Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

In our effort to be fair and present all sides of an issue, and to encourage discussion, we print here a comment from a reader, Anthony Vieira, an attorney from LA:

“Mr. Cohen, there are more than 2.2 million personnel serving in our US armed forces. That today we have "Another" sexual assault is an issue for the people and the command involved. Your trying to go further and loop it into some embedded pattern of conduct is lawyer talk and nothing more. This is particularly evident where you make the further claim, as a lawyer, that the issue is the chain of command structure and that it has to go. There are layers of complexity here that you'll never understand because you evidently haven't tried to. Talking without making some minimal effort to comprehend the issues doesn't become us as a profession. We all need to do the hard work of understanding what's set before us before we can begin to talk credibly (and persuasively) on anything.”

Any thoughts or comments on this issue? Please let us know.

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“Harrowing,” “appalling” and “extreme abuse” were words used by EEOC lawyers regarding a series of lawsuits targeting sexual harassment, particularly of farmworkers who are subject to an "appalling abuse of power."

One example was an EEOC suit against National Food Corporation, a major egg supplier in Washington.  It was alleged that the company allowed a supervisor to physically grab a female worker who worked alone in a henhouse where the harasser was the only management person on site. He made sexual demands upon her several times a week from 2003 to 2010.

She said that "For almost seven years, I tried to just survive these demands from my boss, because I needed to support my mother and my daughter.” 

Now the company has settled this action for $650,000.

The EEOC General Counsel stated what we have been repeating for years: "It is one of the EEOC's national priorities to combat discrimination against vulnerable workers, and we hope that this settlement sends a message to other employers that they need to be vigilant to prevent sexual harassment and other abuse."

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Once again, despite the express feeling of being "ashamed" about sexual assault in the military by the President, there is a new story tonight about a military arrest - it has been reported that a Lt. Col. at Ft. Campbell who is a sexual harassment prevention officer has been arrested for a sexually-related crime.

This case is distinguishable from our previous posts because his issue was with an ex-wife with mutual restraining orders, not with subordinates.  He was removed fom his position by the Army while his domestic dispute is beign resolved.     

In any event, the US military has a clear institutional resistance to any change.  The "chain of command" model must be changed.  Without a change of the culture of the military, these episodes will continue.

This is no joke - it is a serious situation of criminal behavior.

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In a military where, last year, there were a whopping 26 convictions out of 26,000 charges of sexual assault (and only 3,000 reported charges), the news tonight is that the sexual harassment prevention officer at Fort Hood has been arrested for sexual assault and for forcing a subordinate into prostitution.  This is the second such officer arrested in a week. 

Seems that the chain of command structure, where it behooves a superior officer to cover up such charges, may be a factor, as well as the entire, engrained culture of the military.  This scares victims into keeping silent about such assaults.

Law enforcement is failing in the US military.

More as it comes to light.  

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My faithful assistant Chrissie has been working hard to come up with a good Friday 5-Minute Laugh Session for this week's installment.  She decided to try to come up with one related to training, since I had two training sessions this week with a client covering employee relations for managers.

I am pleased to report that my training sessions went much better than this, but this Duck Dynasty clip is priceless in demonstrating how quickly a session can get out of hand with unruly employees.

http://www.youtube.com/watch?v=KC4BRcRr5Z4

Happy Friday!

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Last night's post was confirmed in a short article in today's NYT -- Lt. Col. Jeffrey Krusinski, the Air Force officer in charge of sexual assault prevention and response program for the last two months was arrested for sexually assaulting a woman in a parking lot.  

ABC News reported similarly that Col. Krusinski was arrested in Arlington upon a report that  "a drunken male subject approached a female victim in a parking lot and grabbed her breasts and buttocks."  She apparently fought him off vigorously.

"Defense Secretary Chuck Hagel was said to have expressed 'outrage and disgust' over the arrest, which comes as the Pentagon prepares to release a report Tuesday showing the number of sexual assaults in the military increased in 2012."

Unsurprisingly, or perhaps surprisingly, the Air Force removed him from his job. 

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Chris Hayes has just reported on MSNBC that Air Force Lt. Col. J. Krusinski, head of the Air Force sexual assault and prevention program, has been arrested -- for sexual assault.  

More tomorrow.

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"The line between sexual banter and harassment can sometimes be indistinct, even blurred. But crossing it is costly.”  We posted this comment last week. 

How about when the comment does not rise to even mere banter but is only a casual remark or even simply a workplace compliment?  Are these comments safe or taboo?

Leanne Italie, writing for the Associated Press and published in Rocky Mount Telegram, asked “Are workplace compliments focused on looks or other personal details like dress ever OK? Is the alternative a more sterile professional life? When do such remarks rise to actionable harassment, or become worthy of a friendly rebuff or a trip to human resources?”

She cites to experts who suggest that “tone, context and a pattern of behavior are everything when it comes to unwanted remarks.”  No doubt this is true.  However, as we noted a few times, as recently as yesterday, the specter of male power differential still is ever present: one labor lawyer said that  “Whenever you’re in some kind of a male-dominated world, there are always many sides to a compliment. They’re about power and so using a compliment is a way to change the power dynamic between two individuals, and there’s some tension there. That happens very frequently.”

So can a compliment be considerd harassment?  This same lawyer said that “When you’re thinking about the legal landscape, compliments alone don’t typically constitute unlawful sexual harassment.”   But its all about context -- and whether a compliment is simply a starting point for banter, or something else.

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Groping, insulting, and threatening female employees has just resulted in an award by a federal jury in Tampa of $20.2 million in damages in an action which alleged a hostile work environment.  The accused company officers did not appear at the trial (presumably because they tanked the company).

One 66-year old former employee said that "it made me physically ill. And I felt ashamed that I was there. One of the managers actually carried around a picture of his manhood on his cellphone, and he would stick it in one of the employee's faces.  And he sexually assaulted, violently, the back of my chair telling me 'I'm going to show you what a dog is.' And he physically almost knocked me off my chair."  

The attorney for plaintiffs expressed it quite accurately:  "Sexual harassment against women is really an issue of power.  It's an issue of men in the workplace trying to exert their power over these women."

We wrote previously about a German government report which affirmed what we have always believed, that “[i]n most cases, there is a big discrepancy in power between the perpetrator and the victim, and the former often abuse the latter’s dependence."  

In our blog of December 27, 2012, we wrote that low status in the workplace has been found be a cause of harassment, according to a study by Illinois State professors Kimberly Schneider and Patricia Jarvis (and reported by Business News Daily).  They found that adolescents employed as sales clerks or flipping burgers are more likely to be sexually harassed by older co-workers than adult employees, and more likely to be harassed than adolescents in jobs that provided more meaningful work and autonomy.

It should therefore come as no surprise that victims of harassment are more often of relatively low status and power in the workplace.  As with people victimized throughout society, they are more often the victims of this “power differential.” 

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We don’t mean to keep flogging the oft-cited vulgar (and annoying) parrot case but it makes a point. A parrot was kept by a patient in an expensive long term care facility which repeatedly shouted sexual vulgarities to an offended female nurse. The nurse complained, nothing was done to remedy the situation, and the nurse sued for sexual harassment. 

She won, because as we repeatedly remind readers, there is a concept known as “third-party harassment” where, as the EEOC stated recently, “courts have concluded that an employer may be liable for the harassment of its employees by non-employees if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it.” The parrot may have been a harasser, but the hospital was liable.

A new decision from a federal appeals court makes the same point. Plaintiff was employed as a detention officer by a private firm, MVM, that provided security services to, among others, the Bureau of Immigration and Customs Enforcement (“ICE”).  Plaintiff worked with ICE agents, but was supervised by her company. She reported to her supervisor that an ICE agent was "bothering" her with phone calls, and asked the supervisor to remove her number from the list – which he could not do because that was contrary to policy.  

She later reported that the same ICE agent “grabbed her and started kissing her against her will. He touched her all over. She tried to push him off her but could not. He stopped when [another employee] got back.” She sued the company for, among other things, sexual harassment.

The Court rejected her claim because there was no evidence that the company was on notice of the phone calls being sexually harassing, only bothersome, and so the later physical assault could not be attributed to the company.

But for our purposes, the Court re-affirmed the concept of third-party harassment:  “the  accused harasser … was not an MVM employee like [Plaintiff]. But because, as we have just said, employers must provide their personnel with a harassment-free workplace, they may be on the hook for a nonemployee's sexually-harassing behavior under certain conditions – one of which being that they knew or should have known about the harassment and yet failed to take prompt steps to stop it (emphasis added).”

Take-away:  Even though the parrot and the ICE agent were not employees, the fact that they were both  harassers could render the employer liable just as if they had been employees.

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A Nevada engineering company, which the EEOC accused of requiring a pregnant employee to be certified to carry live ammunition and explosives, has -- surprise! -- just settled this case of pregnancy and disability discrimination for $70,000. 

  The employee was a pregnant and disabled technical assistant who was employed, along with her husband, at the Hawthorne Army Depot.  The EEOC alleged that:

1.  A manager made derogatory remarks to her and denied her request for an accommodation -- to move her office closer to the restroom because of her severe nausea and vomiting.  

2.  The company changed her job description while she was out on pregnancy leave, to require that she be certified to carry live ammunition and explosives, and then fired her.

3.  The company demoted her husband, and fired him for complaining of his wife's treatment and participating in the EEOC investigation of his wife's case.

The EEOC reiterated in its press release that ADA and pregnancy-related limitations comprise one of the six national priorities identified in its Strategic Enforcement Plan (SEP).

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This Utah company must be the poster child for the “worst practices” award: a company supervisor repeatedly called a class of African-American employees racial slurs such as the “N-word;” the company had an anti-harassment policy which directed employees to report harassment to their harassing supervisor; and the company fired one of the employees for complaining.

Can you pick out all of the acts which violated Title VII?  They cost the company $230,000 in a settlement just reached with the EEOC.

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2.  Zero Tolerance Introduces Opportunities for Bias and Provides No Due Process

"Among some social justice advocates, zero tolerance policies are in disfavor. This is because when they are used in schools in regard to alleged violence, for example, they almost inevitably work against African-American students. Although such policies seem objective, when implemented they are subjective, and introduce opportunities for bias. They also provide no due process, no opportunity for introduction of evidence or rebuttal, and no progressivity in discipline. They take away thought and consideration, and can lead to absurd results, like the small boy who got kicked out of school because he pointed his finger at someone and said "bang."

"This statement you are considering, ""organizations in which employees believe that (1) their company takes the issue [of harassment] seriously; (2) it is safe to complain; and (3) there are meaningful sanctions for offending, have many fewer problems with sexual harassment. The belief among employees that their organizations 'tolerate' harassment is the most powerful predictor of whether it will occur and will be damaging if it does," is okay, but leaves out nondiscrimination policies and the important neutral, objective, and prompt investigative step."

3.  Zero Tolerance Should Be Reserved For Serious Violations

"That people are unaware of what "Zero Tolerance" means, that there is ambiguity at all, is concerning. In some organizations it means that the maximum penalty is applied (most seriously is termination and/or prosecution under the law if applicable) regardless of circumstances if it is confirmed that the particular policy is violated. In other organizations it actually means that some form of disciplinary action will occur (but not necessarily the maximum penalty) and what exactly will happen will depend on the circumstances. Of course, the actual application of this term, depending on the organization, as been everywhere in between these two ends.

