You Are Not the Boss of Me

The U.S. Supreme Court issued two important employment-law decisions this week and, surprising to many of us, both came out in favor of employers. Both cases will have significant impact on employment lawsuits but one of the two is of of particular interest to me because it has been an issue I’ve faced in prior cases of my own.

In Vance v. Ball State University, the Supreme Court was asked to decide what it means to be an employee’s “supervisor” for purposes of Title VII.  In short, the Court held that an individual can be considered to be a supervisor only if he or she has been empowered by the employer to take “tangible employment action” against the employee who claims to have been harassed. 

And what, exactly, is a “tangible employment action,” you ask?  Basically, it means the power to effectuate significant change in the victim’s employment status.  So the power to hire, fire, demote, etc., is the power to effectuate a tangible employment action.  If the individual does not have the authority to fire, transfer, or demote the victim, then the individual is not considered to be the victim’s supervisor.

Now, why does this matter?  In harassment cases, the law provides for an affirmative defense in certain cases.  By “affirmative defense,” I mean that, even if harassment did occur, the employer still will not be held liable if the defense is found to apply.  Which means that the affirmative defense is absolutely critical for an employer facing a harassment claim.

But the defense does have its limits. And one of them is when a supervisor is the alleged harasser.  If the employee was harassed by a supervisor and the harassment resulted in a tangible employment action, then the defense is not available.  So, in any case involving allegations of unlawful harassment, the employer will want to show that the alleged harasser was not the victim’s supervisor.

And that’s why the definition of a “supervisor” is so important. Prior to the Vance decision, the employee is free to argue that the individual was his or her supervisor based on any number of factors.  I had a case in which the plaintiff-employee claimed that the alleged harasser was her supervisor.  The employer disputed this, contending that the individual did not have the power to hire, fire, demote, or otherwise take any tangible employment action against the employee.  In response, the employee argued that the individual trained the employee.

Without the precedent to support our argument on what defines a supervisor, we were left only with “common-sense” arguments.  And, maybe it’s just me but “common sense” doesn’t get me very far with the court on most days.  Generally speaking, judges prefer to see a legal citation at the end of the sentence instead of a footnote that says, “Well, obviously.”

So although I do think that the Court’s opinion is one that derives a great deal of its holding from common sense, I am no less excited about it. 

Who Says I’m a Girly Man? Doth Sayeth the EEOC

The EEOC has enjoyed several victories in recent months. For example, the EEOC was granted summary judgment in a hostile-environment claim filed on behalf of a class of black construction workers. Even more recently, the EEOC was awarded summary judgment in an age-discrimination lawsuit against the City of Baltimore. But things haven’t been all peaches and cream for the EEOC.

In EEOC v. McPherson Cos., Inc., a federal district court in Alabama granted summary judgment to the defendant-employer in a sexual-harassment lawsuit brought by the EEOC on behalf of an unnamed male employee. The employee worked in a warehouse with an all-male workforce.

The EEOC alleged that, after being subject to a constant barrage of “ugly talk,” the employee complained to his supervisor about the allegedly hostile work environment. About a year later, the employee confronted his co-workers, who apologized and, thereafter, stopped directing rude comments his way. About a year after that, the employee complained to HR, which investigated the complaint, resulting in discipline for several workers and two supervisors. After this last complaint, the comments ceased.

The court held that the EEOC had failed to establish the existence of an unlawful hostile environment because it had not shown that the rude comments and “ugly talk” were of a sexual nature or that they were made “because of” the employee’s gender.

The EEOC argued that the harassment was because of his gender and, specifically, because of his effeminate behavior. This can be a valid cause of action–when a male employee is treated badly because he acts “too girly.” But, here, despite the EEOC’s argument, the testimony of the employee himself contradicted this argument. Thus, the court dismissed the gender-discrimination and sexual-harassment claims.

The court also dismissed the EEOC’s retaliation claim. The employee was terminated, along with 11 other employees, as part of a reduction-in-force 3 months after his complaint to HR. The court expressed that it was “hard to believe” that the EEOC “is seriously arguing that the entire RIF process was a subterfuge for fraud designed for the sole purpose of providing cover for retaliation.”

EEOC v. McPherson Cos., Inc., No. 10-cv-2627 (N.D. Ala. Nov. 14, 2012).

Harassment Prevention: It’s All Fun and Games . . . Until It’s Not

Workplace anti-harassment training can be summarized with the title of this post. The fact that an employee laughs at an inappropriate joke is not a legal defense to a later claim at harassment. Nor is an employee’s failure to object to inappropriate workplace conduct. One employer recently learned this lesson the hard way.

