Last week, I discussed the basics of some of the claims of discrimination and harassment filed by Fox 61 reporter Shelly Sindland. Today, I’ll discuss some more specifics of the claim and some of the possible defenses by the employer, to provide additional context. The case provides an excellent starting point to discuss several different areas of the law.
In the employer’s policies and procedures manual, the company seems to inoculate itself from some types of harassment claims. Can it do that?
Yes and no. First, let’s start with looking at the policy itself. According to its website:
Working at Tribune means accepting that sometimes you might hear a word that you, personally, might not use. You might experience an attitude that you don’t share. You might hear a joke that you might not consider funny. That is because a loose, fun, non-linear atmosphere is important to the creative process.
(As an aside, I had discussed this exact language more than 18 months ago in a post and questioned the company’s apparent refusal to have it reviewed by legal counsel.)
The key words here, in my view, are "important to the creative process". Indeed, some courts in recent years have given employers a bit more flexibility in managing their workplace where the "creative process" is involved.
For example, a 2006 California case held that a writer’s assistant for the television show "Friends", could not claim a sexually hostile work environment where she had been forewarned that telling dirty jokes was part of the writing process.
So, in this case, the company may contend that television news is, in part, entertainment that involves a creative process. Moreover, it may state that having a television newsroom where the occasional talk about good looks and on-air banter is simply part of that process. After all, television is a visual medium. Perhaps, the company will even indicate that its handbook is a warning to employees about this and that it is unreasonable for employees to be offended by each slight.
Nevertheless, federal and state law do not provide an exception for any employer to harass employees. Thus here, the reporter may respond to the company’s claims by relying on the law and state that putting all the incidents together was enough to create a hostile work environment for a reasonable person. Moreover, the company has another policy on its website that refers to its "zero tolerance" of harassment that seems a bit counter to its other policy statements. It’ll be interesting to see the interplay of these two policies and the company’s explanation of them.
What if an employee "played along" with the jokes and banter; does that diminish an employee’s claim of sexual harassment?
It can, though the context of each case is important. Sexual harassment is defined, in part, as "unwelcome" conduct that is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Thus, if the employee is encouraging this behavior, there is an argument to be made that it was not "unwelcome".
Here, the reporter’s complaint indicates that, at times, she "played along" with her supervisor’s statements about who the father of her child was "in a joking manner", though she contends she did so to "stay in good graces" with him. (Paragraph 17, of the Complaint) Thus, the company may contend that because she did not complain about such behavior and participated in it at the time, she cannot claim it was "unwelcome".
Can an employer fire an older employee because of their salary, and replace them with younger people who are less costly?
Yes, so long as the employee’s age is not the real reason why the employer is taking action.
In Paragraph 33 of the Complaint there is an allegation that another reporter was told she could quit if she didn’t like the situation because the employer could hire two younger reporters for the same salary. The implication by Ms. Sindland is that the employer was looking to hire younger workers. But this allegation cuts both ways; it could also be used by the employer to show that its motivation was not age, but cost savings.
Indeed, the U.S. Supreme Court has held that an employer does not violate federal law "by acting on the basis of a factor, such as an employee’s pension status or seniority [or salary], that is empirically correlated with age." Hazen Paper Co. v. Biggins, 507 U.S. 604, 608-09 (1993). Even though age is often related to factors such as salary, it is "analytically distinct" from them.
What other things stand out from the Complaint?
In no particular order:
- I think most people would be surprised to learn that a reporter of Ms. Sindland’s tenure (and others in this media market) make only $60,000-$67,500 in base salary in a year. While the news anchors (particularly the 6 p.m. and 11 p.m.) may make significantly more, there is still a wide disparity in pay that isn’t discussed much publicly.
- The bankruptcy of the Tribune Company will clearly play a role in the Company’s defense. Even Ms. Sindland says that her supervisors told her she wasn’t getting a longer contract term because of the company’s ongoing bankruptcy. Expect to hear more about this.
- Where are the complaints by other employees? For example, Ms. Sindland’s complaint suggests that a news anchor, Susan Christensen, might have been let go because of her age. If so, why hasn’t Ms. Christensen filed a complaint with the CHRO (or why didn’t she and others join Ms. Sindland’s complaint)? Of course, one answer may be that she has brought a complaint; it’s just not publicized yet. But whether Ms. Sindland’s complaint is the tip of the iceberg or an isolated incident will be one of the issues to keep an eye on in the upcoming months.
- And, while unrelated to the claim of discrimination, Ms. Sindland also states that in September 2008, she complained that her employer was committing "ethical violations related to receiving payments for news stories" (Paragraph 29). In the words of another blog, "What’s up with that?"