And that, perhaps, is why the term has such ambiguity. Does it need a legal definition? Does it need some sort of policy definition that is uniquely different from organization to organization? Does it need to go away altogether in favor of clearly defined consequences for the actions that currently have "Zero Tolerance"? What is best for each organization may depend on the corporate and ethical cultures of the organization. In either case, Zero Tolerance should be reserved for serious violations (and usually is) and should be anything BUT ambiguous.

There should always be nondiscrimination policies as well as neutral, objective, and prompt investigative steps followed to ensure that the truth is discovered and that the punishment fits the crime."

4.  One Size Does Not Fit All -- The Punishment Should Fit The Crime

"I don't think the issue is so much about the "zero tolerance" as it is with the one size fits all discipline practice where some organizations apply the same harsh discipline to all violations regardless of how minor. There should be an investigation and then the punishment should fit the crime. That punishment could be as simple as telling someone what they just said or did is not acceptable and don't do it again or it could be as serious as termination."

Keep those cards and letters coming in!

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"Zero tolerance" as to workplace harassment is a mantra we preach often, and have never thought that it could be considered controversial in any way.  However, one reader made us think, stating that although he agrees with the "the concept of zero tolerance in theory," nonetheless he "never knows exactly what it means. I'm afraid it's an unworkable concept, misleading because of its ambiguity, and thus may lead to cynicism on the part of employees. I wish the term would just sort of 'go away.'"

The idea of employee cynicism troubled us; among many other evils it is bad for company morale.  

Does anyone have any thoughts on the matter?    

Our friend also wrote very wisely that "organizations in which employees believe that (1) their company takes the issue [of harassment] seriously; (2) it is safe to complain; and (3) there are meaningful sanctions for offending, have many fewer problems with sexual harassment. The belief among employees that their organizations 'tolerate' harassment is the most powerful predictor of whether it will occur and will be damaging if it does."

We are considering whether to substitute this latter statement for the "ambiguous" term "zero tolerance."

Any advice?

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A year ago we reported that up to 30 female employees were preparing to sue the BBC alleging sexism and age discrimination. We quoted the BBC director-general as conceding that there were “manifestly too few older women broadcasting on the BBC.” 

We have now learned that more than 850 BBC employees have come forward alleging bullying and sexual harassment at the BBC, and that a senior BBC executive has been accused of bullying by more than 20 employees.

After last year’s allegations and other claims lodged by employees of “routine groping,” a review by a human rights lawyer was ordered in which BBC employees were assured anonymity if they reported incidents of harassment.

The BBC’s director of human resources said that some of the testimony is “uncomfortable to hear,” and a spokesman said that ‘We have recognised the need to take a serious and thorough look at the issues of sexual harassment and bullying.”

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My assistant, Chrissie, (take a bow, Chrissie)  just showed me a hilarious Saturday Night Live clip of an old musical Christmas skit whose song inexplicably popped in her head today. 

Chrissie said we should do this every Friday, have a little 5 minute laugh session.  I immediately said that's a great idea.  As I then went back to my desk, I ruined my own little bit of happiness by doing what lawyers do best -- over thinking things. 

What do you think was my first thought as an employment lawyer? It was: "If we did this, I would have to pre-screen them to make sure they were appropriate."  My second thought as I was pulling up the video to watch it again was "Oh, I didn't really listen to the words the first time, I hope this one was appropriate." 

I have since watched it again and confirmed there was nothing off-color.  Some of you may be thinking I am over-reacting, but I have spent the afternoon walking a client through a harassment investigation.  Like in a lot of cases, in that case, what started as a joke has now snowballed into a pretty nightmarish situation.  The last thing I need is to be at the center of one of those investigations.

In the meantime, I bring you a little silly cheer on this Friday afternoon in New Jersey:  Here it is from the Late Night with Jimmy Fallon Blog. 

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Could this signal the high water mark for the EEOC’s targeting sexual harassment of workers in the agricultural industry?

Our readers know by now that under its Strategic Enforcement Plan (“SEP”) the EEOC is targeting harassment against “vulnerable workers,” such as migrant workers.  See our blog of March 18, 2013. 

In a recent settlement, the EEOC announced that “The Spud Seller,” a potato wholesaler in Colorado, had agreed to pay $255,000 in a sexual harassment lawsuit where the warehouse supervisor repeatedly harassed at least 10 female hourly employees who worked as potato sorters. Over a six-year period, he repeatedly made sexual comments, groped and touched them, exposed himself to them, and solicited sexual acts. An EEOC attorney said “The EEOC considers protecting immigrant, migrant and other vulnerable workers from discrimination and harassment a priority under the Strategic Enforcement Plan."

We have now learned that a jury in federal court in Yakima, Washington has found in favor of a large apple grower against 14 women who claim to have been subjected to ongoing sexual comments, unwanted propositioning and physical groping. The court heard testimony that a supervisor told one woman whose 16-year-old daughter also worked at the company, that she should give her to him for sex.  It was testified that he harassed the younger woman repeatedly, telling her he wanted her sexually, pressed up against her body and touched her breasts.

The company contended that none of the plaintiffs complained of harassment, and that a “disgruntled cousin” of the supervisor was the source of the complaints.

Said an attorney for the company: "We can only hope this verdict changes the confrontational manner in which the EEOC approaches its claims against members of the agriculture industry."

Said an EEOC attorney: "We believe (sexual harassment) is still a problem in the industry," and that in sexual harassment trials one the issues will always be he said-she said.  

It will be interesting to see how this adverse verdict impacts the EEOC’s Strategic Enforcement Plan or its zeal to implement it.

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Don't let your employees make more than four sexually harassing comments, although telling an employee repeatedly that “she had to clean the trailer while wearing a French maid’s costume” may be OK.

In a Nevada case, a co-worker of a woman employee told her that “a large-breasted woman, whom he called 'Double D,' would attend a company event, and asked her 'whether the size of the woman’s breasts intimidated her.'  He later spoke to her about tampons and "asked whether women ‘got off’ when they used a particular kind.” He also told her that “women were lucky because [they] got to have multiple orgasms.”  

Additionally, whenever she saw the co-worker or answered his phone, he told her that “she had to clean the trailer while wearing a French maid’s costume.” 

Plaintiff demanded each time that these comments stop, and reported each incident to the company president, but the comments continued.

At this point, if we had been counsel to the company, we would have been alarmed at these comments and the behavior of the co-worker (and the plaintiff’s supervisor, who apparently witnessed most of these comments and plaintiff’s protests). We have always advised a zero-tolerance policy towards sexual harassment, and appropriate training for managers and employees, and would have looked at these comments as a cause for concern.

But a federal appeals court felt differently and was not as concerned.  It preliminarily noted, correctly, that a hostile work environment is caused by offensive sexual conduct which is so severe or pervasive that it alters the conditions of the plaintiff’s employment and creates a work environment that a reasonable person would consider hostile or abusive.  Nonetheless it found that the plaintiff “did not make out a prima facie case of sexual harassment because the evidence will not support a finding that the offensive sexual conduct was so severe or pervasive that it altered the conditions of her employment and created a work environment that a reasonable person would consider hostile or abusive.”

The Court held that “[a]lthough we certainly do not condone [the] crude and offensive remarks, we note that … [o]ther than his references to the French maid’s costume, [the co-worker] reportedly made offensive sexual remarks to [plaintiff on only about four occasions.”

With due respect to the court, we still advise employers to adopt a zero-tolerance policy and appropriate training, and do not think it is wise for employers to accept a “four times is OK” policy for acts of sexual harassment.  Nor do we advise employers that it is OK to tell a female employee that she has to wear "a French maid’s costume" -- repeatedly, or even once or twice. 

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This may seem like an obscure topic for our blog, but we are an international report, and we like to compare and contrast employment discrimination laws around the globe, and acquaint people with the relevant laws in every continent.

Therefore, we recommend a new report:  “Who Can I Tell? What Should I Do? Sexual Harassment In The Media” by the FAMWZ - Federation of African Media Women and Zimbabwe Union of Journalists.

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This headline is a little misleading – yes, it’s true that the entire Legislature, plus the former Senate President and several legislative employees, are being sued by a legislative aide.  But the alleged harasser is a single co-worker, who the aide alleges repeatedly sexually harassed her over the course of several years.

According to The St. Thomas Source, despite being told by the aide that his behavior was unwanted, the co-worker allegedly propositioned her many time, left inappropriate and demeaning phone messages, told her "you look sexy when you vex," and "leaned in inappropriately close."

The aide claims in her suit that "Because defendant Legislature allowed the hostile work environment to exist unchecked, it created an intolerable working environment," and also retaliated against her by "poorly drafting bills assigned to Sen. Malone [for whom she was an aide]."

Takeaway?  None, really.  Just thought that the word "vex" merited a post. 

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The San Francisco Business Times reported yesterday that SendGrid, an email technology company, fired a female employee who complained on Twitter of sexual jokes made by a male employee of a San Francisco company at a recent conference.

Adria Richards, a “developer evangelist” at SendGrid, Twittered: “Not cool. Jokes about forking repo's in a sexual way and ‘big’ dongles.”

SendGrid's CEO was not amused, and wrote two blog posts in which he stated that he had fired Richards because she showed bad judgment by using Twitter for “shaming,” and in doing so “put our business in danger.”

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Pakistan’s Daily Times reports that sexual harassment is increasing in Pakistan, especially among domestic workers, students and nurses. At a seminar held at the Lahore College for Women University, Punjab Assembly Member Amna Ulfat said “There is a need to start an awareness campaign against sexual harassment and the government should strictly implement laws that check and control discrimination.”  

One participant said that management as well as all employees were responsible to ensure the implementation of the “Protection Against Harassment of Women at Work Place, Act 2010.”   Another speaker said that to eliminate discrimination against women, the support structures in society should be strengthened.   

Another participant said employees must understand the legal process, and that “If the management of an organisation is not complying with the anti sexual harassment legislation, the employees have a right to take their organisation to court by filing a petition under section 11(3) of the Protection Against Harassment of Women at Work Place Act 2010 and ensure a dignified working environment for themselves and their fellow employees.”

This report seems to indicate that Pakistan is far behind other countries in eliminating harassment, given the general, non-specific nature of the suggestions made at the conference. The law is a first step, an “awareness campaign” is important, and understanding one’s rights is key. Now what faces that country is a long civil rights fight to change attitudes.  

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The Mayor of Toronto is a controversial figure, according to a blog written by Todd Humber the managing editor of Canadian HR Reporter.  The Mayor has now exacerbated a controversy by ill chosen words.

Apparently last week, he attended a political party at which his former opponent also attended.  After they posed together for a photo op, the opponent, a woman, posted on Facebook that the Mayor had groped her and made suggestive comments.  Mr. Humber rightly questioned “the wisdom of laying such a charge via social media,” but the Mayor’s responsive statement is what caught the attention of the reporter: “I’ve always said I don’t know if she’s playing with a full deck.”

