It’s Wednesday afternoon and you get an email from a service that receives lawsuits on your behalf.

“Congratulations! You are the recipient of a new lawsuit!”

No, it doesn’t really say that.

Rather, it’ll basically attach a copy of the lawsuit and remind you that the clock is ticking for a response.

It might as

Remember 2010?

Those were the days of Lady Gaga’s “Meat Dress”. You could also play “Angry Birds” on your new smartphone.

And discrimination complaints to the EEOC were about at their all-time high.

But over the last few years — and in particular, last year — discrimination and retaliation claims have been down.

A LOT.

  • Did you hear about the guy who went into a rage when he got the shorter end of the wishbone?
    He just snapped!

In prior posts, I’ve described how Valentine’s Day and Halloween have been fowl holidays for employers.  Many a harassment or discrimination complaint has been based on those holidays.

But what about Thanksgiving?

First off, let me dispense with the elephant in the room — Yes, the show “Survivor” is still on the air and yes, I haven’t missed any of the 39 seasons of it.

In fact, I shared lessons that employers could learn from Survivor way back in 2010.

Last week’s episode of Survivor, however, brought far more reality than most would think a “reality show” could or should bring.

There’s a lot of nuance to the episode that a short blog post can’t get into (though this podcast by Rob Cesterino gives it a try), but the show’s episode revolved around legitimate sexual harassment claims, using harassment claims for nefarious purposes, and bystander syndrome.

And it was ugly. Really ugly.

Why?  Here are a few things that stood out to me from an employment perspective:

First, a female player (Kellee) complained to a producer that another male player (Dan) was a little too “touchy” and made her feel uncomfortable. To be sure, there was plenty of video evidence to back her up.   The male player was given a “warning” and play continued.  But here’s the thing: The female player never knew that a warning was issued and Dan worked with others to get Kellee voted out of the game immediately thereafter.  Not telling the complainant what was going on with her complaint is just one of the ways the producers seem to have mishandled things.Continue Reading Sexual Harassment Prevention Lessons from the Television’s “Survivor”

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

The Dialogue — one of the more popular recurring posts — returns for the third time. Does that mean the third time’s the charm? Or is it three strikes and we’re out? In any event, Nina Pirrotti of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, P.C. returns for this installment where an employee-side and employer-side attorney discuss the issues of the day. Today’s topic discusses the lay of the land when an employee files a complaint against his or her current employer. Well, that and Unicorn Frappuccinos….

unicornsNina Pirrotti: It is that time, once again for the two of us to lock horns, I mean engage in a spirited discussion about, how we both help our clients to navigate thorny issues which arise in the workplace.    One such issue is how to advise our clients when an employee has alleged discrimination while she is still employed with the very employer she is accusing of wrongdoing.  Wow.  I feel a knot forming in my stomach just contemplating it!   

There are many complexities inherent in this scenario at each stage, from how the complaint is initially expressed, to the manner in which it is investigated, to whether the employee who complains should stay or go (or something in the middle like a leave of absence) to various resolution options.  In fact, I feel so strongly that employees and employers often botch one or more facets of this fraught situation  that I proposed it as a subject for a panel at NELA’s annual employment conference this June and I will be speaking on that panel!

I think I will start the ball rolling by saying that my biggest fear is that clients who remain working in a hostile work environment often feel so powerless and outraged by their situation that they are vulnerable to doing everything wrong from making more frequent mistakes to lashing out at supervisors or peers or far worse.   I used to save my admonishments about refraining from such behavior for my less sophisticated clients until it became clear that my C-Suite executive clients were just as likely to partake.   Now, no matter who my clients are, a big part of my counseling session revolves around how they should conduct themselves in the workplace.  If anything, I want them to strive even harder to be consummate professionals, above reproach.   My most common refrain is:  Do not arm your employer with a legitimate justification for terminating you!

There is so much to territory to explore here, Dan, but, could you highlight for me one or more of your biggest concerns when a client comes to you and says one of its employees has alleged discrimination or harassment in the workplace?

Dan Schwartz: Locking horns, eh? Perhaps you’ve had one too many Unicorn Frappuccinos (R.I.P.)  from Starbucks.  Alas, I do tend to agree with you that this is one area where rainbows and happy endings are rare.

When I hear about current employees who bring suit against their employers, I tend to think an apt comparison may be the spouse that files for divorce but the couple still has to live in the same house.  It’s awkward.  Everyone is walking on eggshells.

The fact is that one big concern I have for employers in this situation is to avoid a retaliation claim.  You say you encourage employees to be “above reproach” and I wish that were always the case, but sometimes employers will get these types of claims and they’re in the midst of either terminating or disciplining an employee — what then? If they do so after the claim, they’re opening themselves up to a retaliation claim. And we know how nasty those can be.  (Documentation is critical.)

But if it’s a harassment complaint that the employer gets, it typically becomes a real fire drill — drop everything and begin an investigation. That investigation may or may not need your client’s help, Nina. So what do you do in that situation where an investigation pops up?

Nina: Ok – you got me.  I couldn’t resist looking up the Unicorn Frappuccino on Google after my husband assured me you weren’t making it up.  This is how Starbucks describes it:  “Magical flavors start off sweet and fruity transforming to pleasantly sour. Swirl it to reveal a color-changing spectacle of purple and pink.”    It sounds like a liquid nightmare.  Hmmm could the Unicorn Frappucinno’s “magical flavors” be a metaphor for the very type of employer-employee relationships of which we are speaking?!
Continue Reading The Dialogue: Workplace Complaints and Happy Endings As Rare As Unicorn Frappuccinos?

chro99Last week, the Legislative Program Review and Investigations Committee released a 129-page report on the Commission on Human Rights and Opportunities, with a focus on Discrimination Complaint Processing.  You can download it here.

The report is worth a deep dive at another time, and a final report from the Committee is due in January 2017.

Numbers everywhere
Numbers everywhere

As I noted on Friday, the Connecticut Commission on Human Rights & Opportunities has, at long last, released case statistics for 2014-2015 fiscal year and has updated their statistics for the last several years.

As a result, there are lots of new numbers to pore over and information

These are not the interns you are seeking
These are not the interns you are seeking

Believe it or not, harassment against summer interns isn’t directly prohibited under Connecticut law.  (But treating them like employees without paying them is against the law.)

This is not, however, a column about the best ways to harass your interns.  Indeed, regardless of