Posted by marykeating on January 24, 2012 under Economic situation, sexual harassment | 
The Ethics Resource Center issued its biannual report on the prevalence of misconduct in American companies. Two counter-intuitive findings stood out for me: One found that in bad economic times company ethics improved, while the reporting of misconduct rose. The study found that pressure to engage in unethical behavior is more rampant. Likewise, retaliation against whistleblowing increased, to the point where it is now at an all time high.
On the other hand, while employees thought that workplace ethics was on the decline, they observed less misconduct overall. Some believed that wrongdoers were laying low during the recession. The center predicted that “as the economy gets better – and companies and employees become more optimistic about their financial futures – it seems likely that misconduct will rise and reporting will drop.”
Though it would seem that misconduct would increase during difficult economic times, not all misconduct is designed to increase profits. The Center shows that the incidence of misconduct observed by employees rises and falls with the stock market. The study suggests that employees are more careful when their job stability is more fragile to avoid sexual harassment and other misconduct.
Another finding focused on people who actively used social networking. The report showed that they report more negative experiences in their workplaces, and were more likely to be retaliated against. At the same time, they “show a higher tolerance for certain activities that could be considered questionable.”
The report strongly recommends that employers improve their commitment to ethics programs, end retaliation, and bond with active social networkers, who are more likely to witness misconduct, and generally to say positive things on social networking sites.
Posted by marykeating on August 16, 2011 under Sex-based discrimination, retaliation, sexual harassment |
The Fourth Circuit recently overturned a decision dismissing the sexual harassment claim of a former Baltimore City employee, Katrina Okoli. Contrary to the trial court, the Court of Appeals first decided that the behavior of the supervisor created a hostile work environment. The behavior ranged from touching, sharing his fantasies of sex in a Jacuzzi, to yelling.The Court also determined that Ms. Okoli showed that her rejection of the boss’s advances led directly to her firing. It deemed “deeply suspicious” the fact that the plaintiff’s boss fired her “only hours after she culminated her rejection of him by complaining to the Mayor.” It also permits the retaliation case to go to trial.
The entire panel agreed that the unwelcome overtures and outright requests for sexual conduct amounted to sexual harassment. The concurring opinion discussed the ambiguity of the evidence that tied her job to her acceptance of the sexual advances. It also gave more credit to the City’s claim that the plaintiff was scheduled to be fired even before she complained to the Mayor. The important point, however, is that the jury should be able to decide whether the reasons for her termination were pretexts, given to cover up the discriminatory conduct.
It is still difficult for plaintiffs to get to trial in employment discrimination cases. But the Fourth Circuit has changed over the last few years, and this decision may be a harbinger of fewer cases decided without a trial.
Posted by marykeating on April 21, 2011 under Discrimination in employment, sexual harassment |
The Institute for Women’s Policy Research published a report analyzing more than 500 consent decrees in discrimination litigation. Most of these were negotiated by the EEOC or the Department of Justice and focus on court ordered changes to the workplace. Unlike many private settlements, the terms of consent decrees are often (but not always) public, and are intended to alter workplace dynamics or policies to prevent future discrimination or harassment.
The report describes several large class action consent decrees in detail, including one intended to end systematic pay discrimination in the aerospace industry, endemic sexual harassment, including rape, of undocumented farm workers, and sex discrimination in uniformed services, such as prison guards. It concludes that the best decrees require objective criteria for hiring, assignments and promotions; monitoring of the effectiveness of the programs put in place to end discrimination; and a mechanism to hold management accountable. It also suggests that having an external monitor is important, particularly with smaller employers, and with systemic sexual harassment.
This report makes fascinating reading. The authors demonstrate a deep understanding of the nuances of a workplace in which the employees are suspicious of the motives of management, wary of retaliation, but hungry for fair treatment. The resources they bring to bear, and suggest adding, create the potential for settlements which create long-lasting change.
Posted by marykeating on April 7, 2011 under retaliation, sexual harassment |
The Fourth Circuit recently allowed a woman’s sexual harassment case to proceed to trial. The District Court had entered judgment without a trial in the employer’s favor, which was held to be legally erroneous on appeal.
In Hoyle v. Freightliner, LLC, a worker in a truck plant complained on numerous occasions of her coworkers putting up pictures of scantily clad women in sexually demeaning poses, putting a similar screensaver on her computer, putting a tampon on her key ring, and similar conduct. Although the company said it would “look into” the conduct, nothing seems to have been changed. The worker was first reassigned to janitor duty, then fired for excessive absenteeism, which she claimed was retaliation for making the complaints.