Let Humber caution those accused of harassment:  

“Denying the accusation is one thing. At the moment, only two people really know what happened … and they’re telling different stories. It’s impossible to objectively know who is telling the truth. But, in a sexual harassment allegation, it’s never a smart move to try to sway opinion by questioning the accuser’s sanity. Politics is a different animal than corporate life, but that’s a tactic that could lead to a pretty expensive judgment if a CEO or business leader tried it out.”

Thomson, the opponent, replied to the Mayor:

“Decades ago, powerful men who sexually assaulted women would call them ‘hysterical’ or ‘crazy’ to debase their credibility. It pushed many assaulted women into silence. Today Mayor Ford stated he wondered if I was ‘playing with a full deck’ to try to discredit me. He will not push me in to silence and I hope his accusations do not reignite the old fears that once silenced women.”

What’s the take away from this story for employers?  While social media is not the place to make serious accusations that belong in court, or in an internal company investigation, Humber says that “[c]harges of sexual harassment should never be taken lightly. It requires a full investigation into the alleged wrongdoing, sometimes by third-party professionals. But the last reaction any leader should have is to try and discredit the accuser. There’s nothing wrong with strongly denying it happened, if that’s the case, or laying out a solid case in your defense. But name calling? That’s not even acceptable on the playground.”

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The “old boys’ club” which excluded women, harassed them, and paid them at a lower rate than men has been demonstrated in court to have been common for eons in the corporate world.  When women began bringing class actions against large institutions in various industries, businesses and professions, the ‘ol boys club began to crumble.

It seems now that the venture capital industry is next on the block, having recently been targeted by women, who are not well-represented in what has been called the “clubby world” of Silicon Valley.  As has been widely reported, on February 7^th three women sued venture capital firm CMEA and a former partner for sexual harassment and retaliation. They claim a hostile workplace based upon allegations of dozens of inappropriate sexual comments and acts, bullying and intimidation made by the then operating partner. They claim that this occurred frequently in front of other partners who took no steps to stop it.   In fact, they say, the firm founder warned one of the plaintiffs that the operating partner was a “predator.”  

Two other lawsuits have already been filed against Silicon Valley VC firms, but this one has hit the news probably because, as CCN Money and Fortune report, “Some of the examples [of harassment] are shockingly lurid, and far more explicit than what is normally found in a Silicon Valley harassment lawsuit.”  The complaint can be found at: http://finance.fortune.cnn.com/2013/03/08/vc-firm-sued-for-sexual-harassment/ 

The defendants “flatly” deny the allegations in the lawsuit.

We’ll see if suits like these “go viral” in Silicon Valley and the tech industry, as similar ones previously did against, for example, banks and other financial institutions.   

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According to records obtained by the AP, New York State approved over $6 million over the last four years to settle sexual harassment claims made against state agencies or officials.  

One man and 13 women made claims cases against several agencies, including the Parks, Recreation and Historic Preservation Office; Downstate Medical Center; the Roosevelt Island Operating Corp.; the state courts system; the Division of Military and Naval Affairs; and SUNY Stony Brook; the Department of Corrections; SUNY and CUNY; the Office of Mental Health and a psychiatric hospital.   

The largest payout was for $650,000 in a case involving the state Office of Children and Family Services; last year, a $103,000 settlement was paid to women who accused Assemblyman Vito Lopez of sexual harassment; and a $300,000 settlement was to a prisoner for a guard’s improper "pat and frisk."

Clearly, it is better to avoid claims of sexual harassment than to encourage them by failing to take the precautions that we always recommend.  

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“A growing number of states [are] consider[ing] legislation that would let workers sue for harassment that causes physical or emotional harm." This, according to a recent AP news report.  These laws would not require any showing of discrimination.

The AP cited a 2011 SHRM study which found that half of all employers reported bullying in their workplace, and, shockingly, that approximately 1 in 4 HR professionals claimed to have been bullied. The employers said that most bullying consisted of shouting, cursing, name-calling, malicious gossip, rumors and lies.  20% of the bullying took place by way of social media. 

Notably, bullying by itself does not violate Title VII or any other anti-discrimination laws, because, as the Supreme Court recognized in the case of Oncale, the statute is violated when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and to create an abusive working environment.  

Justice Scalia famously declared that liability for same-sex harassment, at issue in that case, will not transform Title VII into a “general civility code for the American workplace,” since “Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discrimination . . . because of sex.’

It is because a victim of bullying must currently show that the bullying was based upon his/her membership in a protected class that anti-bullying advocates are pushing legislation to protect employees who are not in a protected class, i.e., based on race, gender or national origin. That is, they are pushing for a “general civility code for the American workplace.”   England, Ireland and Sweden already have such laws. 

A little more than half of the SHRM-surveyed employers already have some kind of anti-bullying policy or code of conduct, and more than a dozen states, including New York, have recently considered anti-bullying laws that in some way track Title VII in their proposed policies and remedies. Further, the National Association of Government Employees Local 282 in Massachusetts has an anti-bullying clause in its collective bargaining agreements.  

The AP notes that business groups strongly oppose such laws, which they believe will just encourage frivolous lawsuits.  

Are such proposed laws tenable? Will they address the problem of bullying while not encouraging meritless claims?   Does anyone in HR have any thoughts about this?    

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A survey of women in three large cities in China has found that almost a third reported an increase in sexual harassment over the past three years; almost half of women between 16 and 25 reported increased incidents of harassment.   Compared to India, where an article in The Wall Street Journal notes that “aggressive sexual harassment is a fixture of daily life,” this is, presumably, considered relatively safe.    

I have long thought that in traditional and/or closed societies, efforts at "modernization," or attempts to change or break traditional cultural models -- especially rapidly -- often results in death-grip holds on the old ways by those who feel most threatened, which can lead to or include harassment or other violent acts, efforts to restrict birth control or abortion, disparate wages, etc.

Supporting this view, the WSJ article notes that in 2006, a University of Chicago report stated that China’s economy has been transformed rapidly and massively in the last two decades, and has seen rapid urbanization. Along with this, there has been a quick rise of Chinese women who are employed, and, the report notes, they face sexual harassment especially in service jobs.   This would seem to bear out the theory that rapid change or dislocation can cause a backlash by those most threatened -- in this case, male co-workers who fear both loss of their jobs and loss of traditional authority

What can be done?  China passed anti-harassment only in 2005, which were not fully implemented until 2007, so time will tell if this legislation is effective. There must also be education, outreach and sensitivity training and social condemnation for acts of harassment. 

 

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China’s Ministry of National Defense has announced that military prosecutors have indicted a one-star general on charges of sexually harassing a female military officer, according to The China Post. 

The article reports that the (married) general took a female military officer with him whenever he was on the road, that other military personnel saw him holding hands with the same officer on public transport, and four times he was seen putting his hand on the officer’s leg and into her underwear at the military base.

The general has been removed from his post and now faces a maximum sentence of 20 years in jail.

The report does not say that the general’s acts were “unwanted” or harassing. Perhaps they were – but 20 years in prison seems a little steep, in light of our post yesterday that harassment in China is ubiquitous and even takes place at harassment seminars.

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A Chinese journalist reports that an 18-year-old female employee at a Foxconn factory in Shanghai was subjected to sexual harassment from three male employees  --- while attending a required sexual harassment training seminar.

Say it ain’t so – not in the land where the late Chairman proclaimed: “Women represent a great productive force in China, and equality among the sexes is one of the goals of communism. The multiple burdens which women must shoulder are to be eased.”  Chapter 231 of Quotations from Chairman Mao Tse-Tung (emphasis added). 

Apparently, the factory, which employs almost 60,000 people, has an enormous demand for young workers – i.e, people under age 21.*  And those newly-hired employees must take various training classes, one of which deals, quite appropriately, with sexual harassment.  Because no attendee is permitted to leave the seminar, one female employee was forced to sit silently while being sexually harassed. 

One worker at the factory was quoted as saying: "That sort of thing happens a lot. She was just not used to it."

I guess that the company had the right idea in requiring sexual harassment training, but that something went awry in the application.   

(*We have frequently warned employers in the US with a large proportion of young people, such as start-up companies, that harassment may present itself as a big problem, and that training and good policies are a must).     

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It has been reported that Flint, Michigan has agreed to shell out a whopping $600,000 to a teacher who claimed that her principal sexually harassed her after she ended a sexual relationship with him.

She alleged that the principal began pulling her out of class, came to her home, followed her, asked other teachers about her personal life, and threatened to fire her if she did not submit to his advances,

The teacher is currently out on sick leave after having attempted suicide in November 2011. There is no report whether or not her condition is related to this case.

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Our recent post about whether the workplace might be well served by applying the "Broken Windows Theory" to acts of harassment has, happily, brought forth a torrent of useful comments from readers who are HR professionals.   Since we think that this discussion is important, we re-print four sample comments below.    

“I am familiar with the "Broken Windows Theory" and agreed with it in the original context. I believe it applies to this context as well. If rules are malleable you will always see the limits continually pushed until there is some push back. In the case of workplace sexual harassment the greater concern is that something truly regrettable may happen. As if that wasn't bad enough, then when the lawyers come calling they will be backing up a truck to your checkbook if you can't demonstrate what you've consistently done to discourage such behavior! (emphasis added).”

“Without moralizing, I think that part of the problem is that we're surrounded by sexual suggestiveness, from halftime at the Super Bowl, to the SI swimsuit issue, to shock jocks on the radio, to the increasingly "R-rated" fare on network television shows ... the list goes on and on. We expect employees to turn all of this off the instant they step through the door of the workplace. It's a daunting if not impossible task.”

“It is important to view this type of issue in the larger context of society and not limit it to the workplace. It is rather strange to expect a person to change his mindset when going to work, but of course it doesn't make such behavior tolerable.”

"As with the broken window theory, only those organisations which apply it will reap the benefits. Since only a minority will apply zero tolerance, this field of work will be ripe for reaping for lawyers dealing with discrimination issues for generations to come. Cha ching! (emphasis added).

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One might think that HR Directors, well-schooled in the anti-discrimination laws and ant-harassment laws, as well as relevant polices and training to combat acts of discrimination and harassment would know better. But, alas, taint so.

We have read a news item that an assistant superintendent for student services at a Texas school board who had previously overseen the HR department, filed a complaint with the EEOC in December against the current HR Director – for sexual harassment.  The board just entered into a settlement agreement to pay her $150,000 if she resigned. 

HR people, being people, are perhaps no less likely to get caught up in allegations of harassment or to actually harass, despite their presumed knowledge and training.  The lesson today is that there is no one in the workplace who should not be required to participate in periodic anti-harassment training and be constantly reminded of the company’s zero tolerance policy.     

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ZDNet reports that a former project manager in Australia sued the company for sexual harassment by a sales representative who she had to work with, who allegedly made comments to her which progressed from suggesting that the two of them were married in a previous life, to harassing her for not going to a party with him and not going on a date with him, through telling her how "hot [she] would be in bed." Her complaints went unaddressed and she quit.    

The Federal Court of Australia found the company liable for sexual harassment, has ordered it to pay AU$18,000 in damages, and stated that the sales rep’s actions were "persistent and ultimately callous," and that the company did not take all reasonable steps to prevent it.

The kicker of this story is that even a large and sophisticated company waited until the loss of this lawsuit before it began to conduct workplace diversity training policy for all staff.

