Showing posts with label Hostile Work Environment. Show all posts
Showing posts with label Hostile Work Environment. Show all posts

Friday, October 11, 2013

"Bow at the Altar . . . of Political Correctness" - COTW #164

Gender stereotyping claims, meet the super-manly world of ironworkers - men's men. Macho men. Masculine men. What "real men" should be (you get the idea). In EEOC v. Boh Brothers Construction Co. (opinion here), the Fifth Circuit, sitting en banc, provided us with 68 pages of analysis on same-sex gender stereotyping harassment.

Let's start with the harassing conduct. The crew superintendent called the plaintiff "pu--y," "princess," and "fa--ot"; often approached him from behind and simulated intercourse; exposed his penis while urinating in front of him; and teased him for using Wet Ones instead of toilet paper because (and I quote) that's "kind of gay."

The majority concluded that the evidence was sufficient to support a jury verdict that the defendant was liable for the harassment under Title VII. The divergent opinions in this case highlight a rift among judges when analyzing "shop talk" types of cases. One particular dissent pulled no punches in its condemnation of the majority (pardon the lengthy cut-and-paste, but this really highlights the differences among the judges):
By deftly extending the applicable law, Judge Elrod and the en banc majority—with the best of intentions—take a deep bow at the altar of the twin idols of political correctness and social engineering. Because that is a demonstrable departure from reason and experience and imposes an unsustainable burden on private employers in Texas, Louisiana, and Mississippi, I respectfully dissent . . . . 
In a world in which comments on Wet Wipes or pink shirts can be considered discrimination on account of sex, the American workplace becomes more like a prison than a place for personal achievement, individual initiative, and positive human interaction; one's speech is chilled as a condition of keeping one's job. As Judge Jones accurately observes, the majority opinion “portends a government-compelled workplace speech code”—“a ‘code of civility’ [imposed] on the American workplace.” Instead of resisting such an Orwellian regime, in which Big Brother (in the form of the EEOC or otherwise) constantly monitors the worksite to detect “improper” words and thoughts, the en banc majority fosters it without Congressional mandate. 
The hypersensitivity that is blessed unintentionally by the majority nudges the law in a direction that hastens cultural decay and undermines—if even just a little bit—an important part of what is good about private employment in the United States. Societies, and the legal systems of which they are mutually supportive, decline slowly, but ultimately with tragic consequence: “Not with a bang but a whimper.”
Wow, tell us how you really feel! So, what's the takeaway for employers? Crackdown on same-sex harassment and gender stereotyping. The dissent demonstrates that employers might have a receptive ear in litigation - but trust me, if you're counting votes at a circuit court in an en banc review of a jury verdict then you've already lost even if you win. That type of legal battle doesn't come cheap.

Friday, February 8, 2013

3rd Circuit on Continuing Violation - COTW #129


The Third Circuit recently issued a precedential opinion in Mandel v. M&Q Packaging Corp., analyzing a number of sex discrimination issues. Of particular interest, the Court addressed the continuing violation theory of hostile work environment sex discrimination under Title VII.

