Delaware Employment Law Blog

Morality clauses are in the news again.  A Connecticut second-grade teacher was fired after she appeared, with her husband, on Howard Stern's radio show.  The couple participated in a contest called, "Hottest Wife, Ugliest Husband."  She sued her former employer alleging, among other things, sex discrimination and due process violations (under Section 1983).  She has also sued the union for violation of the duty of fair representation with regard to its alleged failure to advocate on her behalf during the grievance process.

The teacher, Marie Jarry, took a sick day from work to participate in the contest (which, by the way, they won first prize and $5,000).  She admits maybe that wasn't the best idea.  When she returned to work, she was told she'd violated the school's "morality clause" and was terminated.  

More details can be found at The Smoking Gun, as well as a link to the full complaint.

For more on morality clauses, see these recent Delaware Employment Law posts:

Prying Eyes: What is "Private" Becomes Even Fuzzier for Employees Who Snoop

More Drama at the News Desk: Co-Anchor Suspected of Snooping Through E-Mails

Off-Duty Conduct & Newsmakers:  The Role of Morals Clauses in Employment Contracts

Bad Boys, Bad Boys, Whatcha' Gonna Do When They Work for You?

Off-Duty Conduct, Generally:

Off-Duty Conduct In the News

There's No Hiding Your Own Bad Habits

[Editor's Note: Dan Schwartz of the CT Employment Law Blog always keeps his readers up to date on the hottest employment law topics and stories.  He has a great way of demonstrating how just about everything is related to employment law in some way. Well, being the legal eagle that he is, Dan apparently spotted this story at just the same time as Michael Stafford.  So, although I can't send him a hat tip for the story, I do want to send an equally enthusiastic "great post!" to Dan for his great catch.  I mean, really, sharing is a very important value.  If more managers would give credit where credit is due or share credit where possible, they'd have a much happier group of employees and, in turn, a much easier job.  All of that being said, go check out the CT Employment Law Blog for more on this story and Dan's other great posts! md]

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

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.