Employee Rights Post : Ellen Simon's Employee Rights Post : Employment Lawyer & Attorney : Workplace Discrimination & Harassment Advice & Consultations

Complaints To Supervisor/Harasser Are Sufficient To Overcome Affirmative Defense On Hostile Environment Claim

There’s lots of meaty reading in the Second Circuit case of Gorzynski v JetBlue Airways Corporation decided this month. The 31 page opinion hits multiple issues including sexual harassment, age discrimination, race discrimination, and retaliation.

The Federal District Court threw out the case on summary judgment. The Second Circuit Court of Appeals reversed and this is why.

Facts Of The Case

It’s a long story, but here’s the gist of it.

JetBlue hired Diane Gorzynski as a customer service agent in January 2000 for its operation at Buffalo International Airport. She was 54 years old at the time. In May 2000 she was promoted to the position of Customer Service Supervisor and stayed in that position until she was fired on July 5, 2002.

The customer service supervisors were managed by James Celeste, the General Manager. William Thro, a regional manager, was responsible for overseeing the General Managers of several JetBlue stations. 

During her employment, Gorzynski experienced age and gender discrimination including sexual harassment. She also observed discrimination of other employees. The main culprit was her supervisor, James Celeste. 

Gorzynski complained  to Celeste on numerous occasions about the discrimination and harassment she experienced and about  the discrimination and harassment of her co-employees.

She was retaliated against and fired, she believed, because of her complaints.

The Lawsuit

Gorzynski filed a lawsuit claiming that JetBlue:

• discriminated against her because of gender in violation of Title VII of the Civil Rights Act of 1964

• discriminated against her because of age in violation of the Age Discrimination in Employment Act

• retaliated against her for complaints to her supervisors about age and gender discrimination and race discrimination of co-employees in violation of Title VII and the ADEA

She also claimed numerous violations on the New York Human Rights Law.

The federal District Court granted JetBlue’s Motion for Summary Judgment of all claims. Gorzynski filed an appeal.

The Second Circuit Reverses

The Faragher/Ellerth Defense

One of the most important and interesting parts of the decision is its holding regarding JetBlue’s affirmative defense on which the District Court hung its hat to throw out Gorzynski’s sexual harassment claim – and it’s a holding which can effect lots of people.

In order to establish a hostile environment sexual harassment claim, a plaintiff must produce enough evidence to show that the workplace was:

• permeated with discriminatory intimidation, ridicule, and insult that is

• sufficiently severe or pervasive to alter the conditions of the victim’s employment and

• create an abusive working environment

In analyzing a hostile environment claim, the court is required to “look at the record as a whole and assess the totality of the circumstances.”

In this case, Gorzynski presented evidence that Celeste:

• grabbed Gorzynsi and other women around the waist

• tickled them

• stared at them as if” he was mentally undressing them”

• made numerous sexual comments including remarks about wanting to suck on or massage their breasts.

The District Court did not consider this evidence. Instead, it found that JetBlue was entitled to win as a matter of law because of its “affirmative offense” under the Supreme Court Faragher and Ellerth decisions.

The employer is entitled to raise the defense in certain sexual harassment scenarios involving supervisors and co-workers if it can show that:

• it exercised reasonable care to prevent and promptly correct any harassing behavior and
  

• the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm

With respect to the first element, JetBlue presented evidence of its sexual harassment policy (contained in its employee handbook)  which stated that: “any crewmember who believes that he or she is the victim of any type of discriminatory conduct, including sexual harassment, should bring that conduct to the immediate attention of his or her supervisor, the People Department or any member of management.”

JetBlue argued that Gorxynski was not entitled to proceed on her sexual harassment claim because she failed to take advantage of the policy in the handbook when she:

• only complained to her supervisor -- the harasser
  

• did not complain to other members of management.

The District Court agreed with JetBlue and granted judgment in its favor on Gorzyynski's sexual harassment claim.

The Second Circuit rejected the District Court’s conclusion and reversed.  It stated:

We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints.

