Discrimination & Harassment

The 2018 session of the General Assembly started last week and increasing workplace training is a top priority for passage.

Indeed, it is not surprising that we’re starting to see the first proposed legislation to address the number of harassment claims that have been making headlines the last six months.

Governor’s Bill 5043 sets up the following changes:

  • First, it would increase the number of employers that need to provide anti-harassment training — resetting the number of employees needed to fall under the statute from 50 to 15.
  • Second, the bill would also require all employees (not just supervisors and managers) to undergo two hours of what it calls “awareness and anti-harassment compliance training” and have that training updated every five years.
  • The training that now is just focused on sexual harassment prevention in the workplace, but would also be expanded to include all types of harassment—including that based on race, color, religious creed, age, sex, gender identity or expression, marital status, and national origin.
  • The training would also be required to include information about the employer’s policy against harassment, examples of the types of conduct that constitute and do not constitute harassment, strategies to prevent harassment, bystander intervention training and a discussion of “workplace civility” that shall include what is acceptable and expected behavior in the workplace.
  • The bill would require employers of three or more employees to continue to post information regarding all types of harassment and, on an annual basis, to “directly communicate such information and remedies to employees on an annual basis”.

My best guess is that this item of legislation will go through some additional tweaks to satisfy various constituencies, particularly because of the increased costs involved.

For example, expanding the training to all employees would create a massive new industry for training and, as the CBIA has said, a costly mandate as well.

There is more legislation coming down the pike in the employment law area.  This is just one of the items being floated so stay tuned.

Love is in the air. And in the workplace too.

But office romances have hit a 10-year-low, at least according to a new survey from CareerBuilder.com.  

Lest you think that office romances are rare – the survey showed that 36 percent of those surveyed had an office romance! Wow.

Perhaps even more surprisingly, a good deal of those romances (over 30 percent!) result in marriage.

So, who am I to quash a viable route to eternal happiness?

But, caselaw has shown that Valentine’s Day also leads to lawsuits. Plenty of them.

This week, I had the opportunity to appear on the Hostile Work Environment podcast where we address what can go wrong on Valentine’s Day.

Some of the cases I discuss are drawn from older blog posts on the subject. 

The main takeaway? Just ignore the holiday in the workplace.  By that I mean, no gifts, no flowers, and especially no Valentine’s Day cards.

Love may keep us to together, but love is a battlefield too. And in the workplace, love leads to lawsuits.

And trust me, no one writes love songs about lawsuits.

You can listen to the full podcast below.

Episode 14 – Santa Comes and Murders the Group with an Axe

 

Are you one of those people who thinks two is better than one? I know I am.

So, with that in mind, I’m pleased to announce that my lawfirm, Shipman & Goodwin has launched a new labor & employment law blog called “Employment Law Letter”.  The firm’s blog is an extension of the firm’s long-standing newsletter led, most recently, by my partner Brian Clemow.

And when I mean long-standing, I mean 40 years worth of production. That’s a publication record worth recognizing!

As announced by my fellow partner, Gabe Jiran, the new blog will also provide frequent and timely articles on a variety of topics as they occur.  In addition, the blog will post announcements of upcoming seminars and events, including my firm’s popular CLE webinar series.

One of the first posts of that blog highlights a CLE program that I’m doing this Tuesday via webinar entitled “Are You at Risk? An In-Depth Look at Workplace Sexual Harassment Prevention and Company Culture.”  It’s not too late to sign up for this FREE webinar here.

Never fear as well – this blog will continue just fine.  We’ll have a little less “guest posts” from my colleagues here now that there’s an additional platform for their posts and I’ll also be cross-posting over there from time to time.  But as with posts about my ABA involvement, etc., this blog will continue to share my perspectives and build from there.

See? Two really IS better than one.  Be sure to subscribe to Employmentlawletter.com today.  

Last week, I had the opportunity to again represent Connecticut as the State Delegate for the American Bar Association’s House of Delegates at the Vancouver ABA Midyear Meeting.

Among the resolutions debated was Resolution 302 which “urges all employers, and specifically all employers in the legal profession, to adopt and enforce policies and procedures that prohibit, prevent, and promptly redress harassment and retaliation based on sex, gender, gender identity, sexual orientation, and the intersectionality of sex with race and/or ethnicity.”

