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

Both men and women experience strong bodily reactions to sexual harassment, found a new study – the first of its kind which includes men.

Published in the journal Body Image, the researchers examined how men and women react to sexual harassment. They discovered that “women reported greater weight/shape concerns, eating pathology, dietary restraint, eating concerns, and binge eating compared to men,” and that as sexual harassment increased these effects increased.

The interesting new finding was that the main gender difference was that women reacted more with worrying about their body image, binge eating, or restricting their diets, while men responded more with "compensatory behaviors" – by attempting to control their bodies by vomiting, and taking laxatives and diuretics.

Very interesting, but disturbing.

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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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The use of sexual double entendre has been the frequent basis for many a sexual harassment claim.  You know the scene -- an employee uses a double entendre as a means of making a sexual advance.  We all recognize that as a violation of sexual harassment policies. 

But what happens when a judge uses double entendre in a judicial opinion?  We'll let you be the judge (pun intended) of Judge Biery's April 29th decision in Bar 35 Grille v. the City of San Antonio.  Forgetting about whether the not so-subtle sexual references are befitting of a sitting District judge, could some member of his staff use this of evidence of a hostile work environment? 

While we're on the topic, how is it the Friendly's thinks there is no problem with naming one of their desserts the "Happy Ending Sundae."  Last week, I had friends in town who had never been to Friendly's and giggled like school children when they saw that dessert.  We surely are not the first people to make this connection.  Do you think an employee could use this as a basis for a hostile work environment claim?

Let us know what you think.

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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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As Howard Levitt of the Financial Post said, “The line between sexual banter and harassment can sometimes be indistinct, even blurred.  But crossing it is costly,” as a general manager of a Canadian restaurant in Ottawa found out when he sexually bantered with a waitress who he supervised and then propositioned her. 

The manager often socialized with the staff, where all engaged  in “sexual banter and off-colour jokes.”   A female employee known as “S.S.” was the subject of his lewd comments during a card game, and a subsequent  “salacious text message.”  S.S. “hoped it would blow over and assumed, if she did not respond, [the manager]  would understand that his comments were unwelcome.”  However, when the manager left her a sexually explicit voicemail communicating a desire to have sex  with her, she resigned and sued alleging sexual harassment.

The vice-chairwoman of the Ontario Human Rights Tribunal found that the manager was in a position of power over S.S. because he determined who worked the more lucrative shifts.  Therefore, his voicemail amounted to sexual solicitation in violation of the Human Rights Code.  The court held that since the manager’s solicitation of sex was directed at S.S. personally he should have known that it was unwelcome, despite S.S.'s admission that she participated in the general “sexual banter.”  (This part is a little confusing!).

Levitt provided some helpful tips to employers to avoid liability in such cases, which we reprint here with some editing in the interest of brevity:  [US employers should pay attention to this]

Banter is not consent  Just because an employee shows no offense to a general sexual joke does not connote her agreement to a specific sexual advance. 

Power imbalance  [This is important)  Managers and supervisors are presumed to wield authority over staff. The mere fact that employees don’t object or even laugh at a manager’s sexual comments does not mean they find it welcome. The tribunals presume that subordinates are too intimidated to protest.

Location and timing is irrelevant The comments and messages S.S. received were made after hours or off-site but sexual harassment does not have to occur during the workday or inside the workplace to create liability. The test is whether the employee reasonably perceives the manager’s behaviour as adversely affecting her conditions of employment.

Educate staff  Invest in training and raising employee awareness as to the boundaries of acceptable conduct. The dividend is preventing a costly human rights proceeding with the deck stacked against the employer in most provinces.

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A northern Ireland employer learned the hard way that having a sexual harassment policy is great – but you have to follow it. 

A female employee in West Belfast was sexually harassed by a co-worker.  She complained and the employer conducted an investigation.  The co-worker “admitted that he had touched [her] and made comments to her, and while he claimed that it was all done ‘in fun and banter with no malice’, he admitted that some behaviour had been ‘inappropriate.’"  The employer determined to issue the co-worker a 12-month written warning.  So far, so good, and everything done appropriately and properly.

Except for one thing:  no one thought of notifying the harassed employee of the determination, and she resigned and filed suit when she thought that nothing had been done.   

An industrial tribunal awarded her £12,293 and held that "the constructive dismissal [her resignation] was bound up with the harassment complaint and thus amounted to an act of sex discrimination and was unfair. … This case illustrates the danger of an employer not being proactive in circumstances where members of staff are known to engage in physical contact; the invasion of someone's space; and to engage in banter which could be construed as sexual harassment."

An Equality Commission spokesperson said: "This case should remind all employers how important it is to ensure that their policies are actually being implemented and that managers take action when they become aware of problems of harassment. … As the tribunal said in its decision, these policies must become part of the fabric of the organisation."

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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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Our readers know by now that under its Strategic Enforcement Plan (“SEP”) the EEOC is targeting harassment against “vulnerable workers,” such as migrant workers; disability discrimination fueled by “myths, fears, and stereotypes;” and pregnancy discrimination.  Consider these latest announcements by the EEOC.