The plaintiff allegedly suffered a parade of horribles over many years of employment. Just some of the highlights:
Mandel claimed that, throughout her employment [she was] referred to as “woman,” “darling,” “the woman,” “fluffy,” “missy,” “hon,” and “toots”; having her body, clothing, and physical appearance commented on; being told that she was “foolish not to use [her] assets”; being told by Systems Manager David Benetz, when she asked for directions to a meeting at corporate headquarters, that “[f]or you . . . the meeting will start at my house tonight and we will conclude our part of it tomorrow morning  – maybe . . . we may need to postpone the meeting with everyone else a few hours to finish up . . .”; being told by Quality Manager Harold Brenneman that he fantasized about her while he was having sex with his wife; . . . [and] being told to clean the bathroom and make coffee.
One more thing . . . and it turns out to be a very important thing:
On April 6, 2007, during a meeting regarding sample orders, Bachert became angry, repeatedly called Mandel a “bitch,” and screamed “shut the fuck up.”
Why is this important? Well, the plaintiff faced a statute of limitations problem . . . as in, almost all of the allegations took place outside of the statutory period for bringing a Title VII claim. However, the Court reminds us of the "continuing violation" theory:
Under the continuing violation doctrine, discriminatory acts that  are not individually actionable may be aggregated to make out a hostile work environment claim . . . . [P]laintiff must show that at least one act occurred within the filing period.
Hmmm, and how does the continuing violation doctrine apply to this case?
Mandel has alleged at least one act that falls within the statute of limitations (i.e. Bachert calling her a “bitch” during a meeting), and many of the acts that  occurred prior to the  applicable limitations period involved similar conduct by the same individuals, suggesting a persistent, ongoing pattern.  We will, therefore, remand the case to the District Court for further proceedings, including a determination of the  scope of the incidents properly considered part of the continuing violation for the hostile work environment claim.
And now you see why that one incident suddenly becomes very important. It effectively brings in the preceding offensive conduct that would otherwise have fallen outside of the statute of limitations. The Court directed the district court to analyze whether a hostile work environment existed by examining the "totality of the circumstances" instead of "pars[ing] out each event and view[ing] them separately." That last blow-up may wind up costing the employer dearly. At the very least, it has dragged this case out with a remand to the district court.

Molly DiBianca has a post on this case, analyzing whether the final name-calling could constitute constructive discharge: 3d Cir. Issues a Bitchin' Constructive Discharge Decision.

Tuesday, November 27, 2012

SCOTUS Arguments on Who is a "Supervisor" for Harassment Claims

Yesterday, the Supreme Court heard oral arguments in Vance v. Ball State University (SCOTUSblog coverage here). You can read my previous coverage of this case here and here. And, the official transcripts from yesterday's arguments are available here.

Existing workplace harassment precedent differentiates between harassment by "supervisors" and co-workers. Employers are subject to vicarious liability, pending the Faragher-Ellerth defense, for harassment by supervisors. Whereas plaintiffs must establish negligence on the part of the employer if the harasser is merely a co-worker.

Vance v. Ball State Univ. will hopefully define who counts as a "supervisor" for employment harassment and hostile work environment claims. The Seventh Circuit held that the harasser can not be a supervisor unless he or she has the power to "hire, fire, demote, promote, transfer, or discipline" the victim. The most noteworthy part of yesterday's argument? Nobody endorsed this test (both parties and the United States argued against it). This seemed to bother Justice Scalia, who I'm guessing will vote in favor of the Seventh Circuit test.

The employee's counsel even went so far as to argue that the parties agreed on the applicable legal standard, which he phrased as:
[T]hose harassers whose employer-conferred authority over their victims enables or materially augments the harassment should count as supervisors.
This led to a number of sometimes silly hypotheticals, which I think were meant to demonstrate the problem with such a wishy-washy test. What if the harasser had the power to play country music at work all day? What if it was hard rock? What if the harasser could subject the victim to a cold work environment? Or make the victim chop onions? Or clean toilets? Justices Alito, Roberts and Scalia all hinted at the problem with having to decide the "materially augments" factor on a case-by-case basis, leading me to believe they will come down in favor of the bright line rule from the Seventh Circuit.

The employer argued that the employee in this case would not meet any of the standards - a point they made in their Brief while arguing that this is a poor case for deciding which "supervisor" test to use. And that's a concern in this case. The employee's case is pretty weak, and the Justices may agree that the supervisor test is not determinative and therefore punt on the issue. I hope that doesn't happen because there is a circuit split on this issue and I want an answer.

There was also a funny little skirmish involving Scalia and Ginsburg with regard to Skidmore deference and administrative deference generally (pp. 18-19). So, the opinions could be split along admin-law loyalties, with some Justices deferring to the EEOC's test (focusing on authority to direct day-to-day work activities).

Frankly, I think this case is a toss up. Did Justice Kennedy tip his hand? Not exactly. In fact, he only made one comment and it was to bring up his own standard that would use the Seventh Circuit bright line rule coupled with "an increased duty of care on the part of the employer to take necessary steps to prevent forbidden harassment."

