Over the last several months, I’ve been asked to do far more sexual harassment prevention trainings than typical and the issue of profanity in the workplace has popped up.

No doubt that much of this is due to the recent spate of cases of very public sexual harassment and assault cases (Thank You Matt Lauer!). This has led to the #metoo and #timesup movements becoming more than a mere hashtag.

But at a recent training, we got into a discussion about whether profanity could ever be used in the workplace.  Does it create a “hostile work environment” under federal anti-discrimination law?

I’m not the only one to think about this question. In fact, the Hostile Work Environment podcast (how appropriate!) tackled this subject a few weeks back — and also delved into the subject about whether an employee’s use of profanity could be protected speech as well.

But one of the most interesting cases I’ve seen on the subject differentiated between different types of profanity (h/t Ohio Employer’s Law Blog for the original cite to this case) and came out of the 11th Circuit early this decade.

Before we go further, let me use the words of the 11th circuit to issue a warning:

We recite the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose. We do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created “an environment that a reasonable person would find hostile or abusive.”

(I’m still going to keep this post PG-13 but now that you’ve been warned, read on….)

The court’s decision focuses on the difference between profanity of the general type, which it calls “general, indiscriminate vulgarity” (presumably, words like “sh**”), and “gender-specific, derogatory comments made about women on account of their sex.”

The court said that there was ample evidence that, as one of two female workers, the Plaintiff overheard coworkers used such gender-specific language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Indeed, the court said that her male co-workers referred to individuals in the workplace as “bitch,” “f**king bitch,” “f**king whore,” “crack whore,” and “c**t.”

And thus begins a discussion of profanity that hasn’t often been seen in the court system.

[T]he context may illuminate whether the use of an extremely vulgar, gender-neutral term such as “f**king” would contribute to a hostile work environment. “F**king” can be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that context, “f**king” is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, “f**k” and “f**king” fall more aptly under the rubric of general vulgarity that Title VII does not regulate….

The court then focuses on the notion that what is important to decide if conduct is “severe or pervasive” to create a work environment is the entirety of the situation.

[W]ords and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff…. It is enough to hear co-workers on a daily basis refer to female colleagues as “bitches,” “whores” and “c**ts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.”

The court opines that “Evidence that co-workers aimed their insults at a protected group may give rise to the inference of an intent to discriminate on the basis of sex, even when those insults are not directed at the individual employee.”

But what if the workplace just had a lot of profanity?

Then, the court says that might not be enough. “If the environment portrayed by [the Plaintiff at the Company] had just involved a generally vulgar workplace whose indiscriminate insults and sexually-laden conversation did not focus on the gender of the victim, we would face a very different case. However, a substantial portion of the words and conduct alleged in this case may reasonably be read as gender-specific, derogatory, and humiliating.”

For employers, the case is a reminder than a hostile work environment need not have pornography in the workplace to satisfy the standard; words can be enough depending on the context and the pervasiveness of it.  Employers should be mindful that profanity in the workplace — particularly when it is sexually-laden and directed at or around others — can have serious legal ramifications.

One last point: The employer here argued that the environment existed before the employee joined too and that it was not, therefore, directed to the Plaintiff.  The court easily dismissed that argument.   Once [the Plaintiff] entered her workplace, the discriminatory conduct became actionable under the law. Congress has determined that [the Plaintiff] had a right not to suffer conditions in the workplace that were disparately humiliating, abusive, or degrading.”

 

Last night, I had the honor of being elected as Chair of the James W. Cooper Fellows Program of the Connecticut Bar Foundation, after serving for a year as Vice-Chair and Chairperson of the Fellows Education & Program Committee.

The Fellows are comprised of outstanding Connecticut lawyers, judges, and teachers of law; the Fellows put on a variety of programs during the year including symposia, roundtable discussions and mentoring programs for high school students.

At the annual dinner, I sat next to and talked with the Keynote Speaker for the evening, Teresa Younger, who is currently President & CEO of the Ms. Foundation — the Foundation started by icon Gloria Steinem.

Those of you with memories here in Connecticut may remember that she was Executive Director of the Permanent Commission on the Status of Women and Executive Director of the CT Chapter of the ACLU, before leaving to go to the Ms. Foundation.

I’ve met her several times — each time, I’m left with just awe at her accomplishments and, more importantly, by her wisdom and insights.

During her prepared remarks, Ms. Younger had a lot to say about the #metoo and #timesup movements in ways that I think many employers can take notice of.

