Is the playing of obscene and misogynistic rap music in the workplace discriminatory on the basis of sex if it offends women? A former Tesla employee has asked the U.S. District Court for Nevada to answer “yes” to that question after filing suit against her former employer alleging that, among other things, the obscene and misogynistic rap music, as well as the actions and statements made by her co-workers related to that music, amounted to sexual harassment.
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Employers – Do Not Ignore Confederate Flag Sightings in the Workplace!
Throughout the past decade, there have been efforts across the nation, at both the state and federal level, to ban the display of Confederate flags, a symbol associated with promoting hate, specifically racism. In fact, some states have adopted laws that prohibit public displays of the Confederate flag, while other states, including Maryland, have phased out license plates that display the Confederate flag. Private company giants, such as Amazon, Walmart and NASCAR, have also banned the display of the Confederate flag.
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What Is Fragmentation of Harassment Claims? The EEOC Speaks
In my spare time (which has been limited during the pandemic, given the whirlwind of COVID-19-related legal developments), I like to peruse the Equal Employment Opportunity Commission’s quarterly Digest of Equal Employment Opportunity Law. (Nerd alert!) In addition to summaries of recent EEOC decisions and federal court opinions, each digest contains an article that provides some insight into the EEOC’s position on a particular topic. Now while the articles are targeted towards federal agencies, they offer private employers a roadmap as to the EEOC’s thinking. We’ve blogged about prior articles on religious discrimination, remedies for discrimination, comparing harassment prevention to crime prevention, and new types of race discrimination, among other things. A recent article caught my eye – “Claims of Harassment and the Problem of Fragmentation.” (Well, that’s a new phrase to me!)
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Workplace Drama = Workplace Harassment?
Oh, the drama! A couple of recent cases warn employers that drama that happens in the workplace may give rise to liability for workplace harassment.
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Being Required to Hire Female Escorts Is Not Actually a Title VII Violation
I found a recent case to be a peculiar example of how Title VII is not a “general civility code” in the workplace. In Butto v. CJKant Resource Group, LLC, a male executive was terminated after complaining about being required to arrange female escorts for his married supervisor and perform other activities to facilitate his supervisor’s infidelity. It seems like a reasonable complaint, right? But does that mean it was protected under Title VII?
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Burning a Customer Is Not the Appropriate Response to Harassment
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.
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Fabricated Texts? Something Else for Employers to Be Aware Of…
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.
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Reflections on the EEOC’s Proposed Harassment Guidance
In January 2017, the Equal Employment Opportunity Commission released proposed guidance regarding workplace harassment. Because guidance does not carry the same weight as regulations do, which require a formal notice and comment period, there is no legal requirement to solicit public comment on guidance. However, the practice of voluntarily doing so began under former Chair Jenny Yang and provides employers a valuable opportunity to make their concerns known before the Commission finalizes guidance.
To that end, Shawe Rosenthal, in conjunction with four other law firms, led the effort on behalf of the Employment Law Alliance* to submit written comments to the Commission’s proposed harassment guidance. The comment period has closed, and we expect revised guidance to issue—hopefully factoring in some of our comments below!—in a few months.
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Employee Violated Sexual Harassment Policy by Photographing Her Harasser’s Erection?
This 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!!!
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