When it is signed into law, HR 4445 will amend the Federal Arbitration Act (or FAA) to invalidate pre-dispute arbitration agreements and pre-dispute joint-action waivers involving claims of sexual harassment and sexual assault.  Specifically, Section 402(a) of the law would provide that:

Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or pre-dispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

The law would also require that determinations about the applicability of the law to arbitration agreements would be decided by the courts – not an arbitrator.  As written, the law would apply to “any dispute or claim that arises or accrues on or after the date of enactment of this Act.”

Effectively, arbitration agreements requiring an individual to arbitrate a future claim of sexual assault or sexual harassment will be unenforceable if they accrue after HR 4445 is signed into law.  Likewise, agreements requiring an individual to proactively waive their right to participate in a joint, class, or collective action of a future sexual assault or sexual harassment claim are also unenforceable.  Under HR 4445, the aggrieved party would have the ability to choose whether to arbitrate their claims or file a lawsuit in court.

To be clear, this law is limited to disputes involving claims of sexual assault or sexual harassment.  The HR 4445 defines sexual assault and sexual harassment broadly, and both definitions encompass actions constituting sexual assault and sexual harassment under federal, tribal, or state law:

Sexual Assault Dispute means a dispute involving a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18 or similar applicable Tribal or State law, including when the victim lacks capacity to consent.

Sexual Harassment Dispute means a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.

Bottom Line

Once HR 4445 is signed into law, employers should be aware that portions of their existing arbitration agreements may be unenforceable.  While employers are barred from entering into these types of agreements, HR 4445 provides that employees cannot be compelled to pursue their claims in arbitration.  Instead, HR 4445 permits employees to choose whether or not to pursue arbitration or to file their action in court.

Other types of employment claims may still be subject to mandatory arbitration and joint-action waivers, but HR 4445 makes clear that they cannot be enforced against claims of sexual assault and sexual harassment.

The post Congress Passes Law Invalidating Forced Arbitration Agreements for Sexual Assault/Harassment Claims appeared first on Felhaber Larson.

Recently, the Minnesota Supreme Court was asked to revelauate this standard to determine if it needed to be modified or relaxed.

How It All Started

Assata Kenneh worked for Homeward Bound, Inc., an operator of residential care facilities for disabled people. When she transitioned to her new role as Program Resource Coordinator, she met and began interacting with Maintenance Coordinator Anthony Johnson. Kenneh alleged that Johnson almost immediately began engaging in various sexually oriented behaviors toward her, including:

• Complimenting her haircut and suggesting that he could come to her home and cut her hair;
• Telling Kenneh, as he stopped to help her with a stuck drawer, that he “likes it pretty all day and all night” and that he liked “beautiful women and beautiful legs.”
• After suggesting that Kenneh take some cake left over from a party the previous day, he stated “I will eat you—I eat women.”

Kenneh complained but the Human Resources Department’s investigation was deemed “inconclusive.”  Kenneh was informed, however, that Johnson would receive additional sexual harassment training and would be instructed not to be alone with her.

According to Kenneh, Johnson was undeterred and actually increased his interactions with her.  She alleged that he would stop by her office and block her door with his body while calling her pretty and sexy, and making suggestive gestures with his tongue.

Employee’s Internal Complaint Goes Nowhere

Johnson complained again but received little help.  She then asked to go back to her previous, flexible schedule that would minimize her contact with Johnson.  Homeward Bound declined the request and ended up terminating Kenneh after she arrived late to work and was unprepared for a meeting.  Kenneh then sued for sexual harassment under the Minnesota Human Rights Act (MHRA), among other claims.

The trial court dismissed the claim, noting that the behavior attributed to Johnson did not rise to the “high bar” of severe or pervasive conduct necessary to establish a hostile work environment.   While finding some of the behavior “boorish and obnoxious”, and other actions “objectively and subjectively unacceptable”, the judge concluded that Johnson’s overall pattern of conduct  just “does not constitute pervasive, hostile conduct that changes the terms of employment and exposes an employer to liability under the Minnesota Human Rights Act.”

The Minnesota Court of Appeals affirmed the dismissal, prompting Kenneh to take the case to Minnesota Supreme Court.

Legal Standard Stays the Same

Minnesota Courts have always followed Title VII (the federal anti-discrimination law) in evaluating hostile work environment claims, requiring proof of sexually oriented behavior that is so severe or pervasive as to alter the victim’s working conditions.  Still, Title VII and the MHRA are different statutes and the Minnesota courts have not hesitated to forge their own interpretive path when they felt that doing so was justified.

Kenneh’s appeal to the Minnesota Supreme Court was premised upon her plea that it was time for Minnesota to diverge from reliance on federal law and to impose a less restrictive standard of proof for a hostile work environment.  Kenneh argued that doing so would be consistent with the MHRA’s explicit directive that the law should be liberally construed.  Homeward Bound countered that the MHRA has been interpreted consistently for 30 years, and since other states tend to use this same standard, it is to everyone’s benefit that a consistent standard be applied from state-to-state.

The Minnesota Supreme Court sided with the employer that it was appropriate to retain  the “severe or pervasive” standard for Minnesota, reasoning that it “reflects a common-sense understanding that, to alter the conditions of employment and create an abusive working environment, sexual harassment must be more than minor.”  Under this standard, the work environment must be shown to be both objectively hostile (i.e. that a reasonable person would find it so) and subjectively hostile (meaning that the victim truly perceived it that way).

And Yet Decisions May be  Different

Notwithstanding the decision to retain the federal “severe or pervasive” standard, the Supreme Court instructed that conclusions drawn from federal cases over time will not necessarily dictate the same results now.  Instead, facts must be viewed through the lens of modern sensibilities and societal change, with an understanding that what people may have tolerated 30 years ago is no longer acceptable workplace behavior.

Against this backdrop, the court first looked at the frequency of the alleged conduct, noting that there were at least five separate incidents in four months, combined with almost constant references to Kenneh as pretty or sexy whenever he saw her. He was, as Kenneh described him, “somebody who[] talk[s] to me sexually each and every chance he gets, every time he sees me. And he’s talking to me, he’s putting his tongue out, up and down, up and down.”

As for severity, the court noted that Johnson propositioned her, used sexually provocative words and gestures, and could be viewed as having threatened her by virtue of his visits to the office when he blocked her doorway as he engaged in his sexually oriented behavior.

On the whole, the court concluded that Kenneh had presented sufficient evidence to persuade a reasonable jury on an objective basis that Johnson’s behavior was sufficiently severe or pervasive to substantially interfere with her employment or to create an intimidating, hostile, or offensive employment environment.

Bottom Line

Basically, the standard of proof remains the same but how it is applied will be different.  We will have to see how much of an actual change this means for determining the presence of an illegal hostile work environment.

The post Minnesota Courts Still Require Severe or Pervasive Conduct in Hostile Work Environment Claims appeared first on Felhaber Larson.

Here are the five things that EVERY employer should be doing to create a work environment designed to foster respect and minimize risk.

1.  Walk the Walk, Talk the Talk

Employers should communicate through both words and deeds that a respectful workplace is required.  While not an actual legal requirement, a respectful workplace is what employees are now actively seeking and represents the positive alternative to the “hostile work environment” that anti-harassment policies try to prevent.

Creating a respectful workplace starts with leadership, who must not only articulate the requirement but also role-model the behavior that is expected.  When leadership treats employees with respect, employees will better understand that they are required to do the same.

2.  Follow Your Clear Discrimination, Harassment, and Respectful Workplace Policies, Including a Complaint Procedure

Everyone thinks their discrimination and harassment policies are clear and effective, but are they? Do they clearly articulate what behavior is not tolerated?  Do they tell employees who to go to if they have a complaint (and identify multiple different avenues to pursue)?  Do they explain the investigatory process, including non-retaliation provisions?

The most effective way to address and resolve complaints efficiently is to maintain a clear policy and a well-defined process that employees can follow.  Then, be sure to follow the policy once it is invoked – it can be as problematic not to follow your written policy as it is not to have a policy at all.  Maintaining and following your policies not only may resolve the complaint, but can also help insulate the employer from liability in any subsequent lawsuit.

And, again, consider implementing a respectful workplace policy.  Instead of just insuring legal compliance, be the employer that sets forth a true vison of what a positive and civil work environment should be.

3.  Regularly Train Your Employees On Your Policies and Complaint Procedure

If employees never see the policy or do not understand it, it will not be effective and your efforts to foster a respectful workplace will be undermined.  New employees should be trained on both your policy and complaint procedure.  Every current employee should get training at least once every two years (some states now require such training, and at least one requires annual training).

When conducting the training, have employees sign in so you can show later on that they attended.  And, don’t be concerned if you receive complaints about disrespectful behavior after the training—this means that the training worked!

4.  Investigate Any Complaint

Do not try to sort out which complaints should be investigated and which need not be.  If an employee makes a complaint—investigate.  Sometimes employees don’t know how to accurately label what they have been experiencing, but a review of the circumstances reveals that the employee is actually raising a valid discrimination concern.

In addition, even if the complaint seems trivial, telling the employee that their concerns are not worth the effort to explore seems to convey a lack of respect that runs counter to the employer’s messaging.  While an exhaustive and multi-faceted inquiry is not required for every complaint, each employee concern merits an appropriate amount of consideration and a respectful response.

5.  Take Action On Complaints

If the investigation uncovers wrongdoing, take action to address the behavior and protect against any repeat in the future.  If an investigation does not substantiate the allegation, that does not necessarily mean that the alleged behavior did not occur.  Perhaps it did happen but it just could not be proved this time.  In such cases, consider what you can do to still validate the employee’s concern and protect against the possibility that offending behavior might still occur in the future.

Finally, always follow up in the days, weeks and months following the investigation.  An employee will feel respected and appreciated if you show that you care that the solutions you came up with were effective and that the work environment is more comfortable now that the complaint has been addressed.

Bottom Line

Employees take their cues from leadership.  An employer that sets clear expectations for respectful behavior and then adheres to those rules from the top down will greatly improve the odds of staying out of the headlines and out of court.

The post 5 Things Every Employer Should Do In the #MeToo Era appeared first on Felhaber Larson.

