As 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.
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!
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.
This one raised my eyebrows – definitely not your typical sexual harassment case.
In Waltz v. Dunning, the plaintiff began working for a company, BHC, in 2001. She reported directly to the CEO. They began a sexual relationship in 2003, which the plaintiff claimed was initially non-consensual (she said she only had sex with the CEO to avoid his becoming upset or physically abusive). However, she and the CEO began referring to each other as “husband and wife” (even though he was already married, the dog!), and had two children together, in 2005 and 2007. In 2008, the plaintiff resigned from BHC to work at another company, Synergy, which was also started by the CEO and had close ties to BHC. By 2009, the plaintiff was wearing a wedding ring that had been given to her by the CEO. They spent holidays together, went on family vacations, and took videos to commemorate special occasions. He joined in birthday and holiday celebrations with the plaintiff’s parents. He helped pay for the medical expenses of the plaintiff’s mother, who had cancer. He also bought the plaintiff and their children a home. The plaintiff sent him affectionate texts and emails, as well as cards, and bought him expensive gifts including a $7,000 watch (garnished with diamonds!).
In 2012, the plaintiff ended the relationship and quit her job at Synergy. The CEO filed for custody rights for their two children, and the plaintiff then sued him and his companies for sexual harassment and other state law tort claims, including invasion of privacy, and assault and battery.
The court, however, threw out her claims. In order for the plaintiff’s claims to be valid, the CEO’s conduct had to be “unwelcome.” As the court noted, although the conduct might have been unwelcome at the outset and for some time thereafter, the relationship clearly became consensual, when taking into consideration all of the circumstances described above and the fact that it lasted for ten years! The court also particularly marked the fact that the plaintiff filed suit only after the CEO sought custody of their children. (That was definitely some suspicious timing).
Sexual harassment? Clearly that’s hard to prove when the alleged harasser is the same person you called your “husband” for many years!
Courts have recognized same-sex harassment claims based on a failure to conform to gender stereotypes – such as when a male plaintiff is harassed for being effeminate or exhibiting traditionally feminine characteristics (see my prior blog post on harassment of a male ironworker because of his use of Wet Ones instead of toilet paper!). In an interesting variation on this claim in Rachuna v. Best Fitness Corp., a male fitness instructor sued his employer for harassment because he didn’t fit the stereotype of being “sexually loose, promiscuous and predatory,” like his harassing male supervisor. (Well, there is definitely a stereotype of studly, oversexed male trainers…something to do with all those muscles and sweat…)
The employer asked the Court to dismiss the claim. The employer argued that same-sex harassment claims required that the employee not only allege that the harasser believed the employee didn’t confirm to the stereotype of a heterosexual male, but specifically allege that he was harassed for being effeminate. In support of its argument, the employer cited a number of cases about the harassment of effeminate males.
The Court rejected the employer’s argument, however, stating that these cases do “not mean that these are the only circumstances that can support a claim of same-sex harassment based on gender stereotyping.” Here, the employee alleged that his supervisor expected men, including the employee, to join in the “lewd, promiscuous and predatory talk” and that the supervisor targeted the employee for refusing to join in. The Court found these allegations were sufficient to state a claim of same-sex harassment.
So, a same-sex harassment claim isn’t just a claim that the employee is too gay, but can also be a claim that he isn’t enough of a male chauvinist pig – how’s that for a sexual stereotype? (I keep imagining the supervisor singing that #1 song from a few years back, “I’m too sexy…”).
There are many sexual harassment cases, but this one, Malphurs v. Cooling Tower Systems, Inc., really caught my attention: The plaintiff claimed that the owner of the company often made her work late so that he could sexually harass her when they were alone. These late hours were overtime, but the owner allegedly refused to pay the employee for this overtime unless she gave in to his sexual demands.
Talk about adding insult to injury! Not only was the poor employee subjected to sexual harassment, but she wasn’t even being paid for the time that she was being sexually harassed! So she sued the owner under the Fair Labor Standards Act for failure to pay overtime, and also under the state anti-discrimination law for sexual harassment.
The actual legal issue in the court’s decision was whether the federal court should hear the state law harassment claims in conjunction with the federal overtime claim. Normally, if there’s no connection between the claims, the employee would be required to bring two separate lawsuits – one in federal court for the federal claim and one in state court for the state claims. In this case, however, the court found that the two claims were factually connected, and could properly be heard in a single lawsuit in federal court.
But (not-so-interesting) legal issue aside, it seems pretty obvious that if a supervisor is going to be dumb enough to harass an employee after normal work hours, at least pay the employee for that time! At 1 and 1/2 times their regular rate of pay, please!