If only they read our blog and paid attention to instituting and implementing appropriate employment policies and practices.    

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We read with interest and recommend an article by Pam Paziotopoulos, Esq. on the Forest Advisors web site, entitled "10 Things an HR Director needs to know about Domestic Violence and Stalking in the Workplace"

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Bernie Althofer AFAIM, who we quoted in brief yesterday, is a former Harassment Referral Officer in a police service in Australia.  We have been hoping for active feedback and discussion on our positing the applicability of the "Broken Windows Theory" to workplace sexual harassment (if at all), and Bernie was kind enough to giive us his thoughts, which we believe can be very useful to employers and HR professionals.  We print it below in full, and have underlined passages that we think are significant.   

"In practice, both Broken Windows and Zero Tolerance depend on 100% commitment at all levels of an organisation. Unfortunately, having been a Harassment Referral Officer in a police service, I have seen and heard of situations where 'mate's rates' apply, e.g., favouritism and nepotism.

If zero tolerance is to work, it means that workplace standards have to be set and documented and applied fairly, justly and equitably across all levels - no excuses because the alleged offender is a colleague of a senior employee. Employees see inconsistencies in how others are treated and then complain about how the system does not work.

From my perspective, there seems to be an increasing trend to provide online training as the primary delivery method. It seems from some current discussions, that interactive training will provide participants the opportunity to test their understanding and knowledge of the various policies and procedures, allow them to participate in role plays and quizzes, and perhaps provide an organisation with an increased capacity to defend claims.

Following a Commission of Inquiry into allegations of corruption, the police service adopted a community policing approach and in my role at the time, I was required to 'read up' on various community policing models. In my Master of Arts (Justice Studies), I wrote and presented on zero tolerance and Broken Windows. At the time, I questioned whether or not there was broader application. I think that organisations do need to look outside the square when it comes to being proactive and taking a preventive approach.

I think that whilst there are distinct advantages in both approaches, selling the message might be more difficult. I understand that there may be some differences in our workplaces and cultures regarding what is seen as acceptable, e.g., if people can get away with it they will, and some people still find pulling people into line for crossing the line when it comes to sexual harassment a bit too hard or want to write it off  as ‘a bit of harmless fun'. There is a Member of Parliament who has found himself subjected to media scrutiny in relation to a number allegations involving sexually harassing comments made to various staff before he became an MP.

I am also aware of an organisation where female employees had been subjected to sexual harassment, and training was recommended. A senior executive attended to open the training, and his opening words were "Good morning b.tches" (and he said it with a smile on his face). The training provider asked my advice on what they should have done, and I told them that I would have said "Thank you for those comments. I am now terminating this workshop and I will be reporting your conduct to the CEO".

I think that over a period of time, there will be some interesting comments and observations made about both Broken Windows and Zero Tolerance. In the past, there have been discussions on zero tolerance with feedback suggesting that this would mean an offender would be automatically dismissed for even minor transgressions."

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One more comment about the applicability of the "Broken Windows Theory" and workplace sexual harassment.  Michele Sommer, an Employee Relations and Human Resources specialist, said that it "would make a difference. When you let little things go, people tend to try more. Just look at the spectrum of violence. People rarely act out with murder as their first act on the spectrum. Rather there is most often a escalation of behavior."

She helpfully addressed our initial request for HR people to weigh in as to exactly what can be done in the workplace to "repair the broken windows" early on:   

"We do need to define 'zero tolerance.'  I am not saying that every minor infraction needs to be disciplined or someone fired or a public calling out. If I witness someone who crosses the line in a minor way or comes close to crossing the line, I will pull them aside and explain my reaction, remind them of the policy, remind them that it's not intent but impact that matters and suggest they refrain from saying or doing what they just did. We need to be sure that we review situations on a case by case basis and make sure that the punishment fits the crime (emphasis added).”

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We think that the "broken windows" and workplace sexual harassment discussion is important and are actively seeking comments to publish from professionals in any related fields as to their assessment and point of view.   

Below is another comment from a reader in Australia, Bernie Althofer AFAIM, who notes that for the theory to work a zero tolerance policy must be adopted.   We agree, but go further --  a zero tolerance policy is essential. 

"There is no reason why it would not work. I think that the issue is that some organisations do not take into consideration other models that can be used. For example, whilst the 'Broken Window Theory' might been seen as a crime prevention model, it can be applied in areas such as occupational violence, workplace bullying and sexual harassment.

The secret though to good policy implementation is ensuring that the workplace culture also changes to adopt a zero tolerance approach."

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We received a lot of comments from readers about our "Broken Windows" post last week.  We wondered if employers could reduce workplace sexual harassment -- the kind that gets you sued --if every little unwanted comment or leer was discouraged or had consequences.  

Here is one comment (keep those cards and letters coming in!):   

Kevin Panet, MS HRM, SPHR-CA liked the application of the theory, and wrote:

"Yes, I can certainly see how the "broken window theory" relates to the creation of a hostile environment. Most people don't get up in the morning and decide to go grab someone in an inappropriate manner. However, most harassers do start out small, maybe with inappropriate photos. When they find they can get away with that, they might tell inappropriate stories or jokes. If they can get away with that, then they might try to get physical. So, if you can address inappropriate actions that contribute to a hostile environment with those actions are small, you will have less problems down the road. ... and less broken windows."

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This last year has seen a number of female Royal Canadian Mounted Police file sexual harassment lawsuits.  They claim that their complaints had been ignored or covered up.

To its (belated) credit, the Mounties are promising to  “stamp out sexual harassment and bullying:"

"Harassment has no place in the RCMP.  We recognize it may be impossible to prevent entirely, but we will implement a zero tolerance approach.  … The RCMP stands little to gain by denying the obvious - and it will not do so. … As long as these cases dominate the public discourse they will undermine public confidence in our institution and consume effort. Where wrong has been committed, it will be made right."

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What if employers (who, hopefully, adhere to a well-publicized “zero-tolerance” policy towards sexual harassment, or any kind of harassment for that matter), actively discouraged, showed disapproval or otherwise rebuked every stray or trivial unwanted comment or act that did not rise to a legally-actionable level?  Would this cause a decrease in actionable harassment or a less hostile workplace?   

Consider this: In 1982, at perhaps the height of urban blight and crime, there arose a popular, albeit controversial/debatable theory, put forward by a couple of professors who called it “the broken windows theory.”   In short, the professors argued that if an urban environment was kept well-ordered and every “broken window” repaired (i.e., every act of public disorder addressed) this might stop an escalation into more serious crime – “if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken.” Mayor Giuliani in NYC heartily endorsed and implemented this theory.

From the seminal article in The Atlantic Monthly, the professors explained:  

“at the community level, disorder and crime are usually inextricably linked, in a kind of developmental sequence. …  We suggest that ‘untended’ behavior also leads to the breakdown of community controls. …  A piece of property is abandoned, weeds grow up, a window is smashed.  Adults stop scolding rowdy children; the children, emboldened, become more rowdy. Families move out, unattached adults move in. Teenagers gather in front of the corner store. The merchant asks them to move; they refuse. Fights occur. Litter accumulates. People start drinking in front of the grocery; in time, an inebriate slumps to the sidewalk and is allowed to sleep it off. Pedestrians are approached by panhandlers (emphasis added).”

Without addressing the evidence for or against this theory, or the controversy surrounding it, we wonder if it can be usefully applied to the workplace. Could we, in fact, decrease incidents of actionable harassment if we stop or discourage even sub-actionable unwanted comments or behavior?   I leave it to the HR professionals out there to devise ways to do this (perhaps better training, posters advising employees that any such unwanted behavior – a “joke,” a “funny” email, or a one-off comment - is unacceptable and will not be tolerated). But it seems that at a minimum a zero tolerance policy must come from and be followed from the top down, and an appropriate corporate culture must be nurtured.      

In our post of December 24, 2012, we urged employers to make a New Year’s resolution to  “create a non-permissive environment.” We quoted both a Department of Defense Sexual Assault Prevention and Response Office spokesperson and a young woman in India, respectively, in this regard:  

“The solution to [sexual harassment] is creating a non-permissive environment where sexual harassment, sexist behavior, stalking and these types of behaviors are not condoned, tolerated or ignored.”

“I never tolerate any kind of harassment, so this (zero tolerance) is in my resolution list every year.”

Just a thought.

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On February 4, 2012, we wrote about a case filed by a female prison guard in Iowa against prison officials claiming that sexually explicit and violent movies which inmates were allowed to see caused them to sexually harass her. She sued for what is known as “third-party harassment,” where an employer may be liable for the harassment of its employees by non-employees if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it.

We asked for comments, and printed one this week. We got a lot more. A particularly incisive comment came from S. Caroline Schroder, a Principal at Sulgrave Strategies LLC., who distinguished a prison from a workplace as we know it, as it relates to harassment of employees.  

With her permission, we quote her as follows:

“Having worked with half-way and other shelters every now and then, it seems important to say that these prison populations are unlike any other, with much higher rates of psychiatric disease and brain abnormalities and damage than the general population, all in confined spaces and not controlled with retaliatory measures, equivalent violence for violence any more.

Considering the prisoners' response --" subjected her to insults and threats to kill her, and threw urine on her"--, one is definitely reminded that the prisoner population is different and impossible to control to normal non-prison "community standards". 

1)  Several studies have shown that 'there is a specific brain abnormality associated with criminal psychopathy': Julian C. Motzkin, Joseph P. Newman, Kent A. Kiehl, Michael Koenigs. Reduced Prefrontal Connectivity in Psychopathy. Journal of Neuroscience, 2011; 31 (48): 17348-17357 DOI: 10.1523/JNEUROSCI.4215-11.2011 (Study of prisoners: psychopaths' decision-making mirrors that of patients with known damage to their ventromedial prefrontal cortex (vmPFC).)

2)  S. Gregory, D. ffytche, A. Simmons, V. Kumari, M. Howard, S. Hodgins, N. Blackwood. The Antisocial Brain: Psychopathy Matters: A Structural MRI Investigation of Antisocial Male Violent Offenders. Archives of General Psychiatry, 2012; DOI: 10.1001/archgenpsychiatry.2012.222

3)  And " Substance abuse disorders (SUDs) and other psychiatric disorders are common among prison populations. A dual diagnosis (DD) refers to a co-existing SUD and any Axis I disorder, such as depression, schizophrenia, or social phobia. A new study has not only confirmed DD among prisoners in France, but has also found that it is a major risk factor for suicide. ...Even though the research is limited, studies have shown that prisoners with DD have more severe SUD, more psychiatric disorders, more criminal history, and are more likely to be re-incarcerated"

Co-authors of the ACER paper, "Dual Diagnosis: Prevalence, Risk Factors and Relationship With Suicide Risk in a Nationwide Sample of French Prisoners," were: L. Blecha of the Institut national de la santé et de la recherche médicale (INSERM), Paris and the Centre de Recherche et de Traitment des Addictions at the Hôpital Paul Brousse AP-HP, Villejuif; .... The study was funded by the French Ministry of Health and the Department of Justice.

http://www.eurekalert.org/pub_releases/2008-11/ace-sao102608.php

4) Violence rises with testosterone:   "The key to this study is it shows testosterone is linked to dominance in both criminal behavior and behavior in prison," says Dr. James Dabbs, a professor of psychology at Georgia State University and lead researcher on the project. The findings, by Dabbs and Marian Hargrove, are similar to those in studies of male prisoners. This indicates testosterone's effects on behavior are the same in women as in men, says Dabbs. Testosterone levels were highest among male inmates convicted of violent crimes such as rape, homicide and assault. These men also violated more prison rules."

http://www.sciencedaily.com/releases/1997/09/970927110900.htm

5)  Social identification, not obedience may drive brutality and other heinous acts:

S. D. Reicher, S. A. Haslam, J. R. Smith. Working Toward the Experimenter: Reconceptualizing Obedience Within the Milgram Paradigm as Identification-Based Followership. Perspectives on Psychological Science, 2012; 7 (4): 315 DOI: 10.1177/1745691612448482."

