This post is for the employment law nerds out there.

You know who you are.

You pore over the statistics that show a correlation between the unemployment rate and EEOC filings.  (I see you Lawffice Space.)

You rate who the “Worst Employer” is of 2017.  (Can’t wait for the announcement next week, Ohio Employer’s Law Blog.)

You listen to podcasts about employment law. (Yes you, Hostile Work Environment podcast from Marc Alifanz.)

And, if you’re the publisher of this blog, you pore over meeting minutes of the Connecticut Commission of Human Rights and Opportunities.

Someone has to do it.

And in reading the minutes of an August 2017, I saw a references to a new Case Assessment Review process in place since July 1, 2017.

“What was this?”, I thought at the time.  I got excited.

And then in October 2017, in a moment of brilliance extreme employment law nerd-ism, I sent an old-fashioned Freedom of Information request for that procedure.

Then I waited.  And waited.  At least it seemed like I waited.

Actually, it wasn’t long at all. Just a few days, in fact. My thanks to the agency for complying with state law humoring me and responding so promptly.

It arrived in my inbox. All 18 pages worth.

I wish I could tell you that it was groundbreaking.

It wasn’t.  A lot of the details in it are so pedestrian (“Clerical creates a case folder in the S drive”) that it’s only surprising in the level of detail.

There are a few nuggets of data.  It confirms that the Case Assessments are being handled by “Legal” now in a centralized location.

In fact, the cases are assigned to different people for drafts based on the last digit of the case number.  (Rejected slogans: “C’mon Lucky #7!” or “Stay Alive with #5!”)  The Principal Attorney will then review the proposed drafts.

And…I’ve probably lost you already.

See? It really only something for the employment law geeks.

If you are such a person, you can read the document here.  Consider it your Hanukkah present.

You’re welcome.

 

With all the focus on sexual harassment in the news lately, one thing missing from most of the coverage is an actual explanation of what is (and is not) “sexual harassment”.  At least according to the law.

Sounds simple right?

Except that it’s not because the prevailing view of sex harassment differs from that found in the law.

But I will try in a few short paragraphs to sum up decades of sexual harassment law.  (Obviously, I can’t but humor me.)

Though the first thing you should know — the federal law on the subject actually doesn’t use the word harassment!

Robin Shea pointed this out a while back in a blog post and I thought it was a good reminder to start with.  It’s a definition built from U.S. Supreme Court cases.

There are two overall types of sex harassment that the courts have determined.

  1. Quid Pro Quo.  Sound smart: Basically this for that.  It’s a demand (express or implied) for sexual favors for either employment benefit (promotion etc.) or to avoid a negative employment action (firing etc.).  Important to this notion is the element of power — that is a supervisor over someone else.
  2. Hostile Work Environment.  The courts have defined this as harassment that is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.'” In determining whether unwelcome sexual conduct rises to the level of a “hostile environment” in violation of Title VII, the central inquiry is whether the conduct “unreasonably interfer[es] with an individual’s work performance” or creates “an intimidating, hostile, or offensive working environment.” 29 C.F.R. § 1604.11(a)(3).Thus, sexual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.

    Note the “severe OR pervasive”.  One isolated but severe action can be enough; similarly, smaller actions can be enough if it is rampant throughout a department or company.

But not all sexual conduct in the workplace is illegal.  As the EEOC notes in policy guidance:

Sexual harassment is “unwelcome . . . verbal or physical conduct of a sexual nature . . . .” 29 C.F.R. § 1604.11(a). Because sexual attraction may often play a role in the day-to-day social exchange between employees, “the distinction between invited, uninvited-but-welcome, offensive- but-tolerated, and flatly rejected” sexual advances may well be difficult to discern.  But this distinction is essential because sexual conduct becomes unlawful only when it is unwelcome. The Eleventh Circuit provided a general definition of “unwelcome conduct” in Henson v. City of Dundee, 682 F.2d at 903: the challenged conduct must be unwelcome “in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.”

This notion of welcomeness is critical to any determination of sexual harassment in the workplace.