A federal jury awarded $24,000 in back pay, $20,000 for emotional distress, and $65,000 in punitive damages to an employee who suffered from epilepsy and was fired despite the fact that he was cleared by doctors to go back to work. The EEOC alleged that the employer failed to make reasonable accommodations, violating the Americans with Disabilities Act (“ADA”), with the EEOC General Counsel saying that "The ADA ensures that persons with epilepsy and other disabilities will have fair employment opportunities that are not impeded by 'myths, fears, and  stereotypes." 

In a new settlement, the EEOC announced that “The Spud Seller,” a potato wholesaler in Colorado, has 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."

Finally, a Milwaukee school agreed to settle a pregnancy discrimination suit by paying $37,500, where a pregnant employee was fired by a supervisor in violation of the school's own written policies.

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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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Add this remark to our growing list of coded ageist comments used by managers.  

This time it was allegedly made by the manager of the long-famous NYC jazz club, the Village Vanguard. The employee claims in a newly fired lawsuit that she was fired after working for 35 years and claims age discrimination and sexual harassment.  She alleges that she was long the subject of unwelcome sexual advances including touching her breasts and buttocks, and that the manager complained that she and other waitresses were "a little long in the tooth."   

She quotes the manager as saying that "Certain waitresses were getting too old to work at the Vanguard and [don't] look good anymore."  

The Vanguard has not yet responded to the lawsuit.

On December 11, 2012 we said that:   "We have harangued our readers for a long time not to call an employee “old” or “ancient,” which is clear direct evidence of age discrimination, and not to use code words, such as calling an employee:  “old school,” or “set in his ways,” or “not a proper fit for the "new environment,” or “lacking in energy,” or “not being up to date,” or “sounds old on the telephone,” or “is like a bag of bones.  Some employers think that they are gaming the system by using these code words, and discouraging older applicants from pursuing positions. It usually backfires."
 

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Addressing a business group in Washington State, the EEOC’s Northwest regional attorney told them that  “If they ignore the subject or convey an attitude of indifference they are setting themselves up for trouble.”   

Capital Press reports that William Tamayo spoke to the Washington Farm Labor Association, and noted that 25% of the EEOC’s national case docket is comprised of sexual harassment cases. In the past, some of these types of cases were so egregious that they were settled for millions of dollars – cases that involved rapes and threats of termination, deportation and death.   

We reported on December 14, 2012 that sexual harassment of farmworkers, which Mr. Tamayo was focusing on in his talk, has been established by the EEOC as an area of concern, with the words “harrowing,” “appalling” and “extreme abuse” used regarding a series of recently filed cases. The EEOC has said it is explicitly targeting the abuse of “vulnerable workers.”

As to what employers should do, Mr. Tamayo stated that employers should encourage good workplace culture, and that “no policy, no training, no consequences enables the predator." 

"A common thread in egregious cases is total neglect. Out of sight and out of mind. In one of our cases an employer on the witness stand said, 'We don't have policies. These are just farmworkers. Oh, I mean we're just a family farm."

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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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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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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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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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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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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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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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Here’s a cautionary tale. The EEOC sued a Burger King franchisee in 1998 on behalf of 89 female employees who alleged sexual harassment.  The case, pending in update New York, has been one of the EEOC’s most extensive sexual harassment cases ever.

The company fought the suit for 14 years and finally decided that although it denies any and all wrongdoing, it is settling the case for $2.5 Million, because (the CEO said), it was far less costly than continuing litigation, given the age of the claims and because hundreds of potential witnesses are scattered across the country, ill or deceased.  

He further said that “We unequivocally do not tolerate sexual harassment in our workplace," but as the company’s counsel added, "It has cost the company an enormous amount of money to defend itself up to this point … It would have cost many more millions of dollars in legal fees to have concluded a potential trial of 89 claims."

Employers should take away from this sad saga that being right and vindicating yourself is an extremely costly endeavor. Sometimes you have to fight, it is true, but since anyone can file a lawsuit, it may be more effective (and less costly) to take preventative action to eliminate some of the root causes of employee lawsuits. As always:

                 ---  maintain a zero-tolerance policy as to harassment;,

                 ---  update your employee handbook;

                 ---  maintain an open dialogue with employees (as best you can),

                 ---  keep conducting anti-discrimination training of all managers and employees;

                 ---  document all disciplinary infractions and performance issues; and

                 ---  keep abreast of the law (reading this blog is a good way!).          

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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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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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A study by Illinois State professors Kimberly Schneider and Patricia Jarvis (and reported by Business News Daily) has 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.

Significantly, such harassment can lead to lower job satisfaction, lower skill development (especially in females), and can impact performance in school, absenteeism, tardiness and grades.  

Why the disparity between low and higher skill jobs?   It should come as no surprise that victims of harassment are more often of “relatively low status and power in the workplace," stated one of the professors. As with people victimized throughout society, they are more often the victims of this “power differential.” 