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The Israeli Defense Forces (“IDF”) chief of staff’s advisor on Women’s Affairs, Brig. Gen. Racheli Tevet-Weisel, has reported 2012 statistics showing approximately 500 complaints from soldiers of sexual harassment or assault, 10% of them from male soldiers. 

A story in Israel News by Yoav Zitun notes that Gen. Tevet-Weisel stated that “Our emphasis this year is on prevention … we are investing in heavy sentencing and in an informational campaign." Further she said that the IDF was installing billboards about sexual harassment and will release a film on social networks.

In another story, the Jerusalem Post reports that a number of female employees of the Israeli NTA – Metropolitan Mass Transit System Ltd. - have filed sexual harassment police complaints against the chairman, Michael Ratzon, a former Likud deputy minister. One woman complained of a physical assault. 

Ratzon has responded that the allegations are part of a "premeditated and organized attack that is completely unfounded, meant only to prevent the extension of my service at my current position."

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Kathleen Bartle, a longtime strategic consultant on workplace conflict, has written a short but eye-opening article about workplace gossip, which, she says, can ruin a person’s career since it has “legs” – “even those who supported the target of the gossip in the past (including hiring them and promoting them) seem to lose faith in that person. If the target defends herself or himself, then he or she is labeled as weak and defensive. If the gossip is ignored, then it becomes true.”

Gossip may be at the very center of workplace bullying.

She defines "gossip" as rumors or talk of a personal, sensational, or intimate nature. A “gossip” is someone who habitually spreads intimate or private rumors or facts. Oftentimes my clients report that groups of people spread the gossip (called mobbing).

Employers should, of course, develop appropriate policies and procedures about bullying and gossip, but until then she recommends “some action steps” for all managers and employees, which we quote:

• Don’t participate in the gossip behavior
• Don’t make things worse by repeating it
• Don’t exaggerate
• Be aware of the power of gossip
• Don’t get on the mobbing bandwagon
• Defend the target with facts

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Jason Carney, a workplace consultant in Indianapolis, was interviewed recently by Amanda McGrory-Dixon of BenefitsPro on the subject of workplace bullying involves. He described bullying as demeaning an employee or undermining and sabotaging his or her work: “In a lot of ways, work is no different than high school. People feel they need to be in with the ‘right crowd,’ and they bow to peer pressure of bullying.”

Carney contends that besides the obvious personal invidiousness of bullying, permitting workplace bullying is costly to an employer: it can result lower productivity, higher absenteeism, poor morale and even higher insurance costs.  

How To Reduce Bullying? 

Carney outlines a few steps to take to reduce bullying in the workplace.

--  Have a good management team in place that can spot this bullying “a mile away.”

-- Be on the lookout for office gossip, a major indicator of bullying (more on that soon), and try to reduce harmful gossip by making employees aware of its damage.  

-- Conduct sensitivity training for all employees, and training specifically on workplace bullying for managers.

-- If workplace bullying has indeed occurred, an employer should help the victim gain access to an employee assistance program (“EAP”) – which can provide free counseling sessions, and an anonymous third-party reporting mechanism.

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There is a bizarre new twist to the tale of the Portland police officer who, because of his sexual harassment, was transferred out of his unit --- to supervise the Sex Crimes unit where some of his victims worked.  See our story from January 30th.   

According to The Oregonian, the police chief who transfered him now contends that he didn't consider the officer’s touching for which he was disciplined to be "sexual in nature. It was inappropriate contact in a meeting. The women never complained it was a sexual encounter."

However, the same police chief said in a letter demoting the officer that one woman claimed that he "stroked her leg," a second that “he placed his hand on the top of her leg and rubbed back and forth,” and a third that “he touched her thigh and lingered.”

Because an element of sexual harassment is whether the sexual conduct is “unwanted,” University of Oregon Law Professor Caroline A. Forell said that the chief "can say whatever he wants” but that the law doesn't consider harassment from the point of view of the harasser: "Regardless of what [the officer] intended, if the woman perceived it as sexual or unwelcome, that would rise to sexual harassment."

The story will likely get stranger.

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This week we wrote about a case just filed by a female prison guard in Iowa against prison officials claiming that sexually explicit and violent movies which inmates were allowed to see caused them to sexually harass her. She sued for what is known as “third-party harassment,” where an employer may be liable for the harassment of its employees by non-employees if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it.

After discussing the developing law in this little known area, we concluded that the case will likely turn on the ultimate findings of fact, and the reasonableness of the prison officials permitting the inmates to watch the offending videos.  We also noted the likelihood of “expert witness testimony on the effect of such videos, which may end up in the thicket of the current (and endless) debate on whether there is a cause and effect between video watching and violent behavior.”

A reader just gave us his opinion of the case and raised questions which we think are worth sharing:

“Interesting facts but I suspect a difficult case for the Plaintiff.  Putting aside the fact that the science on cause and effect of watching violent or sexually explicit movies is not very strong, what is it that the employer did that violated any law? If letting the inmates watch the movies is the issue, then it acted promptly upon notice by stopping the movies. If it is the conduct that followed withdrawal of the movies, if the employer imposed reasonable discipline on the offending inmates I suspect there will be a finding of no liability.”

Any other comments?

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We just received a book entitled “Bullying, Violence, Harassment, Discrimination and Stress,” by Ellen Pinkos Cobb, Esq. (2012), and even after a cursory review it seems like an extremely valuable resource.  The author has reviewed all of the topics listed in the title, and after defining her terms in a careful legal way, has compared the workplace laws of dozens of countries.

We also recommend a 2011 interview with the author which we found online at International HR Forum, from which the following quotes were taken:  

“In the United States, workplace bullying has been found to be four times more prevalent than sexual harassment.  At the Work, Stress, and Health 2011 conference in May, bullying expert Staale Einarsen of Norway described the workplace bullying field as “exploding.”

Workplace bullying is now being generally acknowledged as a global issue, affecting all countries, professions, and workers.  A recent Monster Global Poll bears this out. The poll, conducted in early May, 2011, surveyed workers worldwide, and posed the question, “Have you ever been bullied at work?”

The 16,517 responses received indicated the following: 64% answered that they had been bullied, either physically hurt, driven to tears, or had their work performance affected; 36% replied that this had never happened to them; and 16% answered that they had seen it happen to others.

The prevalence of bullying is a global phenomenon: 83% of European respondents reported that they had been physically or emotionally bullied; 65% in the Americas; and 55% in Asia.

Workplaces in which bullying is allowed to occur undermine the pursuit of a business’ growth and profitability and may lead to a detrimental impact on the corporate image with the public at large.

Specifically, the costs of workplace bullying include time and production lost due to factors which include employees’ preoccupation with negative circumstances, and resulting costs to the company’s overhead, loss of skill and experience when a worker leaves due to being bullied, lowered employee morale, medical and insurance costs, and harm to a company’s reputation.

Occupational health and safety laws have long dealt with physical risks, and now psychological risks are beginning to be treated similarly.  In today’s workplaces, the approach by management to should emphasize both physical and psychological health.”

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We recently read an Associated Press report about a female prison guard in Iowa who sued prison officials on these grounds, claiming that the movies caused the inmates to become sexually aggressive. She filed complaints with the officials and alleges that when they finally acted by largely barring movies with sexually explicit content, inmates blamed her for this and subjected her to insults and threats to kill her, and threw urine on her.  

Third-Party Harassment

This kind of claim is known as “third-party harassment,” and was the topic for our blog on December 27, 2012. We reminded readers that, as the EEOC stated recently, “courts have concluded that an employer may be liable for the harassment of its employees by non-employees if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it (emphasis added).”  

Citizen Harassment of Public Employees

The situation of our prison guard is within a subset of “third-party harassment” claims known as “citizen harassment of public employee” claims.  These cases are difficult because a municipal employer has little control over acts of citizens who harass government employees. 

There have not been many cases involving “citizen harassment of public employees.”  The one we spoke of on December 27^th involved a public employee who claimed that she was sexually harassed at a public meeting because the commissioners conducting the meeting, at which she was secretary, “failed to protect her from criticism” leveled at her from two county residents. She lost her case, but we speculated that if the residents, instead of merely criticizing her, had made sexually harassing comments to her, we might well be within the realm of actionable “citizen harassment of public employees.”

Harassment of Peace Officers

This is where a line of cases arising out of the harassment of prison employees comes in, which we discussed on November 19, 2012.   In a recent guidance letter involving harassment of police officers by citizens, the EEOC cited the case of Cromer Food, but found no cases involving police officers, so instead looked to Title VII cases where prisons were sued for harassment of employees by inmates.

While noting the “practical and constitutional limits on the steps [the prison] can take to protect staff from inmate harassment,” the EEOC quoted one federal appeals court which stated the "general rule of reasonableness regarding employer liability for third-party harassment under Title VII adequately respects the difficulties that prison officials encounter in controlling inmate conduct. …  Although some harassment by inmates cannot be reasonably avoided, [a prison], on the other hand, cannot refuse to adopt reasonable measures to curtail harassment by inmates."

Conclusion of the EEOC

The EEOC concluded that there could be Title VII liability based upon “the reasonableness of the employer's corrective action [which] would depend on the totality of the circumstances.”  These circumstances could include the nature of the harassment, the specific context, and the practical limitations on the employer's ability to respond.

The lawyer for our prison guard said that her lawsuit is aimed at forcing the prison administration to create a workplace environment that is free from sexual harassment and threats of violence from inmates, and to allow employees to file complaints without fear of retaliation. “No private employer could get away with this,” she said.

So -- does our prison guard have a good case?   Maybe -- it seems to us that the case will likely turn on the ultimate findings of fact, and the reasonableness of the prison officials permitting the inmates to watch the offending videos.  Also likely will be expert witness testimony on the effect of such videos, which may end up in the thicket of the current (and endless) debate on whether there is a cause and effect between video watching and violent behavior.

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We read a good article in Suddeutsche.com (in the original German) and Worldcrunch (in English) about the problem of sexual harassment in Germany. The German General Act on Equal Treatment (“AGG”) requires employers to protect employees from sexual harassment.  Nonetheless, a 2010 government survey found that 60% of women had experienced sexual harassment either in public, the workplace, or socially (22% of cases occurred at work or school), and 50% of those feared for their safety.  

Significantly, the government report said what we have always believed, that “[i]n most cases, there is a big discrepancy in power between the perpetrator and the victim, and the former often abuse the latter’s dependence."  See our blog of  December 27, 2012, which discussed a new academic study which correlated low status in the workplace and victimization.   