There’s far more to sexual harassment than a mere blog post can provide.  But before we throw around uses of the word in a workplace context, it’s important to understand the legal basis as well.  Some of what has been discussed is far beyond sexual harassment; it’s sexual assault.

On the flip side, an single off-color joke isn’t going to rise to the level of sexual harassment.

And note that the use of the phrase “hostile work environment” is tied to a sexual conduct not a boss who is difficult to work with. . As a state court said in another sexual harassment case recently, “[a]n unfortunate fact of life is that the modern workplace is sometimes a rough and tumble environment, where pettiness, inconsideration and discourtesy reign. . . .”

Connecticut typically follows federal law on the subject but has its own rules too.   For more on the subject, you can see some of my prior blog posts here and here.

Sexual harassment needs to be vanquished from the workplace; understanding exactly what it is (and is not) will help employers spot it and stop it.

This current wave of sexual harassment (and, in some cases, sexual assault) allegations that are making headlines every single day is downright astonishing to many employment lawyers that I know.

It is the tsunami that knows no end.

And right now, that makes me nervous.  But maybe not for the reason you might think.

It’s not that I am nervous for companies or the risk of lawsuits.

I think many companies are prepared to deal with claims of harassment that arise and will adapt quickly to the landscape where more employees are bringing such matters to their attention.

What makes me nervous is the potential rush to judgment that seems to increase with every case.

Think of Matt Lauer last week: A claim brought Monday evening and he was fired late Tuesday night. Quick.

Thorough? Perhaps. Correct? Probably (based on the media reports).  But still pretty quick.

This is not a defense of harassers or even of Matt Lauer.  If someone commits sexual harassment, companies ought to take prompt corrective action. Companies that ignore complaints do so at their own peril.

As a lawyer though, I’m think I’ve been trained to be wary of allegations.  I went to law school in St. Louis, Missouri where they are proud of the slogan “Show Me”.

I have yet to see two identical sex harassment cases. Each matter brings a different set of people, a different set of circumstances, and different set of facts.

Facts still matter.

I’m waiting for the potential (or inevitable?) backlash to come from the current wave.

It may just start with a Duke Lacrosse-type situation — allegations so outrageous that everyone will want to believe them true.  And then we’ll find out that the allegations aren’t true.

And I worry about the harm to the process as a result.  It will set back those with legitimate complaints as well.

So, deep breathes everyone.

See harassment allegations come your way? Investigate. Seek to get the truth. Or as close to it as possible.

Some complaints will be true; others may not be.  What is alleged to be harassment, may instead be a consensual relationship.

And most of all, be cautious. And avoid the rush to judgment.

My partner Gary Starr returns with this pre-Thanksgiving tale that seems appropriate not for the holiday, but for the headlines of late. 

Happy Thanksgiving and stay out of trouble.

Another day, another celebrity figure accused of harassment.

Or worse.

Many of the accounts reveal the abuse of power and the lack of respect shown to women.  A recent case adds another aspect to the ways in which harassment or discrimination against women may occur.  While the case is out of New York, the scenario is one that has applicability in states like Connecticut.

The basic facts:

  • A chiropractor hired an attractive yoga and message therapist to his office staff.
  • While he oversaw the medical aspects of the business, his wife served as the chief operating officer.
  • During the therapist’s six months of employment, she described her relationship with the doctor as professional.
  • His wife, however, was disturbed by her presence.
  • Within 3 months, the chiropractor commented to the therapist that she might be “too cute” and his wife may become jealous.
  • Three months later, the wife texted the therapist that she was no longer welcome at the office and she “should stay the [expletive] away from my husband.”
  • Later that day, the chiropractor fired the therapist.

So what happened next?

Perhaps not surprisingly, the therapist filed a gender discrimination claim under New York law.

She said her firing was motivated by sexual attraction and as such was unlawful gender discrimination.

She did not claim that she was actually harassed, but argued that it could be inferred that the discharge resulted from the chiropractor’s desire to appease his jealous wife and therefore the motivation was sexual in nature.

The discharge allegedly occurred for reasons of jealousy, not because the employee had a consensual affair with her boss.