Among them was her reminder to all of us that the movement isn’t just about stopping harassment in the workplace.

Rather, it’s designed to listen to voices that haven’t yet had the seat at the table, or who have been too timid to speak up thus far.

She highlighted a ABC News report and conversation recently about the shifting views in the workplace and that even among women, there are differences based on age.

As one of the participants in that ABC News conversation said:

From this conversation, I recognized that not everyone feels comfortable and assured in their position to speak up and voice concerns when they experience inappropriate behavior that makes them feel uncomfortable or unsafe. Recognizing this, I encourage people experiencing any form of what they interpret as inappropriate behavior not to feel intimidated and talk with a colleague or a supervisor whom they trust and ensure that there is support if they decide to take next steps.

The workplace continues to shift and evolve.  It’s up to all of us to be cognizant of this and adjust our expectations and actions accordingly.

My thanks to Ms. Younger for providing a valuable insight at last night’s CBF meeting.

Earlier this week, it seemed that a bill requiring employers to conduct additional training on sexual harassment matters was a no-brainer to pass the General Assembly.

After all, Senate Bill 132 passed 31-5 in the state Senate and in this #metoo environment (not to mention local elections in the fall), the House looked to be a near certainty.

But a lot can happen in a few days, and some of the bill’s more controversial provisions were simply too much for the bill to overcome.

Thus, employers do not yet have to worry about the new training requirements and changes to the state’s anti-discrimination laws.

That said, employers still need to follow existing state law regarding training of supervisors (if applicable) and should still exercise caution in dealing with cases of harassment.

One bill that did receive passage late last night was Senate Bill 175, which I haven’t talked much about.

That bill makes a number of changes to government and quasi-public agencies. (In other words, these aren’t applicable to private employers).

Sections 8 and 501 are the key provisions in employment law and limit the use of non-disparagement and non-disclosure agreements.  According to the OLR report:

  • Beginning October 1, 2018, the bill generally prohibits state and quasi-public agencies from making a payment in excess of $50,000 to a departing employee in order to avoid litigation costs or as part of a non-disparagement agreement. Under the bill, “state agency” means executive branch agencies, boards, councils, commissions, and the constituent units of higher education.
  • For state agencies, the bill allows such a payment if (1) it is made under a settlement agreement that the attorney general enters into on the agency’s behalf or (2) the governor, upon the attorney general’s recommendation, authorized it in order to settle a disputed claim by or against the state.
  • It also specifies that, any settlement or non-disparagement agreement cannot prohibit a state agency employee from making a complaint or providing information in accordance with the whistleblower or false claims act.
  • Similarly, any settlement or non-disparagement agreement cannot prohibit a quasi-public agency employee from making a complaint or providing information under the whistleblower law.

For readers who work for the government, these particular provisions — namely seeking approval from the AG’s office — should be reviewed over the next few months.

Today is the last day of the General Assembly session and there are only so many hours to debate and pass bills.

And so, in a year when so many labor & employment law bills were up for consideration, it’s come down to a finish line where just one or two might pass.

The Pay Equity bill I highlighted earlier this week is on to the Governor’s desk, where he has indicated he will sign it.

But the bill making broad changes to the harassment and discrimination laws in the state now appears to be on life support. Perhaps even “mostly dead”.

You will recall from my post earlier this week that the bill passed the Senate with an overwhelming majority with language that seemed to have broad support.

According to a report in CT News Junkie, a deal has yet to be reached in the House and there may be too many issues with it to come to a deal today.

At issue has been the language eliminating the statute of limitations for some sex crimes.  It’s possible that a fix that revises the training requirements could perhaps see it’s way out of the mess but that is seeming increasingly unlikely according to news reports.

There are other bills still floating out there: Paid FMLA, changes to minimum wage, etc. None of them though seems to have enough steam at this stage to get over the finish line.

So stay tuned.  There’s a budget bill that is still up for grabs and the last day always has a way of surprising.

I’ll have a full legislative recap once the dust settles.

Over the weekend, the General Assembly approved a bill prohibiting employers, including the state and its political subdivisions, from asking, or directing a third-party to ask, about a prospective employee’s wage and salary history.

I have previously discussed the measure here.  There were a few versions floating around and it was House Bill 5386 that carried the day (as amended).

The prohibition does not apply in two situations:

  • if the prospective employee voluntarily discloses his or her wage and salary history, or;
  • to any actions taken by an employer, employment agency, or its employees or agents under a federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes.

