hostile work environment

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.

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I’ve always tried for this blog to be apolitical.  That doesn’t mean I don’t have political views — I obviously do — but I don’t think that they should play into how we look at certain legal issues.

But we need to talk about the recorded comments from Donald Trump because I think employers need to understand that a workplace that tolerates or condones those types of comments — particularly on a regular basis — is just allow a foundation for a sexual harassment “hostile work environment” lawsuit to be established.

I’m not going to rehash the comments here — the definitive Washington Post story on it does that more than adequately — but I wanted to look at it from the legal context.  Trump’s comments at the debate last night that his comments were mere “locker room talk” isn’t going to cut it.

If you’re wondering, first of all, whether the actual grabbing (as opposed to extremely lewd talk) of female anatomy is sexual harassment, the plain answer is absolutely yes.  It’s also sexual assault, as noted by Anderson Cooper last night.

Notably, a lot of the cases that looked at such “physical touching” incidents were from back in the late 1980s and early-to-mid 1990s, when cases around “hostile work environment” were just coming out.

A case is point is Hall v. Gus Construction from 1998, which had this awful set of facts  “In addition to the verbal abuse, male coworkers subjected [the plaintiffs] to offensive and unwelcomed physical touching. Male crew members would corner the women between two trucks, reach out of the windows and rub their hands down the women’s thighs. They grabbed Ms. Hall’s breasts. One crew member picked up Ms. Hall and held her up to the cab window so other men could touch her.”

And that was just from co-workers.  The supervisors and the company were responsible because they ignored it.

But what about “extremely lewd” talk from supervisors. Can that be enough?

First, it’s important to understand the standard for hostile work environment claims allegedly created by supervisors.  Employers are generally liable for such harassment by supervisors.  What does this mean?

It means that if, over a four-month period, an employee endured almost daily sexual comments and advances from her direct supervisor, including requests for dates and telling her that her “butt looks good” — that may be enough for a hostile work environment claim.

They key to such a claim is whether the actions were severe or pervasive enough to change the conditions of employment and create an abusive environment, judged either by an objective standard (in other words, any reasonable person would find the conduct abusive); and a subjective standard (in other words, the employee in question found the conduct abusive).”

Thus, if a supervisor made isolated comments, it typically isn’t enough (though sometimes it is so bad that it can be).  Rather, what courts are looking for is an environment where these types of comments are more the norm, rather than the exception.

Even so, there may a limited defense. To assert this defense, employers must be able to show that:

  • No tangible adverse employment action was taken against the plaintiff.
  • The employer exercised reasonable care to prevent and promptly correct the harassing behavior.
  • The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid the harm.

This defense must be proved by the employer.  But again, in cases where the supervisor is the one who is alleged to be the harasser, it’s a tough burden to meet.

Now, this does not mean that the workplace must be free of all lewd talk; that’s not the law.  An isolated comment, even from a CEO, about a person’s appearance is just not enough to be actionable.

But talk about sexual assaulting women is just something more.   And if employers are thinking that this talk goes on all the time in their workplace and it’s no big deal, it’s probably worth a call to your lawyer — because a lawsuit may just be right around the corner.

IMG_8532 (2)You work for a privately-owned multinational conglomerate with a high-profile CEO who loves Twitter and can’t stop talking.

And that CEO, outside of work, has been critical of lots of people. In doing so, however, the CEO has made particular comments about certain women, comments such as:

And there’s more where that came from too.

That said, some people think the CEO is a feminist.  And within the confines of the company, they would argue, he put women in charge of construction projects before it was “fashionable” to do so. And, some would argue, the organization has more female executives than male executives and a large number of these women are paid more.

The question is: Has the CEO created a hostile work environment for women at the workplace?

Of course, we can’t answer this question in a vacuum, because the CEO described above is Donald Trump.  And this isn’t a pure hypothetical; he has reportedly made all of the above statements either recently on the campaign trail or in other public statements.

Some have already jumped into the fray on this issue both here and here taking issue with his behavior.