• Email This
• Print
• Comments
• Trackbacks

Here's a few Short Takes worth sharing:

Supervisor Liability

 Payne v. U.S. Airways, Inc. (Reprinted from Westlaw with permission of Thomson Reuters) :The Court held, in a matter of first impression, that a former employee's supervisor was an agent of the employer and individually liable for sexual harassment under the Vermont Fair Employment Practices Act. While the opinion only pertains to Vermont, the language may be helpful in states with similar statutes.

Constructive Discharge

Klein v. Raytheon Co. (Reprinted from Westlaw with permission of Thomson Reuters): A California federal judge allowed a constructive discharge lawsuit to proceed based on a physics engineer's claim that his supervisor told him his mental disability was a "load of crap". His supervisors also called him a "liar," "thief" and "fraud", threatened to strip him of his security clearance, and told him that he would never be able to work in the aerospace industry again.

The Court rejected Raytheon's motion to dismiss the suit on the grounds that harsh or threatening language used in a single instance is insufficient to support a constructive discharge claim under the California Fair Employment and Housing Act. There aren't many cases that address the "single instance/incident" argument, so this one helps.

Age Discrimination

Law Firm Sued By EEOC For Age Discrimination: The EEOC filed a suit against the  New York law firm of Kelley Drye & Warren claiming that it significantly underpays attorneys who practice law past age 70 compared to similarly productive younger attorneys in violation of the Age Discrimination in Employment Act. Here's the complaint. It's not the first time law firms have been in trouble for age discrimination. The EEOC got a whopping $27.5 million dollar consent decree in a similar case against the Sidly Austin law firm in 2007.

Sexual Harassment

King v. McMillan: The Fourth Circuit affirmed a jury award to the plaintiff of $50,000 in compensatory damages on her Title VII sexual harassment claim, $175,000 on her sexual assault/battery claim (remitted to $50,000) and $100,000 in punitive damages. It's a very helpful case to read regarding evidentiary questions and jury instructions for those involved in cases of both sexual harassment and battery. It's also helpful on the issue of punitive damages.

images: arkansasmatters.com

                sites.google.com

• Email This
• Print
• Comments
• Trackbacks

Winning Plaintiff In Supreme Court Crawford Decision Gets Big Verdict For Title VII Retaliation

We often read about cases in the courts of appeals, including the ultimate court of appeals -- the United States Supreme Court -- in which the plaintiff prevails and gets the opportunity to take his or her case to a jury.

We study these cases because of the legal principles and precedents involved and how they will affect other clients and cases in the future.

We don't usually hear -- and it's not commonly reported -- what eventually happens to the plaintiff who won the reversal and got the chance to go to court. That's because some of those cases are settled, and the settlements are often times confidential. In other instances, the results of the trial simply don't make the news.

So I was really pleased this morning to read in one the bulletins I receive from the National Employment Lawyers Association about the fantastic verdict on Monday for Vicky Crawford, the plaintiff in the landmark United Supreme Court decision Crawford v. Metropolitan Government of Nashville and Davidson Cty .

Here's what happened in the case.

Facts Of The Case

In 2002, the Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro") began looking into rumors of sexual harassment by the Metro School District's employee relations director, Gene Hughes.

When Vicky Crawford, a 30 year Metro employee , was asked whether she had witnessed "inappropriate behavior" on the part of Hughes, Crawford described several instances of sexually harassing behavior including instances where Hughes: 

• repeatedly put his crotch up to her window and

• entered her office and grabbed her head and pulled it to his crotch

Two other employees also reported being harassed by Hughes.

Metro took no action against Hughes, but fired Crawford and the two other accusers soon after finishing the investigation.  Metro claimed it fired Crawford for embezzlement.

Crawford filed a lawsuit claiming that she was fired in retaliation for her report about Hughes's behavior in violation of Title VII of the Civil Rights Act of 1964.

Title VII's Anti-Retaliation Provisions

Title VII has two provisions which prohibit retaliation in employment discrimination cases and make it unlawful for an employer to discriminate against any of its employees because:

1. he or she "has opposed any practice which is unlawful" under Title VII
   
2. he or she has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter"

These provisions are commonly known as the "opposition clause" and the "participation clause".

The District Court and Sixth Circuit Decisions

The District Court granted summary judgment in favor of Metro. It held that Crawford did not satisfy the opposition clause because she had not "instigated or initiated any complaint", but had "merely answered questions by investigators in an already-pending investigation, initiated by someone else."