This case was not based on the employee’s conduct, but because the therapist was sexually distracting to the doctor and disturbing to his wife.

While this case originally was dismissed, the appellate division of the New York Supreme Court decided to allow the therapist to pursue her claim.

The court explained that what potentially made the discharge unlawful was not that the wife had urged the firing, but the reason she urged her husband to do it and his compliance.

The therapist had not done anything inappropriate and had allegedly performed her work satisfactorily.  She now has an opportunity to overcome her status an at-will employee to prove that the motivation of the chiropractor and his wife was sexual in nature.

The court made clear that a spouse can urge a husband to fire an employee, but what makes it unlawful is the basis for the firing.  In this case, there are allegations of a gender-based motivation, which was sexual in nature.

What the court ruling suggests is that attractiveness can be a protected condition … if the person is singled out because of his/her appearance. It’s not always going to be the case, but at least here, the allegations are enough to let the case proceed.

The motivation to fire someone due to his/her appearance can be viewed as sexual in nature and therefore discriminatory.  In light of the headlines on sexual harassment, this decision adds a new dimension and another source of problems at work.

You can download the case here.

Employment law lawyers are asked to review a lot of employment decisions.

If we’re lucky, we’re brought in early in the process when the decision isn’t yet final and where our input can be useful.

Other times though, we’re asked to opine on decisions after the fact.

And truth is, it’s really pretty easy to Monday morning quarterback employment decisions.  Because there is sometimes something that wasn’t thought of before the decision was made.

Often, it may not be important. The employer would have still made the same decision if something else was looked it.

Had you known that there was a law protecting free speech in the workplace, would you still have disciplined the employee for putting up a post on Facebook about his working conditions?

Many employers can’t afford an in-house attorney to bounce their decisions off.

So, for those companies, here are five questions to get you thinking BEFORE you make an employment decision.

(Usual caveat: This isn’t advice, isn’t intended to be comprehensive, and isn’t a substitute for actual legal counsel.)

  1. Is the decision fair? If you can’t answer this question honestly, start over. You’re doing it wrong. Fairness matters to judges, juries, and other employees.
  2. Is the employee going to be surprised by the decision? Good management principles dictate that employees should know what is going on. If you’re terminating an employee for poor performance, did the employee know his or her performance was in jeopardy?
  3. Is the decision well documented? Is there backup to support the decision and is the rationale clear from them? And is the decision being properly communicated to the employee too?
  4. Are there any laws that are implicated by the decision?  This is one area that is tough to fake.  You probably know you can’t fire someone because of their age, but what if you are trying to save money; can you fire the highest paid employee who also happens to be the oldest?
  5. Is there anything else going on that should be taken into consideration? For example, did the employee just return from maternity leave? Has the employee been asking for an accommodation?

These five questions won’t solve all your employment law issues.

But it should give you a head start on figuring out what other questions you should be asking and whether the decision you are about to make is one that you’ll be happy with down the road.

Recently, I had the opportunity to see Rags, a new revival now running at the classic Goodspeed Opera House.

I don’t often do theater reviews on this site, but I give it a thumbs up.

The musical tells the story of Jewish immigrants coming to the Lower East Side just after the turn of the century.

They experience outright discrimination and difficult working conditions.

So much so, that they end up even participating in a labor strike asking for better working conditions.

Of course, as an employment lawyer, I’m always looking for a good story to relate.

The musical obviously has undertones of today’s political environment, where refugees are facing barriers to entry from certain countries.

Workplace laws actually limit what employers should be asking in the interview process about immigration status.  And even when a Form I-9 is being process, an employer cannot reject valid documents or insist on additional documentation too.

And it can’t target certain people either.

The EEOC recaps it here:

For example, an employer cannot require only those who the employer perceives as “foreign” to produce specific documents, such as Permanent Resident (“green”) cards or Employment Authorization Documents. Employees are allowed to choose which documents to show for employment eligibility verification from the Form I-9 Lists of Acceptable Documents. Employers should accept any unexpired document from the Lists of Acceptable Documents so long as the document appears reasonably genuine on its face and relates to the employee.