Employers (most of them, anyway) understand that they must protect their employees from harassment by their co-workers or supervisors. A recent case, Freeman v. Dal-Tile Corp., provides a reminder that they must also protect their employees from harassment by outsiders.
The employer, Dal-Tile, did a significant amount of business with another company, VoStone. The VoStone sales representative (a white male) frequently visited the Dal-Tile offices and interacted regularly with Dal-Tile employees, including the plaintiff (a black female). The sales rep was, as one employee described him, a “pig,” who admittedly made racial and sexual comments to Dal-Tile employees on an almost daily basis. Over the course of three years, he used the word “b****” freely, often discussed his sexual encounters, showed pictures of naked women, frequently made lewd comments, discussed having sex with a co-worker’s daughter, made references to “black girls” and “black b****es” (once in connection with the plaintiff), used racial slang, passed gas on the plaintiff’s phone, and (perhaps the topper) told the plaintiff that he was “as f***ed up as a n*****’s checkbook.” (I’m not sure “pig” fully captures the full essence of his character).
Unsurprisingly, the plaintiff was offended by the sales rep’s conduct. She told him to stop, but he didn’t. She told her supervisor about it, who did nothing. She told Human Resources about it, and the company eventually prohibited the sales rep from communicating with the plaintiff. She ended up taking a leave of absence, however, for depression and anxiety resulting from her concerns about possible future interactions with the sales rep. She resigned soon after returning to work, and then brought suit for sexual and racial harassment, among other things.
The district court threw out the plaintiff’s claims, finding that the conduct was not sufficiently severe or pervasive to constitute illegal harassment (what?!!), and that, even if it were, the company was not liable because it could not have known about the conduct since the plaintiff’s statements to her supervisor were not “complaints” (what?!!), and even further that, even if the statements were “complaints,” the plaintiff should have complained to someone else if she was unsatisfied with her supervisor’s response (what?!!).
On appeal, however, the U.S. Court of Appeals for the 4th Circuit reversed the district court’s rulings on these points. The 4th Circuit found that there was certainly sufficient evidence for a jury to find that the conduct was severe and pervasive. It also stated that a “negligence” standard should apply to claims of third party harassment – meaning that the employer would be liable if it knew or should have known of the harassing conduct. In this instance, the 4th Circuit found that the plaintiff did in fact complain – not only to her supervisor, but also to HR. In addition, the supervisor was present for some of the conduct. Therefore, there was evidence about the employer’s knowledge sufficient to support the plaintiff’s harassment claims, and the 4th Circuit sent the case back for a jury trial.
So, employers should be careful to respond to an employee’s concerns about their treatment by third parties – customers, clients, visitors, vendors, and suppliers. It’s part of everyone’s job to deal with unpleasant people from time to time – but when that unpleasantness targets a protected personal characteristic (like race, sex, religion, pregnancy, etc.), an employer has the obligation to step in and protect its employee.
It dumbfounds me how creative people can be in coming up with new ways to harass others. Take, for example, the recent case of Royal v. CCC&R Tres Arboles, LLC, which involved a complaint of sexual sniffing. Yes, sniffing. Like a dog.
A female employee worked as an apartment complex leasing manager for only four days. But during that time, she was regularly visited by two maintenance men who, according to the employee, hovered over her and sniffed her in a sexually suggestive manner. They refused to stop, even when she told them that she didn’t like their behavior. One of them also stared at her while obviously aroused. When she complained to a manager, he told her “to let it slide” and also said, “You know how men are like when they get out of prison.” (Was that supposed to be reassuring somehow?)
The next day, a meeting was held so staff members could “get things off their chest.” The female employee complained about the sniffing, to which one of the maintenance men responded that he had a medical condition and the other said that he “needed to get a release.” Later that same day, the female employee was fired without being given any reason.
The employee sued for sexual harassment and retaliation under Title VII. As the U.S. Supreme Court stated in Faragher v. City of Boca Raton, harassment must consist of more than “simple teasing, offhand comments and isolated incidents (unless extremely serious).” To constitute illegal sexual harassment, the conduct must be based on sex, and it must be severe or pervasive (meaning that it occurs repeatedly over a period of time). A magistrate judge found that the sniffing conduct was not objectively offensive or pervasive, and therefore did not support a Title VII claim. The judge granted summary judgment to the employer and the case was dismissed.
On appeal, however, the U.S. Court of Appeals for the 5th Circuit disagreed. In this particular case, the 5th Circuit found that the conduct could rise to the level of actionable harassment, stating that, “The sniffing and hovering over a woman, by two men, in a small, confined space could be viewed by a reasonable jury as harassment based on [the employee’s] sex.” The 5th Circuit went on to observe, with a touch of snarkiness, “Indeed, it is difficult to imagine the maintenance men sniffing and hovering over [the employee] if she were a man.”
