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 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 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 March 27, 2010 under Sex-based discrimination, mandatory arbitration |
Jamie Leigh Jones filed a federal lawsuit for damages, charging that while stationed in Iraq, her co-workers at Kellogg Brown and Root, then owned by Halliburton, drugged and raped her. Jones’ employer’s insistence that all of her claims must be arbitrated led to the successful passage of the Franken Amendment, reported here.
KBR’s argument focused on Jones’ employment agreement, which called for arbitration of employment disputes. After two years of litigation, Jones convinced the Fifth Circuit that some of her claims need not be arbitrated. Those claims involved the civil counts arising out of crimes; the court held that Jones’ bedroom, where she was raped, was not part of her “workplace, even though it was provided by her employer.
KBR asked the Supreme Court to intervene. Courts frequently give a great deal of deference to arbitration clauses, regardless of the disparity in power between the contracting parties. Employees may be required to waive their rights to a jury and appeal, and submit their claims to a single or trio of arbitrators rather than experienced judges. Arbitration is popular with employers for those reasons. But then the Franken Amendment passed. Now both sides have consented to have the case withdrawn from the Supreme Court’s docket.
Jones’ case is set for May.
Vail said he believes the case was withdrawn because of the so-called Franken Amendment. Following publicity about Jones’ case, Congress passed a defense appropriation last year with a provision advocated by Sen. Al Franken, D-Minn. The measure prohibits any contractor receiving federal defense funds from enforcing a contract that mandates use of arbitration to resolve civil rights, harassment and other types of disputes.
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.
Posted by marykeating on July 20, 2009 under Sex-based discrimination |
An article in today’s National Law Journal discusses the use of text messages as evidence of sexual harassment. Texting provides an easy means of communication, and it may feel as ephemeral and private as an oral conversation. Phone calls, however, are not usually recorded, and in this state anyway, can’t be recorded legally without the consent of both sides or a court order. Text messages leave electronic footprints, and can be forwarded, retrieved, printed, and saved for posterity.
The article discusses a case in which the “he said-she said” nature of many sexual harassment claims unraveled when the harasser’s text messages were revealed, showing that the claimants were indeed telling the truth about the college coach’s inappropriate activity. Read more here.