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We just came across a short squib from Western Pennsylvania’s TribLive, which reported that the EEOC had recently closed a case filed by the executive secretary of Butler County commissioner Jim Eckstein, in which she claimed that she was sexually harassed because the commissioners “failed to protect her from criticism” leveled at her from two county residents at two public meetings. The residents accused her of “misusing comp time and incorrectly writing the minutes of commissioners‘ meetings.”   

Remember our oft-cited vulgar (and annoying) parrot kept by a patient in an expensive long term care facility which repeatedly shouted sexual vulgarities to an offended female nurse?  We have repeatedly reminded readers that there is a concept of “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.

In the Butler County case, the executive secretary gave it the old college try but this was no parrot case.  We have no more information that what was reported, but it seems that her case may be distinguishable from the parrot case (and the others we have cited in the past) because there appears to be nothing sexually harassing about the public comments made about the performance of her duties. 

On the other hand, if the residents had made sexually harassing comments, we might be within the realm of an interesting “third party liability” situation of “citizen harassment of public employees.” This would then be similar to one case where the court held that 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."

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A survey in Egypt undertaken in 2008 found that 98% of foreign women and 83% of Egyptian women reported being sexually harassed. Now, the more than six fold increase in the use of mobile phones since 2005 has spurred a group of volunteers to create an innovative tool for combating sexual harassment. 

They call it HarassMap.  Victims and witnesses of harassment use their mobile phones to call in an incident when it happens, and the volunteers use a Google map to plot the coordinates of the incident. As CNN reported, “When sexual harassment hotspots are identified, HarrassMap volunteers visit these areas as part of a community outreach program aimed at raising awareness and ending tolerance of these kinds of incidents.”

CNN quotes Rebecca Chiao, an American who moved to Egypt and co-founded the group, as saying that: "We are trying to change the social attitude and make it completely unacceptable. We have teams of volunteers that go out once per month in their own neighborhoods and talk to their own neighbors … They ask people who have a presence in the street -- shop owners, police, the guys that park the car, the doormen, the people who are hanging out in the street all the time … to watch out for sexual harassment and not ignore it and to speak against the harassers when they see it happen." 

And, she says, the result is an increasing awareness and change of attitude: "At the beginning everyone disagrees but by the time the conversation is over most people are not just agreeing but they are enthusiastic and want to take action."

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Sexual harassment has been front and center in the news these days – witness the horrific gang rape in India that has spurred world-wide outrage (see also our blogs from last week).

Now, a newly released report from the Department of Defense entitled "Annual Report on Sexual Harassment and Violence at the United States Military Service Academies" notes that sexual assaults have been rising since 2009 at the US military academies, and increased 23% this year alone (The Naval Academy alone reported a decrease).   A separate survey which was anonymous showed that 51% of women and 10% of men said they were sexually harassed.  Read together, these reports indicate that despite the Pentagon’s encouragement of student to report harassment, they are still reluctant to do so.  

Create A Non-Permissive Environment 

The director of the Department of Defense Sexual Assault Prevention and Response Office was quoted as saying that “The solution to this problem is creating a non-permissive environment where sexual harassment, sexist behavior, stalking and these types of behaviors are not condoned, tolerated or ignored.”

This is a start, and all employers should follow this advice.  "Creating a non-permissive environment" means maintaining a a firm zero tolerance policy that is strictly followed, and conducting frequent zero tolerance harassment training for both managers and employees. 

A New Year's Resolution

In India, "there is enormous outrage among the young" because of recent attacks on women, and students at various colleges in India “have pledged ‘zero tolerance for sexual harassment’ as their resolution for 2013,” reports DNAIndia.  One woman didn’t need to make a resolution for 2013 because “I never tolerate any kind of harassment, so this (zero tolerance) is in my resolution list every year.”

Perhaps this should be the New Year's resolution for companies too!

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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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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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We wrote last week that the EEOC was targeting sexual harassment cases, and on November 5^th we reported that the EEOC just sued Señor Frog's for “rampant sexual harassment of its female employees in Honolulu.”

The EEOC has just issued a press release touting a settlement of a sexual harassment and retaliation charge with the company that operates Tenaya Lodge, near Yosemite National Park.  To avoid a lawsuit, Tenaya Lodge will pay $195,000, plus:

“will provide equal employment opportunity training for all current employees and, thereafter, for all new hires in the language that the employee understands, along with additional training for managerial and human resources staff on how to deal with discrimination, harassment and retaliation.  Tenaya Lodge also agreed to post a notice about the settlement in English and Spanish; to report future instances of discrimination to the EEOC; and to publicize the settlement via press release.”

When the EEOC sued Senor Frog’s, the regional EEOC attorney was stern: “We are troubled by the increase of sexual harassment cases and companies continuing to fail to take this problem seriously."   In settling the Tenaya Lodge charge, however, an EEOC attorney was decidedly more upbeat:   "We commend Tenaya Lodge for working with the Commission to resolve this matter and for agreeing to implement measures to protect their employees from harassment, discrimination and retaliation."

Draw your own conclusions.