Alexandra Borchardt and Tanja Rest, who authored the journal article we have been discussing, explained sexual harassment in a way worthy of quoting here and worth noting by employers:  

“Men in power are used to getting what they want. They tell others what to do and generally get obedience and agreement back. Sexual harassment is also a means of establishing or enforcing power dynamics. A man who treats a woman like a Playboy bunny is making sure she stays at the bottom of the totem pole.

But men in upper management also have to get used to the fact that with women in the group certain word choices or the after-work activities will have to change. Some men resent this, and yet if women go along with the boys’ rude ways it’s often negatively construed. Uncertainty levels are high for both men and women.

Men at all professional levels are going to have to get used to being surrounded by more – and very different kinds of – women. They are going to have to learn to understand what women are saying, especially when the woman is a subordinate. Women have to stop putting up with it – they have to set boundaries and find the courage to speak up when certain behaviors are unacceptable to them. And the learning curve doesn’t have to be unpleasant for anyone.”

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Thanks to my friend Judy Greenwald of Business Insurance who brought to my attention an interesting decision this week from a federal appeals court in Boston.

A female employee of a university and her supervisor had a weeklong “out-of-town” affair, after which when they returned home, “embarrassed by the fling, [she] rebuffed him.”  Some time later he propositioned her, and “grabbed her breast and made sexually suggestive grunting noises. [She] was disgusted but said nothing for fear of losing her job. "    

After she complained to the university of sexual harassment, an investigator came to the conclusion that she was not credible as to the alleged sexual incidents, and that even if they had taken place her “own conduct, namely her voluntarily engaging in off-color banter of a sexual nature” with her alleged harasser,  “showed that his conduct was not unwelcome.” 

Moreover, "[t]he general consensus [at work] was that the two appeared to have a close and trusting relationship, and their interactions often included off-color remarks and jokes of a sexual nature, many times to the discomfit of some.” She was heard to say to her boss, for example,  “’what will you pay to spend the night with me’ in a joking manner.”    After she quit her job she filed a Title VII case. 

The appeals court (reversing the trial court), shot down the university’s argument. It held that the argument “does little to convince.  We fail to see how an employee telling risqué jokes means that she is amenable to being groped at work. … There is no evidence that [she] encouraged or invited [her boss] to grab her breasts, and she indicated during the investigation that she was disgusted and bothered by him doing so.”

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Portland Oregon has witnessed a remarkable turn of events within its police department.  According to The Oregonian, the police chief reassigned a police lieutenant who had “inappropriate physical contact with women under his command in the records division” to a new command:  to supervise sex crime detectives who handle sex assault and human trafficking cases.  In December, the Portland Police Review Board had recommended that the lieutenant be fired.  

This may seem like a bad joke, but not to one of his victims who had filed a harassment complaint and now had to work in his new unit.

However, the chief, after “facing harsh criticism” of his judgment from the director of the Independent Police Review Division, and leaders of the Citizen Review Committee, reversed course, and a spokesman said “"After further consideration, Chief Mike Reese did not want to leave any doubt that the Portland Police Bureau takes harassment complaints very seriously and today has decided to reassign Lt. Wyatt.  Lt. Wyatt's assignment has yet to be determined."  

Is it tone-deafness, the traditional "blue wall of silence," or just stupidity?

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The manager of an upstate NY grocery whose sexual harassment of underaged female employees was so egregious that an appeals court prohibited him from entering the grocery's premises has just had a punitive damages award of $477,349 against him and the store upheld.  

On October 22, 2012, we reported the stunning appeals court decision, which held that “this is not an ordinary case” and chastised the trial court for not itself issuing the injunction against the manager.  Apparently, the owner of the small Oswego grocery store hired a store manager with whom she quickly became romantically involved. The manager repeatedly verbally and physically sexually harassed many of the young women working in the grocery, some of whom were only 16 years of age. Read our earlier blog for the gory details – the judge called the testimony of the victims "to put it mildly, devastating in terms of painting [the manager] as a middle-aged sexual bully."

A jury awarded the ten women plaintiffs $1.2 million in punitive damages, which was ultimately reduced, and the decision this week upheld the new amount.  

Originally, we noted that the take away from the appeals decision was that “this case stands for the proposition that under Title VII a court has broad powers to fashion an appropriate remedy, and that in the appropriate case not exercising its broad power may be an abuse of discretion.”  We can now add an addendum that if harassing behavior is so egregious, punitive damages can be very severe.

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A Charlotte-based private security company was just sued by the EEOC in a Title VII class action lawsuit for sexual harassment of male employees based upon their gender.  The employees, security officers, were allegedly harassed by a captain and lieutenant who made offensive comments to them, solicited nude pictures from them, asked them to undress in front of them, solicited them for sex, forced them to accompany them to gay strip bars while on duty, touched their chests and genitals, and offered promotions to them in exchange for sex.   

Despite the complaints which many of the employees filed, the company allegedly failed to prevent and promptly correct the harassment and suspended, demoted and/or discharged certain of the complaining employees.

Note that this is a lawsuit premised upon sexual harassment, which is a form of sex or gender discrimination. This is not a case of discrimination or harassment based upon sexual orientation, which is not prohibited under federal law.  These employees were allegedly harassed because of their gender, not because of their sexual orientation.   "All employees, men and women alike, are entitled to a workplace free from sexual harassment," noted an EEOC attorney.

Employers should note, however, that discrimination or harassment based upon sexual orientation is prohibited under the laws of many states and municipalities, such as New York State and New York City.  

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A female bar employee who was sexually harassed by her manager has been awarded $26,000 by the New Zealand Employment Relations Authority (“ERA”). The employee claimed that she was forced to quit after being bullied and being subjected to "off colour comments" and crude jokes, which the bar’s management “laughed off.”  

After her complaints, the manager ceased his sexual harassment but changed the nature of his bullying.  As the New Zealand Herald reported, “he micro-managed her every task, made her a cleaner, and ‘badgered’ her by monitoring bar till transactions on his home computer.” 

The ERA’s member who heard the matter determined that the employee had been constructively discharged, and stated that "Employees should not be subjected to such behaviour and when they raise their concerns those should be acted upon."

As its web page states, "The Employment Relations Authority is an independent body set up under the Employment Relations Act 2000. Its role is to resolve employment relationship problems by looking into the facts and making a decision based on the merits of the case, not on technicalities."

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A new study coming out of the University of Canberra in Australia has found that in rural workplaces “the tendency to make sexual harassment invisible appears fairly widespread.”  That is, “a large majority of employers and employees in rural and remote Australia are inclined to deny or minimize sexual harassment in the workplace.”

“Our most disturbing finding was that more than four-fifths of employers believed that women’s behavior contributed to their victimization.”

This writer has found similar attitudes coming from other places.  After my blog about the horrific gang rape in India and the surveys there which founds widespread sexual harassment of women, a reader wrote to me and, while condemning the atrocity and the perpetrators, nonetheless noted as an aside that the wearing of short skirts by women provoked such attacks.  "Blaming the victim" has, unfortunately, a long tradition.  

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On December 20^th we reported that a survey in India found that 92 per cent of women working in information technology, hospitality, civil aviation and call centers feel unsafe travelling home after work.  92% of women respondents in Delhi claimed that they did not feel safe at night (in fact two of every three women had experienced sexual harassment), 85% in Bangalore, 82 % in Kolkata, and 18% in Hyderabad. 

We learn now from the Yemen Times that the same sorry statistics are found in Yemen, where a recent report by the Safe Streets Initiative for Combating Harassment in Yemen found that 90 percent of Yemeni women are subjected to sexual harassment, and that most sexual harassment happens on the streets.  Sana’a ranked first (and Taiz and Aden were ranked second) as the cities with most newly reported harassment cases of rape, inappropriate touching and verbal harassment. 

The study found that “girls face constant harassment, whether it is on the street, in the markets or in the work environment. … Many women complain that trying to counteract harassments deprives them of social and professional advancement. If they cause a fuss, women have often been known to lose promotion or job opportunities.” 
 

Read about the UN initiative designed to protect women: http://www.unwomen.org/2011/06/un-launches-initiative-to-make-cities-safer-for-women-and-children/

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Our Princeton office will host a breakfast seminar on February 14, 2013 from 8:30 am. to 10 am, entitled Preventing Sexual Harassment and Discrimination.

This program will address the fundamentals for employers regarding the prevention of sexual harassment and illegal discrimination in the workplace.  The discussion will include what the law requires as well as what every employer needs to effectively meet its duties and obligations and will highlight what is currently trending in this ever-changing area of the law.

Click here for more information.

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The former aid to former Australian Federal Speaker Peter Slipper, who sued him for alleged sexual harassment, said that he will appeal the recent adverse ruling of the Federal Court which dismissed the case as an abuse of the judicial process, and ordering him to pay Slipper’s legal costs. The Standard reports that James Ashby, claiming his sexual harassment case has not been heard because the “only matter that's been heard over the past eight months was Mr Slipper's abuse of process case," said that he will also bring the case to the attention of Fair Work Australia.

The Court said in its ruling that the harassment case was a politically motivated attack by Ashby and others, and that a series of text message exchanges between Ashby and his friends “read as if the participants were discussing the political ramifications of Mr Ashby revealing material that was sexually and politically embarrassing and that would compromise Mr Slipper and his position as Speaker.'' 

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A potentially explosive story has surfaced that the former “Abstinence Project Coordinator” and “Director of Women’s and Reproductive Health” at Tony Perkins' Christian conservative Family Research Council sued the organization based upon alleged sexual harassment by her supervisor, anti-abortion lawyer William Saunders, then the director of the organization’s “Center for Human Life and Bioethics” (who now works at the anti-abortion group Americans United for Life). 

She filed a charge of discrimination in 2009 with the District of Columbia Human Rights Commission, and stated that she was hired in 2005 and that when Saunders became her supervisor in 2007 “his inappropriate behavior towards me escalated.” 

In her charge of hostile work environment, she claimed that Saunders “pressur[ed] me to attend parties, referring to me as a ‘young, attractive woman’ and emailing me ‘hi cutie.’" “He also referred to the use of birth control pills by young women as ‘whoring around.’"

The organization fired the employee shortly after she filed the complaint (so has also sued for retaliation).

It is nice to know that those who advocate for abstinence and conservative values seem to exempt themselves from their own teachings and counseling. To borrow and mangle a quote from Orwell’s Animal Farm, "ALL PEOPLE  ARE EQUAL, BUT SOME ARE MORE EQUAL THAN OTHERS."   Isn't this known as hypocrisy?

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Yesterday we wrote about the growing sexual harassment of woman in India, and today we have read in India’s Economic Times an angry editorial seemingly blaming movies and the machismo culture extolled in them for this increase. 

“Given that many Indians take their style and lifestyle cues from the movies,” said the editorial, “will the censors decide to snip overtly suggestive interactions between ardent heroes and the reluctant objects of their reel-life desire in the bud to assuage, at least in part, some of the people's anger against the crude machismo that appears to be leading to real-life molestations? That seems unlikely as such cuts would play havoc with storylines and song opportunities. Instead, the authorities could take a line from ad films with death-defying stunts and warn viewers during lascivious scenes not to do this at home — or in the street — as they are totally fictional, are performed by trained actors and are not meant to be prescriptive in any way. The least they can do, of course, is ban the practice of coyly describing all unacceptable and lewd behaviour, ranging from off-colour remarks to out-and-out assault, by the euphemism 'eve-teasing'.