But frankly, taking aim at The Donald here on whether or not his conduct creates a hostile work environment at his own workplace is a fruitless exercise. Eventually, some enterprising lawyer will take aim at the organization for his comments and he has plenty of lawyers to defend the organization.

Rather, his comments bring up a point that is relevant to other corporations. I cannot imagine another organization that would relish having such comments made by their CEO in almost any other context.

Yes, the equal opportunity offender — that is, the “horrible boss” who speaks poorly of everyone — can work as a defense in cases. But that’s an argument for a court and won’t prevent the lawsuit from being filed with the accompanying publicity that comes with it.

And so, if your CEO or another senior manager is suddenly spouting “truths”, perhaps its best if you remind him or her that there are, in fact, rules for the workplace.  And that your CEO is not Donald Trump.

Of course, in Trump’s case, perhaps there’s a third option: maybe he’s just an entertainer in a “reality” show about running for President.  As a character, maybe he’s just playing a role of a candidate who speaks the “truth” like the character playing the President in the 1993 movie “Dave.”

That might still give him an out to disclaim his statements.

Needless to say, your company and your company’s CEO won’t have that option when faced with a hostile work environment claim.

As I return from an extended absence for the Thanksgiving holiday, my colleagues Gary Starr and Gabe Jiran share this alert about anonymous threats in the workplace based on a recent Circuit Court decision

starrEmployee complaints based on anonymous harassment pose special problems for employers.  How do you uncover the source of the problem when no one is able to identify who acted inappropriately?  One employer learned the hard way what not to do and what should be done.

A black female employee complained to her supervisor about receiving an anonymous note in her mailbox.  The note appeared to be a federal hunting license authorizing the holder to hunt and kill black people day or night, with or without dogs.  There was also a hand-drawn stick figure with a noose around its neck.

The supervisor first reported the incident to his manager, but neither reported the incident to Human Resources.  They also did not document the incident or interview anyone.  Following this cursory investigation, nothing further was done as no one was able to identify a suspect.  No one even notified the complaining employee that the matter was closed.

Not hearing anything about her complaint, the employee called an employee hotline and also reported the incident to the police.  Her calls triggered a new investigation by the Human Resource department, but no useful information turned up.  Human Resources then ended its investigation concluding that the incident was isolated.

It later turned out that the on-site managers and supervisors were aware of earlier incidents of targeting of black employees, but did not disclose them.

Eight months later, the employee received a similar threatening note and immediately reported it.  She asked why cameras had not been put in the area.  The same threat was received by several other black employees, who also reported it.  This time cameras were installed. Nothing turned up and the investigation again was closed.  The police fingerprinted employees so that in the future any notes could be dusted for prints.

The targeted employee then sued alleging a hostile environment.  While the district court granted the company’s request for summary judgment, the appeals court reversed.  The appeals court was critical of the company’s actions and set out guidance on what should have been done.

First, the company failed to recognize that the racially tinged death threats created a hostile work environment.  The threats should have been immediately reported to the police.

Second, while the company had a discrimination policy, its supervisors and managers did not follow it.  Employers must train supervisors and managers on what they are to do if they receive a complaint and they must be held accountable for enforcement of the policies.

Third, the response to the threats was not prompt, was not calculated to end the harassment, information about past incidents was not timely disclosed, and employees were not interviewed on a timely basis.

Fourth, no additional protection for the employee was provided, cameras were not installed, and security personnel did not offer to walk the employee to and from the parking lot.

Finally, the targeted employee was not told what was happening with the investigation.  The court faulted the company for not doing enough to ensure the safety of its employees and to eliminate the hostile work environment.

It is imperative when there are complaints of harassment, especially those involving physical threats, that they be taken seriously, even to the extent of notifying police.  A thorough investigation must be conducted, appropriate remedial steps must be taken, and the complaining employee must be advised of the outcome of the investigation.