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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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According to Andersonvalleypost.com, the EEOC has just settled for $95,000 a national origin discrimination and retaliation claim brought in California on behalf of an employee of Egyptian descent against Sierra Pacific Industries. The allegation was that after 9/11, the employee was called “Osama,” “f---ing Arabian,” and “camel jockey” by co-workers, and that the company permitted this to go on after the employee complained, and eventually fired him.

The interesting thing about this matter is despite settling the lawsuit, the company vehemently denies discriminating against the employee and firing him in retaliation.  Instead, it claims that the employee was fired because he was a serial sexual harasser.  

Sounding exactly like an EEOC attorney quoted in an official press release, a company spokesman said that “Sexual harassment is something we take very seriously. We will not tolerate it in our company and will terminate employees who have harassed others.”

 

So is there a zero-tolerance company policy for sexual harassment, but not for national discrimination harassment?  No, says the company, which contends that its settlement of the case was not an admission of liability, but that it “only agreed to settle the case in order to stop spending money and to free the courts of a merit-less case.”  

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Title VII is what is known as a “make whole” statute. That is, the court is directed to use its power to fashion whatever relief is necessary and required to “make the plaintiff whole,” and/or uphold the purposes of the statute.

In a stunning new decision involving egregious sexual harassment, a federal appeals court in New York held that the trial court abused its discretion in not issuing an injunction to prevent the harasser from being in a position to continue his harassing conduct.

The owner of a small grocery store in upstate New York 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.

One woman complained that he would frequently “brush her breast with his arms, come up behind her and put his crotch against her buttocks and whisper in her ear or breathe on her neck, put his hands on her hips and squeeze, rub her shoulders, put his arm around her and hug, or walk by so closely that his hand would brush her buttocks.” Another woman said that he “touched her almost every time he found her alone by massaging her shoulders, touching the back of her hair, and rubbing her thigh.”

The grocery had no anti-harassment policy and no formal complaint procedure, but several women complained to their supervisors about the manager’s conduct. The result of their complaints were termination of some of the women, no follow-up on the part of the management, and the owner crying and deciding that the complaints had no merit.

A jury awarded the ten women plaintiffs $1.2 million in punitive damages, and the EEOC asked the court for an injunction because the grocery “has not adopted adequate measures to ensure that harassment of the kind at issue in this action does not recur.” The EEOC noted to the court that the owner and the manager were still in a romantic relationship, that after the trial, the manager continued to publicly deny that he had engaged in any sexual harassment, that he continued to be a presence at the store since he became a produce contractor for the store, and that there was no proscription to his being rehired.

The trial court denied the EEOC’s request for an injunction, stating that the requested relief was overly burdensome since it would last ten years and “requires the [store] to alter drastically its employment practices and hire an independent monitor whom, together with the EEOC, will review and critique any present or future employment practices with respect to sexual harassment.”

On appeal, the Court held that under Title VII, “[i]f the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate. ... Once a violation of Title VII has been established, the district court has broad, albeit not unlimited, power to fashion the relief it believes appropriate.”

The appeals court stated that “this is not an ordinary case,” and found that the trial district court “abused its discretion” by not ensuring by way of an injunction that the manager “is no longer in a position to sexually harass [store] employees.” The Court stated that “we conclude that, at minimum, the district court exceeded the scope of its discretion in declining to order (a) that [the grocery] is prohibited from directly employing [the manager] in the future, and (b) that [the grocery] is prohibited from permitting [the manager] to enter its premises.”

Although “this is not an ordinary case” in that the harassment was so egregious and widespread, the harasser was involved with the owner, the harasser and owner denied the claims, employees were fired for complaining, and the harasser was still frequenting the store, 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.

(Note:  unfortunately, what makes this a typical case is that the store had no anti-harassment policies and no formal complaint procedure).

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Last year we asked whether a vulgar parrot could create a hostile work environment. This arose from a real case where a parrot who was kept by a patient in an expensive long term care facility repeatedly shouted sexual imprecations to the attending female nurse, who was none too happy about it. She complained to her supervisor about the hostile work environment but she was laughed off. She sued for sexual harassment. and won.  

We asked the question: Can the parrot be liable for sexual harassment?

The better question, we noted, should be: Can an employer be liable for creating a hostile work environment if it permits sexual comments to be made to an offended employee, whether by a parrot, a co-worker, or a mail deliverer?

A new case illustrates what happens when non-employees sexually harass an employee. A female employee at a hospital claimed that she was harassed by a doctor and anesthesiologist who worked as independent contractors. The doctor was not an employee and was paid directly by patients, and was merely affiliated with the hospital in that he performed medical work there and was allowed staff privileges. The anesthesiologist worked at the hospital as an independent contractor.

The doctor made sexually explicit comments to the female employee, asking her to “go out to a motel to have sex.” She complained about this to the hospital's personnel director, but the harassment continued. Then doctor asked told her that he wanted “a piece of that” and that the two should “go to bed” together, and while they were performing an X-ray together he began making “sexual jokes” and rubbed his genitals across her back. He later spanked her bottom as he passed her.