The District Court also concluded that Crawford's claim failed under the participation clause because it held that the only circumstances in which an employee would be protected from retaliation for participation in an employer's internal investigation was where "the investigation occur[ed] pursuant to a pending EEOC charge."

Crawford appealed and the Sixth Circuit Court of Appeals affirmed on the same grounds.

Crawford next filed a petition for certiorari requesting that the United States Supreme Court accept the case. The petition was granted.

• Email This
• Print
• Comments
• Trackbacks

C.H. Robinson Loses Another Sexual Harassment Hostile Environment Appeal

I read about this case decided by the Eleventh Circuit Court of Appeals last week with great interest. In it the Court held quite clearly that a constant flow of profanity in the workplace can constitute sexual harassment and gender discrimination.

After reading it I thought,  "this sounds familiar."  In fact I thought, "I've already written about this case," so I researched my blog and there it was -- an almost identical lawsuit against the same company for the same awful conduct decided in June by  the Sixth Circuit Court of Appeals and I thought, "doesn't this company ever learn?"

Reeves v. C.H. Robinson Worldwide, Inc. is  a long decision -- 27 pages -- and one definitely worth the read. In a nutshell, here's what happened in the case.

The Facts

Ingrid Reeves worked as a sales representative from July 2001 to March 2004 in the Birmingham, Alabama branch of C.H. Robinson.  She worked in a cubicle in an open area with six male co-workers.

During that time, she was subjected to an onslaught of foul and disgusting language at work on a daily basis.  Women were repeatedly referred to as:

• bitch
  

• fucking bitch
  

• fucking whore
  

• crack whore 
  

• cunt

Co-workers also listened to a crude radio show each morning, displayed pornography on a computer, and sang songs about gender-derogatory topics.

Though she complained to her co-workers they persisted in the conduct.  She complained to her branch manager on at least five separate occasions and in two separate work evaluations. She also contacted two C.H. Robinson executives. Nothing changed, and Reeves resigned.

Reeves filed a lawsuit alleging that she had been subjected to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964.

What Happened In The Courts

The federal district court granted judgment in favor of C.H. Robinson and threw out the case. Its reasoning was that the offensive conduct was not motivated by sex and not directed at Reeves.

Reeves appealed. A panel of the appellate court reversed the district court's decision holding, among other things, that Reeves presented jury issues as to whether the offensive conduct was based on sex.

That decision was vacated and a rehearing en banc was granted -- meaning that the whole court was going to hear and decide the case.

The Eleventh Circuit Finds For Reeves

The Court started the opinion with some "core principles of employment discrimination law" in hostile work environment cases:

• a plaintiff must show that

1. her employer discriminated because of her membership in a protected group (race, sex, etc.) and that
   
2. the offensive conduct was either severe or pervasive enough to alter the terms or conditions of employment
   

• Title VII is not a civility code, and not all profane or sexual language or conduct will constitute discrimination
  

• workplace conduct can not be viewed in isolation, but but must be viewed cumulatively and in its social context
  

• a plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out

Applying these principles, the Court held that sufficient evidence had been presented for a jury to find that Reeves was subjected to a  "discriminatorily abusive working environment."

• Email This
• Print
• Comments
• Trackbacks

When Do Discussions About Sexual Harassment At Work Constitute Reporting Which Requires Investigation?

This case addresses an issue in sexual harassment cases that comes up often in real life experience but is not often the central issue of an opinion from a federal court of appeals.

It has to do with reporting of sexual harassment when a victim talks about the harassment with others at work -- but doesn't file a formal complaint. Does the conversation constitute a complaint which requires an investigation?

The case also addresses discussions at work about sexual harassment where the victim says: "don't tell anyone."  What's an employer to do?

The new case --  Duch v. Jakubek  from the United States Court of Appeals for the Second Circuit -- addresses these common but thorny issues.

Here’s what happened in the case:

The Harassment

Karen Duch was employed as a court officer by the New York Unified Court System and was assigned to the Midtown Community Court “(MDC) in August of 1999.