My prediction: 5-4 for the bright line rule, split conservative bloc plus Kennedy in the majority with a concurring opinion by Justice Kennedy advocating the "increased duty of care."

Image: Work of federal government on Supreme Court website.

Friday, August 17, 2012

Naked Twister, Orgies, and Facebook - COTW #105

Ah yes: naked twister, orgies, and Facebook . . . just another Case of the Week! In Targonski v. City of Oakridge, the plaintiff brought a number of workplace discrimination claims, including a sexual harassment hostile work environment claim.

Her claim started off pretty well. She alleged that co-workers were spreading rumors that she was a whore, a lesbian, invited people to orgies at her house, and distributed nude photos of herself to anyone who asked. That alone would be a decent Case of the Week . . . but dontcha just know there's a twist?

To establish a hostile work environment claim, the plaintiff must establish that she was subjectively offended by the conduct. Let's throw some Facebook posts into the fray!
[P]laintiff was herself discussing on Facebook her desire for a female friend to join her "naked in the hot tub." The previous day on her Facebook page, plaintiff was discussing "naked Twister." May 22, 2010 postings on plaintiff's Facebook page by her Facebook "friends" talked about female orgies involving plaintiff, Cassie Bridges, and others, to be filmed by plaintiff's husband.
Hmmm, maybe she wasn't so offended by the workplace conduct after all. The plaintiff claims she was just joking around on Facebook with her friends. She also argued (and I think most people would agree here) that there's a difference between joking with friends on Facebook, and somebody spreading rumors in the workplace that she's a whore who loves orgies.

The judge decided that summary judgment was not appropriate in this case as the plaintiff's "explanation . . . has some substance and must be credited by the court." But she's not in the clear yet, because "the jury will have ample opportunity to consider the Facebook evidence and reach its own conclusions in this matter."

HT: My Mason Law classmate Derek Bottcher at Cooley (.vcf) tipped me off to Eric Meyer's post on this case.

Friday, June 15, 2012

Cha-Ching! $25 Million Race Discrimination Verdict - COTW #96

You put up numbers this big, and you've got a good great shot at landing Case of the Week honors. A New York jury awarded a steelworker $25 million in a race discrimination suit. What kind of treatment puts up numbers like this?
Elijah Turley still remembers the stuffed monkey with a noose around its neck found hanging from his driver's side mirror. He also remembers the "KKK" and "King Kong" graffiti on the walls of the Lackawanna steel plant where he worked for 14 years. And if that wasn't bad enough, there were the racial slurs from co-workers.
Sometimes it's hard to believe these things still go on in modern workplaces. And that was the line of attack the plaintiff's attorney used:
This case is about the breakdown of a man . . . . He wanted to be treated equally, treated equally in a culture that hadn't changed since the '50s.
Well, he has $25 million to build himself up again (alright, it will probably get reduced in one way or another - but still be a lot).

To the employer's credit, it did hire a private investigator, suspend employees, and install security cameras. I guess the jury felt that it just wasn't enough under the circumstances.

HT: Rich Meneghello via Twitter.

Thursday, May 24, 2012

EEOC: Confederate Flag = Hostile Work Environment?

In Dawson v. Donahoe (opinion here), the EEOC recently held that employees wearing t-shirts with Confederate flags may constitute a hostile work environment:
In this case, Complainant has alleged that he notified the Postmaster as early as March 2011 of employees repeatedly wearing Confederate flag t-shirts to work, but it was not until May 2011, that the Postmaster finally instructed the supervisor to start sending the employees home to change. Complainant argues that the Postmaster "procrastinated in taking action on my complaint" and that he filed the complaint, in part, because of the Postmaster’s "lack of concern for my feelings associated with this matter." Complainant explained that he was offended by the t-shirts because he saw the Confederate flag as a symbol of racism that evoked the history of slavery. Complainant also alleged that he is now fearful of one the employees he complained about because the employee has started parking his car off Agency properly [sic property?] and Complainant believes he might have a weapon in his car.
Based on the circumstances alleged by Complainant, we conclude that he has stated a viable claim of discriminatory harassment which requires further investigation.
While the EEOC opinion addresses the requirement that the conduct be subjectively offensive, it doesn't really touch on whether the Confederate flag is objectively offensive (aside from using the phrase "offensive t-shirts" and the implication that it must be objectively offensive if there is a valid hostile work environment claim here).