Although it lacks some of the specificity found in “best practices” that I’ve highlighted elsewhere, it does establish some basics for employers to use.  Some should be well known but they are worth reiterating.

What are some of the policies and procedures should have?  For example:

  • dissemination to all employees, management and directors of a clear statement that harassment, including harassment based on sex, gender, gender identity, sexual orientation, and the intersectionality of sex with race and/or ethnicity will not be tolerated;
  • confirmation that the policy applies to conduct by directors, officers, management at all levels, supervisors, employees, and third parties, at or in connection with any work related function or against anyone protected by this policy irrespective of where that conduct occurs.

For more on the ABA resolution, check out this article from the ABA Journal from last week as well.

Kudos to the ABA for taking a timely stand and to my other delegates from Connecticut at the Vancouver meeting including Austin Berescik-Johns, Livia Barndollar, Linda Randell, Barry Hawkins, Steve Curley, Karen DeMeola and Judge Alvin W. Thompson for their contributions as well.

If you have any questions on what else occurred at the ABA meeting, please feel free to send me an e-mail at the contact link above.

The American Bar Association (ABA) holds its Midyear Meeting later this week in Vancouver (Canada!) and the House of Delegates is scheduled to debate several resolutions of interest to employers and employment lawyers.

As readers of this blog, you happen to “know” the Connecticut State Delegate (me!), coordinating a delegation of several esteemed lawyers from Connecticut.

Thus, if you have any questions or concerns about the resolutions, please e-mail me this week at dschwartz@goodwin.com.

Or feel free to add a comment below.

You can review all the resolutions here but the few that I would pay attention to are as follows:

  • Resolution 116A supports an interpretation of Title VII of the Civil Rights Act of 1964 that defines sex discrimination by covered employers to include discrimination on the basis of sexual orientation and gender identity.
  • Resolution 117 urges courts to recognize that service in the United States Armed Forces should not be restricted and that individuals should not be discriminated against on the basis of sexual orientation or gender identity.
  • Resolution 302 tackles the wave of sexual harassment allegations that have been making headlines every day.  In doing so, it would urge “all employers, and specifically all employers in the legal profession, to adopt and enforce policies and procedures that prohibit, prevent, and promptly redress harassment and retaliation based on sex (including gender, gender identity, and sexual orientation) and the intersection of sex and other protected classes.”  The resolution contains a list of suggestions for employers to follow.

The ABA’s resolutions set the policies for the organization to follow.  Thus, the debates that flow from these are more than just theoretical, they help set the path for the ABA to follow. Attorneys should take note and follow the goings on. I’ll have an update for you in an upcoming blog post as well.

In trying to eliminate sexual harassment in the workplace, how do we go beyond just training?

That is, in essence, the question that my colleagues (Jarad Lucan and Ashley Marshall) and I have been talking about recently.

And, fortunately for you, a topic of a free CLE webinar we are putting on a few weeks.  It’s set for February 13th at 12 p.m.

What we are really looking at is how do you get your company culture and actions in line to try to reduce and eradicate sexual harassment from your workplace?

It does not, obviously, happen overnight.  Perhaps it’s revising your policies. Perhaps it’s adding an ombudsman program if you’re large enough.

Or perhaps it involves encouragement of employee complaints so that you can tackle the issue more directly.

There is no one size fits all to this but it’s an important enough topic (naturally) that we wanted to devote a CLE webinar just to this.

Hope you can join us for this timely topic.

I’ve previously talked about Martin Luther King Jr. (MLK) day in prior posts (including way back in 2008!).

But this year, I was curious — have any race discrimination claims used evidence relating to the day to support a claim?

Turns out there have been a few.

One of the stranger ones was a claim by a bartender that he wasn’t rehired after being terminated by his employer that was decided by a federal court several years ago.

As allegedly “direct” evidence, the bartender pointed to a conversation that occurred on MLK Jr. Day in which he was asked whether he wanted the night off “because it was Martin Luther King Jr. Day holiday”.

According to the bartender, the request was made so that a supervisor’s son, who also worked as a bartender could work an additional shift.

The bartender claimed that the inquiry “demonstrated racial prejudice” because the supervisor “could have asked him to give up his shift to her son without even mentioning the Martin Luther King Jr. holiday”.

The federal court reviewing the matter disagreed rejecting the notion that this comment — made many months before the alleged decision — was direct evidence. And it noted that it was probably an isolated remark. Nevertheless, in the context of the case, the court rejected the employer’s motion for summary judgment — sending the case instead to a jury.