An anonymous threat does not excuse the employer from treating the matter seriously.  While the culprit may not be identified, steps can be taken to ensure the safety of employees, to reinforce company policies, and to provide a safe work environment.  The lack of an adequate response can not only result in liability, but it can also leave employees believing that the company does not care about them, resulting in poor morale and possible lawsuits.

lelconfAs I continue recapping various sessions from the ABA Labor & Employment Law Annual Conference last week in Philadelphia, it’s time to turn to what makes claims “actionable” under today’s harassment laws.

In other words, is the single use of an offensive word such as the “n-word” enough to survive a motion to dismiss or even get to trial?

The speakers at this particular program noted the caveat at the beginning: A lot of these cases are fact-specific.

In other words, whether or not a case gets to a jury may depend on the context in which the words that are said.

Here’s my twitter recap of the presentation below.

One key takeaway from this session is that employers still have a duty to investigate claims — whether or not the claims establish a hostile work environment claim.  But not all claims are going to have merit.

Some employees claim that they are being “bullied” by a supervisor, or that they are “uncomfortable” in the workplace.  As courts, though, have said: Federal laws are not civility codes. And not every workplace is going to lead to a “feel good” moment.

That said, having a workplace where employees feel valued and where employees are treated with respect is certainly a laudable goal.  It’s just good knowing that when that goal can’t be reached, it doesn’t mean a lawsuit will succeed either.

justiceLate last month, a federal court in Connecticut took another look at the prohibition of discrimination “because of sex” with a case that has all the elements of a “can you believe it” fact-pattern that will surely be used for harassment training going forward.

The case involves a male employee posed for Playgirl nearly two decades prior and who, according to the decision, faced harassment from male and female co-workers.

But what does that phrase “because of sex” mean in today’s workplace climate?  And should it be extended when we’re looking at issues of same-sex harassment?

The case, Sawka v. ADP, can be downloaded here, and I’ll talk about it a bit more below.

The EEOC has been pushing an expanded view of this language, particularly as efforts to prohibit employment discrimination on the basis of sexual orientation have been floundering at the federal level.

(It should be noted that Connecticut law explicitly prohibits sexual orientation discrimination but there are case of male on male, or female on female harassment that don’t involve sexual orientation — like this case.)

But this case touches on same-sex harassment unrelated to the employee’s sexual orientation.  The case came to my attention by David Wachtel in a detailed post that is worth a read.  In it, Wachtel notes that in cases of same-sex harassment, there have been limited theories for employees to pursue.

Based on Supreme Court precedent in the Oncale case, a plaintiff would have to show either that:

  1. The harasser was motivated by sexual desire;
  2. The harasser was expressing a general hostility tto the presence of one sex in the workplace;
  3. One sex was treated differently from the other;
  4. Defiance of a sexual stereotype.

Wachtel argues that there is another kind of motivation that should also be covered by the “because of sex” principle.  Likening it to the “Fifth Beatle”, he says that a court should focus on the employee’s sexual characteristics and that this case seems to expand on it.

For employers, though, the case is easier to understand without the legal theories, notwithstanding the complicated facts that involved, among other things, teasing by both male and female coworkers for nude photos that the employee has posed in Playgirl for nearly two decades ago.

Ultimately, the federal court said that there was sufficient evidence to send the case to a trial (thereby denying the employer’s motion for summary judgment at least partially).

For example, one woman referenced “the existence of pictures or searching for Mr. Sawka online” and said she saw “everything”.  Another said that everyone had seen the pictures and that he had a “beautiful c***” and she just wanted to “f*** the s*** out of you.”

The court said that these comments and behavior (and other) could be viewed by a jury as being motivated by sexual desire and thus “because of sex”.  And the comments by male co-workers about the “size and state of his genitals” could also be harassment “because of sex”.  Thus, the court said, the employee could proceed with his hostile work environment claims.

It’s not a full victory for the employee however. The employee resigned and claimed that he was “constructively discharged.”  The court rejected that claim because to proceed, the employee must produce “evidence of even more severe conditions” than those that create a question of fact on a hostile work environment claim.