Federal law also prohibits employers from conducting the Form I-9 and E-Verify processes before the employee has accepted an offer of employment.

According to the EEOC, “applicants may be informed of these requirements in the pre-employment setting by adding the following statement on the employment application”:

In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification form upon hire.”

I’ve always been a fan of learning from history. With a musical like Rags, you can get many employment law lessons in one.

Probably not the endorsement you will see from other theater critics, but you work with what you have.

Yesterday, I had the opportunity to speak to the IASA Northeastern Conference on a favorite topic of mine of late — Privacy and Data Breaches in the workplace.

Of course, that sounds kinda of boring.

So my presentation is actually called the title of this post: “The Rise of Smartphone Fueled, Social Media Addicted Workplace Zombies.”

Much catchier right?

Speaking before the Insurance Accounting & Systems Association (IASA) Northeastern Chapter at their 54th Annual Regional Conference was great fun though.

In my talk, I highlighted items like Business E-mail Compromise scams, Ransomware, and yes, even workplace zombies.

What do I mean by that? Well, too many of us (including me at times) stare at our phones and sometimes respond to e-mails or click without thinking.  (Think Before You Click would make the name of a good book; fortunately, I wrote a chapter in that very book a while back.)

Protecting workplace data IS about thinking. It’s about protecting personnel files, or benefit information, or retirement plan data.  It’s about protecting trade secrets or just plain confidential information.

It’s about building a CULTURE of data privacy. Where employees buy in that protecting data is a core value and where employees are REWARDED for good data practices while enforcement (with a bit of punishment where needed) is encouraged by all.

It’s not the most exciting topic to be sure but everyone wants to be protected from the zombies, right?

I gave a similar talk early this summer as keynote lunch speaker for the ADNET Worksmart conference and it worked so well, word got around.  Maybe data privacy can be interesting after all.

My thanks to IASA for the invitation and opportunity to speak to the group yesterday.

Are you looking for something new to end the year with?

Then I have two quick links to share with you this morning.

First, on December 7 from noon to 1 pm (ET, of course), I, along with Eric Meyer (The Employer Handbook Blog), Jeff Nowak (FMLA Insights), Jon Hyman (Ohio Employer’s Law Blog), Robin Shea (Employment & Labor Insider), and our fearless moderator, Suzanne Lucas (Evil HR Lady) will present The 2017 Employment Law Year in Review.

The event is free, but space is limited. Register now for our one-hour recap of all the big employment-law and HR-compliance news of 2017, along with some practical tips to help you prepare your workplace for 2018.

Click here to register:  https://register.gotowebinar.com/register/5767568894289723906

Second, I’ve gotten an early listen to a brand-new podcast, entitled “Hostile Work Environment.” Set up by two employment lawyers who have a great sense of humor and a terrific ability to tell a story, the podcast shares various cases with facts that are too fantastic to make up.

You can download it at all the usual podcast locations. Worth a listen if you’re an HR type or employment lawyer.

The supervisor did it.

Yep, you’ve concluded that he sent unwanted texts to his subordinate telling her she looked “beautiful.”  Maybe even stopped by her hotel room unannounced one night at a conference for a “nightcap”.

While the subordinate’s career does not appear to have been harmed in the legal sense (i.e. there’s no “tangible employment action”), you’ve concluded that there was something “inappropriate” that happened.

(And let’s state the obvious: harm can exist even outside the “tangible employment action” context — that’s an issue for another post.)

So, back the the issue of the day — something “inappropriate” happened; maybe even something that meets the legal definition of “sexual harassment”.

What then?

Firing? Perhaps.

But what if you conclude that a lesser type of sanction is warranted?  Can you do that? If so, what’s the standard?

In cases where there has been no tangible employment action taken, the EEOC has actually set forth in its guidance a whole discussion that says that firing is but one possibility.  What’s important is that the remedial measures should be designed to:

  • Stop the harassment;
  • Correct its effect on the employee; and,
  • Ensure that the harassment does not recur.

The EEOC’s guidance notes that these remedial measures “need not be those that the employee requests or prefers, as long as they are effective.”