Easterbrook violated company policy forbidding managers from having romantic relationships with direct or indirect subordinates. In an email to employees, Easterbrook admitted his behavior, acknowledged his mistake and accepted that it was “time for [him] to move on.”

McDonalds is just the latest in a line of large employers facing the fallout of C-suite romances. In recent years, the CEO’s of Intel, Priceline and Best Buy, among others, have been forced out after discovery of their workplace relationships. Of course, the issue is not limited to large multinationals; employers large and small are now grappling with how to address the risks raised by managers engaged in relationships with subordinates.

Lawsuits Drive Up Concerns About Office Romance

Romances between co-workers are actually a relatively common occurrence as full time workers spend roughly half their waking hours on the job.  A recent SHRM survey reported that fully one third of American workers have had a romantic relationship with a co-worker.  Some employers enact policies banning all dating and relationships throughout the workforce.  The majority, however, recognize that the heart wants what it wants and choose to address romances between rank-and-file employees by establishing conduct rules for the workplace and then monitoring to insure a minimum of negative effect.

However, managers and executives engaged in relationships with subordinates is a whole different filet of fish.  The potential for favoritism (or the perception of such) is much higher when the boss is dating a subordinate.  Moreover, when there is an imbalance in power, there is a great likelihood that the subordinate will someday claim that their consent to the relationship was coerced because of the power differential.

Indeed, the #MeToo movement has led many now to question whether true consent is even possible when there is a significant disparity in power between the two relationship participants.  If this is the prevailing view, or becomes so in the future, employers will have little defense to claims brought by the subordinate employee that he or she was seriously harmed by being coerced or manipulated into a non-consensual coupling.

An Ounce of Prevention is Worth a Quarter-Pound of Cure

As a result of these concerns, many employers are now taking the proactive step of simply – but very directly – telling their managers and executives that they must not engage in a relationship with a subordinate.  They declare that the risk of harm posed by such relationships is so great that entering into one is an act of poor judgement worthy of termination.

For anyone considering such a policy, here are a few McNuggets of wisdom:

• Advise all employees of their right to be free from harassment and coercion of this type;

• Clearly identify the levels of management to which the policy against dating/relationships applies;

• Clearly define the behavior that is not acceptable, e.g. “Nobody at the manager level or above may initiate or participate in a romantic relationship with another employee at the same or lower level”;

• Explain the consequences of noncompliance;

• Train the covered group of managers to understand their obligations;

• Encourage people to come forward if they have had relationships in the past so that there are no surprises.

Bottom Line

A well-worded policy, some training and good judgment are a menu for success in averting the harms that might arise from romantic relationships between managers and subordinates.  Let’s just call that fast food for thought.

The post Ouster of McDonalds CEO Likely to Generate a McFlurry of Workplace Romance Policies appeared first on Felhaber Larson.

Stephanie Sims, a bus driver for Metro Transit, walked into the drivers’ lounge where other drivers were watch­ing the Netflix series Luke Cage on the television.  When she noticed nudity on the screen, she demanded that the show be turned off. After a brief disagreement, the show was eventually turned off and Sims left the break room, only to find the show back on when she returned.

Employee Bares Her Feelings

Sims had previously claimed that she twice overheard coworkers having conversations where they used euphemisms for their genitals.  Sims reported both incidents and in each case, a manager instructed the employees making the comments to discontinue such behavior.

Sims complained to several managers about the TV incident, leading them to disconnect and remove the streaming device that provided the access to Netflix on the lounge television. One manager also gave Sims the Metro Transit sexual harassment policy and the union’s telephone num­ber. A different manager spoke to the employee who brought the streaming device to work, and the other em­ployees were reminded about the organization’s respect­ful workplace policies and the prohibition against retaliation.

Sims claimed that a coworker called her at home that night and said the other drivers were angry and planned to con­front her. Nothing actually happened the next day but on the following workday, Sims heard that other employees were angry with her and had threatened her. Sims reported the alleged threats to her supervisor, who responded with suggestions on how she could stay safe.  Sims declined these options and instead submitted a psychologist’s note stating she could not have any contact with other Metro Transit employees.

Sims was placed on administrative leave until she felt safe to return to work. After holding her job open for her for several months awaiting her return, Metro Transit finally terminated Sims, prompting her to sue in federal court for sexual harassment, retaliation, and negligent infliction of emotional distress.  Metro Transit moved for summary judgment (early dismissal).

No Exposure for the Employer

Federal District Judge Paul Magnuson ruled in favor of Metro Transit on all counts and dismissed the case.  On the sexual harassment claim, he concluded that simply seeing a couple of scenes contain­ing nudity and overhearing some unrelated comments just was not enough to constitute severe or pervasive harassment. Moreover, Sims could not demonstrate that Metro Transit failed to take prompt remedial action when she complained, especially since her managers responded to the complaints and immediately undertook effective remedial action.

As for retaliation, Judge Magnuson found that while Sims’ complaints were legally protected, she failed to show that they motivated the decision to terminate her employment. To the contrary, Metro Transit placed her on leave, tried to find ways for her to feel safe enough to re­turn to work, and held her job open for months waiting for her to return. Without a causal connection between the complaints and the termination, the retaliation claim was not viable.

Finally, to recover for negligent infliction of emotional distress, Sims had to prove that she was (1) within a zone of danger of personal physical impact, (2) reasonably feared for her own safety, and (3) suffered se­vere emotional distress with attendant physical man­ifestations. Judge Magnuson ruled, however, that Sims did not establish she was within a zone of danger of physical impact. He also concluded that the threats allegedly made by her coworkers could not be attributed to Metro Transit and that those threats were insufficient to pose any real risk of danger to Sims.

Bottom Line

The first piece of advice is easy – no nudity on the workplace television (or anywhere else on the premises).

In addition, take immediate action to address the behavior. Here, the employer successfully avoided liability and got the case dismissed by making sure the offending action could not recur, giving the com­plaining employee information on how to seek redress, and retraining their coworkers on their respectful workplace policies and their prohibition against retaliation.

Some employers might have been tempted to just tell the employees not to let this happen again and leave it at that. Metro Transit did the right thing by taking the complaint seriously and addressing it properly. That was a prime example of how to respond effectively to a sexual harassment complaint.

The post If There is Nudity on TV, Employer Discretion is Advised appeared first on Felhaber Larson.

Correctional Officer Kelly Hogan alleged that she was victimized by a number of acts of sexual harassment at work.  Among the many allegations were claims of:

• • being targeted with crude comments;
  • having to listen to sexually explicit stories;
  • being the subject of sexually-related gossip; and
  • being sexually assaulted in her car by a coworker.

Hogan complained to her supervisors but they took no effective action in response.

Employee’s Notes Are Discovered

At around the same time, Hogan was the subject of complaints that she was too friendly with the inmates and had been “compromised.”  During investigation of these complaints, it was discovered that Hogan had been keeping handwritten notes to document the harassing behaviors of her co-workers. After the investigation, Hogan resigned and sued the employer for sexual harassment.  The employer brought a motion to dismiss.

To establish a prima facie hostile work environment claim, Hogan needed to demonstrate: “(1) that [s]he was subjected to verbal or physical conduct of a … sexual nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive work environment.” In particular, the working environment must be “both objectively and subjectively offensive, one that a reasonable person would find hostile and one that the victim in fact did perceive to be so.”

The employer focused on whether Hogan subjectively found the work environment offensive.  They pointed out that her notes only referenced one of the many incidents she alleged in her lawsuit, and that when they had asked her about that incident during their investigation, she stated that “it didn’t even matter.”

Taking Notes is Proof Enough

The judge hearing the motion to dismiss explained, however, that a reasonable jury could conclude that Hogan found the sexually oriented behavior at work hostile.  Her remark that the one incident “didn’t even matter” was made in the context of an investigation into her compliance with workplace policies and therefore might not reflect her feelings about in relation to sexual harassment.

In addition, the fact that Hogan felt it necessary to maintain contemporaneous notes about her work environment could establish that she was disturbed enough to find the behavior subjectively offensive.  Based upon the totality of the evidence thus far, the judge refused to dismiss the hostile work environment claim.

Bottom Line

It is important to remember that this decision does not mean that the employee won the case; it merely says that she should have a right to proceed to a jury trial to tell her story as to why she felt compelled to keep notes about her work environment.  The employer will still have the opportunity to persuade the jury that the notes do not prove that harassment occurred and that their silence on all but one of the alleged events should be viewed as evidence that those events never actually occurred.

Still, it is troubling that the judge concluded that the mere act of taking notes was sufficient to possibly demonstrate that the employee subjectively found the workplace hostile.

This reminds you to take harassment claims seriously and follow your policies when claims are made.  If an employee has gone to the trouble of documenting the behaviors, ask to see the notes, review them carefully and follow up on all hints of harassing behaviors.  If you follow these rules, those notes actually could end up benefiting you in a harassment claim even more than they benefit your employee .

The post Employee’s Notes About Workplace Behavior Help Establish Harassment Claim appeared first on Felhaber Larson.

Today’s Gossip . . .

Evangeline Parker worked for Reema Consulting for about 18 months, receiving a number of promotions up to assistant operations manager at her location.  According to Parker’s lawsuit, this drew the ire of co-worker Donte Jennings who started at the same time as Parker but now found himself reporting to her.  He started spreading a rumor that Parker has slept with her supervisor in order to get her last promotion.  The facility’s senior manager, Larry Moppins, allegedly joined in the gossip and occasionally needling the supervisor that he was going to get divorced if his wife found out he had slept with Parker.

Parker claimed that her male co-workers, including some that she now supervised, began to treat her more disrespectfully.  She complained to Moppins, who allegedly responded by accusing her of “bringing the matter into the work place” and saying that he would no longer be able to recommend her for further promotion.  A few days later, when Parker sought to continue their conversation, Moppins supposedly lost his temper and angrily suggested he should have fired Parker when she started making a big deal about “this BS rumor.” At that point, Parker filed an internal complain of sexual harassment against Moppins and Jennings.

Parker alleged that she continued being subjected to harassment, including a retaliatory harassment claim filed by Jennings.  A few weeks later, she was called into a meeting wherein Moppins issued her two corrective actions – one for performance and the other for supposedly retaliating against Jennings.  Parker was then terminated.