Over at Volokh Conspiracy, Eugene Volokh raises some First Amendment concerns about the ruling.

Friday, November 11, 2011

Bad Christmas Card Idea - COTW #66

I know, I know - it's way too early to start thinking about Christmas. But when I see a good Case of the Week pop up, I can't wait until after Thanksgiving just to be seasonal!

So, employers, what do you get the employee on your list who has everything? Beats me. But, I can tell you what you don't get him - a picture of Santa Claus in KKK gear, holding a noose, standing in front of a burning cross, wishing the employee a "White Christmas."

Not surprisingly, the employer who allegedly did send such season's greetings now faces a lawsuit. In an interview, one of the employees described his reaction: "It scared me, because I have a wife; I took it as a threat, that they were saying they're trying to kill me."

You can read more here, including a video showing the offending image and interviews with the plaintiffs. I have embedded the video below (may not display for email subscribers - click here to view online):




HT: Donna Ballman (@employeeatty) via Twitter.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Sunday, November 6, 2011

What is Sexual Harassment?

This week, I'm writing a series of posts to address some sexual harassment issues that have popped up in the mainstream media lately. The issues arise from allegations made against Herman Cain. I want to emphasize that to date I have no idea what the actual allegations even are, let alone whether they are true. My purpose is not political, but informative.

Let's start with the most basic question: What is sexual harassment? Some recent commentary has suggested that there's a really low bar. A guy says something innocent and a woman takes offense... voila, sexual harassment! In fact, sexual harassment is pretty difficult to establish.

There are two main types of sexual harassment. The first is quid pro quo, or "this for that" harassment. Trading workplace favors for sexual favors, or imposing workplace penalties for withholding sexual favors. This is the creepy manager abusing his position to hit on subordinates.

Then there's "hostile work environment" harassment. Per the United States Supreme Court:
[S]exual harassment so "severe or pervasive" as to " 'alter the conditions of [the victim's] employment and create an abusive working environment' " violates Title VII . . . . [T]o be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.
Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The Supreme Court has repeatedly explained that:
Title VII does not prohibit "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." A recurring point in these opinions is that "simple teasing," offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment." These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a "general civility code."
Id. I think that's a lot harder than some commentators acknowledge.

In short, sexual harassment has a pretty high bar. Of course, that's a high bar for a successful lawsuit. Next post: How hard is it to get rid of baseless sexual harassment claims?

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, November 4, 2011

Gay Wedding Invitation is not Harassment - COTW #65

The employment law Case of the Week is Walker v. Jackson, an EEOC decision from October 6, 2011 (sorry, no link but if you have Westlaw it's 2011 WL 4889255). It answers the age old question - if I get invited to a same sex wedding celebration, was I subjected to religious harassment? If you answered, "are you freakin' kidding me?" then congratulations! You and the EEOC agree (OK, the EEOC was a little more delicate).

But what if I complained about it and then had to endure people congratulating the employee on his "marriage?" (use of "quotes" is the Complainant's thing, not mine). Still no? Yes, still no.

The Complainant received the following email via a work distribution list:
[Employee A] and his partner [named] are getting married this Sunday. The IO is sponsoring an informal celebration to congratulate [Employee A] on this happy event. Please feel free to drop by the IO conference room on Thursday, October 7 at 4:30 P.M. to wish them well.
This prompted the Complainant to respond (FYI -apparently a "Reply All"):
I feel your message announcing the celebration of the “union” of [Employee A] and his “Partner” was offensive and insensitive to my religious faith as a Christian. I think it is general knowledge that the Christian faith only condones “marriages” between men and women, not men and other men. As acting Office Director, I feel you could have been more “sensitive” and “neutral” with regards to this issue.
So, what do you think happened next? "The next day, NCEA employees sent approximately 15-20 emails on the global list-serve (including Complainant) congratulating Employee A on his marriage." But, "[n]one of these emails specifically mentioned Complainant or his email."