So, not exactly the most illuminating of cases.

Instead, let’s again reflect on the legacy of Dr. King.  His words and actions continue have deep meaning today.  

In college, I wanted to write for some of the major newspapers and be on their front page.

Little did I know that my big break would now come years later, as a result of being on the cover of the Hartford Business Journal.  

Wow.

But enough about me.  This blog is about employment law so let’s talk about the article inside the HBJ because it’s definitely worth a read.  

You see, the photo, has little to do with the content.  And the content is what employers should really be paying attention to.

The article is all about the topic of sexual harassment in the workplace, which continues to make headlines each day.

As I noted in the article, we just haven’t seen an increase in lawsuits….yet.

[F]or non-celebrity victims and their employers, the implications are just as dangerous and costly, so prevention is becoming a greater focus for many companies, lawyers say.

“It’s been the topic of conversation,” said Dan Schwartz, an employment lawyer at Hartford law firm Shipman & Goodwin, who has his own blog where he’s been tackling the issue. “It is at a level we haven’t seen in at least 10 to 15 years. There’s always been a steady stream [of inquiries] but we’re getting more calls from clients. It doesn’t mean we’re seeing more legal cases being filed. Lawsuits are a trailing indicator here.”

The article also summarizes things that employers can be doing now, even if there isn’t a sexual harassment complaint made. Update policies. Train managers and supervisors. Continually create an environment where harassment isn’t tolerated.

Each week seemingly brings new issues to the table; employers that can keep their focus on the issue while also maintaining perspective will do well in the long-term to reduce the likelihood of a claim at the workplace.

After a break for the holidays, my long-running discussion with Nina Pirrotti, an employee-side attorney , returns. Nina is a partner at the law firm of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, where she represents employees in all types of matters.  She’s a past-President of the Connecticut Employment Lawyers Association, a current member of the Executive Board of NELA, and a frequent presenter on employment law topics.

In one of our prior discussions last year, we talked about whether we were seeing the beginning of a trend of sexual harassment matters after the Fox News scandals.  Now, after the last few months, we revisit the topic further to see where we are.  Let us know what you think about posts like this in the comments below.    

Nina: A warm hello to my management lawyer friend!  I could not think of a more opportune time to re-kindle our dialogue about sexual harassment.  For me, having Time Magazine name its Person(s) of the Year as the Silence Breakers has been the gratifying culmination to a year of sea change on this vital topic.

I got to tell you Dan (and in so doing will undoubtedly reveal to our readers that I lead an embarrassingly sheltered life), that before Taylor Swift exhibited the courage to subject herself to countersue David Muellerman (the man who sexually assaulted her and brought an unsuccessful lawsuit against her for defamation when she outed him)  I did not even know who she was.   She is my new hero.  She sued him for a symbolic $1 and she did it, she said, because she wanted to empower other women who have been sexually harassed and assaulted to come forward.

Well, I don’t need to tell you that they are coming forward in droves.  It is as if a switch has been flipped.  The paradigm has shifted and women who once felt that they had to suck it up in order to feed their families and save their careers are beginning to have hope that they no longer have to make that Hobson’s choice.  And just as gratifying as this loosening of fear in victims of sexual harassment and assault about coming forward has been the employers’ swift responses in holding the predator (no matter how lofty his perch) accountable.    Hallelujah!

Is this the beginning of the end to sexual harassment as we know it?  I wish.  Did you notice that cropped elbow that is in the photograph of the otherwise well-known faces on the front cover of Time’s Person of the Year issue?  The elbow symbolizes the millions of women who endure sexual harassment and assault and do not come forward for fear that their careers, their reputations, their families, and/or their personal safety are at stake if they do.

While I am gratified by the swift and appropriately severe responses to sexual harassment and assault committed by powerful men in the public eye, most of the sexual harassment and assault victims I represent do not have that leverage that comes with an outed perpetrator who has a public persona.  In such cases, too often, unless the employer fears public exposure, I find it does not have that same sense of urgency to take action.

What about you, Dan?  What does this surge in reporting indicate to you?  Are you finding more clients who are interested in taking preventative measures?  What are their concerns?