. . . is Tomorrow’s Lawsuit

Parker sued in federal court for sexual harassment (among other claims), but the lower court judge dismissed the case on the grounds that the company’s actions were not based on sex.  The judge declared that while the rumors were offensive, they were not based on gender because rumors about having sex to get a promotion can involve anyone of the same or different genders.  As such, the rumors were based on conduct, not gender, and spreading them therefore could not have been a discriminatory act based on sex.

Parker appealed to the Fourth Circuit Court of Appeals who reversed the lower court and revived her lawsuit.  The appeals court observed that Parker based her claim on “a deeply rooted perception — one that unfortunately still persists — that generally women, not men, use sex to achieve success.”  Given that the US Supreme Court’s Price Waterhouse decision had already decided that claims based on gender stereotypes are viable under Title VII, the appeals court concluded that Parker had indeed stated a plausible claim of differential treatment based on sex.  They explained:

“[T]raditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society,” and “these stereotypes may cause superiors and coworkers to treat women in the workplace differently from men…”

The Court concluded that distinguishing between harassment based on gender and harassment based on conduct is “not meaningful” when the conduct (spreading a rumor about a woman having sex to get a promotion) is actually related to gender.

Bottom Line

The Fourth Circuit’s opinion basically admonishes us to “get real” about the fact that while certain sorts of workplace behaviors conceivably could impact both men and women, it is women who often bear the brunt of those actions.  As such, those behaviors are gender-based and can be addressed in sex discrimination and sexual harassment claims.

It will be interesting to see if other federal courts pick up on this reasoning and whether they might also apply it to other sorts of discrimination claims where stereotypes play into workplace behavior.

The post (Whisper) Did You Hear The One About The Manager Who Spread a Sex Rumor and Ended Up in Court? appeared first on Felhaber Larson.

At present, five states (California, Connecticut, Delaware, Maine, and New York) have enacted laws that mandate sexual harassment training for private sector employers.  Most require annual or biannual training for all employees, and include special instructions for supervisors/managers.  In the other 45 states, mandatory training is limited to governmental employees or the state simply recommends (but does not require) that the employer provide sexual harassment training.  Minnesota is one of the states that thus far has simply recommended training.

New Trends

In just the past year, both California and New York have passed extremely robust legislation requiring sexual harassment training.  Both require “interactive training,” which are specifically defined to exclude “watching a movie” or “reading a handout.”  California, which just beefed up its long-standing training requirements, goes so far as to specify that the training must be interactive, including responses to questions, skill-building activities, and hypotheticals.  California also mandates that the trainers must be an attorney, college professor, or an HR professional with at least 2 years of experience.

While there is no indication that this sort of legislation is actually in the works here in Minnesota, it would not be surprising to see a push for it in the next year or two.  Minnesota’s Human Rights Act has historically been among the first of the state discrimination laws to add protections for employees.  For example, reasonable accommodation for disabled persons and a ban on pregnancy discrimination were added to the Minnesota statute in the late 1970’s, well before their inclusion in federal legislation or the laws of most other states.  Mandatory sexual harassment seems like a likely candidate to continue that trend.

Bottom Line

Though not required just yet, Minnesota employers are well-advised to heed the call and implement (or continue) regular sexual harassment training for all employees and supervisors/managers. This will help build a better work culture while helping to avoid liability for sexual harassment claims – two very worthwhile goals.

The post States Are Beginning to Require Sexual Harassment Training appeared first on Felhaber Larson.

This guidance offers Minnesota employers a glimpse of what legislation might look like if our legislature passes a similar law, and provides useful tips on how, regardless of any such law, Minnesota employers might consider addressing sexual harassment prevention in their work sites.

What the Guidance Includes

The New York statute, passed in April 2018, requires employers operating within the state to adopt and distribute a written sexual-harassment prevention policy. In addition employers are required to implement annual “interactive sexual harassment training” by October 9, 2018.

On August 23, 2018, the New York Division of Human Rights issued draft materials offering guidance on the new law’s requirements. These documents are open for public comment until September 12th, and therefore may change before they are finalized, but even in draft form should provide useful advice to assist employers in implementing policies that comply with their new legal obligations.

Specifically, the Division issued the following documents for public review:

• A model harassment prevention policy compliant with the new law.
• A model employee complaint form.
• Model training materials to meet the statute’s “interactive training” requirement.
• A Frequently Asked Questions (FAQ) document.

The materials provide guidance regarding what constitutes an “interactive” training. Specifically, to be interactive, the training must:

• Ask questions of the employees in the program;
• Include a Q&A portion;
• Use a live trainer to conduct the training, or at the minimum make one available to answer questions; and
• Require employee feedback following the training.

As long as a live trainer is available to answer questions, an online training may be sufficient.

Who Must Receive Training and When

The materials also clarify the department’s position regarding who must receive the training and when it must be given:

• Current employees must receive compliant training on or before January 1, 2019 (it is unclear under the guidance whether this means that if employees had training prior to the release of these materials if it would still be sufficient, as the requirement is for annual training).
• New hires must receive the training within 30 days of hire.
• Even if employees work in New York for just one day they still must receive the training annually.

Employees must be provided with a copy of the sexual harassment prevention policy. An electronic copy is fine as long as hard copies are also available during work hours.

Bottom Line

New York employers now know what their state considers necessary in order to meet their legal obligations under the new law.  Although these are things that have routinely been recommended as preventive measures for a long time, the failure to implement them will now likely be viewed as independent legal violations in the State of New York.

Employers in Minnesota and around the country are now watching to see if similar laws begin to crop up elsewhere.  So are we.

The post New York Guidance on Sexual Harassment Prevention Offers Insights for Minnesota Employers appeared first on Felhaber Larson.

Sheri Minarsky endured several years of sexually oriented conduct directed toward her by her supervisor, Thomas Yadlosky, the former Director of Susquehanna County’s Department of Veterans Affairs. Among other things, Yadlosky repeatedly and forcibly kissed Minarsky on the lips, pulled her against him, came up behind her to massage her neck and sent sexually-suggestive messages to her work computer.

Yadlosky apparently behaved this way toward other employees as well, twice receiving reprimands for it. Minarsky never reported Yadlosky’s behavior, however, because she knew he was “nasty” and with her daughter needing treatment for cancer, she could not take any chances on losing her job and health insurance.

Yadlosky eventually was terminated for harassing other female employees. Minarsky remained in her job but continued feeling uncomfortable due to an increased workload and her new supervisor’s constant questions about what had taken place regarding Yadlosky. She eventually quit and sued Yadlosky and her former employer for sexual harassment. The trial court dismissed the case, prompting Minarsky take her claims to the Third Circuit court of Appeals.

When is an Employer Liable for Harassment by a Supervisor?

When a hostile work environment is created by co-workers, an employer will be held responsible if it is shown that the employer knew or should have known of the offending behavior and failed to take timely and appropriate corrective action.

When a supervisor creates the hostile work environment, the employer will be held strictly liable if the victimized employee suffers a tangible employment effect, e.g. termination, failure to promote or some other identifiable adverse impact to the job.

The Faragher/Ellerth Defense

Where a supervisor’s harassment does not culminate in a tangible employment action, an employer has a very narrow window of opportunity to escape liability. In 1998, the US Supreme Court decided two companion cases (Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth) that created an exception to strict liability for supervisory harassment. This exception, now deemed the “Faragher/Ellerth defense”, provides that an employer can avoid liability for a hostile work environment caused by a supervisor if it is shown that:

1. The employer exercised reasonable care to prevent and promptly correct harassing behavior; and

2. The employee unreasonably failed to take advantage of preventative or corrective measures made available to her.

The “reasonable care” standard typically requires such measures as maintaining and publicizing an effective anti-harassment policy and effectively responding to and resolving harassment incidents of which the employer is aware.

The Third Circuit’s #MeToo Decision

The Third Circuit reversed the lower court’s dismissal of Minarsky’s case, ruling that it was up to the jury to decide whether the employer proved the first element of the Faragher/Ellerth defense in light of their awareness of Yadlosky’s behavior.

In addition, the Appeals Court determined that the jury should determine the reasonableness of Minarsky’s failure to report the harassment due to her fears of retaliation and the futility of reporting the harassment. In this regard, the Court acknowledged the impact of the #MeToo movement in explaining:

This appeal comes to us in the midst of national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims. It has come to light, years later, that people in positions of power and celebrity have exploited their authority to make unwanted sexual advances. In many such instances, the harasser wielded control over the harassed individual’s employment or work environment. In nearly all of the instances, the victims asserted a plausible fear of serious adverse consequences had they spoken up at the time that the conduct occurred. While the policy underlying Faragher-Ellerth places the onus on the harassed employee to report her harasser, and would fault her for not calling out this conduct so as to prevent it, a jury could conclude that the employee’s non-reporting was understandable, perhaps even reasonable. That is, there may be a certain fallacy that underlies the notion that reporting sexual misconduct will end it. Victims do not always view it in this way. Instead, they anticipate negative consequences or fear that the harassers will face no reprimand; thus, more often than not, victims choose not to report the harassment.

Based on this analysis of the current social climate, the Court declined to make a determination and allowed the fact-sensitive inquiry of whether the employer and the employee’s actions were reasonable to be decided by the jury.

Bottom Line

While the Third Circuit’s decision is not binding in Minnesota, the Minarsky decision indicates that courts may be rethinking when an employee’s failure to report supervisory harassment is reasonable. Given the tenor of the times, as well as the pro-employee slant of a typical jury, this decision is very troubling.

Employers must remain diligent by enforcing and publicizing their harassment policies, investigating complaints of harassment, and taking effective action to stop harassment in their workplaces.

The post Court says #MeToo May Prevent Supervisor’s “Not Me” Defense in Sexual Harassment Case appeared first on Felhaber Larson.

In 2005, two of Koko’s caretakers filed a million dollar lawsuit for sexual harassment and wrongful termination against Koko’s primary handler, Dr. Francine Patterson, and the Gorilla Foundation of which Patterson was president.  According to the lawsuit, Patterson told the two female caretakers to bare their breasts in front of Koko as a sort of bonding ritual that she herself had followed with Koko for years.  Patterson allegedly interpreted certain of the gorilla’s hand movements as demands to see women’s exposed breasts and told the two handlers that if they did not comply with Koko’s requests, their employment would be impacted.