Nevertheless, the case is a notable one that reinforces something that I talk about in sex harassment prevention training.  Sex-based jokes, comments, and teasing by EITHER gender can lead to liability for an employer if that behavior interferes with an employee’s ability to do his or her job.

Back in May 2012, I wrote this about a book that was making its way around various book clubs that was dubbed by The New York Times as “Mommy Porn”.

[H]aving someone read [Fifty Shades of Grey] alone during a lunch break, by itself, is probably not enough to establish a sexual harassment claim. The fact that it is a book makes a difference. (Contrast that with, say, someone watching “9 1/2 Weeks” on the lunch room television.) …

Reading a book is, by its very nature, a somewhat private and solitary endeavor.

Now, that view could change a bit, however, if there was a workplace book group discussing the more outrageous plot points in front of others. In that case, the discussion might naturally revolve around sex which might (emphasis on might) may some feel uncomfortable. …

So, go ahead. Break out the book (or Kindle, or Nook, or iPad). But its probably still best, if you hear employees discussing the book, to have those conversations kept to a PG-level.

Flash forward three years, and here we are about to have the same discussion with the theatrical release of Fifty Shades of Grey this week.   In fact, Suzanne Lucas (otherwise known as the Real Evil HR Lady) echoes similar themes in a recent post to Inc.

How can discussing a movie turn your workplace into a hostile work environment? Well, if you start to get into details, you’re likely to have someone who is offended. You can’t just assume that because Jane doesn’t speak up that she’s not offended. And if the discussions go on long enough and it’s deemed an acceptable topic in the workplace, it’s possible that it could create an environment where sexual discussion starts to become the norm, and that could mean a reasonable person would find it hostile. That, plus your offended employee, is what it will take.

Now, does this mean you should go into full on panic mode and ban all mention of the movie? Probably not. Most discussions are going to be short lived, which won’t rise to the occasion of “sufficiently severe or pervasive.” But you do want to nip such conversations in the bud.

A quick reminder to keep conversation clean can go a long way toward reminding people that sexual discussions–whether real or fictional–should not have a home in the office. When you hear people talking, quip, “Hey, remember, this is a PG office.”

The workplace just isn’t the place to talk about topics like the main plot points in the book and movie.  It has the possibility to offend some.  The fact that women are discussing it instead of men is of no consequence.

Indeed, to establish a “hostile work environment”, an employee has to show that it is both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the person did find offensive.

So, as the next week goes on, keep your ears perked for conversation in the workplace.  That conversation about an airplane ride in the movie (hey, I’ve seen the previews like everyone else in the Super Bowl commercial)? Sounds ok. That conversation about ropes and blindfolds? Not as much.

There are a few words in our language that still have the ability to shock and hurt others.  The N-word is one of them.

(I’ll use it sparingly here but note that courts use the actual language in court opinions too; for courts, accuracy is important.)

Frankly, it’s not a word that pops up in a lot of race discrimination cases in Connecticut any more. (A search of federal court decisions in Connecticut from 2008 revealed just 8 such instances.)

So what happens when an employee alleges that the N-word was used in the workplace?

In the case of Gaston v. Sun Services, a District Court of Connecticut case decided a few weeks ago, the court said that a single use of the word “nigger” in the employee’s presence, along with a single reference to being called “boy” was not enough to establish a hostile work environment.

While “offensive”, the court said that no reasonable juror could find these incidents constituted “pervasive harassment” or resulted in a workplace “permeated with discriminatory intimidation… sufficientlly severe or pervasive to alter the conditions” of Plaintiff’s employment.

In doing so, the court granted the employer’s motion for summary judgment.

The court cited the case of Alfano v. Costello, a 2002 case from the Second Circuit that is also worth reading as a reminder.  In it, the court emphasized that single episodes typically are not enough to show a hostile work environment:

As a general rule, incidents must be more than “episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness.

The court in Alfano made another interesting observation — that “many” supervisors can be difficult to work with.

Everyone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination. Otherwise, the federal courts will become a court of personnel appeals.

So what should employers take away from this line of cases?