Moreover, “in determining disciplinary measures, management should keep in mind that the employer could be found liable if the harassment does not stop. At the same time, management may have concerns that overly punitive measures may subject the employer to claims such as wrongful discharge, and may simply be inappropriate.”

The EEOC suggests that the employer balance the competing concerns and that disciplinary measures should be proportional to the seriousness of the offense.

What does that mean?

If the harassment was minor, the EEOC suggests, such as a small number of “off-color” remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be all that is necessary.

On the other hand, if the harassment was severe or persistent, then suspension or discharge may be appropriate.

And importantly, remedial measures also should correct the effects of the harassment. In the EEOC’s words, “such measures should be designed to put the employee in the position s/he would have been in had the misconduct not occurred.”

The EEOC provides various examples of measures to stop the harassment and ensure that it does not recur.  These include:

  • oral or written warning or reprimand;
  • transfer or reassignment;
  • demotion;
  • reduction of wages;
  • suspension;
  • discharge;
  • training or counseling of harasser to ensure that s/he understands why his or her conduct violated the employer’s anti-harassment policy; and
  • monitoring of harasser to ensure that harassment stops.

As for examples of measures to correct the effects of the harassment, these include:

  • restoration of leave taken because of the harassment;
  • expungement of negative evaluation(s) in employee’s personnel file that arose from the harassment;
  • reinstatement;
  • apology by the harasser;
  • monitoring treatment of employee to ensure that s/he is not subjected to retaliation by the harasser or others in the work place because of the complaint; and,
  • correction of any other harm caused by the harassment (e.g., compensation for losses).

How does this apply in the real world?

Jon Hyman of the Ohio Employer’s Law Blog, highlighted a case several years back where the employer didn’t terminate the offending supervisor on the first go around, but rather gave them a last chance.

Unfortunately, the employer didn’t follow through when the supervisor STILL engaged in harassment.  The case, Engel v. Rapid City School District, is worth a read to show how an employer’s reasonableness the first go around, can be used against it when it doesn’t follow through.

The EEOC’s guidance is a helpful guide to employers in navigating these issues.  The employer should look to the particular circumstances of any matter and determine what punishment is appropriate in that particular matter.

Perhaps it will conclude that firing is appropriate.

But if it concludes, based on an analysis of the entirety of the situation, that something less than that is appropriate too, the EEOC’s guidance can be a useful guidepost for that determination.

With a new wave of sex harassment complaints making headlines, there is also a bit of reflection that should happen at workplaces and the lawfirms that counsel them.

One area that we can evaluate is whether the training that is provided is effective.

A report yesterday from NPR concluded that training is just not working at many workplaces. 

The primary reason most harassment training fails is that both managers and workers regard it as a pro forma exercise aimed at limiting the employer’s legal liability.

For those of us who have been paying attention, this isn’t new.  I know that for the trainings I give, I try to have them be engaging with discussions of different fact scenarios being discussed.

But I’ve wondered whether we could be doing more.

Indeed, the EEOC issued a report last year highlighting the problems with existing training programs.

In its executive summary, it noted two big issues with the current model of training:

  • Training Must Change. Much of the training done over the last 30 years has not worked as a prevention tool – it’s been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum – it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer’s most valuable resource in preventing and stopping harassment.
  • New and Different Approaches to Training Should Be Explored. We heard of several new models of training that may show promise for harassment training. “Bystander intervention training” – increasingly used to combat sexual violence on school campuses – empowers co-workers and gives them the tools to intervene when they witness harassing behavior, and may show promise for harassment prevention. Workplace “civility training” that does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally, likewise may offer solutions.”

Connecticut requires harassment training; I’ve talked about the requirements in some prior posts (check this one out from 2010, for example.)  But employers who have just gone through the motions, aren’t doing enough as we’ve now seen.

As we continue to work to eliminate sexual harassment in the workplace, having an effective policy is only part of the solution.

Making sure the training we provide to employees is helpful is obviously a part as well — and something that may have been overlooked in the past.

But finding that perfect solution to training still seems elusive.