In May of 2001, Brian Kohn began working at MCA as a court officer along with Duch. Several months later Kohn and Duch had a consensual sexual encounter at Duch’s apartment. The encounter did not involve sexual intercourse.  

Duch told Kohn the next day that she had made a mistake and did not want to pursue any further relations with him.

After the encounter, and until January 2002, Kohn made a series of sexual advances towards Duch and continued to harass her with unwanted physical contact, sexually graphic language, and physical gestures.

In the months that followed Duch became seriously ill with depression. She stopped eating and began avoiding work. She became suicidal and eventually left the job.

The Reporting

Duch told three people about the harassment:

1. Edward Jakubek : The Highest Ranking Court Officer at MCC

In October of 2001, when Duch learned that she was scheduled  to work alone with Kohn on an upcoming Saturday she approached Jakubeck  and asked for the day off. She didn’t tell him why she wanted the change.

Later that day, Jakubek called Duch in her office and told her that he heard she wanted to change her schedule to avoid working with Kohn. He also told her that he had talked to Kohn and asked him directly why Duch didn’t want to work with him.

 Kohn responded to Jakubek by saying, “well, maybe I did something wrong or said something that I should not have.”

Jaubek told Kohn to “cut it out and grow up.” He then asked Duch if she had a problem with Kohn. According to the testimony, Duch became emotional and after gaining her composure said, “I can’t talk about it.”

Jakubek replied, “that’s  good because I don’t want to know what happened,” and then laughed.

Jakubek offered to change Duch’s schedule so she would not have to work alone at night with  Kohn, and thereafter did not schedule her to work alone with him.

2. Rosemary Christiano: The EEO Liaison

Later in October 2001, Duch told Christiano about Kohn’s harassment. When asked “are you speaking to me as a friend or as an EEO Liaison, Duch responded “I think I am telling you as a friend”.  

When Chritsiano asked Duch whether she wanted her to report Kohn’s behavior, Duch said “absolutely not.” Christiano did not report the harassment to anyone.                                                                                                  

3.  David Joseph: Chrisitano’s Replacement As EEO Liaison

In December of 2001, David Joseph replaced Christiano as the EEO Liaison. Within days, Duch informed him that she wanted to file a formal complaint about Kohn’s conduct. 

An investigation was conducted, and disciplinary charges were brought against Kohn. Duch refused to be cross-examined claiming that she was medically unfit to testify.

All charges were eventually dropped against Kohn. Duch stopped working at the court in 2002 and filed a lawsuit in 2004.

• Email This
• Print
• Comments
• Trackbacks

Sex Discrimination Against Men Violates Title VII

It’s not often that you see cases involving discrimination against men, but in the last few weeks the EEOC has reported two noteworthy settlements.

The Sex Discrimination Case Against Lawry’s

In early November, the EEOC announced a $1,025,000 settlement of a class action lawsuit against Lawry’s Restaurants Inc., which operates steak houses in Las Vegas, Chicago, Dallas, Los Angeles, Beverly Hills and Corona del Mar, California. 

In the lawsuit, the EEOC charged Lawry’s with maintaining a longstanding company wide policy of hiring only women for server positions.

The policy, which has been in place since 1938, is in violation of Title VII of the Civil Rights Act of 1964 which prohibits discrimination because of sex.

Lawry’s claimed that the policy was based on long standing tradition. The EEOC found that the policy adversely affected a class of men on the basis of sex.

The parties reached an agreement to settle the case in early November. Under the consent decree Lawry’s agreed to:

• change its practice and actively promote the hiring of men into server positions
  

• provide monetary relief including a class fund of $500,000
  

• pay over $300,000 to initiate an advertising campaign regarding the hiring of food servers
  

• pay $225,000 for training its employees on compliance with Title VII and related laws
  

• take additional steps to insure compliance with Title VII and the decree

In its announcement of the settlement, Olophious E. Perry, who managed the EEOC investigation said:

The EEOC will never condone discrimination in the name of so-called tradition. Every individual deserves a fair chance to obtain a job based on their talent and qualifications, regardless of gender.

It seems to me that there are lots of restaurants out there that still have male only, or female only servers. This case makes it clear that this is one "tradition" that has seen its day.