Well, for one, the use of the n-word should still be highly unacceptable at work or elsewhere.  To state the obvious, the fact that a court is willing to excuse its usage once should not give employers license to use it or condone it at all.   While an employer may still be able to win a hostile work environment where it is alleged,  employers should still investigate claims that the word is being used and respond appropriately.

Employers should remember that courts will look to how employees are treated in general.  Having a policy prohibiting a hostile work environment and taking steps to ensure that such a policy is being followed in practice, can help defeat a claim — even where one employee is alleged to have use the n-word once or even twice.  Taking prompt remedial action will ensure that those isolated instances don’t become the basis of an actual legitimate claim.

Gaston v Sun Services LLC

The short session of the Connecticut General Assembly is set to begin on February 5, 2014.

But the jockeying for items to get on the agenda is well under way. The Connecticut Commission on Human Rights and Opportunities is circulating a proposed bill that would followup on a failed bill from last year’s term.

I previously discussed this proposal in a post last May.

At the time, the proposed bill was thought to be close to passage, but time ran out in the session before it could be picked up.  Earlier versions the bill proved quite troublesome; this latest version still has issues that haven’t been addressed and it’s important for employers to speak up now before the changes are put into place.

So what are some of the changes this bill would bring?

Changes to “Mental Disability”

The bill expands the definition of a “mental disability” to not only “mental disorders, as defined in the most recent edition of the American Psychiatric Association’s ‘Diagnostic and Statistical Manual of Mental Disorders’”, but also to including having “a record of or regarding a person as having one or more such disorders”.

Put aside, for the moment whether including everything in the new DSM5 is worthwhile. The more troubling issue is that the proposed law would continue to cover “regarded as” claims for mental disabilities. The references to a “past history” of mental disability in existing law being removed by this bill are less significant because a “record” of disability would now be covered.

Why is that problematic? Becaues that the definition is inconsistent with how a “physical” disability is treated; where is the reference to being “regarded” as having a physical disability?

Rather than continue to treat mental and physical disabilities as distinct from each other, the legislature should take its cues from the ADA and match its definitions accordingly.  Otherwise, we’ll continue to have three different standards to analyze disability claims — one for ADA claims, and two for state disability-related claims.

Continue Reading Legislative Preview: Will the CHRO Bill Get Passed This Year?

A case out of the Second Circuit Court of Appeals (of which, Connecticut is part of) addresses an interesting question:

When a jury  finds that sexual harassment has been perpetuated by a single employee, is injunctive (non-monetary) relief required to be issued by the District Court?

The EEOC argued yes and argued that remedies such as preventing the harassing employee from returning to the workplace were appropriate. 

Um, there’s a problem in Aisle 3.

The Second Circuit agreed in part, saying that ordinarily a termination of a lone harasser should be enough. But the court said that given the egrigious facts of this particular case, something more should’ve been done to protect the female employees from potential future harassment.

The case, EEOC v. KarenKim, Inc. (d/b/a Paul’s Big M Grocery), can be downloaded here. 

There’s a lot of facts to the case, but this summary, by the Outten & Golden Employment Law Blog, captures some of the salient points:

KarenKim is a grocery store whose employees largely consist of teenage female employees. The company is owned and managed by Karen Connors. In 2001, she hired Allen Manwaring as the store manager. In 2006, Connors and Manwaring became romantically involved and had a son together.

At trial, a number of current and former employees testified about Manwaring’s sexual harassment of the female employees, which consisted of verbal and physical harassment. Some of his verbal comments included making comments of a sexual nature to employees and compliments about parts of their body. He told one employee that if he was her boyfriend, he would never “let her out of his sheets” and that “if he was 10 years younger, he would be on top of her.” He also physically harassed the women by touching and massaging them in inappropriate ways and on a daily basis. He would brush up against them to deliberately touch their breasts, put his crotch against their buttocks, breath on their necks, hug them, and squeeze their hips.

Oy.

Continue Reading What Remedy Is Appropriate When a Jury Concludes Sexual Harassment Occurred?