We are not entirely convinced based upon the available evidence that movies cause violence or harassment, but we are convinced that people do take “lifestyle cues” from popular cultural outlets.  Censoring movies may not be the answer to this problem that we would like to see, but perhaps more sensitivity to the issue by moviemakers. In any event, seems like the issue goes well beyond the movies and has to be addressed at much higher levels and throughout all aspects of the society.

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This is not quite an employment discrimination story – but more of a story about sexual harassment of women after work ends. A nationwide survey in India has found that 92 per cent of women working in information technology, hospitality, civil aviation and call centers feel unsafe travelling home after work.  

Why should the nature of their work make them more or less vulnerable to post-work harassment? 

Seems that women who work in areas such as travel, tourism, nursing, and information technology were most vulnerable simply because they had to work late.

92% of women respondents in Delhi claimed that they did not feel safe at night (in fact two of every three women had experienced sexual harassment), 85% in Bangalore, 82 % in Kolkata, and 18% in Hyderabad. 

A majority of the women blamed this on inadequate street lighting and unsafe public transportation, and the Indian chamber of commerce organization that conducted the survey suggested that GPS devices be installed in taxis and public transportation, that women be trained in self-defense, and that employers “take extra precautions in case of women staff working till late in the evening.”

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You might remember our recent blog about the parrot kept by a patient in an expensive long term care facility which repeatedly shouted sexual vulgarities to an offended attending female nurse.  We asked whether an employer can be liable for creating a hostile work environment if it permits sexual comments to be made to an offended employee, whether by, for example, a parrot, a co-worker, or a mail deliverer?  The nurse's complaints to her supervisor were laughed off, but she got the last laugh because the court found a hostile work environment based upon sexual harassment.

We received a few comments from readers who thought that we were kidding. We weren’t.   And what’s more, a recent guidance letter from the EEOC dealt with this same issue, although it wasn’t about a parrot. The exact issue about which the EEOC was asked its guidance was whether a municipality has any obligations relating to hostile work environment under Title VII when a citizen harasses a police officer.

In a guidance letter, the EEOC, citing the case of Cromer Food, commented that “courts have concluded that an employer may be liable for the harassment of its employees by non-employees if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it.”   Same as the parrot case.

As to the more difficult issue involving citizen harassment of public employees, the EEOC found no precedent, and so looked to the situation where courts dealt with prisons sought to be held liable under Title VII for harassment of a prison employee by inmates. While noting the “practical and constitutional limits on the steps [the prison] can take to protect staff from inmate harassment” the EEOC quoted one federal appeals court which stated the "general rule of reasonableness regarding employer liability for third-party harassment under Title VII adequately respects the difficulties that prison officials encounter in controlling inmate conduct. …  Although some harassment by inmates cannot be reasonably avoided, [a prison], on the other hand, cannot refuse to adopt reasonable measures to curtail harassment by inmates."

The EEOC’s letter stated that with respect to the difficult case of citizen harassment of police officers, there are “constitutional constraints prohibiting the [the infringement of] the rights of citizens,” but that there could be Title VII liability based upon “the reasonableness of the employer's corrective action [which] would depend on the totality of the circumstances.”  These circumstances could include the nature of the harassment, the specific context, and the practical limitations on the employer's ability to respond.

However, the EEOC concluded that “Depending on the facts of a particular case, a city likely would not be liable under Title VII for citizen harassment of a law enforcement officer where the city had taken reasonable corrective action under the circumstances.”
 

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Sexual harassment is on the EEOC’s radar, as we know.  And we also know that the EEOC intends to continue its practice of filing class action or systemic lawsuits. Finally, we blogged last week that the EEOC encourages settlements.

It is therefore not a total surprise that the EEOC has just announced that it settled a class action sexual harassment case for $1,000,000 against IHOP restaurants in two New Mexico counties owned and operated by one individual.  It was alleged that a single manager subjected a class of 22 women, including some teenagers, to sexually offensive comments and unwanted touching, and some of these women were forced to quit because of this.

The EEOC claims that this is the second-largest litigation settlement ever reached by the EEOC's Albuquerque Area Office. 

We concur with the statement of an EEOC attorney:   "Managers must constantly be reminded of their obligation to maintain workplaces where employees are not subjected to illegal harassment or forced to quit because of the harassment. Where managers fail to satisfy these obligations, it is the employer's responsibility to correct the violations and prevent other violations from occurring.  These women and all women deserve to work without being harassed because of their sex.  It is especially true that given these difficult economic times, women should not be forced to choose between intolerable sexual harassment and wages for their families."

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Sexual harassment suits are on the rise faster than other employment discrimination suits, be they suits by the EEOC or by private plaintiffs.  Some of the ones we have discussed here are pretty extreme, involving physical touching and worse.  And some involve verbal abuse and harassment which take place over a period of time. 

What all employers should be on guard against is a working environment that, while not having experienced any complaints of verbal or physical harassment, nonetheless are perhaps breeding grounds for future suits because of a “good old boys” environment. While this is more likely in an industry that is traditionally male-dominated, this could take the form in any workplace of a fraternity-like group of workers who “tease” female colleagues and/or exclude women from their “club,” to hostility to women evidenced by verbal abuse and harassment that may not rise to the level of “severe” but may still be “pervasive” and not merely episodic. 

Female employees may not (yet) have complained, but eventually a tipping point or critical mass may be reached and you will find yourself being sued and being shocked.  Just ask the traditional “old boys clubs” of banks and brokerages (and other bastions of male privilege) which have been the subject of numerous lawsuits over the last dozen or more years.

New Lawsuit Against The Old Boys  

Yesterday, a suit was filed in Texas by a woman who alleged that the executives of real estate investment trust Weingarten Realty Investors maintained an "elitist 'good-old-boy' network" that was "designed to demean and discriminate against women in the workplace. The environment was both subjectively and objectively hostile to women."   It was alleged that they frequently berated, embarrassed or mistreated female employees, while also paying them less than male co-workers.  

Plaintiff complained to HR, and was told by the HR director that if she pursued her complaint it would be a "nail in your coffin" and that “she could lose her job, financial safety, and that the health and well-being of her new baby would be at risk.”  She claims that she was fired by email while she was on medical leave following the premature birth of her daughter and recovery from a rare disorder and complications during pregnancy. 

Dissolve The Good Old Boys Network

We have the same advice for “good old boys” that we have for all employers – but we emphasize it more. 

1.   Above all, be vigilant that the good old boys do not inhabit your workplace.  Maintain a fair and consistent workplace; employees who feel that they are treated fairly and respectfully are less likely to complain or sue.

2.   Draft and maintain an up-to-date employment manual, which incorporates all of your companies policies and procedures, and keeps current with the ever-changing law.  Make it known to your employees that you have a zero-tolerance anti-discrimination and anti-harassment policy in your company, which you will enforce fairly and consistently. And be serious about it.

3.   Conduct periodic training programs for all managers and employees in anti-discrimination, anti-harassment and anti-retaliation policies. Let all employees know where and who to go to register a complaint, so as to give an aggrieved employee recourse if he/she experiences discrimination or feels aggrieved. Treat all employee complaints seriously and confidentially, and investigate all claims promptly and even-handedly.

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On November 1st we reported that the EEOC’s targets include sexual harassment, and that it plans to continue filing systemic litigation. As if to put an exclamation point on this, the EEOC just sued Señor Frog's, a chain of Mexican-themed restaurants, as well as its staffing company, for “rampant sexual harassment of its female employees in Honolulu.”

The suit alleges that “widespread sexual harassment was out of control, stemming from Señor Frog's owner himself.”
 

“[A]t least nine female servers and bartenders were repeatedly bombarded with sexual propositions, explicit sexual remarks, groping, grabbing, and exposure of genital areas by male managers, and even ordered to perform sexual favors for high-level Señor Frog officials.”
 

The regional EEOC attorney stated that “We are troubled by the increase of sexual harassment cases and companies continuing to fail to take this problem seriously."

We told you that we would follow the EEOC’s filed suits to see if we detect an adherence to its espoused goals. So far they are one-for-one.

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Apropos to our blog entry of October 9th, where we described the EEOC’s targeting of cases of harassment and abuse of “vulnerable” employees, especially farm workers, the EEOC announced yesterday that it settled a case against a vineyard in Ukiah, California on behalf of farm workers.

The suit alleged national origin harassment against Mexican-born winery workers, who were called "wetbacks" and "beaners" by a supervisor, who also told them to go back to Mexico when they complained about the harassment.

Underscoring the EEOC’s use of the word “vulnerable” to describe the type of employees that it was moving to protect, one plaintiff was quoted as saying that "Until this case, we didn't realize we had rights, or that there are laws to stop that kind of treatment."

In our earlier blog we said that “it goes without saying that all employers in the United States must have a written 'zero tolerance' policy regarding sexual harassment distributed to all employees and managers and enforced by the employer, as well as appropriate periodic sexual harassment training of both employees and managers.”

Apropos to that advice, note that the settlement entered into by the Ukiah winery provides that it must pay $75,000, and also must conduct training for all employees against national origin harassment, as well as provide copies of its anti-harassment training in both English and Spanish to the employees.
 

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“Harrowing,” “appalling” and “extreme abuse” were words used by EEOC lawyers regarding a series of recently filed cases targeting sexual harassment of farmworkers. It appears that the EEOC is periodically targeting different types of discrimination and different industries, and selecting particularly egregious cases to make a point to employers. Recently, for example, we noted that the EEOC was targeting the health care industry, ADA violators, as well as pregnancy discrimination.

Now the EEOC has announced that it has filed numerous lawsuits within the last few days targeting sexual harassment, particularly of farmworkers, who are subject to an “appalling abuse of power.”

In perhaps the most “harrowing case” (quoting an EEOC attorney), the EEOC sued River Point Farms of Oregon, alleging that a supervisor reinforced the domestic abuse of a female employee by verbally abusing her for years and publicly encouraging the woman's husband to kill her. After her husband tried to kill her when she was pregnant by kicking her in the stomach “so savagely” that she had to go to the hospital, the supervisor blamed her for causing her husband's arrest and then fired her.

The woman was quoted as saying that "My supervisor told me I was less than a man, that my husband should be allowed to beat me, and that I should put up with it because I am a woman."

The EEOC also sued Washington’s Roy Farms, alleging that a male supervisor sexually harassed male laborers for two years by assaulting them with sexual and threatening comments, touching them in a sexual manner and insisting that they watch him urinate. "I have worked in the farm industry for many years, and I had never before faced such extreme abuse," said one EEOC attorney.

Finally, the EEOC sued National Food Corporation, a major egg supplier in Washington, alleging that it allowed a supervisor to physically grab a female worker, who worked alone in an isolated barn where the harasser was the only management person on site, and make sexual demands upon her several times a week for years. "I suffered humiliating and disgusting demands from my boss," said the barn worker.