She claimed that the anesthesiologist also used “hostile and sexual language” toward her on a number of occasions during the same time period, and rubbed her backside with his genitals.

The Court rejected the hospital's argument that it could not be held liable for the alleged harassment because the doctor and anesthesiologist were not hospital employees.   The Court held that: “[A] plaintiff's employer may indeed be liable for a non-employee's acts of harassment under Title VII if it knows or should have known of the conduct and fails to take immediate and appropriate action.”    See  Santos v. Puerto Rico Children's Hosp.,  

As we said last year, the moral of the story is simple -- a hostile work environment can be created in any way or by any means if the employer does not address an employee's complaint that the workplace is hostile or that she has experienced sexual harassment .

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The Supreme Court ruled in Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998) that an employer may assert as an affirmative defense to claims of sexual harassment that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by employer or to avoid harm otherwise. Two new court decisions illustrate exactly what this means.

A federal court in Mississippi has just issued a ruling which dealt with an employer's anti-harassment policy which provided that:  “If you feel you have been a victim of sexual harassment or any other form of harassment, or if you witness the harassment of others, you must immediately report your concerns with the Human Resources Department.”  The employer also provided employees with a confidential hotline with which to report violations of its policies or the law.

When the plaintiff began working for the company, she signed a statement acknowledging that she had “attended harassment training” and also that she understood the company’s anti-harassment policy. Shortly thereafter, a male co-worker allegedly began to make sexual advances and offensive comments to her, which she reported to her supervisor, but not to the HR department, as provided in the company policy. The supervisor took no steps to stop the harassment.

The Court granted summary judgment to the company, ruling that the woman acted unreasonably when she failed to report the harassment to the HR department, and failed to utilize the anonymous hotline to report the harassment.  The company was therefore able to assert successfully an affirmative defense based upon the holdings in Ellereth and Faragher.

In a second case arising out of New York City, a female corrections officer alleged that another officer repeatedly attempted to kiss her, physically interacted with her in overly familiar ways, made sexual comments about her body and clothing, and said to her “Why don't you let me make love to you four, five times so I can get it out of my system. Stop acting like you don't like me.”

The corrections department had a grievance procedure for employees who allege sexual harassment, but in this case the woman waited more than one year to file a grievance. The Court granted summary judgment against the woman on her Title VII claim, holding that the employer asserted a viable defense that she did not promptly report the harassing behavior. (Note to New York City employers and lawyers: because the New York City Human Rights Law precludes this affirmative defense, the Court denied summary judgment under this city law).

It is possible to defeat claims of sexual harassment if you follow the Ellerth and Faragher teaching about the available affirmative defense  

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Employers are generally knowledgeable about Title VII’s prohibition against employment discrimination on the basis of race, sex, national origin, etc. But is Title VII the only remedy for an employee who believes that (s)he has such a claim of employment discrimination?

Long before the enactment of Title VII, in fact 150 years ago, a statute commonly referred to as “Section 1983” was passed after the Civil War to protect the rights of people who are deprived of their Constitutional or other federal law rights by persons who act “under color of state law.” Persons who act “under color of state law” can include virtually any public entity, official, employee, or other person acting on their behalf who act in their official capacity. Therefore, while section 1983 can be used by a person who claims that a police officer used excessive force, or by a person who claims that he was deprived of a property right by a municipality without due process, it also applies to public sector employees who allege claims of employment discrimination.

Note that the Supreme Court has held that section 1983 does not establish any substantive rights but is merely a vehicle for vindicating rights found in the Constitution or federal law.

Can such a public employee sue on a claim of employment discrimination under both Title VII and section 1983?

One recent case dealt with a public employee alleging gender discrimination and sexual harassment who did not meet the pre-filing procedural requirements of Title VII, but sued also under section 1983. The trial court dismissed not only the Title VII claim, but also the section 1983 constitutional claim (a claim based upon the same facts but asserting that her 14th Amendment due process right to continued employment was violated). The court held that Title VII is the “exclusive remedy” for such claims, and that the employee could not circumvent Title VII’s procedural requirements by pleading constitutional violations under section 1983.

An appeals court reversed this decision, holding that “when the employer's conduct violates not only rights created by Title VII, but also rights conferred by an independent source [in this case the 14th Amendment], Title VII supplements, rather than supplants, existing remedies for employment discrimination.”

This case may be of interest only to lawyers, however public employers should be aware that employment discrimination can be pleaded in more than one way. Simply getting a Title VII claim thrown out does not necessarily win the case. 
 

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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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According to an EEOC complaint filed in court in Illinois yesterday, an employee subjected to hostile, abusive and lewd comments in the workplace who complained repeatedly to management was fired in retaliation.
 

There is nothing particularly noteworthy about this set of facts, except the quote from the EEOC's regional attorney in Chicago, who had a warning for employers about retaliation – the same that we often publish:  "Employers ought to learn from this case. Any employment discrimination problem -- sexual harassment or anything else -- can always be made worse and more injurious to the conduct of the employer's business. Retaliation is guaranteed to do that. It never makes sense, it is never good for business, and it is always illegal."
 