This is not religious harassment. The Complainant was invited to a voluntary social gathering, and the congratulatory emails did not mention the Complainant or challenge his religious beliefs. Apparently one private email did question his religious beliefs but that's not enough to constitute a "severe and pervasive" hostile work environment.

Case dismissed. HT: Volokh Conspiracy.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Thursday, September 22, 2011

"Best B*** J**s on the #8 Line" - COTW #59

The latest Case of the Week is a flashback; we're travelling all the way back to late, great, nineteen ninety-eight. Hostile work environment claims based on sexual harassment require that the harassing conduct be subjectively offensive. That is, the Plaintiff must find the conduct offensive and the harassment must be unwelcome.

In Sublette v. Glidden Co., 1998 WL 964189 (E.D. Pa.), the Plaintiff alleged that her co-worker "repeatedly requested oral sex from her and leered at her while making suggestive comments." Also, a shift supervisor "made comments about her breasts," among other things. Sounds like we could have a hostile work environment claim here, right?

But wait... the conduct must be unwelcome and offensive to the Plaintiff. It sounds offensive. But, how can we possibly tell if this particular Plaintiff found it offensive? I'm glad you asked! Maybe the Defendants have evidence of:
1. Plaintiff's crude and vulgar language; 
2. Plaintiff's discussions with her co-workers of her intimate relations with her husband; 
3. Plaintiff's act of wearing a sign essentially saying “Best Blow Jobs on the # 8 line;” 
4. Plaintiff's act of ripping her t-shirt and exposing her cleavage; 
5. Plaintiff's act of wetting her t-shirt and standing in front of a large industrial fan to show off her breasts; 
6. Plaintiff's use of sexual innuendo including her comment apparently offering a “blow job” to a co-worker; 
7. Plaintiff's permitting a male co-worker to imprint his handprint in paint on the back bottom of her t-shirt, on her buttocks; and 
8. Plaintiff's touching of male co-workers on their thigh and buttocks during working hours.
As the title of this post gives away, number three is my favorite!

The Court had "little difficulty" finding that the evidence was relevant and therefore possibly admissible. The Court did, however, reserve the right to examine whether the probative value outweighed any unfair prejudice as the case developed (if not, it may still be inadmissible).

Lesson for employees: be careful how you present yourself at work! For employers: document inappropriate behavior.


Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, September 16, 2011

5th Circuit Recognizes Age-Based Hostile Work Environment - COTW #58

Hostile work environment claims are nothing new. But, what a lot of people don't know is that they are actually based on discrimination statutes. Your work environment may be hostile, but if the hostility is not based on a protected class then you probably don't have a claim.

Hostile work environment claims generally arise from Title VII (protecting sex, race, religion, color, national origin). However, age is a protected class under a separate statute, the ADEA. Whether the ADEA creates a cause of action for hostile work environment is an open question in many jurisdictions - but, after the latest Case of the Week, not the Fifth Circuit!

In Dediol v. Best Chevrolet, Inc., the Fifth Circuit held:
[T]he ADEA and Title VII share common substantive features and also a common purpose: "the elimination of discrimination in the workplace . . . . [T]he broad application of the hostile-environment doctrine in the Title VII context; the general similarity of purpose shared by Title VII and the ADEA; and the fact that the Title VII rationale for the doctrine is of equal force, all counsel" the result that a claim for hostile work environment based on age is recognized under Title VII.
(quoting Crawford v. Medina General Hosp., 96 F.3d 830 (6th Cir. 1996)). A little sidenote here, in Gross v. FBL, the Supreme Court recently rejected the idea that Title VII and the ADEA should be interpreted identically. That said, they are similar so the Fifth (via the Sixth) Circuit's analysis here seems sound.