While salary may not be inquired, the bill DOES allow an employer to ask about the other elements of a prospective employee’s compensation structure (e.g., stock options), but the employer may not ask about their value.

The bill has a two year statute of limitations. Employers can be found liable for compensatory damages, attorney’s fees and costs, punitive damages, and any legal and equitable relief the court deems just and proper.  This bill amends Conn. Gen. Stat. Sec. 31-40z

As amended, the effective date of the bill is now January 1, 2019.

The final bill is different from a prior bill because it eliminates provisions that generally would have (1) allowed employers to ask about the value of a prospective employee’s stocks or equity, (2) allowed employers to seek a court order to disallow compensatory or punitive damages, and (3) required certain employers to count an employee’s time spent on protected family and medical leave towards the employee’s seniority.

For employers, upon signature from the governor, this bill will become law.  As such, employers should notify all of their hiring personnel of the new restrictions that are likely to go in place effective January 1, 2019. I’ll have more updates after the legislative session winds down this week.

Update: A few days after this post, the General Assembly failed to give final approval to this measure, leaving it to die at the end of the legislative session on May 9, 2018.  

Early Friday morning, the state Senate approved a bill that would significant broaden the sexual harassment prevention training requirements and many other provisions in discrimination law.  A similar (but notably different) bill passed the House; now, this Senate bill on the House calendar for this week.

It’s not a done deal just yet, but here are the key provisions of Senate Bill 132 (as amended) as it seems probable this bill is close to final passage.  Thanks to the OLR for summarizing the key aspects of the bill of which I’ve borrowed heavily from.

TRAINING

  • The bill would change the training requirements for sexual harassment prevention.
    • It would require training for supervisory employees of all employers, regardless of size
    • For nonsupervisory employees of employers with 20 or more employees, it would also require training.
    • Overall, the training would need to take place by October 1, 2019 with some additional tweaks specified in the bill.
  • The bill requires CHRO to develop and make available to employers an online training and education video or other interactive method of training and education that fulfills the bill’s training requirements.
  • Under the bill, employers who are required to provide such training must, at least every ten years, provide supplemental training to update employees on the content of the training and education.

INFORMATION AND POSTING

  • Currently, employers must post a notice that (1) that sexual harassment is illegal and (2) of the remedies available to victims. Under the bill, this information must be sent to employees by email, within three months of hire, if the (1) employer has provided an email account to the employee or (2) employee has provided the employer with an email address. The email’s subject line must include “Sexual Harassment Policy” or something similar.

Continue Reading Revised Sexual Harassment Training Bill (And So Much More) Close To Final Passage

Like most of America, I spent a few hours this weekend seeing the new Avengers movie.

(Don’t worry – no spoilers here in this post.)

But it’s amazing how much the Marvel Universe has permeated our pop culture the last few years.

So, it is with tongue firmly in cheek, when I use this post to talk about a presentation I’m doing tomorrow with my colleagues that plays off one such segment of these movies.

Entitled, “Guardian of Your Own Galaxy: Making Informed Decisions on Hiring (Legally) and Sharing Information (When Appropriate)”, we’re going to talk a lot about how the hiring decisions of Tony Stark (i.e. Iron Man), Pepper Potts and how Stark Enterprises is run.

Ok, one spoiler alert: No Tony Stark.

Instead, we’re going to talk all things related to the hiring process: Background checks, interview questions, school-related employment history checks, registry checks, credit checks, ban the box, etc.

We’re also going to talk about personnel files and how FOIA requests should be addressed in the context of information about personnel.

All of this is part of my firm’s Labor & Employment Spring Seminar: 2018 Public Sector Legal Update tomorrow.

Star-Lord and Drax will not be there but we hope to see you there.

With the final few working days of the General Assembly session, we’re starting to see the outlines on bills that are pretenders vs. contenders.

Yesterday, the House passed a contender on the subject of pay equity in a bi-partisan vote.  Unless the Senate decides not to bring up the matter (as it decided last year), employers should start preparing for its likely overall passage and implementation later this year.

Four other states (including Massachusetts) have a bill of this type on the books.

So what does House Bill 5386 say exactly?

Well, less than it originally said. At the vote yesterday, the House passed “Amendment A” that eliminated some of the more controversial provisions of House Bill 5386.

