The sports headlines this week have turned into news ones.  One football player on the Miami Dolphins, Richie Incognito, is accused of harassing (bullying? hazing?) another player, Jonathan Martin. 

The details are still being determined so despite the media jumping to conclusions, it really does seem too soon to enter a final judgment on the entire incident. 

But two aspects from the last day are disturbing to me as an employment lawyer and are worth a quick review for employer.

First, there’s the notion being tossed around that Martin — the alleged victim —  just should have fought back against Incognito, perhaps even physically.

Why is that being advocated?  Because football players are “men” and that’s what “men” do.

Ugh.

Can you imagine this same philosophy being advocated for construction personnel? Or prison guards? Or other fields in which physical attributes are sought?

Or what if there was same-sex harassment involving two female employees? A recent filing by the EEOC tackled that one

Human resources departments around the country should be shaking their heads.    If this happened in a so-called “real” workplace, that type of fighting back likely leads to another outcome — discipline for both for fighting in the workplace.   While we do advocate suggesting employees tell their harasser to stop, that’s where the line should stop. 

And for someone who believes that they are being harassed, they ought to be encouraged also to go to a supervisor or human resources person for assistance.  It’s up to the supervisors to do something. 

While leads me to the second troubling aspect of the story that I saw with this headline:

“Sources: Dolphins coaches asked Incognito to toughten up Martin”

If true, it would similar to the “Code Red” scenario from the movie and play “A Few Good Men”.  You know the one . It’s where Jack Nicholson ordered extra-judicial punishment of soldier to teach him a lesson and the soldier died as a result.   

This type of scenario illustrates a complete breakdown of the order that should be in place in a workplace. When supervisors condone the harassment of employees by co-workers, that should send off a real “Code Red” for employers — it’s a potential big liability problem on it hands.

Did that happen in Miami? We don’t know yet.

But for employers that like drawing lessons from real life parallels, the case out of Miami is setting up as a doozy.

It’s tough to draw lessons from appeals of arbitration decisions.

Why? Because the standard to overturn arbitration cases is high and, it’s only when there are really bad facts (or, perhaps more likely, an really bad error in interpreting the law) that appellate courts consider reversing the decision.

That appears to be the case in State v. AFSCME, Council 4, Local 391, a decision from the Connecticut Supreme Court that will be officially released on August 6, 2013.

In that case, an alleged sexual harasser had been fired; but an arbitrator found the dismissal was unwarranted and ordered the employee reinstated — albeit reinstated after a one year suspension.  The Appellate Court reversed the arbitrator’s finding.  The Connecticut Supreme Court, in its ruling, has upheld that decision.

In doing so, the Court concludes that termination of an alleged harasser may not be appropriate in all cases, but may be required in many others:

We also recognize that the fact that there is a strong public policy against certain misconduct does not require an employer to terminate every employee who engages in that misconduct. Rather, we must determine whether the employee’s misconduct was ‘‘so egregious that it requires nothing less than termination of the [employee’s] employment so as not to violate public policy.’’

In this case, the court found it so egregious as to warrant termination.  Here’s a sample:

[T]he complainant testified in the arbitration proceeding as follows: ‘‘[The grievant] stated to [the complainant],‘Hey [h]omo it’s about time you came downstairs and stop sucking c**k.’ [The complainant] also testified that six weeks after that when he was . . . in the pharmacy he felt something touch his buttocks, he jumped and turned around and [the grievant] had a banana held at his crotch area, and made the statement in front of a witness, ‘he jumped like a girl.’ The [c]omplainant went on to testify . . . that at least [thirty] times [the grievant] called him a ‘ripper.’ The [c]omplainant didn’t know what that meant, and asked another employee what it meant and was told it meant ‘child molester.’ He confronted [the grievant] and asked him to stop making those statements, but [the grievant] continued. The [c]omplainant bought a parrot from another co-worker, [the grievant] overheard the conversation and later in the shift asked the [c]omplainant, ‘what did you have to do for the bird, give him a blow job.’ [The grievant] on other occasions also made comments about the [c]omplainant and a co-worker because they lifted weights together, and asked the [c]omplainant, ‘what do you guys do there grab each [other’s] crank.’ ’’

The dissent takes the majority to task saying that while he agrees that Connecticut has a public policy prohibiting sexual harassment in the workplace, it does not mandate termination of employment in every instance.  Rather, a “strong punishment” should be all that the state should force.

For employers, the case is a double-edged sword. On the one hand, the court seems to approve of an employer who says that it has a zero tolerance policy for harassment and supports the termination. But on the flip side, suppose the alleged harasser wasn’t terminated.  Could the employer then be liable for sexual harassment for not terminating the harasser? What will be “so egregious”? Is it the exception or the norm?

We’ll have to see the way this plays out in the court system over the next few years.

A case out of the Second Circuit Court of Appeals (of which, Connecticut is part of) addresses an interesting question:

When a jury  finds that sexual harassment has been perpetuated by a single employee, is injunctive (non-monetary) relief required to be issued by the District Court?

The EEOC argued yes and argued that remedies such as preventing the harassing employee from returning to the workplace were appropriate. 

Um, there’s a problem in Aisle 3.

The Second Circuit agreed in part, saying that ordinarily a termination of a lone harasser should be enough. But the court said that given the egrigious facts of this particular case, something more should’ve been done to protect the female employees from potential future harassment.

The case, EEOC v. KarenKim, Inc. (d/b/a Paul’s Big M Grocery), can be downloaded here. 

There’s a lot of facts to the case, but this summary, by the Outten & Golden Employment Law Blog, captures some of the salient points:

KarenKim is a grocery store whose employees largely consist of teenage female employees. The company is owned and managed by Karen Connors. In 2001, she hired Allen Manwaring as the store manager. In 2006, Connors and Manwaring became romantically involved and had a son together.

At trial, a number of current and former employees testified about Manwaring’s sexual harassment of the female employees, which consisted of verbal and physical harassment. Some of his verbal comments included making comments of a sexual nature to employees and compliments about parts of their body. He told one employee that if he was her boyfriend, he would never “let her out of his sheets” and that “if he was 10 years younger, he would be on top of her.” He also physically harassed the women by touching and massaging them in inappropriate ways and on a daily basis. He would brush up against them to deliberately touch their breasts, put his crotch against their buttocks, breath on their necks, hug them, and squeeze their hips.

Oy.

Continue Reading What Remedy Is Appropriate When a Jury Concludes Sexual Harassment Occurred?