The District Court held that a letter from the company offering her job back meant that she was not fired for complaining or for refusing to sign the severance agreement.  The Fourth Circuit determined that there were numerous factual disputes about whether the employee had suffered a “tangible employment action,” which is necessary before a court can impose liability on an employer that denies knowing about the harassment.  It did not reach other issues, such as whether Carla Dulaney adequately complained, and whether the employer failed to take action on her complaints.

District Courts continue to weigh facts, often giving scant weight to the employee’s assertions, in order to award summary judgment to employers.  This case shows the importance of proof that an employee made complaints about sexual harassment, and that the complaints went unheeded.

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.

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.

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.

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.

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.

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.

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.

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.

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.