The Fourth Circuit said “A juror could reasonably find that sexualizing the work environment by placing photos of nude women or women in sexually provocative dress and poses in common areas is detrimental to female employees and satisfies the ‘because of sex’ requirement.”
It did uphold the dismissal of the retaliation and discrimination charges relating to her reassignment and discharge, however. Although the treatment of her could reasonably be seen as retaliatory, the employer showed a legitimate nondiscriminatory reason for its actions. Since the employee had failed to show that men had been treated better, when they were in trouble for absences, she cannot bring that claim to trial.
Posted by marykeating on April 2, 2011 under retaliation, sexual harassment |
The Court of Appeals just decided a case involving a claim of harassment and retaliation. The plaintiff worked for a hotel, and reported to a man named Ahmed who had been rehired after having been terminated several years before. According to the complaint, many people had complained about the supervisor’s sexual harassment, assault, battery and discrimination during his first stint with the hotel. Upon his return, he asked the plaintiff to help him identify those who had complained about him, so he could fire them in retaliation. Mr. Ahmed also rehired a manager who sexually harassed the plaintiff. He discouraged her from continuing to complain about the harassing behavior. When she continued, and accused him of retaliating, he fired her.
The case will go back to trial because the jury was given the wrong instruction on retaliation.
The Court also resurrected the plaintiff’s claim that rehiring Ahmed was negligent. The Court of Appeals decided that if retaliation is a motivating factor in the decision to fire someone, it is illegal. The jury had been told that only if retaliation is the determining factor could they decide for the plaintiff.
This may seem like splitting hairs, but the opposite is the case. Most employers come up with some reasonable sounding explanation for a firing. Sometimes they do so right away, and sometimes after suit is filed, but most employees can be accused of something that violates a policy. (In this case it was “insubordination” and a bad attitude among other things – both are consistent with someone frustrated over having her complaints of sexual harassment ignored.) The adoption of the “motivating factor” standard is a big step forward.
Posted by marykeating on March 19, 2011 under Sex-based discrimination, sexual harassment |
The Fourth Circuit just reinstated a case on behalf of worker who was routinely sexually harassed while on a customer’s premises. The trial court, together with the employer, told the employee that it was his fault. He did not provide enough details about the harassment, preventing the employer from taking corrective action.
Not so fast, according to the appeals court. Contrary to the summary disposition by the lower court, the appeals court saw plenty of evidence in the record. The employee demonstrated that he complained early and often, but he was told that the harassers were joking; that he should stop whining; and that because of his complaints his company “could lose everything.” After he complained to the EEOC, the company offered him a different shift with lower pay, which conflicted with the employee’s childcare responsibilities. He was fired for not taking the changed shift.
The Fourth Circuit held that an employer “is liable if it knew or should have known of the harassment and failed to take appropriate actions to halt it.” The unanimous response from the management was to belittle his concerns and not ask questions. It went on to repeat its rule that “claims of harassment could not be avoided through the adoption of a ‘see no evil, hear no evil’ strategy.” It also refused to require adherence to the requirement that claims be reported only to the company president, given the size of the company.
Posted by marykeating on July 1, 2010 under sexual harassment |
The Fourth Circuit Court of Appeals just sent back a sexual harassment case for trial. The sole owner of a medical practice made frequent sexual jokes and remarks, to both men and women alike, and to his employees, patients and vendors. A female doctor was so distressed by his behavior that she quit, and the EEOC sued on her behalf. The medical practice defended first on the basis that the owner “was a generally crude person who made vulgar comments to men and women alike.” This defense is sometimes successful, since a sexual harassment case requires a showing that the harasser’s behavior is so outrageous that it becomes a form of sexual discrimination. When someone is rude and crude to men and women equally, the employer can escape liability because both men and women are treated equally poorly. The Fourth Circuit noted that this doctor made comments to both sexes, but his comments were intended to demean women. In addition, he made “explicit or implicit proposals of sexual activity directly to the female doctor.
The Court spent more analysis on whether the harassment was severe enough to earn court intervention. Courts are skittish about acting as workplace civility police, and do not get involved with “general crudity.” The incidents at the medical practice were more than “a handful of isolated” events, though, and crossed the line into a “series of sexually graphic and unmistakably personal remarks that made her work environment intensely uncomfortable.”
The opinion leaves open a big gray area in which some crude remarks and pictures, and some (but not a lot) of sexual comments, are still legal. But decisions like this one, that require a jury to decide the extent of outrageous versus acceptable workplace behavior, represent a step forward.