Monkey See But Handlers Won’t Do

The two caretakers refused to do as Patterson directed and eventually were both terminated from their jobs, prompting them to sue. A third employee joined the suit claiming that her promised research job was nothing more than cleaning cages and mopping floors in an unpleasant and unsanitary environment.  The lawsuit also alleged that various safety violations and unpaid overtime.

Patterson and the Foundation defended, claiming that Patterson never translated Koko’s gestures as sexual advances or that anything Patterson said related to sex in any way.  Koko declined to comment but it can be assumed that she considered the matter as nothing more than the ordinary “gibbon take” among consenting primates.

The claim was initially thrown out by the court as insufficient to state a proper claim.  After the claimants threatened to re-file the claim with greater detail, the parties settled the case, perhaps because Patterson and the Foundation wished to avoid further exposure or a trip to the ape-peals court.  The terms of the settlement were never announced.

Bottom Line

What do we learn from this unusual case?

First, no lawsuit is ever too strange for our legal system.

Second, some jobs require that employees occasionally endure behaviors that might otherwise be considered offensive or inappropriate in the workplace.  For example, long term care workers often encounter patients or residents who are not able (or willing) to refrain from offensive statements. Art gallery and museum workers may be exposed to paintings of nude people or peculiar behavior, and legal assistants may have to transcribe a lawyer’s report of the latest sordid harassment claim.

In any such instance, employers should explain these possibilities up front, secure the applicant’s or employee’s acknowledgment that they understand their unique circumstances and offer assurances that efforts will be made to address any concerns that might eventually arise from working in such environments.

Finally, where employees are required to deal with possibly offensive behavior, check in with them on a regular basis (and document it) to make sure that the workers are still comfortable in the environment.

Without these precautions, you could find yourself defending a lawsuit that is so weird it drives you bananas.

The post Harvey Weinstein, Matt Lauer and…Koko the Sign Language Gorilla? appeared first on Felhaber Larson.

The “severe or pervasive” standard for sexual harassment was established more than 30 years ago in the United States Supreme Court decision entitled Meritor Savings Bank v. Vinson. The standard was intended to insure that a prospective litigant is basing a legal claim on more than just isolated or relatively mild behavior.  Instead, there has to be proof that sexually charged behavior “altered the conditions of employment and created an abusive working environment.”

Not a General Civility Code

The “severe or pervasive” standard has been cited as method by which courts prevent anti-discrimination laws from imposing a “general civility code” on the workplace.  The standard is frequently the basis for dismissing dubious harassment claims based on relatively innocuous behavior (e.g. eye rolls, random looks and uncivil remarks) or behavior that occurs so infrequently as to not truly change the nature of the workplace.

Ultimately, persons claiming harassment must show that a reasonable person in their circumstances would find that the challenged behavior made the workplace hostile or abusive.  Without severity or pervasiveness as guideposts for their decisions, judges and juries will almost certainly expand their view of what sorts of behavior create an actionably offensive workplace.  In short, we could expect more claims and a lower threshold for proving those claims. That is good news for plaintiffs’ attorneys but an ominous sign for Minnesota employers.

Bottom Line

While the #MeToo movement has brought significant and welcomed attention to the need to take sexual harassment seriously, that cause will not be advanced by opening the floodgates of litigation for dubious claims or innocuous behavior.  Therefore, we will keep our eye on this very troubling new development.

Interestingly, the amendments would eliminate the “severe or pervasive” only for sexual harassment. Hostile work environment claims based on other protected statuses, such as race, disability or age would remain subject to the “severe or pervasive” standard in Minnesota.  Was this a value judgement that distinguished between different sorts of harassment or merely a trial balloon for possible amendments to come?

The post Dangerous New Sexual Harassment Definition Proposed in Minnesota appeared first on Felhaber Larson.

Lauren Hales was working at Casey’s in Burlington, Iowa, when a male customer asked if she had a boyfriend and commented on her appearance. He told her where he lived, where he worked and what type of vehicle he drove. He then shared that his car had a dashboard camera “and, using a sexually suggestive tone, that he liked to film things.”

Employee Begins to Smolder

Despite feeling “annoyed and uncomfortable” with the customer, Hales did not respond to him, nor did she say anything to the two police officers who had entered the store to make a purchase.  Instead she told a co-worker that a customer had been “hitting on her” and that she was going to go outside for a cigarette to get away from him.  When the co-worker asked Hales why she was going outside if the customer was still in the store, Hales responded that she could take care of herself.

The customer followed Hales outside and blocked the entrance to the store.  After he made several more inappropriate comments, Hales asked him to “back off” and extended her cigarette toward him in an attempt to make him move away.  The customer instead stepped toward Hales, burning his left arm on the cigarette as he drew near.  He then reentered the store, and Hales followed but took no action to contact anyone at Casey’s to report the incident.

The customer returned to the store the next day and reported that Hales burned him with a cigarette.  The manager reviewed the surveillance tapes and interviewed Hales, who reported that she burned the customer to defend herself.  The manager terminated Hales, prompting her to sue for sexual harassment and retaliatory termination under Title VII.  The trial court dismissed the case, and Hales appealed to the Eighth Circuit Court of Appeals, which encompasses Minnesota.

Claim is Reduced to Ashes

The Eighth Circuit affirmed the dismissal, concluding that this single incident was not sufficient to meet the legal standard of being severe or pervasive enough for a reasonable person to find that their work environment was hostile or abusive.  The customer did not touch her or overtly threaten her, and Hales felt comfortable enough to remain on the premises and not seek assistance from anyone.  As such, she failed to meet her obligation to prove a hostile work environment

In addition, even if a hostile work environment existed, Hales failed to meet her obligation of showing that the employer knew of the harassing conduct but failed to take adequate remedial action.  While this same customer had previously been reported for making sexually oriented comments to employees, the court noted approvingly that he had been warned that he would be banned from the store and the police would be called if he ever repeated such behavior.  Moreover, since Hales never reported the customer’s behavior, the company cannot be faulted for failing to take action about something of which they had no knowledge.

Bottom Line

It has been said that crazy facts make interesting law, and that was certainly true in this instance.  An employer cannot absolutely control what happens at every location at all times of the work day.  They need only make sure that their policies are in order, that they provide an appropriate response when claims are reported and that they take effective remedial action when misconduct is determined.

Casey’s passed these tests with flying colors and it allowed them to extinguish this claim very effectively.

The post Court Snuffs Out Harassment Claim – No Ifs, Ands or Butts appeared first on Felhaber Larson.

Employers also may feel the need to communicate their response either internally or to the public, particularly when a high-level executive is being removed or when the employer has come under public scrutiny as a result of the allegations.

But what rules should employers follow in offering this information, particularly when a potential new employer asks for a reference for the recently terminated employee?

New Employer Gets the Green Light on Hiring the Harasser

A recent example of “what not to do” appeared in a recent report that revealed how the American Red Cross fumbled the discipline of one of its top executives, Gerald Anderson, who was twice accused of sexual assault and harassment and whose employment was terminated in October 2012.  This occurred after two female Red Cross employees reported Anderson’s misconduct.  The first claimed that Anderson sent her inappropriate and disturbing emails where Anderson insisted that they have a romantic relationship.  The second woman reported that she had after-work drinks with Anderson and other coworkers, and then woke up naked in Anderson’s bed the next morning without knowing how she had gotten there.

The Red Cross conducted an internal investigation and ultimately parted ways with Anderson as a result.  However, following his departure, Red Cross senior vice president David Meltzer lauded Anderson internally, including sending a company-wide email announcing that it was Anderson who “decided to make a change,” and that the Red Cross was “grateful” for Anderson’s leadership and “two decades of dedication and hard work in furthering the international mission of [the Red Cross].”  Meltzer also allegedly told employees in a staff meeting that he was upset Anderson was leaving and that, if it were up to him, Anderson would continue working at the Red Cross.  Just two weeks later, Meltzer was promoted to general counsel for the entire Red Cross, a job that included overseeing the handling of all employee misconduct cases.

Red Cross is Feeling the Blues

According to this report, another organization, Save the Children, hired Anderson in 2013 based on the “very positive references” received from the Red Cross, only to discover the complaints about Anderson’s sexually oriented behavior in the last couple of weeks.  While there have been no allegations of misconduct during his tenure there, he has been placed on administrative leave pending further review, and Save the Children now has to deal with the fallout of having hired Anderson’s without learning of his tarnished background.

The Red Cross acknowledges that the “laudatory language used in association with Mr. Anderson’s departure was inappropriate and regrettable, given the circumstances.” They also announced that they are taking “appropriate disciplinary action” regarding the verbal employment reference for Anderson and have apologized to Save the Children. Even so, they will have to endure the fallout from appearing to foster an environment that seemed intent on protecting a wrongdoer and fostering more opportunities for harassment to occur. One interesting bit of fallout is the fact that Meltzer has now resigned from the Red Cross,announcing in his resignation notice that he regretted how he handled the matter.

Bottom Line

The Red Cross’s mishandling of this situation is a reminder to all employers of the importance of making sure that management is all on the same page regarding the response to alleged harassment.  It is also critical that nobody be allowed to undermine the forcefulness of the company’s response or the credibility of the company’s anti-harassment message.  The two employees in this case reported that they felt vulnerable and disillusioned by the fact that their employer seemed more interested in covering their tracks than in protecting their employees.

As for employment references, employers continue to face a very difficult choice.  On the one hand, many employers fear liability should the object of a negative reference conclude that the reference is false and defamatory.  On the other, employers do not wish to be highlighted and haunted, as was the Red Cross, for practices that enable harassment to continue.  In most cases, the best practice remains confirming only dates of employment and positions held.  In all cases, avoid giving glowing recommendations for former employees who do not deserve them.

The post Does “MeToo” Compel Job References Saying “Not Him”? appeared first on Felhaber Larson.

Amidst this rising tide of revelations, some have begun to question whether sexual harassment training has been effective or whether it is just window dressing for employers seeking to insulate themselves from possible legal claims.  A few have suggested that it harms more than it helps.

Does Sexual Harassment Training Work?

