Suits In The WorkPlace : Harassment

Perspective on Harassment

Rod Satterwhite — Mon, 11 Aug 2008 12:50:00 GMT

A recent article reported on a Russian judge (the courtroom kind, not an Olympic one) who dismissed a sexual harassment lawsuit filed by a female Russian advertising executive. The judge's rationale: not a lack of evidence, but the alleged need for harassment to foster procreation. As the judge so eloquently stated, "If we had no sexual harassment we would have no children." All I can say is: don't try this defense at home. And especially not in the Ninth Circuit.

In all seriousness, though, the article cites some disturbing statistical and anecdotal information about the commonplace nature of workplace harassment in that country, and provides a sobering perspective on the issue. In our employment defense practice, these days we rarely see the kind of quid pro quo harassment described in the article, and characterized as a regular part of the Russian workplace. Most of our cases arise from allegations of a hostile work environment, but this story should at least serve as a reminder that there are certainly still risks that someone with the wrong attitude about women's roles in the workplace can, in the blink of an eye, get a company into serious trouble. At least in the good old U.S.A.

Raising the Roofies – Harassment Investigation 201

Rod Satterwhite — Tue, 13 May 2008 01:58:00 GMT

A former female attorney at a prominent Boston law firm has filed harassment charges, alleging that she was drugged at a holiday party by another employee. According to a Boston Globe story last week, the former associate filed a claim with the Massachusetts Commission Against Discrimination, alleging that the firm failed to adequately investigate her charges. The suit offers an important lesson in the need for both communication and follow up during – and after – a harassment investigation.

The facts, as alleged in the complaint, are that the female associate became dizzy at a holiday party and later went to the hospital, where traces of an anti-seizure medicine were found in her blood. She reported the incident to another female lawyer, who confided that a year earlier she too had been drugged, and also raped, by a firm employee.

The victim took all this information to HR, who – not surprisingly – conducted a prompt investigation, but could not determine whether she had been given the drug by another employee, or by someone else. The firm nevertheless provided personal safety training for its employees, but did not specifically issue a warning about the incidents themselves.

So far, so good, right? Reasonable steps in response to a difficult situation. It is not uncommon for a harassment investigation to produce inconclusive results, despite an employer’s best efforts. Sometimes you interview every possible witness, look at all the documents, but still just can't determine what happened or who's telling the truth. When that happens, you conduct policy reminders, relevant training (like here) or take other proactives steps that are reasonable.

However, your obligation does not always end there. And here’s where the complaint, if true, raises a few red flags for me. A few weeks after the drugging incident, at a dinner with firm employees, the complaining employee said she overheard a male employee brag about how he likes to use roofies (date rape drug, for those who thought the title related to either candy or building materials) on women and then have sex with them. (Side note of no legal consequence: I’m not quite sure how this topic came up during dinner, nor am I clear on why the guy, who apparently fancied himself quite the ladies’ man, tried to impress his dinner companions with confessions of a desperate felon. Boy, dating sure has changed since I was single . . . ).

Nevertheless, the complaining employee then took this new information to HR, who once again said they would investigate. According to the complaint, however, after several weeks, HR still had not talked with the male employee who supposedly made the comments. I call that "Problem Number 1."

Following closely on its heels is Problem Number 2: the employee stated she was uncomfortable working around the guy (I wonder why), but was told that if so, then she could move to another floor. No mention of a suggestion that he be relocated. Several weeks later, she was told that he was no longer with the firm, but by then she claims to have felt so uncomfortable that she had to leave the firm.

I don’t know whether these allegations are true or not. Regardless, I question whether the whole matter (or at least the litigation) could have been avoided with better follow through and better communication. First, when your investigation is inconclusive, and relates to a possible felony like rape, and you get new information about the potential culprit, you follow up on that information as fast as you possibly can. Whether the firm did so here is unclear, but if they did, it doesn’t sound like they communicated a sense of urgency to the alleged victim. For whatever reason, she concluded that they had failed to talk to the guy for several weeks even after she reported his not-apprpriate-for-dessert roofie confessions.

Second, you never transfer the complaining party in a harassment situation unless they request it. I rarely (if ever) say never, but in most cases it is a risk to transfer the victim, because, like here, the transfer may look, or be perceived as, retaliatory – even if it wasn’t meant to be so.

My employment lawyer Tarot cards suggest that this litigation might have been avoidable. Note that this person did not file the charge immediately after she was drugged, or after the other female said she had been drugged and raped, or even after the firm's initial investigation produced no conclusive results. The charge came only after she provided the firm with additional information, after several weeks passed with what looked like no action by the employer, and after she was told she could move if she had a problem with Mr. Roofie. Then she finally left and filed a charge. Hard to tell exactly how this one will play out. Whether or not the allegations are accurate, however, sometimes dropping everything else on your plate to follow up on an important lead in an investigation can make the difference between whether you get sued, or whether you keep a potentially good employee. Think about it.

