So a few weeks back, I suggested that we were entering into a new era of sexual harassment cases and wondered out loud when the statistics would back up my observations.

We now have our first signs.  Maybe.

In my exclusive continued look at the case statistics from the Connecticut Commission on Human Rights and Opportunities, we can see the first signs of an increase.

But as I’ll explain below, it’s difficult to know if this is a statistical anomaly.

Despite significant drops in most types of discrimination complaints, the number of sexual harassment complaints in Connecticut went up last fiscal year to 145, up from 135 the year before.

As a percentage of overall claims, sex harassment employment claims are just 3 percent of the overall claims filed, up from 2.5 percent the prior year.

But here’s the issue: When you look back at prior fiscal years in 2014 and 2015, the number of sex harassment claims is still below those years.

In other words, is it a trend up? Or overall down? Indeed, the numbers from FY 2012 are comparable to FY 2017’s numbers. Except that as a percentage, there were more sex harassment claims made 5 years ago, then now (3.6% to 3.0).

What else do we see? Well, as expected with an overall drop in cases is an drop in claims of wrongful discharge, refusal to provide reasonable accommodations, terms and conditions, and even demotions.

Remaining constant were claims for failure to promote, termination of employment due to pregnancy, and aiding & abetting discrimination.

When you review the basis for claims filed, we see drops in claims for age (FY 2017 451 vs FY 2016 518), race (551 vs 616), sex (507 vs 532) and physical disability (445 vs 520).

Some other bases hold steady or even slightly increase: ancestry claims (200 vs 188) and mental disability claims (103 vs. 110).

For employers, watch the trends. Will sex harassment claims continue to increase? And will overall claims decline?

There’s more that we can glean from these numbers too. I’ll have more in an upcoming post.

 

 

“Let’s engage in a Halloween-type party where everybody would be having sex.”

Or perhaps, “So, are you going to wear a bikini for your Halloween costume?”

What is it about Halloween that brings out the creep factor in the workplace?

The first quote is from a real district court case earlier this year which documented a series of alleged comments made relating to a sexual harassment complaint.

(If you’re scratching your head at the reference to a “Halloween-type” party, I’m right there with you.)

The second is from a different case that is no less offensive in its descriptions of pervasive inappropriate conduct in the workplace.

(And, as if you needed confirmation, Princess Leia in a bikini from Return of the Jedi is not appropriate in the workplace, however cool Princess Leia is.)

Now, long time readers may recall a 2008 post about the perils of costumes in the workplace, and another post in 2010 about the perils of enabling sexual harassment when it comes to Halloween.

And yet, it continues.

Suzanne Lucas (a/k/a Evil Hr Lady) recently posted some tips about hosting an Office Halloween party.  Among them:

Costumes shouldn’t make fun of other cultures, the word “sexy” shouldn’t be attached to any workplace costume and the gore should be kept to a minimum. Remember, the goal is to have fun, not to offend. If you want to dress up as a sexy zombie, save that for your own Halloween party with personal friends.

But here’s my simple advice, be afraid. Be very very afraid. There are just way too many bad things that happen on Halloween with far more “tricks” than “treats”.

I realize that sounds like a no-fun lawyer, but how many more sexual harassment cases from Halloween do we really want or need? Do I need to keep writing these posts each Halloween?

One of the interesting strains to come out of the new round of publicity surrounding sexual harassment is a renewed focus on mandatory arbitration provisions.

And it comes from an unexpected source: former Fox News anchor Gretchen Carlson.

Indeed, Carlson recently gave an interview with former ESPN producer and self-titled “Commander-in-She” Valerie Gordon that may have slipped under radar in which she talks about such provisions.

She notes that mandatory or “forced” arbitration provisions enable sexual harassment to exist under the radar.

I’m doing some advocacy work on Capitol Hill, working on gathering bipartisan support to take the secrecy out of arbitration.  You know the forced arbitration in employment contracts makes these things secret.  We have to stop the silence around it.