Dan: Happy New Year to you Nina! So, it’s been quite an interesting few months.  Everyone seems more busy.  Before I talk about that, it’s worth emphasizing that lost in all this reporting is that the incidents of misconduct that are making headlines are really varied in scope.  You have incidents of outright sexual assault being tossed together with conduct that may (or may not even) be classified as sexual harassment.    

And that is what I’m concerned about now.  A tasteless joke in the workplace is clearly NOT the same as some of the incidents that, say, Harvey Weinstein is accused of. (You can look it up; this is a safe for work blog, after all.)  And so, yes, we’re hearing more incidents reported. But that doesn’t necessarily translate to more credible claims.  I’ve heard from other attorneys representing employees that they’re seeing twice as many cases come in to them but they aren’t taking a lot more cases. 

And as we know, we’re still months away from seeing new lawsuits arising from these claims too.  What happens by then?

It’s too early to predict that the #MeToo movement won’t have the same impact six months from now (I happen to think that it will) but even since the holidays it seems the press is starting to move on a bit (Golden Globes, notwithstanding).  It’s hard to keep up the pressure that the end of 2017 had.

For employers, it’s important to not get caught up in assuming the worst and thinking that everything they’ve been doing has been a failure.  Much HAS changed over the last 20 years.  I do think, though, it’s an opportunity for employers to re-evaluate their training. They can also take a look at their culture: Are there any expense reports revealing something more nefarious (a Gentleman’s Club visit perhaps?)? Is it time to institute a “no-dating” policy for supervisors/subordinates? And where are your weak spots? Continue Reading The Dialogue: The Shifts That #MeToo Are Creating in the Workplace

In years past, I’ve looked at my crystal ball, I’ve read the tea leaves and I’ve even examined my Magic 8-Ball sitting in my office.  (You never know when you need one.)

I’m out of prediction-making tools.

And indeed, since I started doing this, there are now national lawfirms that are offering up their predictions on employment laws. And everyone is pretty much saying the saying thing nationally:

More focus on sexual harassment claims; more on pay equity;  big changes at the NLRB; more on LGBT employment law protections and still more wage/hour lawsuits.

I’ll make it easy: I agree.

But what’s missing is a look at the local perspective for Connecticut employers. So here are some fearless predictions for 2018 applicable to employers in Connecticut.

  1. It’s (still) the economy, stupid. Where’s the recovery? As it turns out, Connecticut’s economy and budget are both in a bit of a mess. Unemployment has crept back up of late and the General Assembly looks to be coming back to deal with a growing budget deficit. Are we in a recession?There’s no end in sight for this mess for 2018; that said, is the federal tax cut going to trigger some activity?I’m guessing not. I think layoffs and more use of independent contractors may carry the day here. And with that, will we see more lawsuits and more charges of discrimination? Let’s check back in a year.
  2. Count on an interesting Connecticut Supreme Court case or two. Each year, the Connecticut Supreme Court releases an employment law decision or two. Some are important to employers; several others are only notable for employment lawyers.This year, there’s one or two cases pending that may be both.  Keep an eye out for MacDermid Inc. v. Leonetti, which was argued in November 2017.  In that case, an employee signed a separation agreement which included a release of a pending workers’ compensation claim for $70,000 or so.  But the employee pursued the workers compensation claim and the Commission (and the Connecticut Supreme Court) found that the agreement didn’t bar the claim. The employer then sought return of the severance and a jury agreed. Now the employee appeals.  My guess: A close call but comparable federal “tender back” rules suggest employee may not need to return the severance for an invalid release. That said, I’m hedging a bit because the case is complicated with lots of briefing so don’t be surprised if a limited exception for the employer here is found.   (I’ll have more on this case in an upcoming post.)And there’s a decision expected in whether religious institutions have immunity from employment discrimination suits under Connecticut law.  Stay tuned.
  3. Less action from the General Assembly than you might think. It’s an election year for Governor. Moreover, the Senate is evenly split.  And if you following polling, the Democrats in the state seem to have some vulnerability.  All that adds up to a legislature that may be less active than you might think.That said, there’s likely to be a discussion about the use of confidentiality provisions in settlements of sexual harassment claims.  And more attacks on the use of non-compete agreements. But like the pregnancy discrimination law that was passed in 2017, expect a compromise that makes any proposal much more palatable to business interests.

So, there you have it.  Three fearless predictions in Connecticut employment law.

In the meantime, I need another cup of coffee this morning. Best wishes for a happy and healthy 2018.