The knock on sexual harassment training is that it has not worked to prevent or reduce incidents of harassment. In a piece appearing recently in the Washington Post, for example, the author suggests that despite mandatory training for California companies with 50 or more employees, we still learned of sexual harassment at some large employers (e.g. Uber) and within California state government.  The article then states “Likewise, virtually all large employers in the United States have anti-harassment policies and complaint procedures in place. Yet workplace sexual harassment remains common.”

The fallacy here (other than choosing to extrapolate gross generalities from anecdotal events) is the expectation that merely enacting and announcing policies is somehow supposed to remedy what is seemingly a pervasive societal ill. It is as if, in another arena, we simply lamented “Well, we passed laws against drug use so why are there so many drug users out there?”

Diving a little deeper, we read that harassment policies and training do not work because employers often misidentify harassment as just poor supervision, or that so much effort is expended protecting the rights of the accused that responses to claims are too tepid. We hear that the legal standard is too lenient (the harassment must be severe or pervasive, according to U.S. Supreme Court pronouncements) so why bother reporting?  Further still, as noted in the Washington Post article, some blame for ineffective policies is placed on the victims, who are said to remain silent because they wish to be seen as  team players or fear retaliation if they speak up.

Sorry, but that diagnosis misses the mark.  Sexual harassment policies and training are important, and they do work, provided that we think of them not as a “magic pill” that instantly cures a sickness. Instead, they are merely elements (albeit important ones) of a healthy lifestyle dedicated to preventing the disease of sexual harassment.

What’s wrong with avoiding liability?

First, let’s dispense with the obvious. For employers, preventing liability is a worthwhile endeavor.  Employers expend a tremendous amount of time, energy and expense in defending a lawsuit.  Even if the employer prevails, it is a drain on resources that could have been expended in other more useful ways.

Efficient allocation of resources benefits everybody, and employers should not feel ashamed when recognizing that.

Workplace training is an important educational tool

Employees need to know the rules. It can be confusing to hear something suggestive or risqué on television or in a social gathering, only to be admonished for repeating it word-for-word the next day at work.  Employees need to understand why Steve Carell’s smirking response (“that’s what she said”) to every sexual double entendre on “The Office” was inappropriate behavior in a real life workplace even as it became a catch phrase in popular culture.  Context is critical in sexual harassment and we do employees a big favor in letting them know that before they engage in troubling behavior.

It is also a valuable tool for supervisors and managers so that they understand their vital roles in enforcing the workplace policies. As agents of the employer, supervisors and managers are perceived as speaking for the company.  Therefore, their actions set the tone for what will be perceived as the employer’s level of tolerance for sexually oriented behavior at work.  In addition, they are often the entry point for employees who seek to report harassment and invoke the protections of the company harassment policy.  Supervisory personnel therefore absolutely must know how to respond to such reports in order for employees to believe that the policy is meaningful.

Training is only effective if the employer stands behind it

Sexual harassment training is meaningless, and perhaps even counterproductive, if employers do not follow through on their obligations under the policy. What good is it to inform employees of their rights to report harassing behaviors if little or no action is taken once the reports are made?  Even if some action is taken, the action must be seen as commensurate with the offense or again, employees will not come forward.  Instead, they will seek out lawyers who will have a field day pointing out the employer’s hypocrisy to a judge or jury.

For a policy and training to be effective, the workforce must have confidence that the employer means what the policy says. We have read about Harvey Weinstein negotiating an employment agreement that prevented him from being fired if he agreed to pay the judgments personally in sexual harassment lawsuits. Similarly, former Fox News personality Bill O’Reilly allegedly had a contract that prevented him from being fired for sexual harassment unless the claims were proven in court.

Where employers make it clear that certain people are exempt from accountability for their behavior, the clear message is that we view retaining those individuals as a higher priority than providing a legal workplace that is free from the debilitating and demoralizing effects of sexual harassment.  In such cases, the critics are right – sexual harassment policies and training probably are ineffective.

Training must be relevant and dynamic

While the more salacious cases get the most press, the truth is that most sexual harassment issues are more subtle and nuanced. Sexual harassment typically involves a pattern of remarks or behaviors that may just seem awkward or borderline in isolation, but which take on greater meaning when the object of those behaviors begins to feel intimidated or offended as those comments increase in terms of number and aggressiveness.

Training that focuses only on the obvious (but rare) offenses and ignores the more common workplace sexual remarks or behaviors will likely have little meaning for employees.  In fact, it may influence them to believe that the employer does not “get it” and that reporting harassing behavior will be fruitless.  Training must focus on what is relevant to the people who are in the audience.

Bottom Line

It seems misguided to claim that sexual harassment policies and training do not work because they have not yet eradicated the problem that they are designed to address.   Indeed, it could be argued that things could be much worse but for the employer community’s willingness to take on the issue through policies and training.

In our view, sexual harassment training remains a valuable tool in maintaining a productive and harmonious workplace that is free from the negative effects of sexual harassment. However, it is only a tool, and it must be exercised as part of a greater design intended to demonstrate to everyone associated with the employer that such behavior is not tolerated.

The post Why is Sexual Harassment Training Getting a Bad Rap? appeared first on Felhaber Larson.

The stories are horrific, both in terms of the conduct that is portrayed as well as in how long it seems to have gone on. The Hollywood casting couch, once thought to be a relic of the past, may still be a popular piece of furniture in Tinsel Town.

Do Nondisclosure Agreements Perpetuate Harassment?

One interesting aspect of this spectacle has been the revelation that Weinstein settled at least eight prior lawsuits alleging sexual harassment or assault and that the agreements documenting those settlements contained nondisclosure clauses. These agreements are now coming under scrutiny for their impact in keeping Weinstein’s behavior hidden for so long.

Nondisclosure agreements are routine features of settlements of employment-related lawsuits (and many other legal claims as well). They almost always bar the employee who brought the claim from divulging the terms of the settlement, and often prohibit as well the disclosure of any of the underlying facts that led to the claim being filed.  Nondisclosure agreements are usually intended to insure that a private agreement between an employer and an employee (or ex-employee) remains private.

Critics contend that such agreements just buy the claimant’s silence so that the employer’s wrongdoing stays out of the public eye. If past victims cannot warn future targets, predators will be allowed to continue their hunt.  Some have even suggested that these agreements should not be enforceable because they conflict with a public policy that favors disclosure of wrongdoing.

The Benefits of Nondisclosure

Yet, nondisclosure agreements also prevent injustice against employers. No doubt, some employment cases are settled because wrongs took place that need to be rectified. However, a very significant percentage of settlements in the employment law realm are based on the desire of both sides for certainty of outcome instead of the vagaries of the legal system.  Many more come about because the expense of defending a claim far exceeds the monetary damages being sought.  These “nuisance settlements” are an unfortunate reality when the time, energy, and expense of going to court is simply too great a burden to justify fighting over a few weeks or months of back wages.

Settling cases for these reasons often benefits everyone. Employers avoid costly and extended legal proceedings, employees obtain a swift conclusion to their concerns, and the public policy favoring collaborative, private resolution of disputes is served.  Without nondisclosure agreements, employers would be reluctant to settle most cases out of concern that other employees would just line up with their hands out hoping for their nuisance payment as well.  In addition, a large segment of the populace presumes that an employer is “guilty” any time they settle a case and are prepared to publicly shame that company through a scorched earth social media attack.

In reality, the typical employer does not enter into a settlement agreement with a nondisclosure clause thinking “Oh good – now we can keep harassing our employees” (although there are reports that Weinstein’s company actually incorporated that concept into his employment agreement).  Most employers use the finality of a settlement to move past a particular situation and move on to the business of correcting whatever issues might have led to that particular claim. As such, nondisclosure agreements can actually help an employer prevent future problems by allowing them to invest their resources into making sure the problem does not recur.

The Truth Lies Behind the Scenes

And therein lies the truth of the Harvey Weinstein matter. Settling cases in the hope of silencing victims is not a viable human resources strategy because, among many other reasons, it simply does not work.  It may get you past an immediate hurdle but there surely will be more such obstacles down the road because predators do not stop all by themselves.  In the case of Harvey Weinstein, as well as for former Fox News personality Bill O’Reilly and O’Reilly’s former boss Roger Ailes, settling harassment claims without addressing the underlying causes just delayed the inevitable.  Harvey Weinstein settled eight harassment cases (that we know of), but he and his company’s board of directors are still facing the music today.

In short, it isn’t the nondisclosure agreement that perpetuates harassment and creates victims.  That happens when employers view the settlement as the end of the problem and fail to take effective steps to insure that there won’t be another claim in the near future…because there surely will be.

Finally, for those that may still think that the harm of silencing victims, even for a little while, outweighs the benefits of nondisclosure agreements, remember that even when the victim settles their claim with the employer privately, they can still file a charge with the Equal Employment Opportunity Commission (EEOC). The EEOC contends that they enforce “public rights” and that a private settlement is not sufficient to divest them of their statutory duty to address and correct illegal discrimination in the workplace.  In such cases, despite the private settlement, the EEOC can investigate the charge but if they issue a finding against the employer, the employee will not be awarded any monetary damages because the employee already waived rights to those damages when they settled.  In this fashion, future targets of harassment can be protected despite a claimant’s entry into a nondisclosure agreement as part of a private settlement.

Bottom Line

Harassers harass – it’s what they do, and they will continue to do it if allowed.

No matter how valuable a harassing employee may otherwise be to the company, that value will eventually be eclipsed by the lawsuits, bad press and other negative fallout that comes with failing to take effective action to prevent further harassment.  Nondisclosure agreements do not create future victims – they come from employers who fail to view settlements and nondisclosure agreements as calls to action instead of a basis for inaction.

The post Don’t Blame Nondisclosure Agreements for Harvey Weinstein appeared first on Felhaber Larson.

David Hylko, Jr. alleged that while working at a U.S. Steel plant in Michigan, he was sexually harassed on a regular basis by Process Coordinator John Hemphill. Hemphill trained Hylko and assigned his work, but both men reported to Area Manager Mark Jobin.

Yes, This is Harassment But…

Hylko alleged that Hemphill kept asking about his sex life, which made him feel uneasy.  In addition, Hemphill grabbed Hylko’s rear end on a couple of occasions, remarking on his “nice firm a**.” In one instance, Hemphill was said to have grabbed Hylko by the crotch so hard that it caused pain.

