Total Articles: 27
Employer FAQs (No. 10): How can I guarantee that I'll get a sexual harassment suit?
And, more importantly, what is it with The Price Is Right? It's a regular Peyton Place, for cryin' out loud.
11 Employer FAQs: (No. 4): Should I offer harassment training to rank-and-file employees? Isn't that just asking for trouble?
Over the next 8 business days, I'll have a series of short posts addressing common questions that employers have about the law. If there is an "FAQ" that you would like for me to address, please let me know in the comments box.
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In an unpublished opinion, the 3d U.S. Circuit Court of Appeals has upheld a lower court’s decision to dismiss an employee’s claims of discrimination, hostile work environment,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.
Court Emphasizes that Evidence of Training Is a Must.
For over 10 years, employers have been able to avail themselves of an affirmative defense to sexual harassment allegations by an employee against a supervisor/manager in those situations where no tangible adverse employment action has been taken against the employee. This defense is known as the Faragher/Ellerth defense, and can be invoked where the employer can demonstrate that: (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 764-65 (1998). The vast majority of employers have anti-harassment policies including reporting procedures and protocols for employees to follow, have disseminated those policies and procedures to all employees, and have required employees to acknowledge receipt of the policies. However, the adoption, dissemination and acknowledgment of receipt of the policy by the employee may not be sufficient for employer to invoke the affirmative defense.
Recent Case Underscores Importance of Harassment Training.
A recent decision by the Second Circuit Court of
Appeals (the circuit covering New York, Connecticut,
and Vermont) has underscored the need to provide
periodic harassment training to supervisors to
ensure that they know (and remember!) that they
must take action in response to harassment
complaints, even in the absence of a formal
complaint or details from the complaining employee.
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.
Employee Who Rejects Employer's Proposed Remedial Action Cannot Pursue Sexual Harassment Lawsuit.
Having an effective policy againt harassment can help stem employee cliams, even where the company does not choose the remedial action the complaining employee requests.
General Statement to Human Resources May Put Employer On Notice of Sexual Harassment By Co-Worker (pdf).
Conversation put employer on notice.
Casual workplace lands restaurant in the hot seat (pdf).
All employers want their employees to get along and feel comfortable while at work. But
when does casual become too casual? While there’s nothing wrong with being comfortable in the
workplace, an atmosphere that’s too relaxed sometimes can lead to behavior that pushes the
envelope. A recent federal court decision serves as a reminder of what can happen when
employees stop being professional and start being “real,” to paraphrase the show that gave
reality TV its start. We also offer a few tips on how to keep your workplace from functioning like
a reality show.
Employee's Sexual Harassment Claim Fails.
The federal appellate court with
jurisdiction over Texas recently ruled
against an employee who complained
to her supervisor that she was being
harassed by a co-worker. According
to the Fifth Circuit Court of Appeals,
the employee failed to follow the company’s
handbook which required the
employee to report the harassment to
human resources (HR) if a report to her
supervisor proved ineffective.
Employers Victorious In Key Title VII Suit (pdf).
The federal appellate court with jurisdiction
over New Jersey recently
dismissed a lawsuit brought by an employee
who complained about sexual
harassment and was later suspended
for herself violating the employer’s
harassment policy. The Third Circuit
Court of Appeals, in an unpublished
decision, held that the employee’s sexual
harassment claim must fail because
effective corrective measures
were taken to remedy the offensive conduct.
Prompt action keeps employer from having its goose cooked (pdf).
As we sit and ponder what we’re all thankful for this year, at least one employer is giving
thanks to its incredible HR department and employment attorney. They developed and enforced a
sexual harassment policy that saved the company from getting sliced up in court like a
Thanksgiving turkey. See how that employer’s prompt and effective action turned the tables on
an employee and made her look like the turkey.
Title VII Update: Court Validates Comprehensive Anti-Harassment Policy and "Swift and Effective" Response.
Under Title VII of the Civil Rights Act of 1964, an
employer may be liable for sexual harassment by a
supervisor with authority over the victimized employee.
When no tangible employment action against the
employee is involved, the employer may raise an
affirmative defense to liability that (a) the employer
exercised reasonable care to prevent and promptly correct
any sexually harassing behavior, and (b) the employee
unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the employer.
Take this job and shove it!
When country music star Johnny Paycheck sang those famous words, he wasn’t singing about an employee who quit her job after being sexually harassed at work, but they fit that scenario nevertheless. According to the U.S. Supreme Court, an employee who tells her employer to “take this job and shove it” because of alleged sexual harassment can recover for a claim of “constructive discharge” (i.e., things were so bad at work, I was forced to quit), but only if she can prove a supervisor’s “official” act is the final straw that caused her to quit. Although neither management nor employee rights advocates see this case as a victory, the Supreme Court’s decision helps clarify whether and how constructive discharge claims factor into supervisor harassment cases.
Supreme Court Recognizes Affirmative Defense in Sex Harassment Constructive Discharge Cases (pdf).
The Supreme Court recently held that an employee's failure to seek recourse under her employer’s nondiscrimination/non-harassment policy may bar a claim that she was forced to resign because of intolerable sexual harassment.
THE CURRENT "HOW TO" OF HARRASMENT RISK MANAGEMENT.
The federal courts, about every five years, indulge an irresistible urge to send attorneys and employers scurrying, and issue a decision or two redefining the parameters of employer liability and responsibility for sexual and other harassment in the workplace.
Discipline Must Be Reasonably Calculated to End Harassment.
The Sixth Circuit U.S. Court of Appeal has ruled that continued misconduct by a supervisor after being disciplined, is actionable. Minnich v. Cooper Farms Inc.
Seventh Circuit Affirms Summary Judgment For Employer On Employee's Gender Discrimination, Hostile Work Environment Sexual Harassment, And Retaliation Claims, Despite No Formal Harassment Policies.
Discusses Hall v. Bodine Electric Company, 8 D.L.R. A-2 (7th Cir., January 11, 2002), in which the court held that the lack of a formal sexual harassment policy was not fatale to employer's defense ("we have never held that Title VII employers must institute formal sexual harassment policies. Instead, we have focused on whether an employer has a reasonable mechanism in place for detecting and correcting harassment.")
Ninth Circuit Reverses $85,000 Jury Verdict.
Discusses Swenson v. Potter, 2001 Daily Journal D.A.R. 12653 (9th Cir., November 30, 2001), in which the court reversed a jury award for harassment, holding that the employer responded adequately to the complaint by separating the complainant from the alleged harasser, and investigating the complaint promptly and thoroughly.