Sad Milestone for Santa

Rod Satterwhite — Mon, 10 Dec 2007 21:31:00 GMT

Workplace training has reached a new low. In this article from an Austrailian newspaper, it appears that a temporary staffing agency has told its department store Santa workforce this season that they may no longer use the phrase "Ho! Ho! Ho!". The reason: (and I kid you not) "[t]he term 'ho' is . . . American slang for a prostitute" and, according to one would-be Santa, "[w]e were told it (ho) was a derogatory term for females and can upset people." Instead, according to the training program, the Aussie St. Nicks were told to spread the holiday sprit with a rousing "Ha! Ha! Ha!".

Now despite our bitter and somewhat jaded approach to workplace harassment issues, I think I can speak for both Lou and myself when I say this goes a little too far. Silly as this story is, it is also somewhat indicative of a growing trend in the workplace to over-regulate worker behavior out of a fear, however remote, of offending someone. Such sterilization, however, is not what the law requires.

This trend, in fact, warrants a quick reminder of the real standard for illegal workplace behavior. To be actionable, offensive behavior must be sufficiently severe and pervasive to affect a person's ability to perform the functions of their job. Courts weigh these two factors on a sliding scale to determine whether the behavior would be objectively offensive to a reasonable person, so the more severe the behavior (such as physical touching or assault), the less often it has to occur in order to constitute harassment. Likewise, relatively minor behavior (jokes, comments, etc.) must happen more frequently to reach an actionable level. The standard is not, and never has been, that employers must eliminate any potential source of offense from the workplace. Indeed, if it did, law firms might not exist.

In my experience, most employers genuinely want to create an environment for their employees that is comfortable and free of harassment. However, the current litigious environment, exacerbated by the ever-thinner American psyche, has caused many employers to become gun shy about what they permit their employees to do and say. There is still a place for balance and common sense in managing workplace behavior, and it's possible for employers to legally strike that balance without slapping a gag order on jolly old St. Nick. Oops. Did I say "old"? I meant "experienced."

Taking the Bully by the Horns

Rod Satterwhite — Wed, 05 Sep 2007 13:43:00 GMT

With Labor Day just past us, and the beginning of the school year for most, it seems an appropriate time to take up an issue that’s been bugging me for several months: workplace bullying. Not that I’ve been bullied, mind you. Instead, I keep seeing this issue pop up in headlines here and there, and I finally decided to look at it more carefully from the admittedly jaded eyes of an employment lawyer.

Bullying, according to the Workplace Bullying Institute, is “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms: verbal abuse, threatening, humiliating or offensive behavior/actions, or work interference -- sabotage -- which prevents work from getting done.” Moreover, there are apparently a number of other key characteristics of workplace bullying. According to the institute, it “(a) is driven by perpetrators' need to control the targeted individual(s) , (b) is initiated by bullies who choose targets, timing, place and methods, (c) escalates to involve others who side with the bully, either voluntarily through coercion, and it (d) undermines legitimate business interests when bullies' personal agendas take precedence over work itself.”

Now at first glance, this definition strikes me as objective, and almost scientific. However, applying some of the complaints I’ve heard over the years from employment law plaintiffs, the concept of bullying becomes a little more amorphous. If, for example, a boss repeatedly tells a subordinate that he must improve his work performance or his job will be in jeopardy, and the employee develops a stress related condition as a result, doesn’t that fit the definition above? It’s repeated, health-harming, and threatening, isn’t it? And depending on how “nice” the boss is when she delivers that message, it might even be interpreted by some as mistreatment.

It’s no wonder then, with such a squishy definition, that a recent study concluded workplace bullying was an epidemic: “Workplace Bullying is an Epidemic. 37% of American workers, an estimated 54 million people, have been bullied at work. It affects half (49%) of American workers, 71.5 million workers, when witnesses are included.” Even a cursory look at the study, though, suggested that in reality only 13% of respondents reported that they had actually been bullied in the last year. Isn’t it amazing what you can do with statistics?

Now I’m not trying to pick on (or bully) the Institute by going after their definition and their study, but there is a legitimate issue here for employers. As a result of lobbying efforts by worker advocates, there are several bills pending in legislatures around the country that seek to impose restrictions on workplace bullying. One of these advocacy sites, BullyBusters, actually likens bullying to “general workplace harassment,” and this concept is what really troubles me when I think about the impact on my clients. As difficult and costly as it can be for employers to manage illegal workplace harassment, what will happen if it becomes illegal to tolerate “general workplace harassment,” when the definition of such harassment can potentially include daily workplace reprimands or other legitimate activity? In investigating and training folks on current laws about sexual and racial harassment issues, I see managers legitimately concerned (and sometimes confused) over what they can and cannot say in the workplace. After years of evolution, the law is still gray. The imposition of a general workplace civility rule, backed by compensatory and punitive damages, will clog the courts with people who haven’t recognized that, in life, there will be adversity. It is not the place of either the legislatures, or employers, to shield people from that reality.