So, what kinds of facts might support such a claim? Well, in Dediol the employee requested time off to volunteer at a church event. His supervisor allegedly replied, "You old mother******, you are not going over there tomorrow" and "if you go over there, [I’ll] fire your f*****g ass." And then, the supervisor "never again referred to him by his given name, instead calling him names like 'old mother******,' 'old man,' and 'pops.'" Note to employers, profanity makes everything sound worse (compare "old" to "old mother******").

What about here in Pennsylvania and the Third Circuit? Ahhh, a tease for a future blog entry (check back next week).

A ton of blogs have covered this case already, but here are some good ones: Eric Meyer's This old mother****** may just have an age discrimination claim; and Paul Mollica's case summary in Outen and Golden Employment Law Blog.


Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, August 12, 2011

"Wet T-Shirt Wednesday" Lawsuit - COTW #53

When I was a young man, I would sometimes pass the time by trying to think of the best song for each day of the week. The best I could come up with was:

  • Sunday Bloody Sunday by U2
  • Manic Monday by The Bangles
  • Ruby Tuesday by The Rolling Stones
  • Waiting for Wednesday by Lisa Loeb
  • There was a band called Thursday - that's the best I could do (I didn't have Google or iTunes so cut me some slack!).
  • Friday, I'm in Love by The Cure
  • Saturday Night by The Bay City Rollers
Where am I going with this? Well, according to a recent complaint filed in district court in Utah, a woman alleges a sexual harassment claim for every workday of the week. The New York Daily News reports on the outrageous dress code that prompted the suit:
  • Mini-skirt Monday
  • Tube-top Tuesday
  • Wet T-Shirt Wednesday
  • No bra Thursday
  • Bikini top Friday
The complaint includes some other cringe-worthy allegations, such as butt-slapping, breast comments, and inquiries regarding the employee's pubic hair maintenance. Needless to say, if true, these are not ideal (or socially acceptable or legal) management practices. 


Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, May 6, 2011

Pin-Ups Pose Problem for Employer - COTW #39

The latest Case of the Week is a warning regarding inappropriate materials in the workplace. In Hoyle v. Freightliner LLC, 2011 WL 1206658 (April 1, 2011), the Fourth Circuit sent a hostile work environment claim back to the district court for trial, based largely on a pervasive environment of pictures of scantily clad women.

The plaintiff, a female employee at a truck assembly plant, reported the following:
  • "[P]hotos of scantily-clad women in G-strings taped to the lid of a company-issued toolbox."
  • "[S]exually provocative calendars" of women in bathing suits (including one taped to a toolbox... see a pattern here?).
  • "[O]ther photos that male employees had on the outside and inside of their company toolboxes."
  • One employee had a "picture of his wife in a G-string kind of like bent over" (seriously?)
  • A screensaver featuring a picture of a nude woman
  • There was also an incident in which someone put a tampon on a key ring
Wow, these guys sure do like their pin-ups. Now, swimsuit calendars and pictures of women in g-strings aren't exactly hardcore pornography... but they're not appropriate for the workplace either. The Court noted past precedent:
[V]arious incidents and displays "that consistently painted women in a sexually subservient and demeaning light were sufficiently severe or pervasive to alter the conditions of [the plaintiff's] employment and to create an abusive work environment."
Accordingly, the plaintiff's hostile work environment claim was sent back to the district court for trial.

The opinion noted that some of the male employees made comments to the effect that nobody can tell them what to put in their toolboxes. Employers often strive to give employees "ownership" of certain spaces... whether its their own office, their own cubicle, their own computer, or their own toolbox. That's a great idea, but employees also need to know that any space at the workplace is subject to the rules of the workplace, including the anti-harassment policy.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Thursday, April 14, 2011

STFU "We Want Boobies" (It's the Employer's Response that Counts) - COTW #36

The latest Case of the Week helps illustrate that an employer's strong response can overcome potentially harassing conduct. Fair warning: the facts of this case may be offensive to some (although apparently some combination of not objectively offensive enough and not severe and pervasive enough to constitute a hostile work environment!).