To underscore its efforts involving sexual harassment of “vulnerable workers,” another EEOC attorney recounted several recent settlements. Seattle’s Allstar Fitness paid a $150,000 settlement on behalf of a janitor repeatedly raped and then fired. Oregon-based Wilcox Farms settled a sexual harassment and physical sexual assault case for $260,000. And ABM Industries, Inc. paid $5.8 million to 21 janitorial workers who were sexually harassed by 14 male coworkers and supervisors, including one who was raped by a supervisor.

These may be "appalling" cases chosen by the EEOC to make a point, but it goes without saying that all employers in the United States must have a written "zero tolerance" policy regarding sexual harassment distributed to all employees and managers and enforced by the employer, as well as appropriate periodic sexual harassment training of both employees and managers. 

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A Las Vegas company was sued by the EEOC on behalf of a male employee, who, after his wife had died, began to receive sexually suggestive notes from a female co-worker. He brought the notes to the attention of a manager who “made light of the advances” and did nothing stop the harassment – perhaps because the employer had no anti-harassment policy.

The EEOC just reported that the company settled the case for $75,000, but for some reason refused to agree to any “suggestions” made by the EEOC to prevent future harassment and thereby has been ordered to do so by the Court.

There are three points we would like to make here.

First, not only male employees can be sexual harassers, but also female employees. Although the manager here “made light” of what the male employee reported to him, imagine if the situation involved a female employee who reported to the manager what the male employee reported in this case: “While the alleged victim repeatedly communicated that he was not interested in the female co-worker, the advances only intensified, including giving him a semi-nude photo of herself, making lewd gestures, and even recruiting other employees to approach him on her behalf. Over the course of a year, the harassment escalated to a near-daily basis, including offensive remarks by co-workers about his sexuality due to his rigorous rejection of the sexual advances.”

If the employee had been female, would you think that this was sexual harassment?   A local director of the EEOC stated that “Sixteen percent of all sexual harassment charges at the EEOC last year were filed by men. The law protects both men and women from sexual harassment at work, and it is the employer’s obligation to actively prevent and correct such problems as they arise in the workplace.”

The second point – as we always note – is that a company MUST have written zero-tolerance anti-harassment policies in place and must strictly adhere to them, especially when harassment is reported to a manager. Moreover, managers (and employees) must be appropriately trained in anti-discrimination behavior.

Third, in a case like this, to refuse the EEOC’s requests to agree to future relief effectively invites court intervention and future EEOC scrutiny. In this case, the EEOC’s press release noted that it was forced to seek an injunction, which the Court granted. The Court enjoined the company “from further violating Title VII as it relates to sexual harassment for a period of five years. … further ordered [the company to] develop a policy and procedures for handling reports of sexual harassment; develop an effective investigation process for all complaints of sexual harassment; appropriately discipline management and human resources staff for failure to comply with such procedures; and provide annual sexual harassment training to all supervisory employees. This order impacts the over 4,000 workers employed by [the company]. The EEOC will monitor compliance with the judge’s order.”

Better to have a good policy, a trained workforce and management, and a voluntary agreement to follow the law than to suffer monetary damages and the EEOC super-managing your company for years to come.

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Last week, as reported on MyNorthwest.com, a Washington lawmaker introduced a bill that would make it illegal for employers to require applicants or employees to fork over Facebook passwords as a condition of employment. 

It seems slightly convenient to me that all of this hullabaloo over employers requiring Facebook passwords (see our March 26th blog) occurs right when Facebook is planning its IPO, but I suppose all of the press is simply coincidental.

Let me first go on record, before we receive a host of complaints, that I believe people should have basic privacy rights.  Although I question how much privacy one expects when sharing every detail of your life in your "private" Facebook account to the 600 "friends" whom you have probably never even met in person, especially where any one of your so-called friends could re-post anything you say.

Let me second go on record that I think that it is a bad practice for employers, as a blanket policy, to check applicants' Facebook pages or otherwise check into their Internet presence.  This is true largely because of all of the information employers may find out about an applicants' protected class, such as they belong to a church group, are a minority, have a disability, etc.  

I have been convinced in certain circumstances that it is not a bad idea.  For example, we once had a client who hired a child psychologist.  After announcing the person's hire, they received an anonymous tip that the new employee had complaints from parents that he was sexually abusing his patients.  In that case, a subsequent Google search and some creative, but legal, digging by the IT department revealed membership in a pedophile website.  Needless to say that offer of employment was revoked.

The problem with the proposed Washington law is that it does not provide any carve-out for times when demanding Facebook passwords may be legal.  What happens if an employer receives a complaint from an employee that another employee called them the "N" word on Facebook but that account is marked private? 

In short, no jury is going to see it as a defense that the employer did not investigate the harassment simply because the state prohibited the employer from asking for the password to verify the complaint. 

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The Supreme Court has long held that under Title VII, an employee has a claim for hostile work environment discrimination if the workplace is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment."  Such a claim may be “ongoing,” “commonplace,” and “continuing.”

The Supreme Court has also held that there may be a hostile environment where the employer directs its discriminatory acts or practices at the protected group of which the plaintiff is a member, and not just at the plaintiff. Some courts use what they call the “totality of the circumstances” test to determine whether there was a hostile work environment where a group was involved.

But can a group of employees who each complain of a single hostile act aggregate their claims to show a hostile work environment, where they were not even aware of one another’s experiences or the hostile acts suffered by the others? 

A federal appeals court has just held that while a plaintiff does not need to be the target of, or a witness to harassment in order to show harassment in the totality of the circumstances, “he does need to know about it.”  

That is, each employee must show that she was individually aware of or knew about the harassment experienced by the other plaintiffs.  As the Court said, “An event should only be considered part of the totality of the circumstances if an individual employee claimed he was aware of it.”

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On Wednesday, the Massachusetts passed and sent to Governor Deval Patrick, a bill--H.3810, which outlaws employment discrimination on the basis of “gender identity.”  It is expected that Governor Patrick will sign the bill which will take effect on July 1, 2012.  

The proposed legislation would insert the phrase “gender identity’’ to chapters of state law governing discrimination in employment, housing, insurance, mortgage loans, and credit. However, it does not include special considerations to transgendered individuals in public accommodations, such as bathrooms and locker rooms.

The bill defines gender identity as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” The legislation also provides some non-exhaustive examples of how a person can establish they are transgendered.

If this bill is signed into law, as anticipated, Massachusetts employers must ensure their decision makers are aware that taking adverse action against a transgendered person is unlawful.  Internal anti-discrimination trainings, manuals and employee handbooks should also be revised, where necessary, to reflect this change.

We will keep you posted. 

Have a great weekend.

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Harassment training? If you read the title of this blog out loud and heard groans from other people in your office, I understand. In fact, when I have done harassment training for clients, I have heard every complaint and bad joke about harassment training there is.

Harassment training is one of those dreaded exercises by employees and management alike. Indeed, harassment training has become comedy fodder for many a tv sitcom. My personal favorite is still The Office episode "Diversity Day" where a sensitivity trainer is sent out to the branch due to Michael's comments. A perfect what not to do lesson. Check it out if you want a good laugh.

But while The Office may be funny, a real harassment claim is anything but funny for employers. As we posted in our February 10, 2011 blog, employers who provide regular training on their harassment and discrimination policies may be able to assert an affirmative defense to a claim of discrimination where an employee is aware of the policy and fails to report the harassment prior to filing a lawsuit. 
 

Recently, the issue of training came up again in the New Jersey Appellate Division case Wallace v. Mercer County Youth Detention Center.  In addressing when an employer could be liable where a non-supervisory co-worker commits the harassment, the Court re-emphasized the need for employers to not only issue policies but also to provide harassment training to its employees.  The Court noted that providing harassment training, in addition to properly training those investigating the complaints on how to do a correct investigation, was critical to asserting an affirmative defense to liability. 

In short, employers must make it clear to their employees, through training, that harassment of any kind will not be tolerated.

Although it may be possible to assert the defense even in the absence of training, providing the training is an easy fix.  Generally, the cost to employers, both in terms of lost productivity while the employees are at training and any costs paid to a trainer, are minimal as compared to litigation costs.

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This newly-filed action in federal court in Nebraska against the owner of the Chicago Cubs merits little comment except to permit us to be creative in crafting a tabloid style headline.  See Davis v. Ricketts.   

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The federal court of appeals in New York recently addressed a claim by a female employee that she was subjected to a "hostile work environment," which we know is a viable claim of sexual harassment if the employee can show (in the words of one decision) "that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered."    

The key word here is "discriminatory" intimidation, ridicule, and insult.  The recent decision in Vito v. Baush & Lomb Inc. reminds us that "workplace bullying completely detached from any discriminatory motive" is not harassment under the civil rights laws.   

Moreover, this decision reiterates that to rise to the level of a hostile work environment, behavior must be more severe than a "minor annoyance," that "all employees experience," or "sporadic" abusive language or jokes, which although "no doubt irritating, inappropriate, and offensive," may be insufficiently "severe."

The moral of this decision is not that an employer can rest easy if "mere bullying" occurs, but that since there is no bright line which separates a "minor annoyance"  or "sporadic" harassment from behavior that a court will deem discriminatory harassment, best practices dictates that an employer tolerate NO bullying of any sort, and have a "zero tolerance" policy in place (preferably in writing) which forbids any type or manner of abusive behavior in the workplace, no matter how minor.   

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Once again the holiday season is here, with office parties galore, and the scolds are back to put a damper on the fun.  Or put another way, the prudent advisers are back to encourage you to have fun without the years-long hangover that an employment lawsuit will bring to those who indulge too much or too freely.  

It goes without saying that an office party is considered a work-related function, so that all work-related rules, policies and practices that are in place to shield you from lawsuits alleging discrimination, harassment and other related problems SHOULD CARRY OVER TO THE OFFICE PARTY.  It is as simple as that, or as difficult. 

Otherwise sensible, reasonable and well trained people can get carried away when under the influence of that devil egg nog.  And they can do things that they know, in more sober times, is impermissible.

By all means have fun and encourage a collegial and merry party.  That alone is an important part of employment.  But, to keep it brief, make sure that you let all employees and managers know in advance that you will not tolerate behavior at the party that would be considered harassing behavior in the office.  Moreover, note that over indulgence will not be considered a valid excuse. 

Have at least one manager there who remains sober, to keep an eye on behavior (or, perhaps, a family member who will be the designated scold).   Let everyone know that what could be seen as consensual intimate behavior (or what may very well be, in fact, consensual intimate behavior), in other venues and at other times can lead to claims of harassment the next day.   Too much alcohol consumption is a danger, and close dancing can lead to tomorrow's complaint of an unwanted touching.   Above all, remind everyone that they are adults and that a party atmosphere with unchecked drinking may result in out of control behavior and the loosening of otherwise normal day-to-day self-restraint which can have very serious undesirable workplace consequences.

With that reminder of the real world that awaits tomorrow, try to still have fun.  It CAN be done!

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The New York State Senate recently passed the anti-bullying bill (see my May 10th post, In the Beginning...). 

If it becomes law (in spite of heavy lobbying from business groups), it will be the first such law in the country prohibiting an "abusive work environment."  Justice Scalia once quipped that the anti-discrimination laws do not enact a "civility code" for the workplace (see Oncale - pdf) -- will New York actually do it?

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