In another recent interview, Carlson suggested that these arbitration provisions are often “in the fine print” and not focused on when people start a new job.  She’s talked about it during Senate press conferences this year as well.

I’ll be interested in reading more about Carlson’s perspective in her new book being released today.

Carlson’s message should be well taken by employers; if employers are using these arbitration provisions merely as a means to allow a system of harassment to continue, then shame on them.

But here’s the issue: As with most things employment law related, it’s far more nuanced.

There are times when arbitration makes sense for BOTH the employer and employee. Litigation is expensive — very expensive, some of my clients would say — and is filled with uncertainty and time-consuming drama.  I talked more about this in a 2014 post.

Arbitration can be less expensive and can allow both sides to be heard by a neutral third party much more quickly and effectively than a court system.

And yes, it avoids some publicity but again, that can benefit employees too.

By filing in arbitration, rather than court, an employee’s claims won’t be public and won’t seen by future employers as a potential lawsuit waiting to happen.

The U.S. Supreme Court is set to review this once more in a trio of consolidated cases, including whether employers can force employees to sign away rights to pursue a class actions.

And we shall see if the Connecticut General Assembly revisits the issue in the upcoming session in January 2018.  Until then, employers should continue to monitor developments in this area and figure out if mandatory arbitration provisions are right for your business.

 

Back in the 1990s, employers still had the Anita Hill-Clarence Thomas hearings and the tawdry sexual harassment allegations relatively fresh on their minds. Employment lawyers will tell you that they started to see a bump up in claims in the early to mid 1990s as the issues of workplace harassment raised to the surface.

I raised it in one of my posts 10 years ago this very week.

But even before yesterday’s news that major movie mogul Harvey Weinstein has been accused of sexual harassment of many women over many years, I’d been thinking that we’re seeing another wave.

For employers, this new era should be even more concerning.

Why?

Because back in the 1980s and early 1990s, employers could at least say that “well, we didn’t know we needed to train” or “well, we didn’t know we needed to do an investigation.”  It may not have been plausible (or even good business), but at least it was something.

Now with laws in many states mandating sexual harassment prevention training and with U.S. Supreme Court precedent nearly mandating that employers investigate harassment claims and take prompt remedial action, there’s just no excuse.

And yet, over the last 12-24 months, we’ve seen a series of very high-profile people be brought down over sex harassment cases.

The implications for this are huge — and not for the reasons you may think.

It’ll take a while for statistics to back this up, but my educated guess is that settlements of sex harassment claims, and employee verdicts of sex harassment claims are up and going to continue going up.

As a result, employers are likely to pay more for settlements in the short term to avoid headlines of the type we are seeing. And juries are more likely to punish employers that they think should know better.

The practical implications of this for employers are several, but I’ll highlight three, some of which I’ve said before.

  1. It is absolutely imperative for employers to investigate sex harassment claims. But more than that, employers must take steps to ensure that the harassment STOPS.  Paying off one case, only to have the harasser move on to the next victim just is a recipe for disaster.
  2. When a lawsuit does arise, make sure you are fairly evaluating the case. Even if you think you have a defense, there may be more value to settling the case early on than fighting it and losing big.  Not every case is a home run, but not every case is an outright winner for the employer either.
  3. Train. Train. Train.  And when you’re done training, encourage people to bring issues to your attention.  Sweeping claims under the rug will only hurt the employer in the long run.

A new era of sex harassment claims is upon us.  Employers that allow any such harassment to go on risks headlines AND big payouts.  It’s a place employers should strive really hard to avoid.

When was the last time you said you’re sorry to someone at work.  Last week? Last month? Last year? Never?

There isn’t a right answer to this but I was thinking about this yesterday on the Jewish New Year.

Jews are asked to spend the next 10 days to reflect on the past year and ask those who they may have slighted in last year for forgiveness.

Call it prep work for Yom Kippur – the Day of Atonement.

First, an acknowledgement (apology?) up front: This isn’t the firm time I’ve written about workplace apologies.

Back then, I referred you to the SorryWatch blog, which tracks good, bad and ugly apologies.  (There is also a category for “Evil Twin” apologies too. Worth checking out just for that.)