The plaintiff was a student football team manager at Hofstra who was trapped travelling on the team bus when the following scenario played out (per her deposition testimony):
[A movie was shown in which] there were numerous sex scenes that continued to be more graphic in nature. And players making lewd comments and howling and talking about how they wanted to get laid and oh, nice tits. And then there was a particular scene that was shown where a white woman was masturbating to a black man who was in the shower. And this player, Eric Taylor, turned around in his seat and said to me, this is what you white women want, our black dicks. That shit will make you go crazy. And then everyone started laughing. And I just burst into tears and crying. And I was humiliated and embarrassed and upset.
She complained to an assistant coach while the players chanted "we want boobies" and Eric Taylor told her to "sit down and like shut the fuck up."

Sound like a tough situation? Believe it or not, there were even more bullying and harassing incidents. But, as I mentioned, the Court was not even convinced that the acts could constitute a hostile work environment (which I find rather remarkable). More importantly, even if there was a hostile work environment, the response of the coaches saved the school from liability.

The assistant coach to whom the plaintiff complained immediately shut off the movie and told the players to quiet down. "Within 48 hours of her complaint, [the head coach] performed an investigation and removed Taylor from the team." Title VII requires remedial action, and that's what the coaches did. Accordingly the Court held that "no reasonable jury could impute that liability to Hofstra."

Of course, managers want to prevent harassing conduct before it happens. That's not always possible. When employees misbehave, the managers' reactions may still save the employer from liability. Employers should plan in advance to respond to misconduct in the future.

Shameless (but related to this post) plug: I'll be hosting the HR Hero audio conference Curses, Sued Again: Avoid Legal Pitfalls with Swearing and Bullying on April 28, 2011. Sign up today!

Interesting university law side-issue: The Plaintiff was a grad student with a $700 stipend, which was sufficient to establish that she was an employee capable of bringing a Title VII suit.

Citation: Summa v. Hofstra Univ., CV 08-0361 WDW, 2011 WL 1343058 (E.D.N.Y. Apr. 7, 2011)(copy here).

HT: Andrew Slobodien (@LaborLawLawyer) via Twitter.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, October 23, 2009

Heard any Good Jokes Lately?

Every new judicial opinion is a new adventure; you never know what you're going to read. Earlier this month, the federal court for the Eastern District of Pennsylvania issued an opinion containing the following:

For instance, Mr. Marchand’s alleged comment about going "down deep into the chocolate [dessert] with your berry" presumably could be likened to . . . a photograph of an elderly man wearing only a Santa hat and boots, resting on his stomach, with the caption, "Just Roll Me Over Darlin . . . ‘cause I’m Layin On Yer Present."
WHAT!? Perhaps a little context will explain this quote from Seybert v. International Group Inc. (October 13, 2009).

Susan Seybert is the Plaintiff in a sexual harassment suit against her employer, IGI. She claims her supervisor, Brett Marchand (yes, the aforementioned "Mr. Marchand") subjected her to harassment (yes, like the "berry" comment). It turns out Ms. Seybert had previously exchanged some saucy emails herself... like the rather disturbing Santa pic described above.

So what's the legal issue? Ms. Seybert filed a motion to exclude her emails from trial, arguing the emails are irrelevant and possibly barred by Federal Rule of Evidence 412 (which generally prohibits evidence of an alleged victim's sexual behavior or predisposition). The Court had to decide whether to exclude the emails from trial.

To bring a sexual harassment claim for a hostile work environment, the Plaintiff "must prove that she was subjectively offended." The emails could be relevant to whether she personally would be offended by the supervisor's crass comments. Even then, they may still be inadmissible under Rule 412. In short, the Court concludes:
"[The emails] do not bear on Mrs. Seybert’s own sexual history or personal sexual conduct, but only on the issue of whether she appreciates or is offended by possibly crass sexual humor in the workplace."
The Court then concludes that the emails are not "inadmissible at this time." The Court leaves open the possibility for subsequent objections to the emails at trial.

Though the Plaintiff's racy emails appear to be fair game in this sexual harassment case, the ruling is fairly narrow. For example, the Court differentiated this case from instances where the alleged harassment includes touching and advances. In those cases the emails are less likely to be admissible.