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Total Articles: 20

Employer's 'Solicitous Treatment' of Alleged Perpetrator May Create a Hostile Environment for Coworker/Victim

Can an employer’s perceived preferential treatment of an alleged rapist create a hostile work environment for the female employee who reported the rape? The Ninth Circuit Court of Appeals recently held that a jury should determine the answer to that question. Fuller v. Idaho Department of Corrections, No. 14-36110 (July 31, 2017).

How Sexual Harassment Training Misses the Mark

The rapid fall of Fox News Chairman and CEO Roger Ailes this summer amidst multiple sexual harassment claims has once again brought this diciest of workplace issues to the forefront. Ailes certainly isn’t the first high-profile leader felled by sex harassment charges, but he was right at the top in terms of power.

The Keys to Harassment Prevention: An Interview With EEOC Commissioner Chai Feldblum

Chai Feldblum is a Commissioner of the U.S. Equal Employment Opportunity Commission (EEOC). She co-chaired the EEOC Select Task Force on the Study of Harassment in the Workplace, and produced a report in June of 2016, together with Commissioner Victoria Lipnic, that drew on the work of the task force.

EEOC report suggests “rebooting” workplace harassment prevention efforts.

On June 20, 2016, the EEOC published the Report of its “Select Task Force on the Study of Harassment in the Workplace.” (Check out an executive summary of the Report here.) That Task Force, formed in January 2015, also impaneled a group of outside experts to examine the causes, effects, and prevention of workplace harassment.

EEOC's Enforcement Strategy Yields $17 Million Verdict in Sexual Harassment Case

Preventing employee harassment through investigations and lawsuits is one of the pillars of the Equal Employment Opportunity Commission's current enforcement strategy.

Supreme Court Hands Down Victory for Employers

The United States Supreme Court issued a decision in Vance v. Ball State University that makes it easier for employers to defend against harassment suits. When an employee is harassed by a co-worker on the basis of a protected status, such as race or sex, the company is liable only if it knew or had reason to know about the harassment and failed to address it. If the harasser is the employee’s “supervisor,” a stricter standard applies. Generally, the employer is “vicariously liable” for the actions of the supervisor, even if nobody else knew about the harassment. The Vance decision resolves the question of who is a supervisor, defining it as someone who has the ability to take “tangible employment actions,” rather than someone who merely oversees the employee’s work.

Let's Get a Grip, Employees' Rights Did Not End Yesterday

Reporting is no easy task. But I have heard several reports concerning the two Supreme Court decisions yesterday that convey misleading information, or at least don't put it in proper context. An example is By 5-4, a More Hostile Workplace by New York Times editorial board member Teresa Tritch.

Pyrrhic Victories

Lawyers are justly proud when they win a difficult discrimination or harassment case. But after a couple of hundred thousand dollars in legal fees, disruption at work, and harm to reputation, an employer may decide that a few more similar “victories” could shut them down.

Reckless Response to Harassment Complaint Results in $3.5 Million Punitive Damages Verdict

Workplace harassment may occur over an extended time period in circumstances where it is difficult to identify the individual(s) responsible for the harassment. In these situations, an employer should increase its remedial efforts over time. Continuing the same ineffective measures could lead to a finding of recklessness and a punitive damages verdict.

Hospitality Industry: Oh Brother, Make It Stop!

By now you have probably already heard that another celebrity is in the news as a result of harassment allegations. In Savannah, Georgia, Paula Deen, her brother "Bubba," and their restaurant Uncle Bubba's Oyster House have been sued for racism and sexual harassment. According to a complaint filed in Chatham County by former employee Lisa Jackson, "Bubba" Hiers engaged in violent behavior including sexual harassment directed at female employees.

Worker's Failure to Report New Incidents of Harassment Proves Costly

A federal appellate court has ruled that an employer should not be held liable for fostering a racially hostile work environment in violation of Title VII of the Civil Rights Act. According to the court, the company promptly disciplined the workers for their initial misconduct and the employee did not adequately report the alleged resumption of the harassment. The worker's failure to put the company on notice of the renewed harassment, the court found, was "fatal to his claim of employer liability." Wilson v. Moulison North Corp., No. 10-1387, First Circuit Court of Appeals (March 21, 2011).

Court Rejects Worker's Discrimination and Retaliation Claims.

