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.
Posted by marykeating on August 18, 2009 under Constructive discharge, Race-based discrimination, Racial harassment, Sex-based discrimination, sexual harassment |
In sexual and racial harassment cases, one of the most difficult decisions an employee can make is what to do when the employer is insufficiently responsive to complaints. It’s safe to say that employers have all learned to parrot the lines “we take allegations of sexual harassment seriously,” and “racial comments are not tolerated in this workplace.” But sometimes they are. When an investigation is cursory or a farce, the complaining employee is often faced with escalated harassment, as the bullies realize they are winning, and are not happy that she called in the higher ups. If the harassment is sufficiently severe and the employee cannot tolerate the atmosphere anymore, is she free to quit? If she continues to go to work, is the atmosphere perhaps not that abusive after all? The idea of constructive discharge is commonly rejected by courts.
This is the essential conflict in the case of the Equal Employment Opportunity Commission v. Central Wholesales, Inc., a company in Laurel, Maryland. A three year employee transferred to a new department and immediately was subjected to severe racial and sexual harassment. Her coworkers used the “b” and “n” words daily, a man in an adjacent cubicle had a pornographic screensaver, and when his screen wasn’t being saved, he was watching pornography on it; the employee had to listen to it. Two male coworkers kept mop-haired dolls in nooses in their offices. She complained to the coworkers, then to her supervisor, then to the president of the company, and finally to her former supervisor. For the most part, nothing was done, and her supervisor even made a joke of her treatment. At that point, the employee left the job and was unable to return.
The EEOC brought suit on her behalf. The trial court held that the employee was not harassed as a matter of law. It decided that the sexual harassment was not severe enough, and that the employee left her job before the company could remedy the racial issues. The Fourth Circuit, often not a friend of the employment discrimination plaintiff, reversed the decision.
Under the law of harassment, an employee needs to show that the harassment was both objectively and subjectively hostile and abusive. That is, the employee must have found the atmosphere upsetting, and a reasonable person in her position would also have done so. Under the Fourth Circuit’s precedent, plaintiffs must clear a “high bar” to show that the objectionable conduct was severe or pervasive. In other words, to make out a case of sexual or racial harassment, the plaintiff has to show that there was so much unwelcome, racially or sexually charged conduct that the employment situation was altered, poisoned.
In this case, the employee did make enough of a showing that she is entitled to a trial. It is not easy to bring all the elements together, especially when the employee leaves the workplace. But at least here, the employee’s dilemma, of staying in a toxic environment for the sake of her lawsuit or quitting and preserving her mental health has not doomed her opportunity to make her claim.