Ultimately, the bill would expand the prohibitions on pay secrecy now found in Conn. Gen. Stat. 31-40z, and prohibit an employer from:

Inquiring or directing a third party to inquire about a prospective employee’s wage and salary history unless a prospective employee has voluntarily disclosed such information, except that this subdivision shall not apply to any actions taken by an employer, employment agency or employee or agent thereof pursuant to any federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes. Nothing in this section shall prohibit an employer from inquiring about other elements of a prospective employee’s compensation structure, as long as such employer does not inquire about the value of the elements of such compensation structure.

So, while there is a general prohibition about asking applicants about their salary history, it does not apply (1) if the prospective employee voluntarily discloses his or her wage and salary history or (2) to any actions taken by an employer, employment agency, or its employees or agents under a federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes.

The bill also allows an employer to ask about compensation structure, but the employer may not ask about the value of the compensation structure’s elements, except for the value of stocks or equity.

Ultimately, the compromise that was reached was applauded by business groups like the CBIA:

Approval today of legislation addressing gender-based pay inequity is the result of discussions and compromise between multiple parties, including the business community, Democratic and Republican legislative leadership, and the governor’s office, and we thank them for all their commitment to forge a consensus.

If passed by the Senate and signed into law, the bill would take effect January 1, 2019.

It was only a few years ago that the phrases “unconscious bias” or “implicit bias” started making the rounds in the legal community.

I can trace the discussion on this blog to a 2014 guest post from a former law professor of mine, Kim Norwood, who talked about it in the context of her own experiences here.  I also talked about it in the context of a 2014 study that showed that married men with stay-at-home wives had negative attitudes towards working women.  

Implicit bias has gained steam over the last several years. Indeed, Professor Norwood came to our firm in 2015 to give a presentation on The Mischief Biases Play in Law and the Legal Profession.  Suffice to say, it was well received and she was asked back again for a further presentation.

All of this is a precursor to what I think may be the biggest development thus far in the mainstreaming of the “implicit bias” theory and training.

Earlier this week, Starbucks announced that it will close all 8000+ of its stores next month to conduct anti-bias training for its 175,000 employees.  My guess is that it is one of the biggest single-day training events of its kind attempted in the United States.

The open question is: Will such training work? 

According to The New York Times article, the answer remains unknown.  Some studies show their effectiveness. But in some instances, it can have a negative effect as well.

Other academics and experts on bias caution that anti-bias training is a sensitive exercise that can be ineffective or even backfire if handled incorrectly. Any training that involves explicitly telling people to set aside their biases is especially likely to fail, said Seth Gershenson, an economist at American University who has also studied anti-bias training, because it requires so much mental energy it can exhaust people.

Even with training, some said, it is exceedingly easy to revert to the original biases. “In the moment of stress, we tend to forget our training,” said Mark Atkinson, the chief executive of Mursion, which provides a simulation platform for training workers in skills like interpersonal interactions.

I’m eager to see how Starbucks continues to develop this. Its response to an earlier incident may be used as a role model to other companies who have had to deal with these types of issues. We should all be hoping its succeeds.

Yesterday, one of the measures floating around the Connecticut General Assembly regarding Paid Family Medical Leave passed a key committee vote.

The bill still has a ways to go.  Indeed, as first reported by CT News Junkie, even the speaker of the house described it as a “work in progress”.  But now that’s closer to passage, it’s time employers start focusing on some of the key aspects – as framed currently.

The bill (House Bill 5387) would require all private sector employees to contribute 0.5 percent of their paycheck to a fund that they could then use if they needed to take Family Medical Leave. The leave could last up to 12 weeks and the pay would be capped at up to $1,000 per week.

The bill would radically change existing Connecticut FMLA by changing the number of employees required to be eligible for FMLA leave from 75 employees to just two. It would also, however, change the leave calculation period to be on a 12 weeks per 12 months basis, instead of the 16 weeks over 24 months basis that has been a challenge to reconcile with federal FMLA.

The bill would also expand allowable leave under FMLA to caring for grandparents, grandchildren, siblings, all other blood relatives, or those with a “close association … the equivalent of a family member.” This is far in excess of just the relatives covered under current law.

And if you’re wondering, there is no definition as to what would be “equivalent” to a family member.

As to the prospects for the bill, the CBIA has been opposed to it, in part because it’s not applicable to the public sector — and raises costs for both the state and for private employers.  A similar bill in the Senate was rejected by the committee because it would have required the state to commit to $20M in bonding.

But again, employers should be mindful of this bill as the short legislative session begins to wind down in the next few weeks.