More recently, the blog authors recount the apologies of the Royal Canadian Mountain Police in settlement of a massive discrimination and workplace harassment claim a while back.

It’s a terrific and rare example of the power of an apology in the right circumstance.  You can read the whole thing here, but here’s a brief cut from it:

Instead of succeeding and thriving in a supportive and inclusive workplace, many women have suffered careers scarred by gender and sexual discrimination, bullying and harassment. …

Harassment and the lack of effective systems and processes to have prevented it and eliminated it from our workplace is absolutely at odds with what the RCMP is supposed to be. It is at odds with what we all need the RCMP to be.

To the representative plaintiffs here today: Janet Merlo, who has so courageously taken the lead to represent so many women who have been adversely affected, and to Linda Davidson and all the women you represent; indeed to all the women who have been impacted by the Force’s failure to have protected your experience at work, and on behalf of every leader, supervisor or manager, every Commissioner: I stand humbly before you and solemnly offer our sincere apology.

You came to the RCMP wanting to personally contribute to your community and we failed you. We hurt you. For that, I am truly sorry. You can now take some comfort in knowing that you have made a difference. Because of you, your courage and your refusal to be silenced, the RCMP will never be the same.

I must also apologize to all Canadians. I know how disappointed you’ve been with the Force as you heard some of these very public and shameful examples of disgraceful conduct within our ranks.

The SorryWatch blog gives a big thumbs up to the apology because it meets their suggestions for a good apology.  There are five steps to lay the foundation for a good apology:

  1. Say you’re sorry.
  2. Say the thing you are sorry for. (As an aside, this is notoriously hard for my kids.)
  3. Say you understand the import of what you did.
  4. Make amends.
  5. Figure out what steps to take so it doesn’t happen again.

It won’t work in all instances. But in some it will.

So have your employees say “I’m sorry” to one another when appropriate; it may just prevent your next discrimination case from happening.

The Dialogue, a online conversation between yours truly and a prominent employee-side attorney, Nina Pirrotti, returns today with another installment — this time tackling the topic of sexual harassment in the workplace.   For prior installments, check out these posts here and here.  As for the promised redesign and relaunch of the blog, it’s nearly complete. Can’t wait to share it with you soon.    

chionDan: Last time we promised to tackle a serious topic: Pizza. Given that you’re based on New Haven, surely you have thoughts on the subject. Pepe’s? Sally’s? Modern? Or something else? 

But in the meantime, I wanted to tackle a really serious topic and get your thoughts on the state of sexual harassment claims.  It feels like we’re hearing more about it of late.  It’s been about two months since Bill O’Reilly was fired from Fox News amid allegations of sexual harassment, and the news this month is of a major shakeup at Uber in light of an internal investigation looking at workplace culture.  Indeed, the Uber CEO just announcement his resignation yesterday! We won’t get statistics out from the agencies that receive harassment complaints (EEOC and CHRO), but anecdotally, it feels like we’re seeing more awareness of the issue and more questions from employers.  What are you seeing from the employee-perspective this year?

nina_t_pirrotti1-150x150Nina: This is the bone-chilling reality and the reason why, even if I won the lottery tomorrow I would never give up my day job:  Sexual harassment continues to infect the workplace at the same alarming levels as it did in the days of Mad Men.  Indeed, the only aspects of it that have changed over the years is that now  men of power have much greater variety in the manner of delivery.  So in addition to groping, fondling and yes, even raping women in the workplace ala Don Draper and his C-Suite buddies, men of power these days are also sexting, Snapchatting  and otherwise exploiting social media to prime, intimidate and conquer their victims.  Hell, the president of the United States is even doing it!

Long before a SunTrust recruiter made headlines when he sent a nude photo of himself to a female prospective hire, exposing his genitals and inviting her to “play,” my client, a factory worker who spoke little English, endured daily groping and sexual taunts from her assembly line supervisor.  The smoking gun in that case?  A naked photo of himself that he texted her during work hours.   That case settled quickly, and despite her paltry salary, very, very well.