The 5th Circuit also noted that the conduct was pervasive, occurring approximately 12 times over 4 days. It stated, with another touch of snarkiness, “The only thing interrupting this conduct seems to have been [the employee’s] termination.” (The 5th Circuit was on a roll, which makes for an entertaining read).
What this case establishes is that actions that don’t normally have a discriminatory meaning can take one on, depending on the context. Employers should not be too quick to dismiss as meaningless behaviors that don’t fall into the normal types of “harassing” conduct. It’s important to take a look at the whole picture.
Hugging and kissing are not typically considered professional conduct in the business world (unless you’re from France) – but is it harassment? A recent federal case, Lozosky v. Keystone Business Products, Inc., provides support for that most sophisticated of legal defenses, “It’s not harassment, your Honor. It’s European.”
Patricia Lozosky was employed by Keystone Business Products, Inc. for two decades. During that time she would often be greeted by the male owner of the company with hugs and kisses, sometimes on the cheek and sometimes on the mouth. It appears she never objected. In December 2011, she was instructed to meet him at his home. When she arrived, the owner greeted her with a hug and kiss, and then sat down next to Ms. Lozosky. He then explained that he was concerned that Ms. Lozosky was an alcoholic and wanted her to attend rehabilitation. Ms. Lozosky refused. She was immediately demoted and then fired on January 6, 2012.
Ms. Lozosky filed a lawsuit claiming, among other things, sexual harassment based on the hugging and kissing by her boss. Unfortunately for her, the federal court disagreed. In dismissing her sexual harassment claims, the court stated, “Viewing the allegations with a view towards social context, a hug and kiss in greeting are not outside the scope of socially acceptable and non-abusive actions people take upon greeting a longtime friend or acquaintance.” The judge further noted that, “plaintiff’s allegations fail to indicate the greeting was designed as some prelude to unwelcome sexual activity[.]” According to the judge, Ms. Lozosky’s allegations just didn’t rise to the level of sexual harassment under Title VII.
Still, it’s better to refrain from hugging and kissing in the workplace.
We all know that stereotyping can be unfair and sometimes just dumb. But expecting people to be manly men and girly girls can actually get you into legal trouble. Sex-stereotyping can be the basis of a claim under Title VII, which prohibits discrimination and harassment because of sex, among other things. A recent example of this involved a supervisor’s same-sex harassment of a male employee because he was not sufficiently masculine, in the supervisor’s view.
In EEOC v. BOH Bros. Const. Co. (Sept. 27, 2013), an ironworker on a bridge maintenance crew was subjected to almost-daily verbal and physical harassment by his supervisor because he didn’t act like a man, according to the supervisor. In fact, the supervisor admitted that some of his teasing was because the employee used Wet Ones instead of toilet paper, which the supervisor thought was “kind of gay” and “feminine.” Often 2-3 times a day, the supervisor would call the employee names like “pu–y,” “princess,” and “fa–ot.” Several times a week, the supervisor would walk up behind the employee and pretend to hump him. The supervisor deliberately showed his penis to the employee while urinating, and made other sexually offensive comments to the employee as well. (Sounds like he’s still in junior high, doesn’t it?)
After the employee complained, the company did a brief investigation and concluded that the supervisor’s behavior, although unprofessional, was not sexual harassment. The EEOC stepped in and sued the company. At trial, the jury found that the employee had, in fact, been subjected to illegal harassment. On appeal, a 3-judge panel of the U.S. Court of Appeals for the Fifth Circuit overturned the jury verdict, on the grounds that there wasn’t sufficient evidence that the harassment was “because of . . . sex” in violation of Title VII. The EEOC then asked for a review of the panel’s decision by all of the judges on the 5th Circuit (an “en banc” review).
The 5th Circuit found that “a plaintiff can satisfy Title VII’s because-of-sex requirement with evidence of a plaintiff’s perceived failure to conform to traditional gender stereotypes.” The 5th Circuit then found that the supervisor’s conduct was certainly “because of” the employee’s sex. The evidence showed that the supervisor thought the employee was not a “manly enough man” and that he “hurled sex-based epithets uniquely at [the employee] two-to-three times a day, almost every day, for months on end.”
In this case, the employee’s actual sexual orientation wasn’t at issue, and the case doesn’t recognize sexual orientation discrimination as a violation of Title VII. To the extent that an individual, regardless of sexual orientation, however, doesn’t conform to a masculine or feminine sexual stereotype, he or she would still be entitled to the protection of Title VII. Bottom line – don’t stereotype!