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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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If you did not already know, now that we have evolved from the world of “Mad Men,” sexual harassment in the workplace is no longer considered a joke or simply a cultural artifact.  It is a serious violation of law, and juries do not hesitate to slap a company which tolerates it.

For example, the EEOC has just proudly announced a large jury verdict which it obtained on behalf of three former employees of Endoscopic Microsurgery Associates, a Baltimore-area medical practice. The employees were found to have been the subject of repeated unwanted sexual advances and a hostile work environment by two top executives of the company, and, further, one employee was retaliated against for spurning the advances and was then fired.

Although the jury awarded relatively nominal compensatory damages to plaintiffs in amounts ranging from $4,000 to $10,000, each plaintiff was also awarded punitive damages in the amount of $110,000 – a pretty heavy rebuke to the company.

The EEOC lead counsel stated that “This case emphasizes the necessity of employers having in place meaningful and enforceable policies guarding against such mistreatment.”

We could not have said it better or more succinctly.
 

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Our partner, Jeff Polsky, in California has just written an excellent blog on the Patterson v. Domino's Pizza decision that was handed down last week by a California Appellate Court. 

This case needs to be read by franchisors because it reasons that contract language denying an employment relationship with franchisees and their employees will not be enough to save a franchisor from vicarious liability in a sexual harassment lawsuit.

To see Jeff's blog and the decision, please click here.

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Great Britain’s AdviseMeBarrister.com. just conducted an online survey to determine whether gender discrimination still exists in Great Britain, and if so, to what extent.  The results shocked them, because about half of all women had experienced sexual harassment in the workplace. 

Although from the news reports it appears that the survey was not necessarily designed to assure its accuracy, or to do anything more than solicit comments from potential clients – a pool of respondents very likely skewed towards those who indeed suffered discrimination and/or gender harassment, the results are nonetheless disturbing. 

As reported in The Times of India, which took its report from the Daily Mail:     

-- half of women believe that they are sexually discriminated daily; 

                -- of women who claim to have suffered harassment, four out of 10 have been touched in a way that made them feel uncomfortable, and more than 25% have been kissed by a co-worker against their will;

--  two thirds of women reported that they had experienced inappropriate comments about their dress, and 40% were forced to “dress down” because of this.

As a result of this workplace harassment, one out of three women have contemplated quitting, and 25% have suffered mental or physical health problems. 

Yet only 20% of women have reported such discriminatory acts because they feared that people would not believe them (over 50%), they did not want “a black mark” (29%), they feared being branded “a trouble maker” (31%), or believed that they would not receive a promotion (12%). 

Scientific or not, this survey should alert employers to the nature and extent of reported workplace gender discrimination, and remind them to maintain and publicize a “zero tolerance” policy towards any kind of harassing behavior, and regularly conduct anti-discrimination training programs for both managers and all other employees.       

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I asked last year in this blog whether a parrot can be a sexual harasser.  Well, no, the parrot is not a harasser in the legal sense, but an employer can be liable for creating a hostile work environment if he permits sexual comments to be made to an offended employee, whether by a co-worker, or a mail deliverer or even by a parrot.   This was a real case --  a parrot who was kept by a patient in an expensive long-term care facility repeatedly shouted sexual imprecations to the attending female nurse, who was none too happy about it. She complained to her supervisor who laughed her off. She sued for sexual harassment and won.   

A similar case was filed by the EEOC last year in which an 84 year old  retail customer hanging out near the employee time clock in a large grocery store repeatedly groped three female employees – sometimes multiple times daily.  One of the employees unsuccessfully complained to management to ban the customer from the store. The EEOC thereafter filed a lawsuit on behalf of the employees, alleging that the employer created a sexually hostile work environment.  EEOC v. Fred Meyer Stores Inc.

Now, the EEOC has just settled a class action lawsuit for $200,000 against a restaurant for permitting female servers to be sexually harassed by a customer, a Palm Beach County sheriff’s deputy, who allegedly frequently grabbed their breasts and buttocks, made frequent sexual innuendos, and invited them to join in a ménage a trois.

The EEOC’s Miami regional attorney, Robert E. Weisberg, put it correctly:  “Title VII requires an employer to prevent known sexual harassment created by other employees or customers … regardless of the status of the harasser.”

A hostile work environment can be created in any way or by any means if the employer does not address an employee complaint that the workplace is hostile.  Or by anyone or any parrot.

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A federal appeals court, in a recent decision which it declared is “not precedential,” dealt with a situation where a woman’s supervisor repeatedly called, emailed and confronted her, at home and at work, after she rebuffed his romantic overtures to her. 

In granting summary judgment to the employer, the Court, construing her claims for “hostile work environment” and “constructive discharge” under the relevant New Jersey employment discrimination statutes (which are not unlike the federal statutes), held that the supervisor’s conduct "was not severe or pervasive enough to establish a hostile work environment," and that his conduct was not sufficiently "outrageous, coercive and unconscionable" to constitute a claim for constructive discharge when she claimed that she was forced to quit.