The main problem I encounter is, even if by some miracle such women summon the courage to come to me (the factory worker, for example, cancelled two appointments before she showed up at my office) , they often are petrified to take it to the next level.   Even when they have damning evidence, these men have such a hold on them that they fear for their jobs and even their physical safety if they come forward.   I will never forget the time I had to meet with a client at an undisclosed location far away from her workplace and my office to consult with her on a case in which the powerful, rainmaker chief of her department was subjecting her to unrelenting sexual harassment and she had the “goods” (graphic e-mails) to prove it!  She, an otherwise rational, grounded person, was convinced he would discover what she was doing and harm her.

Is your workplace more like a locker room?
Is your workplace more like a locker room?

What makes matters worse is that too often these victims’ worst fears are reinforced by employers who fail to take swift, decisive action when sexual harassment allegations are brought to light. This is far more apt to happen when the predator is a money maker for the employer.    In the case of the harassment by the department chief, for example, several other women had complained about his conduct to no avail.  Such non-response packs two punches.  First, it emboldens the predator who now  has first-hand knowledge he can act with impunity.  Second, it chills fresh victims, like my client, from taking action to protect themselves.   At some point, the hope for we plaintiffs’ employment lawyers, though, is that the lid explodes off the boiling pot.   We have seen this time and again in the media with Bill O’Reilly, Roger Ailes and the folks at Uber et al and, closer to home, that fearful employee who was sexually harassed by the “untouchable” chief ended up convincing four other employees to come forward (three of which were senior executives) and that case settled for well over $1 million even though the hospital finally terminated the chief and all five employees  kept their jobs.

I know your clients would never face such a predicament because they are getting advice from the best, Dan!  Perhaps you could share with us, though, how you counsel those employers who learn that an otherwise valuable employee is being accused of sexual harassment?

As for Pepes, Sally,Modern, Bar or others go, they are all great but I prefer making my own.  The secret is in my sauce . . .

Dan:  Well that’s a lot to respond to! But I don’t think it’s a fair argument to elevate rape (a horrific violent crime) into an analysis of sexual harassment cases in general.   No legitimate employer or their counsel is going to countenance sexual assault (much less outright sexual harassment either.)  Everyone agrees such conduct is wrong.    Continue Reading The Dialogue: Sex Harassment in the Workplace — Still an Issue, but How Much?

numbersThis week, the Yankee Institute for Public Policy, a self-described “free market” think tank, issued an article suggesting that Connecticut had nearly the same number of discrimination complaints as our neighboring state, Massachusetts.

(This isn’t the first time it’s been critical of the CHRO.)

In doing so, the Yankee Institute claimed that these statistics raise “questions as to whether Connecticut is simply more litigious or if the policies at the Commission on Human Rights and Opportunities are encouraging more claims.”

The basis for its analysis is a raw look at the statistics of claims filed — something I covered way back in December 2016 in two posts here and here.

I noted back then that the statistics only told part of the story and unfortunately here, the Yankee Institute’s arguments fall into this trap of relying too heavily on just a few statistics.

For example, yes, discrimination complaints have risen in the last few years as the Yankee Institute argues, but the types of complaints being filed are changing.  The Yankee Institute’s article lumps them all together as if they are fungible.

For example, as I noted in December: If you look at the claims involving termination of employment, there were 1216 filed in FY 2016, which is actually down from historical peaks in 2003, when there were 1385 such claims.

Instead, a different type of claim is being filed over the last 15 years — with huge increases in the “terms and conditions” area.

That is, employees who claim that they are being discriminated against in the “terms and conditions” of their employment when it comes to things like hiring, promotions and pay.  It could also mean an employer is not approving leaves, or granting breaks or any other term or condition of employment, however small.

In 2003, there were 411 such claims filed.  In 2014, there were 782.  By FY 2016, however, that number has skyrocketed to 1056!