In the case of EEOC v. Holmes & Holmes Industrial, Inc., the EEOC filed suit against a construction company on behalf of several Black employees, alleging hostile work environment claims. To succeed in a case alleging discrimination based on a hostile work environment, a plaintiff must prove that he or she was subject to (1) intentional discrimination, that was (2) severe or pervasive (3) and subjectively offensive to the plaintiff, and (4) that would be objectively offensive to a reasonable person in the plaintiff’s position.

In support of its claims against Holmes & Holmes, EEOC asserts that the employee-claimants faced frequent, racially-charged comments from their managers and co-workers. EEOC also contended that supervisors frequently told racial jokes. In response, the employer argued that the employees engaged in similar conduct, frequently using racial slurs and terms.

Following the conclusion of discovery, the EEOC moved for summary judgment–and won! The Court granted partial summary judgment, concluding that the EEOC had proved elements one, two, and four of its claims. The Court’s decision noted that the EEOC had brought the “rare case where there is no dispute as to the pervasiveness of the conduct in question. No reasonable jury could find that a reasonable African-American would not be offended by this conduct.”

The Court rejected the employer’s argument that the employees’ participation in the misconduct indicated that it wasn’t offensive. Instead, the Court left for the jury the question of whether the employees were willing participants in the harassment.
The employer now finds itself in the unenviable position of going to trial in a case with very bad facts.

The lesson to be learned may be easier said than done but absolutely essential in preventing litigation and limiting liability–inappropriate or off-color jokes do not belong in the workplace, regardless of who you seems to find them funny. Really, there’s absolutely nothing funny about being suied for unlawful employment discrimination.

Albertsons Pays $8.9 Million to Settle EEOC Harassment and Retaliation Lawsuits

The EEOC announced last week that large grocery store chain Albertsons has agreed to pay $8.9 million to settle three lawsuits in which the EEOC alleged that it had engaged in race, color and national origin discrimination, and retaliation, at a distribution center in Aurora, Colorado. eeoc logo

According to the EEOC lawsuits and a news report, 168 minority employees were subjected to racist and anti-Semitic derogatory epithets, slurs and graffiti. Allegedly, supervisors were aware of and even participated in the harassing conduct. One African-American employee whose leg was broken by a piece of equipment at work was allegedly left lying on the warehouse floor for thirty minutes by a white supervisor who told him that was what he got for being black. Albertsons denied that it had engaged in discrimination or harassment.

The $8.9 million settlement will be divided among the 168 employees who complained about harassment between 1995 and 2008 (an average of about $53,000 per person).

The lesson for employers is clear, according to the EEOC’s press release. “EEOC Acting Chairman Stuart J. Ishimaru said, ‘Employers simply cannot overlook or tolerate this kind of outrageous discrimination and retaliation. The EEOC certainly won’t. We will aggressively pursue employers who violate the laws we enforce. And we’ll insist on substantial and meaningful relief for the victims before settling these cases.’” Albertsons also agreed to four years of court-supervised monitoring and a training program for its managers.

Employers who suspect or know about harassing behaviors in the workplace must act promptly to stop them to avoid liability, and should train all employees regarding compliance with equal employment opportunity laws.

Employee Handbooks: Anti-Harassment Tip Sheet

A legally effective anti-harassment policy is an absolute requirement for any employee handbook.  There is not a single reason to not have a policy that effectively establishes the organization’s prohibition against harassment and related retaliation.  But there are millions of reasons to make sure that your handbook includes such a policy and that the workplace is set to manage a complaint of harassment should it receive one.   Employee Handbooks

To make sure your employee handbook includes a legally effective anti-harassment policy, a great place to start is with the EEOC itself.  In 2005, the EEOC issued the findings of a limited review of the anti-harassment programs in 43 federal agencies and one component’s 64 sub-agencies.  The findings that were published included an excellent overview of the purposes of an anti-harassment program and the legal requirements of an effective policy.  The EEOC’s report is as relevant and accurate today for private-sector employers as it was three years ago for federal-agency employers. 

According to the EEOC, an anti-harassment policy and complaint procedure should contain, at a minimum:

  • A clear explanation of prohibited conduct;
  • Assurance that complainants or witnesses will not be subject to reprisal;
  • A clearly described complaint process that provides alternative avenues for complainants;
  • Assurance that the employer will protect the confidentiality of the reporting employee to the extent possible;
  • A prompt, thorough, and impartial investigation process; and
  • Assurance that the employer will take immediate and appropriate remedial action if it determines that harassment has occurred.

Each of these elements are essential if you want your policy to be effective against a claim of harassment by an employee.   Employers cannot take advantage of an effective policy, though, without additional workplace safeguards.   The most important of these safeguards is periodic training.

Managers and supervisors should receive annual training to ensure that they understand their responsibilities under the company’s anti-harassment policy and complaint procedure.  Training should review:

  • The types of conduct that violate the policy;
  • The seriousness of the policy;
  • Their responsibilities when they learn of a claim of harassment; and
  • The prohibition against retaliation. 

