18691875_sBikram Choudhury, founder of Bikram Yoga or hot yoga as it is colloquially referred, has been the center of several well-publicized sexual harassment lawsuit.  As the trial of one former legal adviser’s claim of sexual harassment is now progressing, it gains even more publicity, whether because of the juicy allegations of rape or schadenfreude or a little of both.

The allegations have been very salacious and, if true, paint a picture of a predatory and abusive man.  Law 360 reported that his wife testified on Wednesday.  The reports of her testimony are fairly shocking as she confirmed that she heard her husband swear at students and called female students prostitutes and bitches.  Certainly not what his defense attorneys wanted to hear.

The Choudhurys are also going through a divorce so it is tempting to attribute her testimony to a spouse seeking revenge.  However, her testimony was not a full-scale attack on her husband. Instead, although she had to admit that she had heard him use those words during teacher training sessions, she claimed that what he was doing was merely theater and all part of his act.  In other words, she tried to rationalize what he said by saying that he did not mean it.

This brings up an interesting point.  Under anti-discrimination laws, the alleged harasser’s intent is largely irrelevant.  A person does not have to mean to harass someone to be guilty of harassment.  This is a point that I make at every training session I do with employees and managers and one that seems to be the most surprising to people.

The way hostile work environments are defined under most anti-discrimination laws is that the conduct is based on membership in a protected class, that the conduct was severe or pervasive, and that the victim perceived and a reasonable person would perceive that a hostile work environment had been created.  In short, even where someone was joking or putting on an act, if they engage in conduct that could be considered harassment, it does not matter what they meant.

So, although I think Rajashree Choudhury might have been trying to excuse her husband’s behavior, saying he was joking is not likely to cut it.

 

1991649_sGenerally, if an employee is going to complain of harassment by a supervisor, in my experience, the complaint is raised to another person, such as another manager or Human Resources.  A lot of employees simply do not feel comfortable having that conversation with their bosses.

Of course, if an employee does have that conversation with his or her boss, the boss needs to be aware that the complaint cannot simply be pushed under the rug.  As a recent 6th Circuit case makes clear, this is where it is crucial that employers provide training and other guidance to supervisors in how to handle such complaints.  In EEOC v. New Breed Logistics, the 6th Circuit recently held as a matter of first impression that an oral complaint about harassing supervisor to that harassing supervisor is “protected activity” under Title VII for which an employee cannot be retaliated against.  In so finding, the Court upheld a $1.5 million award for the EEOC where the EEOC raised claims of retaliation on behalf of two female workers and a male worker who complained of a supervisor’s harassing behavior.

Although the case is headline news in the legal community since it is the first time the 6th Circuit has confronted the issue, the decision itself is not surprising.  This is because courts have routinely applied broad definitions of “protected activity” to insure that employees are not being intimidated from filing complaints of harassment.

Managers who hide complaints of harassment may think that they are protecting themselves, but they could be exposing themselves to greater liability.  In the New Breed case, the defense was that the plaintiffs had performance issues. However, where a complaint of discrimination is not investigated and then an employee is terminated very close in time to that complaint, the failure to investigate the claims muddies the issue of whether there was a legitimate reason to terminate the employee.

It is certainly possible that, had the complaint been investigated, it would have been found to be unsubstantiated and the manager would not have been in any trouble.  On the other hand, hiding the complaint clearly did not help the manager. It’s an expensive lesson to learn and is why companies should make clear that all complaints of harassment must be reported to human resources or whoever is else responsible for investigating complaints.

27485319_sLawyers, and I suspect a good deal of employers, watched the Marchuk v. Faruqi & Faruqi case with a great deal of interest.  The allegations after all were quite scandalous — namely that Juan Monteverde, one of Faruqi’s high profile partners, had sexually harassed Marchuk and raped her.  Some of the interest may have been little more than schadenfreude as Faruqi & Faruqi have certainly made their share of enemies trolling for class actions against corporate giants.

Now that the verdict has come in and it was rather non-spectacular given the allegations, defense lawyers may be celebrating that a jury rejected most of the claims and only awarded a total of $140,000. Above the Law has tracked down a juror to explain the verdict, especially given the rape allegations. There is probably a lot of interest in reading the juror’s tale, most notably the rare glimpse inside jury deliberations.