In my mind, that likely means that more current employees are bringing discrimination claims against their employers.

chro99This is bolstered by a look at the “harassment” statistics. Notably, I’m not talking about sexual harassment claims, which continue to trend noticeably downward.  Just 135 such claims were filed in FY 2016, down from 185 the prior year and the lowest number by far in the 15+ years of available data.

Instead, this is a catch all claim for “I’m harassed” because of some other reason.  Just 175 such claims were filed in 2003, though that number was up to 380 in 2014.  For FY 2016, that number is up to 545.

That’s a more than 210% increase in over a decade!

Is the CHRO to blame for this trend? Without more critical analysis, I am hesitant to place the blame on the Connecticut Commission on Human Rights and Opportunities.

Anecdotally, I hear more arguments that employees are throwing around the phrase “hostile work environment” — not understanding that having a difficult boss is not illegal harassment.

The Yankee Institute’s article is also critical of the CHRO’s closure rate for “No Reasonable Cause” at 54 percent, compared to 87 percent of the Massachusetts claims closed for a lack of probable cause.

The CHRO issued a statement of their own on Facebook this week, with its own explanation for the discrepancy:

Many companies in Connecticut choose to resolve those matters prior to going through the full investigation process, by mediating those claims. Mediation works to the benefit of both parties, allowing for faster resolution and less time and money spent on investigations. These cases are frequently closed in fewer than six months from filing.

Here too, I think there is a danger than just looking at the numbers.  Both sides have some merit to their arguments.

As the Yankee Institute correctly notes, complaints ARE more costly and employers sometimes feel that they should pay something on even meritless claims to avoid the cost of litigation.

But the CHRO can also point to the fact that it has been dismissing more cases of late on Early Legal Intervention, giving employers more opportunities to avoid the cost of the CHRO process.  And the CHRO has been using mediation more effectively in the past — even if cases are getting through Case Assessment Review that probably shouldn’t.

Statistics are helpful; but when a state agency or a think tank starts using the numbers without providing context, reader beware.

zombieAs I did last year, after I posted on the general statistics of the CHRO to see if we could glean any trends, I took a deeper dive into what the statistics this year show.  And there were definitely a few surprises.

Obviously, at the risk of repeating yesterday’s post, FY 2015-2016 was a very big year for employment claims.

But because less employees are being fired or laid off (unemployment in Connecticut is at moderately low levels and the newest national figures this morning show just a 4.6 percent unemployment rate) than in a recession, what gives?

Well, if you look at the “discharge” claims — that is, the claim that “I was fired because of discrimination” — there was a modest increase in those claims to 1216 in FY 2016, up from 1174 in FY 2015.  But still, discharge claims are down from their historical peaks in 2003, when there were 1385 such claims.

But the bigger increase continues to be in the “terms and conditions” area.

That is, employees who claim that they are being discriminated against in the “terms and conditions” of their employment when it comes to things like hiring, promotions and pay.

It could also mean an employer is not approving leaves, or granting breaks or any other term or condition of employment, however small.

In 2003, there were 411 such claims filed.  In 2014, there were 782.  By FY 2016, however, that number has skyrocketed to 1056!  That’s a 35 percent increase in just the last two years.

In my mind, that likely means that more current employees are bringing discrimination claims against their employers.

This is bolstered by a look at the “harassment” statistics. Notably, I’m not talking about sexual harassment claims, which continue to trend noticeably downward.  Just 135 such claims were filed in FY 2016, down from 185 the prior year and the lowest number by far in the 15+ years of available data.  

Instead, this is a catch all claim for “I’m harassed” because of some other reason.  Just 175 such claims were filed in 2003, though that number was up to 380 in 2014.  For FY 2016, that number is up to 545.

That’s a more than 210% increase in over a decade!

Retaliation claims are also up again — an increase from 753 to 776. Though, it should be noted, that rise is a bit slower than the past few years.

What’s the takeaway?

As I noted last year, you may be looking for claims in the wrong spot.  Dismissal claims are up modestly but “harassment” and “terms and conditions” claims continue to see the biggest increases.

