Finally, there was evidence that the conduct interfered with Reeves’ work. She testified that at times the conduct made it difficult for her to concentrate on her work and she would have to leave the room. She also had to take time away from her work to ask her co-workers and supervisor to stop the offensive conduct, and to make notes for herself about what had happened.

Since Reeves had presented sufficient evidence for a reasonable jury to decide in her favor, the court sent the case back to the trial court for further proceedings.

Some commentators have expressed doubt as to the soundness of the court’s reasoning, especially in light of the possibility that the conduct was not actually “directed at” the lone female employee in the group. As the court noted, Reeves’ co-workers knew that she found their conduct to be offensive. But they continued to engage in it despite that knowledge.

These are the types of activities we routinely counsel our clients not to permit, and this case illustrates why we give that advice.

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.