As a minority female, I have had my share of being harassed, and I have felt rage at the unfairness. I completely understand the desire to lash out at the harasser. But actually burning them with a cigarette? Well, that crosses the line (unless, of course, the harasser is threatening physical harm. Then, all bets – and gloves – are off!) But that’s what one employee did, and yet she was surprised when the employer fired her for it. Continue Reading Burning a Customer Is Not the Appropriate Response to Harassment

Emojis and emoticons, which we all use to add flavor and emotion to dry, text based communication on our phones, emails, or Facebook messages, have become points of contention in a variety of legal disputes. (For those of us not in the know, emoticons are created from a standard computer keyboard while emojis are more commonly used when texting or using social media.) This phenomenon should not be too surprising, as there are now an estimated 2,600 emojis (and counting) and they are so commonly used that emojis even had their own feature film this summer, The Emoji Movie (albeit to questionable reviews). Continue Reading Employers – Don’t Let Your Emojis Get the Best of You

I am a luddite (meaning that I fear technological change) and am wholly inept when it comes to my smartphone. I know it can do many marvelous things of which I am unaware – but apparently it has a darker side as well, as illustrated by a recent case, Lee v. Trees, Inc. In that case, the court threw out an employee’s Title VII lawsuit because she had submitted fabricated texts, supposedly from her supervisor, to support her claims of sexual harassment and retaliation. Continue Reading Fabricated Texts? Something Else for Employers to Be Aware Of…

Last week, the Equal Employment Opportunity Commission (EEOC) announced it was offering a training program on respectful workplaces as an alternative to traditional harassment prevention training. This training was developed following the issuance of the Report of the Co-Chairs of the EEOC’s Select Task Force on the Study of Harassment in the Workplace, The press release included a quote from EEOC Acting Chair and Co-Chair of the Select Task Force Victoria Lipnic that stated, “These trainings incorporate the report’s recommendations on compliance, workplace civility, and bystander intervention training. I believe the trainings can have a real impact on workplace culture, and I hope employers make use of them.” Continue Reading The EEOC’s Civility Training Program – Watch Out For That NLRB Charge!

pcodqjeziWe are all watching and reading how Uber is responding to yet the latest scandal and legal problem to confront the on-demand ride service giant.  About a week ago, a former Uber employee, Susan Fowler, posted a blog about why she left Uber last December. Susan alleges (and these are only allegations at this point) that during her one year at Uber as an engineer, she was subject to harassment and a rampant sexist culture at Uber, and when she complained, Uber did nothing. Continue Reading What Does the Ex-Uber Employee’s Blog Teach Employers about the Power of Social Media?

no-camera-allowed-mdThis is one of those pro-employer cases that just doesn’t make sense to me, even though I’m a die-hard management-side lawyer. It frankly strikes me as a case of punishing the victim. To explain:

In Furcron v. Mail Centers Plus, LLC, the employer provided facilities and administrative support to other businesses, including the Coca-Cola Company. A male employee with Asperger’s syndrome (which can cause awkward social mannerisms) was transferred to a mailroom (following some awkward social interactions with a female employee in his prior assignment). According to a female mailroom employee, after his transfer, the male employee frequently entered her work area and invaded her personal space. He stared at her and, as witnessed by another employee, attempted to look down the female employee’s shirt and at her underwear when she bent over. But even worse, as witnessed by yet another employee, he frequently exhibited an erect penis while staring at the female employee and would deliberately bump and rub his erection against her!!! Continue Reading Employee Violated Sexual Harassment Policy by Photographing Her Harasser’s Erection?

ml_rm_iliw_tm_4cc_d_eAs I mentioned in a recent post, “SEIU Fights Its Own Unionization,” the Service Employees International Union has been behind the push at the National Labor Relations Board to extend joint employer status to franchisors, like McDonald’s (meaning that McDonald’s would be deemed an employer of its franchisees’ employees). And now, it is further extending this push – to the Equal Employment Opportunity Commission. On October 5, 2016, (as first reported by The Guardian) Fight for $15 (which is backed and funded by SEIU) announced that it had helped 15 McDonald’s employees (who are also Fight for $15 activists, unsurprisingly) file charges with the EEOC, claiming that they had been sexually harassed by their employers. Apparently only one of the charges was filed against a corporate McDonald’s store – the rest were filed jointly against franchisee stores and McDonald’s Corporation. Continue Reading SEIU Expands Joint Employment Fight to the EEOC

downloadAs I’ve made clear in past posts, I am increasingly frustrated with the current National Labor Relations Board’s clearly pro-union, anti-employer approach. I find many of their decisions to have little or no relationship to common sense or logic. So I found a concurring opinion by Judge Patricia Millett in the recent case of Consolidated Communications, Inc. v. National Labor Relations Board to be of particular interest, as she expresses her “substantial concern with the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes.” Judge Millet goes on to say, “These decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace.” (!!!!) Continue Reading Why Does the NLRB Tolerate Racist and Sexist Conduct?

That’s an eye-catcher of a title, isn’t it? As reported by the New York Times, Babeland, an adult toy store, became the first sex shop to become unionized. Workers at three New York City locations voted to be represented by the Retail, Wholesale and Department Store Union, one of the country’s largest retail unions.vienna-2-1552451

Why did they choose to unionize? There were several typical reasons – wanting more transparency around hiring, promotions and discipline, as well as better ways of addressing workplace disputes and grievances.

But there were some other, less typical reasons. One is the customers. I’m sure you aren’t surprised to hear that Babeland’s customers can be, well, difficult. Some of them seem to believe that it’s ok to sexually harass sex shop workers. The workers want management to provide better training and support in dealing with these folks. Continue Reading Sex Shop Workers Unionize

So, someone who posed as a nude lumberjack for Playgirl is now upset about the (foreseeable!) consequences of his decision – teasing by his coworkers. And a federal court judge has found that the employee’s sexual harassment claim against his employer, based on his coworkers’ teasing, may have merit. To me, this case, Sawka v. ADP, Inc., is crazy on several levels!Axe

Let’s start with the employee. I find the lack of personal accountability in our society to be appalling. Many people are unwilling to take responsibility for their choices and actions – and, in my opinion, this employee falls into this group. It seems to me that if you choose to put it ALL out there in a sexually-focused publication that is intended for widespread public distribution, you should realize that people (including those you know!) will look at the pictures, comment on them, and, yes, tease you about them. Really, isn’t the whole point of posing for a magazine like Playgirl to invite such attention? Now, I understand that the pictures date from 1991, and perhaps the employee regrets having posed for them at this point in his life. But the passage of time does not and should not absolve him of his responsibility for his (in retrospect) possibly ill-considered decision.

Moreover, his expectations of what his employer should have done were, again in my opinion, unrealistic. The employee initially failed to complain because, in part, he found it “embarrassing.” (Really?) When he finally complained about his coworkers, the employer conducted an investigation, which included interviewing the list of witnesses he provided as well as others. The employee now contends that the employer should have searched the computers of his coworkers to verify that they had looked for his pictures on the Internet. But at the time, I am sure the employer believed it had addressed the issue by speaking with the worst offender about his comments and instructing the Vice President in charge of the office to report any further comments or Internet searches for the employee’s pictures. Given that the employee admittedly did not make any further complaints (although he now alleges that the comments didn’t stop), the employer undoubtedly thought it had resolved the problem.

Continue Reading The Playgirl Model’s Sexual Harassment Claim