A federal appellate court recently upheld a trial judge's decision to dismiss an employee's claims of discrimination, hostile work environment harassment, and retaliation. The Third Circuit Court of Appeals reached this conclusion based primarily upon the "extraordinary lengths" to which the employer went to investigate the employee's complaints.

Employer’s Continuing Efforts to Resolve Issues Complained of by Employee Supports Dismissal of Discrimination Complaint

In an unpublished opinion, the 3d U.S. Circuit Court of Appeals has upheld a lower court’s decision to dismiss an employee’s claims of discrimination, hostile work environment, and retaliation, based largely upon the “extraordinary lengths” to which the employer went to investigate the issues complained of by the employee.

Failure to keep complainant informed of remedial measures may indicate insufficient employer response to harassment.

An employer’s failure to keep an female employee apprised of its response to her complaints of sexual harassment, and its further failure to follow through on remedial actions could lead a reasonable jury to find that the employer did not take the complaints seriously. Such failures form the basis of a recent decision by the 8th U.S. Circuit Court of Appeals in which the Court denied an employer’s post-trial motion regarding a $100,000 jury verdict. Sheriff v. Midwest Health Partners, P.C., 8th Cir., No. 09-3367, August 30, 2010.

Supervisors Without Authority to Affect Employment Status of Other Workers Are not “Managers” for Purpose of Title VII.

The basis of an employer’s liability for a claim of hostile work environment under Title VII depends upon whether the harasser is the complainant’s supervisor or merely a co-worker. When a hostile work environment is created by a co-worker, the employer is liable only if the employer failed to provide an avenue for reporting the harassment, or if the employer knew or should have known of the harassment but failed to take prompt and appropriate remedial action. Under Title VII, an employer “knew or should have known” about workplace harassment if “management level employees had actual or constructive knowledge about the existence of a sexually hostile environment.” Therefore, once a management level employee has enough information to raise the probability of sexual harassment in the mind of a reasonable employer, the employer is deemed to be on constructive notice of that harassment.

Worker's Lack Of Response Dooms Harassment Suit

A federal appellate court recently dismissed a lawsuit brought by an employee who claimed that her employer subjected her to a hostile work environment. While the employer exercised reasonable care to prevent and correct the alleged harassment, the court held, the employee failed to take advantage of the corrective opportunities offered by the employer. Brenneman v. Famous Dave's of America, Inc., No. 06-1851, Eighth Circuit Court of Appeals (November 16, 2007).

Seventh Circuit Finds Employer's Harassment Complaint Procedures Insufficient.

The federal appellate court with jurisdiction over Illinois employers recently reinstated a lawsuit brought against the owner of a fast food restaurant whose manager allegedly verbally and physically propositioned a 16-year-old employee. According to the Seventh Circuit Court of Appeals, the employee who was later fired by her manager because her mother complained about the harassment could proceed with her retaliation claim. The Seventh Circuit also held that the trial judge had improperly granted summary judgment to the employer on the harassment claim where the record reflected that the employer’s policies were both confusing and ineffective.

Worker’s Immigration Status Does Not Shield Perkins From Liability.

Even an undocumented worker is entitled to pursue her hostile work environment and retaliation claims against her employer, despite her immigration status. Considering "the need to reduce employer incentives to hire illegal alien workers because of their inability to enforce their rights," a federal district court found that employers cannot use this hiring practice to shield themselves from liability under federal civil rights laws.

Court Finds Employer Was Not On Notice Of Misconduct.

The federal appellate court with jurisdiction over Georgia employers recently dismissed a lawsuit brought by a nurse who claimed that she was retaliated against after complaining about a doctor’s alleged sexual advances. According to the Eleventh Circuit Court of Appeals, the employer successfully raised the Faragher/Ellerth defense by arguing that the nurse’s initial complaint did not place it on notice of the alleged sexual harassment. Nurse “Be” v. Columbia Palms West Hospital Limited Partnership, No. 06-12159, Eleventh Circuit Court of Appeals (July 6, 2007).

Anti-Harassment Measures Help Avoid Liability.

You return from vacation energized to complete the numerous projects sitting on your desk, only to find an employee standing in your doorway asking if she can speak with you about a confidential matter. In your gut, you know your day will be swallowed by what will likely follow from this conversation. The situation takes an uncomfortable turn when you realize the employee wants to lodge a complaint of sexual harassment about one of the company's supervisors.