Hylko complained to his manager and to Human Resources, and was allowed to transfer to a different part of the plant where he would no longer work directly with Hemphill. After Hemphill admitted to some of this behavior, he received a verbal warning and a one-week suspension, was demoted and was required to attend a leadership class.

Thereafter, the harassment stopped but Hylko still decided to resign a few months later.  He ended up filing a sexual harassment lawsuit against the company, which the lower court dismissed.  He then appealed to the 6^th Circuit Court of Appeals.

Hylko first claimed that regardless of the remedial action that was taken, the company was still liable for Hemphill’s harassment because Hemphill was his supervisor and an employer is vicariously liable for the wrongful acts of its supervisors.  The court responded, however, that while Hemphill assigned his work, he did not have authority to “effect a significant change” in Hylko’s employment and therefore was not his actual supervisor.

But what about the fact that the company actually referred to Hemphill as Hylko’s supervisor?  No big deal, said the court – the term “supervisor” has various colloquial meanings in the business world but it has a very specific definition under the law and it simply does not apply to Hemphill in this instance.

…What Part of “The Harassment Stopped” Don’t You Understand?

Hylko shifted gears, claiming that even if Hemphill was not a supervisor, the company was still liable for his conduct because they did not respond reasonably to his harassment complaint.  responded unreasonably to Hylko’s complaint. In particular, Hylko claimed that the company treated men who harassed women more harshly than it treated Hemphill for his harassment of another male.

Wrong again.  The appeals court explained that the employer is not required treat every harassment claim the same.  Instead, they are obligated to make a timely and adequate response, and a response is  adequate if it is “reasonably calculated to end the harassment.” In this instance, the company transferred Hylko while demoting and disciplining the offending employee.   The harassment ended at that point so the company did what it was supposed to do.  Regardless of what the company needed to do to resolve other harassment claims, the company’s response in this instance clearly was adequate.  Hylko’s case was therefore dismissed.

Bottom Line

This case offers a number of good reminders for employers.  First, if someone is not a supervisor, do not call them one.  Supervisors are viewed as agents of the employer and their improper actions could be binding upon them.  The court in this instance was able to see through the casual use of the term and make a good decision but other courts might view things differently.

In addition, the long-standing advice to take timely and appropriate action in response to harassment is still relevant today.  In harassment claims involving non-supervisors, liability is not determined by what occurred but rather, by what the employer did (or did not do) when learning of it.

Finally, always follow up on whatever action is taken.  In this case, the employer prevailed because they showed that their response to the harassment was effective.  How will an employer know that their response to a harassment claim has or has not been effective if they do not monitor and follow up on the resolution on a regular basis thereafter?

The post Court Says Response to Harassment Needn’t Be Equal, Just Effective appeared first on Felhaber Larson.

Well, her appeal may have been too much for the boss’s wife but it apparently was well received by the New York Supreme Court who reinstated her discrimination claims and ordered her case to proceed to trial.

Jealousy Is Green…So Is Money

Dilek Edwards worked as a yoga instructor and massage therapist at Wall Street Chiropractic and Wellness (“WSCW”), which was owned by the husband and wife team of Charles Nicolai and Stephanie Adams.  Nicolai and Edwards worked quite professionally together, though Nicolai once remarked that Adams might become jealous because Edwards was “too cute.”

Nicolai’s prediction was spot on since Adams eventually texted Edwards to say that she was no longer welcome at WSCW and to “stay the f*** away” from Nicolai.  The next day, Nicolai confirmed the termination via email, leading Edwards to sue for sex discrimination under state law and the city administrative code.

Edwards claimed that she was fired because of her looks and that this would not have happened to her if she was male.  The lower court judge disagreed, noting that there was no implication that she was “treated differently than male employees,” or that she was fired because of her “status as a woman.” She was simply the target of a spouse’s jealously which is not a protected status under applicable law.

Lawsuit May Cost a Pretty Penny

The higher court reversed, explaining that firing Edwards to appease Adams’ jealousy over a potential romantic attraction was “sexual in nature” and that “adverse employment actions motivated by sexual attraction are gender based and, therefore, constitute unlawful gender discrimination.”

The court distinguished this case from those where employees were fired after consensual affairs with their employers.  In those cases, there was no discrimination because the employees were dismissed due to their behavior, not their gender.  In Edwards’ case, however, there as no behavior on her part that caused the termination – it was based purely on the jealousy over possible sexual attraction and that, in the eyes of the appeals court, was sufficient for a discrimination claim.

Bottom Line

This is an unusual case which, if it isn’t settled, is likely to produce some interesting court decisions down the road.

For now, it seems that employment actions based on purely personal characteristics should be avoided since they may subject an employer to the whims of a court system that has not yet determined how such cases are to be decided.

Those of us who bear the burden of being too cute can therefore take some small comfort from the benefits afforded by this decision.

The post Employee Who Got the Boot For Being Too Cute Can Pursue Her Suit appeared first on Felhaber Larson.

It has been reported that after Fox and O’Reilly himself paid over $13 million to settle 5 different claims of sexual harassment and retaliation, nearly 50 advertisers withdrew their business from the program.  Then and only then did Fox News’ parent company authorize an investigation into other allegations of improper conduct, which led them finally to part ways with mega-star O’Reilly.  With all the notice they had about O’Reilly’s behaviors, the company’s decision to fire O’Reilly now is widely seen as merely a cave-in to mounting financial pressures.

Hush Money Rarely Stays Quiet

One of the key elements of this story is that O’Reilly was the biggest of the big dogs at Fox News. It is easy to understand how any employer, large or small, might be enticed into trying to work things out when the allegations involve their biggest star, their highest sales producer or their best worker.  The employer may think “We’ll settle the case, my heavy hitter will change his ways, and we can all get back to business.”

This might work but the risks are huge. As in the O’Reilly matter, one settlement often leads to another, and another, and another as word gets out (despite confidentiality clauses in the agreement) or because the employer’s timidity emboldens the offending employee to keep harassing others with perceived impunity.

In addition, if and when a future claim cannot be settled and the case goes to court, the employer will have to answer for why they never really tried to stop the behavior and chose instead just to clean up after it.  At that point, the company’s policy heralding a harassment-free environment will look more like a calculated cost-benefit analysis.

Inaction Has Consequences

The monetary impact of O’Reilly’s behavior has been well-chronicled – the cost of the settlements, the advertising dollars lost and the $25 million that was paid to him upon his departure.  However, any employer in this situation stands to lose a great deal more in human cost.  Consider the targets of the harassing behavior, all of whom were hired because of their great talent and potential but who now exhibit diminished productivity, creativity and morale as a result of the behaviors and the lack of effective oversight or response by management.

Consider also the lost contributions of the highly skilled and valuable women (and men) that choose to leave an employment setting like this, or who elect never to seek employment there because of the reputed work environment.  Perhaps the next heavy hitter (hopefully one who does not harass co-workers) might have come from amongst that group but the opportunity to find that out will now be lost.

Finally, there is the potential cost associated with other employees who view management’s inaction as a sign that harassing behavior is acceptable in the work environment, and perhaps even welcomed or encouraged.

It’s All About the Behavior, Not the Person

The ultimate cost of the O’Reilly saga to Fox News may not be known for quite some time, if ever.  Recovery might be relatively quick as Americans often are a forgiving people when it comes to these sorts of transgressions.   On the other hand, diminished ratings, and the corresponding drop in advertising revenue, may stay with them for some time.

For the less high-profile employer, the combined threats of million dollar litigation, impaired reputation and reduced productivity demand that no employee be treated as if they are above the rules.  Allegations against the heavy hitter should be addressed and resolved just as they are with any other worker.  To do otherwise will mean that the employer pays more and more money with each settlement, yet still ends up in court eventually defending decisions that will appear self-interested and dismissive of employee rights.

Bottom Line

Nobody is indispensable.  The rules regarding harassment prevention must apply to everyone in the organization in order to avoid appearing, as Fox News does to so many, as if they were willing to assign a dollar value to the safety and dignity of their employees.

The post Delay Was the Critical Factor in the Bill O’Reilly Story appeared first on Felhaber Larson.

That’s the lesson from a recent Ninth Circuit Court of Appeals decision that permitted a female employee to pursue a sexual harassment case alleging that her male supervisor created a hostile work environment by hugging her repeatedly at work.

Lower Court Doesn’t Grasp the Argument

Victoria Zetwick, a county correctional officer in Yolo County, CA, sued her employer, claiming that her supervisor, Sheriff Edward Prieto, greeted her with unwelcome hugs at work on more than a hundred different occasions during a 12-year period.   She also alleged that he kissed her once.

A Federal District Court Judge in California dismissed Zetwick’s lawsuit before trial, relying on a line of cases finding that hugs and kisses fall within the realm of “common workplace behavior.” As such, they cannot form the basis of a hostile work environment claim.

On appeal, the Ninth Circuit Court of Appeals had difficulty getting their arms around the trial court’s logic.  They held instead that Sheriff Prieto’s hugging was sufficiently severe and pervasive to alter the conditions of Ms. Zetwick’s employment.  They therefore reversed the dismissal and ordered that Zetwick be permitted to present her case at trial.

Additional Evidence Clinches the Case

The Ninth Circuit emphasized that courts must look to the cumulative effect of the conduct at issue and not just focus on isolated incidents. They rejected any sort of mathematical test to determine when offending behavior crosses the line from acceptable to offensive.  To the contrary, they concluded that there is no “magical number of harassing incidents” that would give rise to liability and that each harassment claim must be assessed individually to determine if the behavior is sufficiently severe and pervasive to constitute harassment.

The Ninth Circuit also noted that lower court failed to account for evidence beyond the hugs that Zetwick’s work environment was hostile or abusive.  For example, there was evidence that the Sheriff hugged other female employees but tended toward handshakes for the male employees. Moreover, Zetwick testified that she also had been kissed and that she suffered from anxiety and stress as a result of her supervisor’s behavior.

As a result, the Appeals Court ruled that a reasonable jury could find that Sheriff Prieto’s hugging was outside the scope of “ordinary workplace socializing” and was sufficiently abusive to support a harassment claim.