What should be of note to employers is that the mere fact that the jurors did not 100% believe Marchuk did not preclude them from finding liability against the Firm.  Instead, the jurors really delved into the evidence to see if that supported a verdict under the employee-friendly New York City Human Rights Law.  The jurors understood that the law is much more lenient than state or federal law.

However, this case is not only a cautionary tale for New York City employers, but it is a reminder to employers and all of us defense attorneys not to fall in love with only a certain aspect of  their case.  The juror interviewed noted that there were several inconsistencies in Marchuk’s story regarding the rape and that was what led them to come to the conclusion that the sex had been consensual.  However, the defense attorneys also tried to paint a picture of a woman who was only looking for a payday by introducing evidence that she joked she was going to Hawaii with the settlement money.  This evidence was roundly rejected by the jury.

I have been involved in many investigations and lawsuits where clients have discovered that perhaps an employee was not truthful on one minor issue.  Clients begin to convince themselves that this one misstep means that no one will ever believe the rest of the story.  This may be true, but it may not be when you look at the totality of the circumstances.  After all, jurors are human beings, most of whom have told partial truths about minor incidents, whether intentionally or not, but still expect people to believe them when they raise serious complaints.  To borrow from the title of a much-ballyhooed movie currently in theaters, there are 50 shades of gray.

When evaluating risk of exposure in a lawsuit, employers need to look at the big picture.

This Christmas we wrote about a couple of wacky cases.  We got some good comments.

Merry Christmas!

crazy christmas : santa claus dog on motorbike bringing presents or gifts to everyone Stock Photo

Fun-Slapping” Case

On December 22nd we wrote about a New Zealand Herald report that “A young woman whose bottom was slapped in ‘fun’ by her boss has now been ordered to pay her former employer $5000 in costs in the case.”  It seems that the NZ Employment Relations Authority had before it the case of a female  employee who resigned after her former boss allegedly slapped her rear end.   Authority member Anna Fitzgibbon apparently found that plaintiff was unreliable as a witness but nonetheless also found that there indeed was such a slap which was “inappropriate and should not be repeated,” but also that it was all part of a joke.

Link:  http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11377890

We concluded that “We have absolutely no idea what to say about this bizarre case.”   Jose Ortal, business owner in the Eugene, Oregon area responded:  “Because there isn’t one.”

Susan T. Musumeci, an HR professional in Glendale, Arizona:

“Holy crap! Glad I don’t work in New Zealand. And a woman made this decision?! I just hope no one “fun slaps” her behind any time soon.

And what was the reason for the payment of $5K?  Cost of taking the claim to ERA?  Wasn’t it enough that for some strange and bizarre rationale, lost on most logically thinking people, that the plaintiff was found to not have a reasonable case (yet also being found that the “joke” was inappropriate)?  I don’t think Ms. Fitzgibbon had her thinking hat on that day.”

David Fieldman, a cross-cultural communications expert in Bejing, China:

“The NZ Authority, Anna Fitzgibbon, has lost her moral authority to pass judgment on anything.”

Nipple-Pinching Case

In another strange case, we posted that same day that a supervisor allegedly grabbed and squeezed his subordinate’s nipple, and took a towel and rubbed it on the employee’s crotch, according to the opinion of a federal appellate court.  The employee sued, claiming hostile work environment, and claimed that the supervisor “received some perverse sexual gratification” from these acts.

Both were male, and the Court dismissed the case.   We asked if the result might have been different if the victim had been female.

Link:  https://employmentdiscrimination.foxrothschild.com/2014/12/articles/sexual-harassment-1/supervisor-squeezing-subordinates-nipple-does-the-subordinates-gender-matter-under-title-vii/

Jim Ferguson, an attorney in Birmingham, Alabama, had this comment:

“Never thought to add a standard “Don’t pinch another employee’s nipple” provision to form employee handbook….but maybe we should…..”

 

 

 

 

 

Yesterday’s post about a female employee who received from the boss what the employment tribunal called a “fun slap” on the rump because she was “cheeky” to him perplexed us in many ways, not least of which was the fact that she lost her sexual harassment case and was assessed costs in the amount of $5,000!   We were flummoxed.