Thus, managing your current employees and getting legal counsel involved to help advise you, may be more helpful to keeping such claims to a minimum than just talking with counsel exclusively about terminations.

Regardless, employers should continue to be mindful that the trend of increased discrimination claims in Connecticut shows no signs of slowing down.

 

trumpphotoEach election cycle, I hope that employment law issues will move front and center to the Presidential campaign.

And each cycle, I’m slightly disappointed that such issues only get short shrift.  Sigh.

But as I’ve done before, it would be nice to fantasize about employment law questions that could be posed to the candidates at the upcoming Presidential debates.

So, just in case Lester Holt or the other moderators are brainstorming ideas on the internet, here are three questions I’d like to see asked of Donald J. Trump.

(I’ll have a followup post for Hillary Clinton.)

  1. The U.S. Department of Labor has recent proposed raising the salary threshold requirements for employees to receive overtime. As a result, millions more workers may start to get overtime in December of this year.  But this week, various states and business groups have filed suit to block its implementation. You have previously said that you support a rollback of these new rules.  Why? What specific changes would you propose to the overtime rules if you were going to roll back the current proposal.  Be specific.
  2. You recently said you would advise your daughter Ivanka to “find another career or find another company” if she faced the same harassment as alleged in the sexual harassment lawsuit against former Fox chief Roger Ailes.  Can you explain why you think your daughter should leave a company if faced with harassment? Doesn’t the company bear some responsibility to its employees to stop the harassment and ensure a safe working environment for its employees?
    Followup question: Given the allegations against Roger Ailes and Fox’s payment of $20M to resolve allegations by one of its former employees of sexual harassment, how do you justify consulting with him and what message (if any) do you think it sends to your female workers on your staff?
  3. States like Connecticut have passed a version of Paid Sick Leave. Do you support such a law? As a followup, you recently said you would support a six-week paid maternity leave program.  Why are fathers excluded from your proposal? Do you think fathers should have any paid time off after the birth or adoption of a child?

 

 

DSC03212$20,000,000.00.

That, as they say in the legal parlance, is a crooked number with a LOT of zeros behind it.

And that is also the reported amount of settlement between Gretchen Carlson and Fox News over her sexual harassment lawsuit.  Plus an unprecedented apology.  And it doesn’t take into account other cases of harassment that are allegedly being settled concurrently.

Now I’m sure the settlement had all the disclaimers that Fox News was not admitting liability as part of the settlement.

But you don’t need to be a lawyer to know that you aren’t paying a $20M settlement as “nuisance” value.  I have little doubt that the investigation that Fox News conducted turned up some pretty egregious evidence of something and the company figured that paying the settlement was STILL a lot cheaper than having the case go forward.

It’s a big deal in a lot of respects.

First, by my back of the napkin recollection, it has to be one of the largest single-plaintiff sex harassment settlements ever inked. (If there were ones much larger, it’s been kept pretty confidential.).

Second, it demonstrates — as if the allegations didn’t already — that despite pervasive training and years of awareness, that some workplaces are still riddled with sexual harassment.  I noted as much in a prior post back in July but back then it was tough to figure out what was happening.

A $20M settlement sort of avoids any doubt as to what was happening.

Third, companies need to be vigilant and if the CEO/President is condoning the behavior (or worse, is the one engaging in harassing behavior), then it’s up to the Board of Directors to take a stand.

Fourth, it’ll likely be used as a benchmark for other cases of harassment in settlement negotiations. You can just hear it now: “Well, if Gretchen Carlson got $20M, my client’s case is worth at least half as much….”

Lastly, it should put to bed the notion that we are in an environment where sex harassment just isn’t a problem any more.  Back in 2011, there was a notable column in The New York Times that suggested that was the case and I highlighted it in a discussion about this very issue.

Gretchen Carlson will now join the pantheon of people who spoke up when it would’ve been more convenient to remain quiet.  And everyone — employers and employees alike — ought to appreciate the sunlight she has brought to the issue.  Whether this case is a harbinger of more things to come or not, use this case as an opportunity to test your own practices.