Bottom Line

Would a single or occasional hug have created a hostile work environment? Probably not, but it may depend on whether the hugger is a direct supervisor and whether evidence of other sexually oriented behavior exists.

As the Appeals Court noted, there is no precise formula for when a pattern of behavior becomes sufficiently hostile to give rise to a viable claim.  Therefore, employers should continue to educate their workforce, communicate proper standards for workplace behavior and implement effective reporting procedures so any harassment issues can be addressed as early as possible.

Otherwise, you may find yourself wrapped up in a harassment claim that could put the squeeze on you.

The post Court Embraces Claim That Workplace Hugging is Sexual Harassment appeared first on Felhaber Larson.

This occurred in last week’s ruling from the Ninth Circuit Court of Appeals on the administration’s executive order seeking a temporary ban on immigration from seven selected countries.  This might not seem employment-related but the ruling reinforced a fundamental tenet of good human resources practice.

The Current Ruling

We all know what happened – the Ninth Circuit ruled against the administration’s argument that the president’s authority over immigration matters is absolute and not subject to review.  Therefore, unless this ruling is reversed, the executive order will be subject to a judicial evaluation to determine if it is constitutional.

One of the key issues was the appeals court’s assessment of the relative likelihood that one side or the other would prevail in the underlying case.  In other words, how likely is it that the states opposing the ban can prove an unlawful motivation for it?

This is where the President Trump’s prior statements, and those of others in his inner circle, became so critical.  In the face of so much campaign rhetoric about seeking a Muslim ban and a “total shutdown of Muslims entering the United States”, as well the President’s recent remark that the travel ban will favor Christians,  the appeals court believed that the opposition could prove that the travel ban is premised upon religious discrimination in violation of the constitution.

The Application to Employment

This story is obviously far from over but its relevance to employers dealing with harassment situations is clear.  When an employer receives a complaint of sexual harassment, or harassment based on race, religion or any other legally protected classification, an investigation typically must be undertaken.  If the evidence is not conclusive, or if it is a “he said, she said” situation, we look to other forms of evidence to help tip the scale one way or another.

Thus, if the accused contends that the incident did not happen or was misconstrued, the employer should do what the Ninth Circuit did – look to evidence of past statements or behaviors that might reflect upon whether the complainant or the accused is more likely to be telling the truth.  This is one of the reasons why it is so important to listen carefully and respond appropriately to all claims of harassment or inappropriate talk in the work place.  Even if you conclude that a policy violation did not occur, the matter still could be critically relevant in a subsequent allegation.

We actually wrote about this issue last summer in a piece entitled Roger Ailes and the Fiction of “He Said/She Said” regarding the founder and CEO of Fox News stepping down after sexual harassment allegations were corroborated by discovery that he allegedly harassed a number of other employees as well.  The evidence of his past misdeeds clearly came back to haunt him in the subsequent case.  Could the Ninth Circuit have used our piece as a guide to making their decision in the travel ban matter?

**February 15, 2017 Update**

A just-issued decision from Federal District Judge Leonie Brinkema in Virginia eloquently articulated this principle in a decision staying the immigration ban in her state:

“Just as the Supreme Court has held that ‘the world is not made brand new every morning,’ a person is not made brand new simply by taking the oath of office…the ‘Muslim ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered.” 

In other words, what you said yesterday or the day can still define you today.  If you engaged in derogatory language or harassing behavior regarding a protected classification in the past, it is easier to believe that you are still doing that today.

Bottom Line

Words matter regardless of when they are spoken.  Be sure that yours can not be used against you as the Ninth Circuit did to the President.

The post Travel Ban Decision Offers Important Reminder For Employers appeared first on Felhaber Larson.

If you missed the innumerable replays over the course of the weekend, please note that a video surfaced where Mr. Trump was heard discussing some of his personal practices when meeting women. He referenced one encounter with a married woman with whom he tried (and apparently failed) to initiate an intimate relationship.  He then spoke of his tendency to kiss women when he meets them and that as a celebrity, he feels he has great latitude to become more physical with women, even to the point of “grabbing them” in a sexually overt manner.

At the Work Place

The political ramifications of this video will (unfortunately) be debated and rehashed for many days and weeks to come and we will leave it to the media and the politicos to do just that. When it comes to the workplace, however, it is imperative that employers understand the importance of avoiding or suppressing this sort of locker room talk, even in the locker room itself.

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment, deeming it to be a form of illegal sex discrimination.  The well-known definition of sexual harassment “is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” where:

– enduring the offensive conduct becomes a condition of continued employment, or

– the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Importantly, the person claiming to be harassed need not be the actual target of the behavior but can be anyone negatively affected by it. Therefore, if men in the break room are talking as Mr. Trump did in the video, their behavior can have a harassing impact on a female co-worker who simply overhears the conversation at the next table or across the room.  While the men may claim that they had no intent to offend the co-worker and that it was just harmless banter, the impact on the female’s work environment is very real and the behavior can potentially be viewed as part of a pattern of severe or pervasive sexual conduct.

But what if the conversation truly takes place in a locker room or some other setting where only members of one gender are present and they are talking crudely about the opposite sex? In other words, can a man claim to be victimized by sexual harassment when encountering other men talking crudely about having sex with women?

Just Between Us Guys

In the strictest terms, sexual harassment knows no gender. The harasser can be male or female, as can the victim.  However, in the case of “same sex harassment” where a man might claim to be sexually harassed by other men (or a woman claims the same about other women), the law requires that the sexually oriented behavior be perpetrated against the victim “because of sex.” Mere “horseplay” will not rise to the level of illegal behavior.

Therefore, a gay male would have to prove that the sexually oriented discussion was directed at him because he was a man.  It is conceivable that this could happen if, for example, a group of men thought it might be funny or clever to talk crudely about sex with women as a way of making (at least in their minds) their gay co-worker uncomfortable.  The victim would then proceed to prove that he was subjected to this behavior because he is a man and that women would not have been similarly victimized.

In most cases, however, such intent would be difficult to ascertain and even harder to prove.  If men are behaving this way with other men, it seems more likely than not that they are doing so simply because they enjoy it.  As a result, it is tempting to dismiss this as a harmless and victimless undertaking since nobody’s work environment is affected. Resist that temptation because any such incident can still be a significant piece of evidence in a subsequent sexual harassment claim.

As we explored in an earlier piece entitled “Roger Ailes and the Fiction of He Said/She Said“, sexual harassment rarely occurs in front of an audience. To evaluate a sexual harassment claim, an employer (or a judge or jury if the matter gets that far) will look to see whether the accused has engaged in similar behavior in the past.

Thus, an accused male employee’s penchant for talking about sex will almost certainly be taken into account in determining the credibility of the claimant’s allegations of sexually oriented attention, and the accused’s denials.  Moreover, if the employer knew of the accused’s behavior but dismissed it as mere” locker room talk”, they stand a much better chance of being held liable in the newer matter because they will be viewed as being in a position where they knew or should have known about the behavior and failed to stop it.

Bottom Line

Whatever one might think about Donald Trump’s behavior on the video, we must always remember that behavior in the work place is evaluated differently than in other settings.  If you do not care for the sexually oriented dialogue in a movie, you can get up and leave.  If someone is talking dirty at a party, you can excuse yourself and find another conversation partner.  It is different at work since employees often are not free to leave their work station, so the rules about sexually oriented behavior are different as well.

Locker room talk may be acceptable or even enjoyed on one’s own time.  At work, it can be an invitation to trouble and liability, and employers are well advised to slam the door on it.

The post Slamming the Door on Locker Room Talk appeared first on Felhaber Larson.

Carlson claimed that Ailes derailed her career after she rejected his sexual advances toward her.  Not surprisingly, Ailes and his defense team issued a strong denial and vowed to fight the lawsuit. Meanwhile, Fox News initiated an internal investigation of the harassment allegations.

He Said/She Said

When this story first hit the airwaves, many commenters offered that this would be a difficult claim for Carlson to prove. After all, everything that happened between the two of them took place behind closed doors so there simply was no way to tell who was telling the truth.  It would all boil down to a “he said/she said” situation.

As we know now, it didn’t actually turn out that way. The lawsuit quickly became a “he said/she said…and so did she… and so did she” situation as a number of other women came forward to recount their harassment by Ailes over the years.  Within a couple of weeks, Ailes resigned from the network and the lawsuit likely will be settled in the near future.

When a harassment allegation is reported, an employer should not jump to the conclusion that it is a “he said/she said” situation simply because the complaining employee cannot identify any witnesses. This ignores the fundamental reality that when one person claims something happened and the other denies it, one of them is probably telling the truth (or at least a more truthful version) and one of them is not.  The critical charge for the employer is to figure out which is which.

What to Look For

To determine which versions of events is more credible, the employer should first review the matter thoroughly with both parties (separately, of course). Ask them who witnessed the interaction and who might have been in the area when it occurred.

When interviewing the complaining employee be sure to ask “Who else do you believe might have experienced the same or similar behavior from the accused”? While harassers do not typically offend in front of an audience, the Ailes matter demonstrated that they do frequently repeat the same behavior toward multiple targets. Learning that one, two or even more co-workers experienced the same or very similar behavior will certainly lend credence to the allegations under investigation.

Review technology. The current state of electronic communication offers a multitude of options for conveying harassing or inappropriate thoughts.  Review the complaining employee’s text messages, Facebook posts and other electronic communications for glimpses of the accused employee’s behavior or intent.  By the same token, look at the accused employee’s devices to see if the complaining employee might have a different motive for coming forward, or if the offending behavior might actually be mutual and/or consensual.

Consider each employee’s past record. Obviously, you will want to know whether the accused employee has done this sort of thing before. Beyond that, has either employee been cited for behavior calling their integrity or honesty into question? Is the accusing employee on the verge of termination and perhaps using this as a way to stay employed?  Is there any other context that sheds light on the matter?

Making the Call 

In some cases, you still may end up not having a good feel for who is the more credible employee. In such instances, the best you can do is explain that the investigation failed to produce evidence of a violation of the harassment policy.  Advise both employees about the employer’s non-retaliation policy and encourage the complaining party to return if additional behaviors are encountered.

In other situations, you may uncover enough evidence to make an effective credibility determination and take appropriate remedial action.