Employees should also receive periodic training.  After all, what good is a complaint mechanism with which employees are unfamiliar.  One important benefit of training employees on the organization’s anti-harassment policy is the ability to communicate that harassment is not limited to sexual conduct alone.  Instead, an anti-harassment policy should cover all forms of harassment, including race, color, gender (both sexual and non-sexual), age, national origin, disability, and religion. Many employers’ harassment policies are limited to sexual harassment, which is insufficient under the law. 

Disrespectful Workplace Costs State $314k

Workplace bullying is not unlawful. The U.S. Equal Employment Opportunity Commission (EEOC), is not stopped by that, though.  It has entered into a consent decree with the State of Oregon, ending a lawsuit involving workplace bullying.  The case, filed by the EEOC on behalf of Sheri Peters, a former juvenile court clerk, was filed under federal employment laws but, at its core, alleged egregious workplace bullying. eeoc_logo

Peters claimed that her former boss, the juvenile justice center manager, Linda Simonson, engaged in a variety of hostile conduct towards her subordinates. Peters claimed that, after working at the center for a month, she told Simonson that she was pregnant.  Simonson responded that she felt Peters had concealed her pregnancy to get hired and called Peters at her unborn child “garbage.”  When Peters went to the hospital with a ruptured placenta in December 2004, she claimed, Simonson called her and chastised her for being not at work.

Court documents do not paint a pretty image for the center’s management style.  Several current and former employees testified about the “bullying conduct” of Simonson who, as one witness described, “managed the department like an abusive parent.”  Another employee reported that she was harassed “relentlessly” by Simonson while out maternity leave.  Another claimed that, while she was pregnant, she was subject to “harassing and intimidating behavior” by Simsonson.  And one employee stated that Simonson was harassing, “cruel and vindictive.”

As part of the settlement, Peters will receive $315,000. 

The real lesson here is not about pregnancy discrimination or even gender-based harassment.  The real lesson is about respectful conduct in the workplace.  Employers who fail to recognize that respect is an essential component of every job will eventually have to face the fallout of a distrusting workforce who feels they were thrown to the wolves by the organization that turned a blind eye to bullying and disrespectful treatment by management.

Former Ohio AG Is Accused of Fostering a Hostile Environment (Again)

As layoffs increase, so do claims of age discrimination. Age-based harassment, though, is less common.  A 49-year-old aide to former Ohio AG Marc Dann claims that Dann’s managers used profanity and called him a “dinosaur,” resulting in what he claims was harassment and age-discrimination.  This claim comes in the middle of an already scandalous period for the former AG, who has been accused of fostering an unlawfully hostile work environment.

Ohio AG Dann

This story comes from the Zanesville Times Recorder’s article, “Complaint: AG’s office discriminated and harassed.”

Dann (pictured) and some of his aides have been in the middle of a sexual-harassment scandal, resulting in the AG’s departure from office.  David Kessler, who has filed a complaint with the EEOC against the AG’s Office, said that the scandal supports his allegations of abusive behavior. 

Kessler was hired in 1999 and investigated crimes against the elderly.  Kessler claims that, when he took office in January 2007, Dann installed new aides and things went downhill from there.  He claims that he was targeted because he had been hired during the prior administration, which Dann had defeated to take office.  Kessler says that he was told that he could either quit or be fired, so, in January 2008, he quit.

Then, in April 2008, Dann admitted to having an extramarital affair with a staffer and resigned amid allegations of a sexually hostile work environment.  Two female employees claimed that their supervisor had made sexual advances and comments toward them.  Those allegations triggered an investigation leading to other unsavory discoveries.

From a legal perspective, this recent claim is quite different than the original claims of sexual harassment.  Those claims were based on the allegation that the women were being treated less favorably because of their gender.  Here, Kessler seems to really be claiming that he was treated less favorably because of his political affiliation with the prior administration.  Unfortunately for Kessler, such discrimination in politics is often legal, depending on the nature of the position.  If Kessler was a top aide, in a position of trust and authority, then the AG likely did have the right to “discriminate” against him if the AG believed that Kessler’s political affiliations prevented him from giving his full loyalty to his new boss. 

And that is where the age-discrimination claim comes in.  If Kessler’s claim for political association (a constitutional claim brought pursuant to the First Amendment’s Right to Freedom of Association), is tossed by the EEOC or the courts, he’ll have the age claim to fall back on.  However, given his actual age (49), the “back-up” argument may be hard to swallow.  Especially if the alleged harassers were older than Kessler.  If an employer really does harbor an age-based bias against employees aged 49 and above, it will soon run out of people to employ.

Then again, the allegation of direct evidence of age-based hostility, i.e., the “dinosaur comment” might be enough for the age-discrimination claim to survive, for now.

See also:  Delaware District Court Awards Summary Judgment to Employer in EEOC Suit for Age Discrimination