One reader commented immediately, and her comment sums up our view:

Jamie Agrelius, an HR manager in the LA area:

No words for this!!?”

spanking : Woman spanking boyfriends back side with her paint covered hand

 

Here’s a rather strange sexual harassment decision which we do not have any reasonable explanation for.  

The New Zealand Herald reports that “A young woman whose bottom was slapped in ‘fun’ by her boss has now been ordered to pay her former employer $5000 in costs in the case.”

What’s this?

It seems that the NZ Employment Relations Authority had before it the case of a female  employee who resigned after her former boss allegedly slapped her rear end.   

Authority member Anna Fitzgibbon apparently found that plaintiff was unreliable as a witness but nonetheless also found that there indeed was such a slap which was “inappropriate and should not be repeated,” but also that it was all part of a joke.

Link:  http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11377890

slap : businesswoman hitting a man with a boxing glove Stock Photo

Being “Cheeky?”

Said Authority member Anna Fitzgibbon:  “Ms Newman was being cheeky about Mr Sanson’s floppy hat and he slapped her on the bottom.  It was a one-off slap, which I accept was a ‘fun slap’.”

A “one-off slap?”  A “fun slap?”  Huh?

Outcome

Not only was plaintiff tossed out, but she was also ordered to pay $5,000 costs to her former employer.

Takeaway

We have absolutely no idea what to say about this bizarre case — maybe:

Don’t be cheeky with the boss?

Don’t sue over a “one-off slap” or a “fun slap?”

Don’t work in New Zealand?

 

 

Our post of December 11th, “Supervisor Squeezing Subordinate’s Nipple: Does The Subordinate’s Gender Matter Under Title VII?” drew a number of comments.

To recap:  A supervisor allegedly grabbed and squeezed his subordinate’s nipple, and took a towel and rubbed it on the employee’s crotch, according to the opinion of a federal appellate court.  The employee sued, claiming hostile work environment, and claimed that the supervisor “received some perverse sexual gratification” from these acts.

Both were male, and the Court dismissed the case.

We asked if the result might have been different if the victim had been female.

Link:  https://employmentdiscrimination.foxrothschild.com/2014/12/articles/sexual-harassment-1/supervisor-squeezing-subordinates-nipple-does-the-subordinates-gender-matter-under-title-vii/

male victim of harassment : A bully pulls a wedgie on an unsuspecting victim. Illustration

Jane Ayaduray, a group diversity and inclusion expert in Singapore:

“An interesting and important question. My guess would be that while the outcome may have been the same, the way in which the situation was viewed within the organisation, in the courts and by the individuals involved, is very likely to have been different.”

Ian Bush, an executive in the Ottawa, Canada area:

“Indubitably, if the gender was female, the results would have been 180 degrees different. It’s a feminist misandrist world out there.”

Steve Larsen, an adjunct professor at Texas Women’s University:

“Of course the result would have been different. Unfortunately, Title VII was never meant to provide equal rights in the courts.”

Carol Westberry, an HR compliance specialist in Tampa/St.Pete:

“What happened to the Oncale vs.Sundowner Offshore Services case law?  I can’t even imagine what would have happened if this had been a male on female.”

Re’hab Karim, an HR specialist in the Stockton, CA area:  

“Very inappropriate and gender should not matter.  This is wrong and immediate action required.”

Punitive damages are generally difficult to obtain.  And under Supreme Court precedent, punitive damages greater than ten times an award of compensatory damages is generally considered “grossly excessive,” raises due process issues, and is likely to be struck down or reduced by a court.

That is what makes a new decision from a federal appeals court so significant – in a Title VII case in which plaintiff recovered $1 in “nominal” damages the Court awarded plaintiff the full Title VII cap of $300,000 in punitive damages.  Three hundred thousand times the compensatory damages award!

See Arizona v. ASARCO LLC, 2014 BL 346185

money damages : Piggy bank Stock Photo

After an eight-day trial in a sexual harassment case, the jury awarded plaintiff no compensatory damages, but awarded $1 in nominal damages and $868,750 in punitive damages.  The Court applied “the due process analysis in [the US Supreme Court’s] BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), [and] concluded the punitive damages award was not unconstitutional but, given the $300,000 cap on compensatory and punitive damages found in § 1981a(b)(3)(D)[the Title VII damages statute], reduced the award to $300,000.”

The Court examined the elements set forth in the Gore analysis as to punitive damages:  “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.”