Remember, a credibility determination is not guess-work but rather, the product of careful evaluation of all available evidence and of rational conclusions drawn from that evaluation.  If done properly, this process will carry the day in court and could protect the company and its workers from further harassment by an employee who benefitted from an ill-considered “he said/she said” determination.

Bottom Line

As in the Ailes matter, once an investigation begins, you never know what might happen. Employees often feel empowered to bring forward information that they kept quiet for fear of retaliation or because they doubted whether the employer would take action.  Be sure to give them that chance.

More often than not, “he said/she said” will give way to “I figured it out.”

The post Roger Ailes and the Fiction of “He Said/She Said” appeared first on Felhaber Larson.

After truck driver Rebecca Nichols received citations for unsafe driving, her employer refused to allow her to drive alone and ordered her to find a driving partner.  Nichols selected co-worker James Paris but on their first drive together, Paris sexually propositioned Nichols, which she declined.

Co-Worker Won’t Yield

Shortly thereafter, the two headed back out on a six-day trip in a truck that contained a sleeping compartment behind the driver’s seat, separated by a curtain.  According to Nichols, on various occasions during the trip Paris opened the curtain to expose himself, stood in the back of the cab in his underwear, leaned over her while she was driving, and exposed himself through a hole in his underwear.

Nichols claimed that she reported the conduct to the company’s safety department five times during the six-day trip.  She also claims to have reported the conduct to a company dispatcher, who allegedly instructed her to “endure it” until the trip was over and she could be assigned a new partner.  Later in the trip, during a mandatory 34-hour rest period, Paris asked her to sleep with him in exchange for forgiveness of an $800 debt she owed him.  Nichols declined and asked to use the truck to drive to a hotel for the night but Paris refused.

The following month, Nichols was terminated after reports that she exceeded the speed limit and used her personal handheld phone while driving. Nichols then sued the company in federal court for sexual harassment. The judge dismissed the claims before trial on the grounds that Nichols had not proved that the company ignored her allegations, and that the conduct that occurred during the 34-hour rest period could not be considered in the lawsuit because it did not happen during work or on the employer’s premises.

Court Makes a U-Turn

Nichols appealed to the Eighth Circuit Court of Appeals, which reversed the lower court‘s dismissal of the case.  They ruled that there were still questions to be resolved as to whether the employer did enough to address the reports of sexual harassment once they were received.  Specifically, the Appeals Court noted:

“[The empoloyer] could have ordered Nichols to leave Paris’ truck as soon as it learned about the problem and promptly help her find another driving partner, reprimanded Paris for his behavior, or arranged lodging for her in Laredo instead of permitting her to accompany him to Pharr on May 30. Instead, [they] allegedly took no action to remove her despite her consistent complaints of sexual harassment, but allowed her to go to Paris’ apartment in Pharr, and stranded her there with no available alternate form of transportation.”

The Appeals Court also ruled that the conduct occurring in the 34-hour mandatory rest period should have been evaluated as part of the alleged harassment because “offensive conduct does not necessarily have to transpire at the workplace in order for a juror reasonably to conclude that it created a hostile working environment.”  This principle was particularly applicable here because Nichols was on a mandated break from her work trip and was unable to extract herself from the situation.  She was denied use of the truck—her only means of transportation—to seek lodging away from the offending coworker.

Finally, the Appeals Court determined that the lower court erroneously found that Nichols’ chose to stay with the truck voluntarily.  Requiring an employee to “quit or want to quit” in order to bring a lawsuit under such circumstances would force an employee to choose between her employment and her right to file a legal claim.

As a result of the Eighth Circuit decision, Nichols’ lawsuit was returned to the lower court for a full trial on the merits.

Bottom Line

The Court’s decision is a reminder to employers that they may be held liable for discrimination and hostile work environment claims, even for conduct that occurs away from the workplace.  This is particularly true where, as here, the offensive conduct occurs during an after-hours period of a company required activity, such as a business trip or mandatory rest period.

In addition, this is a reminder to respond promptly and decisively to reports of possible on-the-job harassment.

The post After-Hours Harassment Matters Too appeared first on Felhaber Larson.

Jones reported the incident to her manager, who suggested she report the matter further up the chain of command. Jones therefore approached the CEO on two different occasions but he was in meetings each time and could not meet. She then left and never came back, ignoring a call from the Human Resources Director a few days later asking her to come in for a meeting.

The policy protects us…doesn’t it?

In response to the company’s dismissal motion, a Federal District Court Judge in Maryland had no trouble finding that the one remark, the hallway encounter and the doorway peeping did not meet the test set forth by the United States Supreme Court test for a sexually hostile work atmosphere. That test requires a workplace that is ‘”sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

The judge felt differently about the physical contact, however, explaining that even an isolated event can alter the work environment if it is sufficiently severe. Therefore, Jones’ cleared her first hurdle, namely that she could present a credible claim of actual harassment.

Jones’ next task was to convince the judge that the company should be held liable for the supervisor’s harassing behavior. This is usually pretty easy since for the most part, supervisory harassment is automatically imputed to the employer. However, there is small window of hope for employers. Under the US Supreme Court decision in Faragher v. City of Boca Raton, If it can be shown that the company used reasonable care to prevent and promptly correct any harassing behavior, and the employee unreasonably failed to take advantage of these opportunities, the employer can escape liability.

The judge was prepared to let the company climb through the window and escape liability. First, he noted that the company maintained an anti-harassment policy, which is usually “compelling proof” of an employer’s reasonable care. He also offered that Jones may have unreasonably failed to avail herself of her options by rejecting the call from HR and by just popping in unannounced to see the CEO rather than making an appointment to visit with a very busy company executive.

But wait – even though the company maintained a policy on harassment, the judge found no proof that Jones had actually seen the policy or that it had been distributed to her. Interestingly, the judge suspected that Jones had in fact received the policy, and Jones herself never claimed she hadn’t, but without actual proof, of her receipt, the window slammed shut and the employer’s dismissal motion was rejected.

Bottom Line

When the Supreme Court gives you a clear directive on how to avoid liability, it is best to follow it.  Employers can win sexual harassment claims if they can show that they tried to prevent such claims, and that they dealt with them appropriately if and when they occurred.  The best way to do that is to enact a comprehensive policy banning sexual harassment (and other forms of illegal harassment as well), and then make sure that the workforce sees the policy and has access to it.

Publish the policy in handbooks, post it on bulletin boards and intranets, obtain acknowledgments and sign-offs from employees when they receive it and do periodic reminders and education sessions.  A great policy does you no good if nobody reads it.

The post An Unread Policy is No Policy At All appeared first on Felhaber Larson.

In the case of Rasmussen v. Lou’s Fish House, Case No. 38-CV-10-201 (July 23, 2012), the alleged harasser and the employer were one and the same.  Brian Zapolski was the sole owner of a retail store and a small motel on the same property.  Three former employees sued Zapolski for sexual harassment, claiming that he subjected them to almost relentless and vulgar sexual behavior, including:

• Asking them about their favorite sexual position and sharing his;

• Discussing sexually explicit dreams with them;

• Showing them naked pictures in a magazine and suggesting that one of the employees resembled a woman in the photos;

• Touching their buttocks or grabbing them around the waist;

• Bragging about his sexual prowess;

• Coarsely commenting about the anatomy of female customers and expressing his desire to have sex with them; and

• Asking the employees to fix him up with friends or relatives so he could have sex with them.

All three employees quit because of Zapolski’s behavior and then sued the company for sexual harassment under the MHRA, as well as Zaposki individually for aiding and abetting. Surprisingly, the trial court ruled against the employees on the grounds that the behaviors they alleged was not severe or pervasive enough to rise to the level of actionable harassment.

On appeal, the Minnesota Court of Appeals ruled that Zapolski’s “raw and explicit” conduct justified a finding of “severe and pervasive” sexually oriented behavior that obviously affected the employees’ terms and conditions of employment since all three quit their jobs to escape the harassment.  They therefore ruled against the employer.

At the same time, however, the Court declined to hold Zapolski individually liable for aiding and abetting since that claim requires the individual to have assisted another person in committing illegal discrimination. Since Zapolski was the only person who did anything wrong, it simply was illogical to rule that he assisted himself in discriminating against his employees.

Bottom Line

This decision makes perfect sense, but it won’t necessarily insulate most harassers from individual liability.   For one thing, many of these cases involve more than one actor, so that one of them could certainly be found to have aided and abetted the other.  In addition, where the harasser and employer are one and the same, the courts may find that the protections offered by the corporate shield should be removed, so that the person responsible for the harassment can suffer the consequences.  Still it is useful to know that you can’t aid and abet yourself in engaging in wrongful behavior.

The post Sexual Harasser Can’t Help Himself appeared first on Felhaber Larson.

The alleged advances occurred in 2008 during Favre’s one-year tenure as a member of the Jets.  Therapists Christina Scavo and Shannon O’Toole claim that a third, unnamed therapist received the following text massage from Favre trying to set up a group sexual encounter: “Brett here. You and Crissy want to get together?  I’m all alone.  Kinda of lonely tonight.  I guess I have bad intentions.”

An employer (in this case, the Jets) may be liable for sexual harassment if they knew or should have known of the harassing behavior.  Courts can impute such knowledge to the employer where the harassing conduct is “so broad in scope and so permeated the workplace that it must have come to the attention of someone authorized to do something about it.”

The complaint lists numerous events intended to demonstrate that the Jets organization was a “hot bed of sexual harassment, sexism and inappropriate behavior.”  What’s more, the suit alleges that Jets team coordinator Lisa Ripi acknowledged that Favre sent the messages, but told the two complainants to keep quiet.  This alleged text message from Ripi to Scavo is likely to take center stage in the case: “For sure feel horrible that u had to go thru that w/a pervert . . . however, I truly wish u wldve came forward at the time it happened . . . you sureley wldve gotten the treatment you were looking for in the moment. He was wrong on all counts . . . and we cldve helped u a lt more at that time.”

The Jets enjoyed great success this season on the field but could get sacked for a huge loss in court.  No matter who the alleged culprit is or how valuable they may be to the organization, make sure you act with swiftness and certainty when that employee steps out of bounds.

The post Brett Favre May Be Gone But His Exploits Will Live On appeared first on Felhaber Larson.