Posted by marykeating on December 19, 2009 under Government contractors, Pending legislation, sexual harassment |
The Franken Amendment has passed the House and is expected to become law. Under the amendment to next year’s appropriations bill, contractors doing more than $1,000,000 of business with the federal government must agree not to require arbitration, rather than court, claims of discrimination, sexual assault, and other employment claims. Six months after the effective date of the law, the contractors are responsible for ensuring that their own subcontractors with jobs of more than a million dollars also abide by the law.
The amendment forbids mandatory arbitration on the following types of claims:
- any claim under title VII of the Civil Rights Act of 1964, and
- any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.
The law arose out of a horrendous situation involving a woman who was raped and terrorized overseas while working for an American company. The perpetrators worked for an American company, and our government. Her employment contract required her to arbitrate her claims, and limited her remedies. Senator Franken’s amendment forbids companies from imposing this waiver of rights on people working as employees or independent contractors on major goverment contracts.
Posted by marykeating on October 8, 2009 under Pending legislation, sexual harassment |
The Senate, with the help of a number of Republicans, passed the Al Franken Amendment (Senate Amend. 2566) to the Defense Appropriations Act yesterday. (No Democrats voted against it.) The amendment would prohibit government funding to defense contractors and subcontractors if they require employees to arbitrate Title VII claims. The bill states that it prohibits the U.S. government from using “funds for any Federal contract with Halliburton Company, KBR, Inc., any of their subsidiaries or affiliates, or any other contracting party if such contractor or a subcontractor at any tier under such contract requires that employees or independent contractors sign mandatory arbitration clauses regarding certain claims.”
The amendment came in reaction to Jamie Leigh Jones, a Halliburton computer technician working in Iraq. She was drugged and raped by her coworkers. She returned to find her court case barred because she had signed an employment agreement requiring arbitration of all disputes. No one was prosecuted, after various parts of her file were inexplicably lost by Halliburton. Ms. Jones told her story on national television, and also accused a state department employee of sexually assaulting her, too (according to the news clip, he admitted doing so). Ms. Jones’ story is not unique, and claims of rape in the military are rampant.
Title VII forbids discrimination on the basis of sex, race, religion, color, and national origin. Sexual harassment, of which rape is an extreme form, is sexual discrimination under Title VII.
Arbitration has become more popular with employers, since it is a private process, there is no appeal, no legal precedents are set, and it affords no jury trial. The fees are often quite high, despite the commonly heard rallying cry of expensive litigation. For a three-person arbitration panel, the parties must pay by the hour for each of their fees to prepare for and hear the case, as well as hefty administrative fees imposed by the American Arbitration Association. By contrast, agencies such as the EEOC and MCHR are free, and court filing fees are low.
Posted by marykeating on October 7, 2009 under sexual harassment |
The David Letterman revelations have provided interesting commentary on a number of fronts. The bizarre extortion attempt claimed by Mr. Letterman and his lawyers seems out of place at the heights of the entertainment industry. It smacks more of organized crime or the driving plot of a murder mystery novel. Many people have discussed the effect on Letterman’s career, and the difference between his position and that of politicians caught in similar situations.
To an employment lawyer, though, the most interesting part to explore is how his behavior affects the workplace. Mr. Letterman has admitted having sexual relationships with people who work for him. The first nagging question is how consensual these relationships were. The second is how the relationships affect the morale and behavior of the others in the workplace.
These situations arise commonly in the modern workplace. People who work long hours may not have time to meet other people, and they get involved with coworkers. The intensity of the work, or the constant proximity, can lead to affairs. To the employer, these relationships present solvable problems. One coworker should not be allowed to supervise the other, and each should be reminded of the sexual harassment policy. If at any point the relationship becomes nonconsensual, the employer needs to be advised and take prompt action.
But sometimes the “employer” is in reality the same person who is having the affair. Without knowing the television industry, I’d venture to say that if David Letterman wants an employee fired, or retained, he has the power to make it happen. A subordinate may happily begin a relationship with him because of his obvious attractions (and if you don’t see them, just trust me, a woman, on this), but not feel so free to break it off, fearing the effect on her career.
When I prepare employment manuals, I always include some way for an employee to complain about sexual harassment at the highest level of the company. Usually sexual harassment complaints go to a human relations department or the chief executive officer; a company needs an external reporting option, a pressure valve to permit an employee to go outside the company if the top boss is the harasser.
If the relationship is consensual, though, the workers who are not so close to the boss may be jealous of the relationship or the perceived favors to the chosen one. Solving that problem is not so easy. Our federal courts do not consider “paramour preference” to rise to employment discrimination. But the preference can be real, especially when the boss is giving the paramour time off to be with him, or great work assignments. Sometimes the only reasonable choice for talented employees who feel they cannot rise in the company is to leave.