After this analysis, the Court held in the case that:

“there is significant and compelling evidence that management was aware of, and did little to resolve, lewd, inappropriate, and sexually aggressive behavior directed to [plaintiff]; sexually explicit, targeted pictures of [plaintiff] on the walls of the bathroom rented specifically for her use; and overly aggressive management and criticism of [plaintiff]  by supervisors. [Plaintiff]  complained to management multiple times. The sexually explicit graffiti in the bathroom was not removed while she was working in the filter plant.  As the district court correctly noted, to the extent ASARCO did have an antidiscrimination or harassment policy, the existence of such a policy alone is not enough to save it. …

Further, the award is consistent with, and in some cases smaller than, punitive damages awards in other Title VII and 42 U.S.C. § 1981 cases we have considered.  … “

“In sum,” the Court stated, “we conclude that punitive damages awards conferred under § 1981a comport with due process. The statute provides specific notice of proscribed conduct. It specifies the maximum amount of damages that can be awarded, and incorporates both specified compensatory and punitive damages within the cap. The $300,000 dollar amount of the cap provides an extremely limited potential for recovery, and has not changed, nor been adjusted for inflation, since its adoption in 1991. There is nothing in our consideration of the Gore factors that would alter that conclusion. The record supports the district court’s conclusion that the punitive award was made in conformance with the statute and was not otherwise in violation of due process.”

money damages : A fist full of paper money money, dollars, smashing through the background, or wall.

Takeaway

Employers must be aware that under the federal anti-discrimination laws, even if a plaintiff is awarded a truly nominal sum after trial, the employer still may be socked with not only substantial punitive damages, but also reasonable attorneys fees.   All in all not a happy result.

Better to preemptively train your managers and employees well, have a good, solid (and updated) employment manual, and lead from the top down in terms of respect and zero tolerance in the workplace.

 

 

 

A supervisor allegedly grabbed and squeezed his subordinate’s nipple, and took a towel and rubbed it on the employee’s crotch, according to the opinion of a federal appellate court.  

The employee sued, claiming hostile work environment, and claimed that the supervisor “received some perverse sexual gratification” from these acts.

Several other employees complained about similar conduct from the supervisor.  

workplace harassment : Young attractive woman and workplace harassment Stock Photo

However, the federal court found that as a matter of law there was no sexual harassment or hostile work environment, and so granted summary judgment for the employer.

All of the employees subjected to what the Court said were “manifestly inappropriate and obnoxious” acts were male 

Just asking: Would the result have been different if the employees were female?  

The case is a little more complicated than this because of the requisite elements of Title VII that have to be met by a plaintiff, but I wonder if the Court, faced with a female victim who presented these same allegations, would have treated her case the same way.   

 

Link to casehttp://www.bloomberglaw.com/public/document/Donald_Rickard_v_Swedish_Match_North_America_Docket_No_1303729_8t.

 

 

The Stage News in the UK reports on the fairly shocking results of a survey commissioned by the Joint Industry Stunt Committee about harassment and bullying in the stunt performer industry.  Link:  http://www.thestage.co.uk/news/2014/12/bullying-sexual-harassment-rife-stunt-industry-survey-finds/ 

stunts : Concept of a business man who defies all obstacles

Seems that we report fairly frequently on surveys in various industries and professions, and every one seems to reflect substantial harassment and/or bullying to one degree or another.  To those in the HR or diversity fields:  has any workplace or societal progress been made?

The UK survey found that:

1.  Close to half of all TV and film stunt performers have been bullied “frequently or sometimes,” and/or sexually harassed.  The bullies were “most likely to be fellow members of the stunt team.”

2.  Approximately 80% were victim to insulting behavior or words;  more than 60% were victims of malicious rumors and/or “ridicule or demeaning” actions.

3.  Greater than half had been picked on, and almost 40% had been victims of violent threats.

4.  More than a third of those reporting felt “uncomfortable and unsafe” in the workplace.

Unsurprisingly, 90% of those so victimized did not report these events to managers “for fear of not getting work in the future.”

Takeaway:  The stats speak for themselves.  We can only repeat that as long as harassment and bullying are societal problems, employers must keep conducting appropriate periodic training of managers and employees, and keep pushing and insisting on compliance with appropriate workplace anti-discrimination and anti-harassment practices and policies.