Employers can take proactive steps to avoid problems in this area. Of course, training managers is a must. There are good management practices, and poor practices. Good communication can avoid misunderstandings that might someday lead to a “bullying” lawsuit. In addition, harassment policies can be reviewed and rewritten as needed to insure that the work environment is appropriately free from true harassing behavior. Finally, employers can be cognizant of lobbying efforts and legislative initiatives, and oppose those with flawed provisions or definitions. Unlike the bullies in the schoolyard, however, employers should not follow that old adage of “just ignore it and it will go away.”

UPDATED: Spank Me, Train Me, Pay Me

Rod Satterwhite — Thu, 27 Apr 2006 20:02:00 GMT

Fox News is reporting on a case that went to a California jury yesterday in which a 51-year old female employee claims she was spanked during a "team-building" exercise at her company. According to the story:

Employees were paddled with rival companies' yard signs as part of a contest that pitted sales teams against each other, according to court documents. The winners poked fun at the losers, throwing pies at them, feeding them baby food, making them wear diapers and swatting their buttocks.

One of my colleagues raised the question of why this case even got to the jury, because it was undisputed that both male and female employees were paddled with equal vigor. Last time I checked, discrimination laws (even the ones in California) required a showing that something was done because of a person's gender, and it's a little tough to do that when males and females are being treated equally (albeit equally badly).

Regardless of the legal analysis, it seems like we're developing a theme for Administrative Professionals Week.

5/2/06 UPDATE: JURY AWARDS $1.7 MILLION IN THIS CASE. We just learned that the "six-man, six-woman California Superior Court jury awarded Janet Orlando $1.2 million in punitive damages and $500,000 in compensatory damages, including a $450,000 emotional distress award, $40,000 in future medical expenses, and $10,000 in lost wages." For being spanked. Voluntarily. Along with men. Fraternity pledges everywhere are rushing to seek legal counsel, and waves of class actions are expected.

What's On Your Sandwich?

Rod Satterwhite — Fri, 02 Dec 2005 13:32:00 GMT

Seems like a clear cut case of sexual harassment: Teenage workers at a popular sandwhich shop making genitalia-shaped meatballs and donuts and repeatedly showing them to older female employee. Employer has a written sexual harassment policy but otherwise doesn't do much to stop it. Female employee quits and files a claim.

Slam dunk, right? Not so fast. In a recent Iowa Court of Appeals decision, the court held that, on facts like these above, there was no claim. Why not? First, the evidence showed she never complained about harassment, only about the teenagers slacking and not working (and really, who among us hasn't complained about slacking teenagers?), until the very last incident in which the employer gave the teenagers a written warning. Second, and more importantly, she made no showing that the conduct was unwelcome. In fact, the evidence showed the employee brought sexual jokes to work herself.

The moral of the story here is that while sexual jokes and innuendo in the workplace are bad things that can lead to disaster, they won't by themselves expose an employer to liability. Where, as here, there's no showing that the jokes and innuendo are UNWELCOME, there is no claim. The other moral, I guess, is that if you hire teenagers, give them enough work to do so they don't get bored.

Warne v. Chaco Inc., Iowa Ct. App., No. 5-767/05-0238, 11/23/05 (note: case is unpublished, and we'll post a link to the decision as soon as it becomes available)

Equal Opportunity Harassment

Rod Satterwhite — Sat, 01 Oct 2005 04:26:00 GMT

The Seventh Circuit just ruled that a husband and wife could both sue the same employer for sexual harassment under Title VII of the Civil Rights Act of 1964. In Venezia v. Gottlieb Memorial Hospital, (No. 04-1976), a married couple sued their employer – a hospital – for hostile environment harassment. Both claimed they were subjected to inappropriate comments and material at work from some of the same people. While there were some differences in the exact way the two were treated, there was substantial overlap regarding how they were allegedly harassed and who was harassing them.

The issue, of course, is whether this behavior could possibly have been “because of” gender when both the husband and wife were subjected to it. The court said yes, concluding that it’s possible that the husband was harassed by some people because he was male and the wife was harassed by other people because she is female.

To me, this is a stretch. There’s no question this behavior was offensive, but even a brief review of the facts indicates that the same group – the husband’s co-workers – was engaging in nearly identical behavior because they thought the wife pulled strings to get the husband his job. So, they teased them both – asserting that the wife had engaged in sex with the boss in order to secure her husband a job.

To be illegal under Title VII, harassment has to be because of the victim's gender. There’s certainly enough of a common nexus here of behaviors to allow the defendant to argue that this was not based on the gender of either employee. When a male and a female are treated the same, it’s not gender discrimination. Here the husband and wife were both treated badly. While the behavior was reprehensible, it wasn’t illegal.