The Court quoted approvingly from another case: “[R]epeated and unwelcome behavior is one of the socially uncomfortable situations that many women encounter in the course of their lives when someone in whom they are not interested persists in trying to persuade them otherwise.” In thereby construing the supervisor’s behavior as the kind that women must simply endure in such a “socially uncomfortable situation,” the Court disregarded the fact that the workplace is not a “social” situation.   

The Court also the cited words from another case with approval:   "Persons who are sociallytone deaf are not, by that characteristic, necessarily the equivalent of sexual harassers."

The line between harassment and uncivil conduct which is not actionable may not always be clear. Was the behavior of the supervisor towards the plaintiff, which we repeat below, simply that of a “tone deaf person,” and did the plaintiff simply have to “put up with it” because that was her lot as a woman in a “socially uncomfortable situation?”  Or was the supervisor’s behavior harassing, or more akin to that of a stalker? 

-- During lunch, the supervisor told plaintiff that he was attracted to her and had been for years.  When plaintiff rejected him, the supervisor “obviously remained distraught.” He asked plaintiff to drive his car during the return trip to the office because he had to “compose himself.” He later delayed leaving so that he could follow her to the parking lot, where he “gently grabbed her arm” and thanked her for "being so understanding."

-- The supervisor “continued to trouble her” - he sent her a text message the next morning thanking her for her considerate behavior after his “confession of unrequited romantic interest,” and then asked her for a copy of a picture of plaintiff and her boyfriend which was on her computer, and told her that it “used to bother him but that he was now ‘okay’ with it.” He also maneuvered, through a pretext, to have her meet him alone in a break room, “where he again told her how wonderful she was being.”

 

-- When she emailed him that she had taken a leave of absence because of his conduct, he emailed her “apologizing for the awkward situation he had put her in, thanking her for her understanding, and asking for her forgiveness.” He emailed her again to apologize for his "boorish behavior" and to encourage her to return to work.   She requested that he stop contacting her.

-- He did not stop when she was still on leave; he called, sent emails and text messages to her.  

-- She again asked him to stop contacting her, and eventually quit her job.

After reading these facts, one could reasonably ask “Who was “tone deaf” in this case?”   

Because this decision is “not “precedential,” it cannot be cited as good law or as the pronouncement of the Court. Perhaps that’s a good thing.  

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A Little Background

In the famous Faragher and Ellerth cases decided in 1998, the US Supreme provided an employer with an affirmative defense to a sexual harassment claim involving a hostile work environment.  To take advantage of this defense, the employer must show that:  

 (a) it “exercised reasonable care to prevent and correct promptly any sexually

harassing behavior,” and (b) “the plaintiff employee unreasonably failed to take

advantage of any protective or corrective opportunities provided by the employer

or to avoid harm otherwise.”

However, it was held that this defense was not available where a supervisor had taken a “tangible employment action” against the complaining employee. The issue left open was whether a “constructive discharge” – i.e., where an employee quits alleging that the harassment she is suffering is so severe that no reasonable employee would have remained -- constitutes a “tangible employment action.” 

The Supreme Court in the 2004 Suders case decided this issue, holding that a “constructive discharge” may or may not constitute a “tangible employment action,” but that an employer should be permitted to demonstrate that its acts were within the Faragher and Ellerth defense. The advice to employers after Suders was that they would be wise to provide appropriate anti-harassment training to managers and workers, institute and maintain zero tolerance policies, have an effective and disclosed internal complaint procedure in place, and undertake prompt investigations of complaints. 

A Recent Illustrative Case

A recent federal appeals court decision arising out of Wisconsin illustrates nicely how an employer can think that it has insulated itself within the protections of Faragher and Ellerth only to blow it when an actual complaint is filed. In this case, a jury found that employees suffered sexual harassment by a supervisor which constituted a hostile work environment. 

The Court, in reviewing the verdict, found that even though the employer indeed had an anti-harassment policy in place, a zero tolerance policy, anti-harassment training, and a policy of investigations of complaints (good work, employer, you did everything right!), nonetheless “the policy and complaint mechanism were not reasonably effective in practice.”  For example, evidence was presented at trial that the managers at the workplace failed to carry out their duties under the policy, that the employer failed to follow its own policies by ignoring the employees’ harassment complaints, by discouraging employees from reporting complaints, by providing inadequate anti-harassment training to supervisors,  and by failing to “promptly” investigate the complaints (poor follow through, employer!).  

Accordingly, the Court found that the Faragher and Ellerth defense was not available to the employer, and even held that punitive damages were appropriate against the employer. The Court underscored what all employers should learn: “Although the presence of a sexual harassment policy is encouraged by Title VII, ‘the mere creation of a sexual harassment policy will not shield a company from its responsibility to actively prevent sexual harassment in the workplace.’”  

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With the holidays here and as New Year's approaches, employees may be feeling warm and fuzzy toward their co-workers.  They may also be getting their nerve up to jump start the New Year by asking out that co-worker they've long had their eye on.  Even in companies where there is no specific fraternization policy, these co-workers may not be in the clear.

The Third Circuit case of Anastasia v. Cushman Wakefield, Citgroup, et als. demonstrates why it may not be such a good idea to ask your co-worker out on a date.  In this case, an employee of Citigroup opened up to the plaintiff one day over lunch and confessed that he was interested in her romantically.  The Plaintiff immediately set him straight that he was only a friend and mentor.

So, now you're probably thinking that this clod could not take no for an answer and kept pursuing her, which is why she finally sued, right?  Wrong.

The spurned suitor was instead immediately embarrassed and apologized several times for his comment.  He even thanked her for her understanding about his boorish behavior.  She responded by going out on leave and eventually sued for sexual harassment.

Although the Third Circuit upheld the dismissal of the suit by the District Court, as any person who has been involved in a discrimination lawsuit knows, winning can be a hollow victory.  By the time summary judgment and an appeal is filed in a case, legal fees are likely to be close to or over $100,000.  This is true even though the employee did not engage in harassing behavior.

Looking back on it now, I am sure that the defendant wishes he had never opened his mouth in the first place.  The lesson to be learned, as it often is, think before you speak.  Oh, and if your office's holiday decor includes mistletoe, you might want to take that down.

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I have long presented students (and employers) with the following real-life fact pattern taken from an appellate case: a parrot who was kept by a patient in an expensive long term care facility repeatedly shouted sexual imprecations to the attending female nurse, who was none too happy about it. She complained to her supervisor who laughed her off. She sued for sexual harassment.   I always ask the simple question: Can the parrot be liable for sexual harassment?

Most listeners laughed, just as the nurse’s boss did. How can a parrot be liable, and how can you collect damages from a parrot?   

However, those who understood what sexual harassment is about correctly changed the question into: Can an employer be liable for creating a hostile work environment if it permits sexual comments to be made to an offended employee, whether by a co-worker, or a mail deliverer or even by a parrot?     

Posed that way, the answer becomes more obvious and less laughable.

A recent case nicely illustrates this point. In Oregon, an 84 year old  retail customer hanging out near the employee time clock in a large grocery store repeatedly groped three female employees – sometimes multiple times daily.  One of the employees unsuccessfully complained to management to ban the customer from the store. The EEOC thereafter filed a lawsuit on behalf of the employees, alleging that the employer created a sexually hostile work environment.  The case is pending.   EEOC v. Fred Meyer Stores Inc.

The moral of the story is simple --  a hostile work environment can be created in any way or by any means if the employer does not address an employee complaint that the workplace is hostile. 

Even if the parrot is judgment proof. 

(P.S. The groping customer passed away after pleading guilty to criminal charges).   

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In what seems to be a pretty extreme case, Archie's Comics has filed for an injunction barring its Co-CEO Nancy Silberkleit from entering the premises.  Archie's accuses Silberkleit of sexual harassment, including making numerous comments about male genitalia, and some rather offensive personal habits such as wearing the same clothes for several days and letting her dog defecate in the premises.

The suit sort of begs the question:  how did they wind up here? 

Although we are definitely outsiders looking in, and do not know any of the back story in this case, there are a few usual culprits when you see a situation that has gotten as out-of-hand as this one allegedly is.   So, rounding up the usual suspects:

• An "uber talent" at the helm.  Often times Companies hire talent and figure personalities will work themselves out or, even if they know the talent has a prickly side, figure the talent is worth the cost.
• No direct management oversight of the talent, either because the talent is running the show or no one wants to challenge the talent.

Now that we've identified the problem, here are 5 tips for making sure that you do not have to bar the doors to keep your talent out and stop harassment:

1.   Consider passing on the talent -- an employer hiring one of these "uber talent" types should consider the overall costs, such as employee morale, that will come with the hire.  Is the talent so great to justify these costs?  Is there other talent out there that does not come with this baggage?

2.   Prepare for Problems -- you have determined that you absolutely need the talent to run your business as the talent is simply the best person for the job.  Consult with employment counsel to put terms in the employment agreement that require accountability from the talent and provide protections for the Company when the talent violates Company policies.

3.   Create an advisory management team -- sometimes the problem is, as in the Archie's situation, the bad talent is running the whole Company.  If there is Board of Directors for the Company, then the Board should be managing the talent.  If your company does not have a Board or an active Board, consider creating an advisory management team with other business leaders to collaborate with the talent and, if necessary, make recommendations to the company to address problems.

4.   Address problems as they arise -- we have previously posted about the importance of promptly responding to complaints of harassment in order to preserve company defenses and promote morale.  Addressing problems early will also serve as a reminder that the company will not tolerate harassing behavior.

5.   Money still talks -- at the end of the day, money, either how much is being earned or how much is being taken away, is most people's indicator as to how they are performing.  When addressing complaints of harassment or abusive behavior, employers can be creative when issuing discipline to end harassing conduct.  In certain circumstances, traditional discipline such as a written warning or training is sufficient to stop the conduct.  In other circumstances, it may be appropriate to impose a financial discipline, for example, a suspension without pay, a reduction or elimination of a bonus, or a salary reduction.

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