Cheesecake Factory Settles Case Of Male On Male Sexual Harassment 

The EEOC announced this week that Cheesecake Factory, Inc, a nationwide restaurant chain, will  pay $345,000 to settle a sexual harassment suit involving six male employees who were subjected to repeated sexual harassment at the company’s Chandler Mall location outside of Phoenix.

The complaint charged that the restaurant knew about and tolerated repeated sexual assaults against six male employees by a group of kitchen staffers.

The evidence included abuse involving the harassers:

• directly touching the victims’ genitals
  

• making sexually charged remarks
  

• grinding their genitals against them
  

• forcing victims into repeated episodes of simulated rape

• Email This
• Print
• Comments
• Trackbacks

Stereotyped Statements As Discrimination Evidence

Employment decisions based on stereotyping can be illegal. For example, comments suggesting that "women should be home with children instead of working", or that "Hispanics are lazy", or that "older workers can't adapt to change" -- can be used as proof in discrimination lawsuits and sometimes are.

I wrote recently about the case of Chadwick v. Wellpoint. In that case Laurie Chadwick, the mother of four --including a set of triplets -- was denied a promotion because she had "too much on her plate." It's an example of a fairly typical case in which we see gender stereotyping at play.

There was no evidence that Ms. Chadwick's family obligations were actually interfering with her work. Rather, her superiors simply assumed this would occur. The court in Chadwick v. Wellpoint stated: "the assumption that a woman will perform her job less well due to her presumed family obligations is a form of sex-stereotyping and ... adverse job actions on that basis constitute sex discrimination."

What we haven't seen much of -- in fact, haven't seen any of -- are cases in which evidence of gender stereotyping has been used to prove discrimination against a man -- certainly not a man who has been accused of sexual harassment. That's why the new case of Sassaman v. Gamache from the Second Circuit Court of Appeals is so interesting and important.

Facts of the Case

The Workplace Relationship Leading to He-Said, She-Said Harassment Complaint.

Carl Sassaman worked for the Board of Elections for Dutchess County, New York. He worked with a woman named Michelle Brant. According to the evidence, Brant and Sassaman spent time together. They ate lunch together, smoked cigarettes together, and considered themselves to be friends.

At some point, Brant became Sassaman's boss and their relationship soured. According to the testimony, Sassaman asked Brant out for a drink. She said no, so he suggested they meet for coffee. She declined that offer too, but according to Sassaman, she began to reveal intimate aspects of her personal life to him.

During that same conversation, as the story goes, she asked Sassaman whether he wanted to have a one-time sexual encounter with her. His reaction to the overture was that it was not a good idea to be friends with her anymore.

Brant had a different recollection of the conversation. She testified that in response to Sassaman's changed demeanor towards her, she asked Sassaman whether "he was going to let their friendship go down the tubes because she did not want to have sex with him."

A couple of months and a few incidents later, Sassaman learned from David Gamache -- the Board Commissioner -- of Brant's complaint that he was harassing and stalking her. Gamache told Sassaman to stay out of the office.

The Employer's Inadequate Response to the Harassment Complaint.

Brant filed a written complaint against Sassaman, which Gamache referred to the Dutchess County Sheriff's Department for investigation. The sheriff's investigation found insufficient evidence to support any type of criminal charge.

Gamache did not refer the matter for an internal investigation. Instead, a week after the sheriff's report, Gamache called Sassaman and told him that he would be terminated unless he chose to resign.

The "Smoking Gun" Comments

According to the testimony, Gamache defended his decision with this explanation:

• "I really don't have any choice. Michelle knows a lot of attorneys; I'm afraid she'll sue me."
• "And besides you probably did what she said you did because you're a male and nobody would believe you anyway."

The Lawsuit

Sassaman resigned, feeling that he had no other choice, and then filed a lawsuit alleging that he was terminated on the basis of sex stereotyping in violation of Title VII of the Civil Rights Act of 1964. The District Court judge threw out the case on the grounds that Sassaman failed to provide any evidence of sex discrimination.

The Second Circuit reversed. It found that the evidence of stereotyping -- Gamache's statement that because Sassaman was a man he probably did sexually harass Brant as she claimed -- was sufficient to support Sassaman's sex discrimination claim. The court's decision was soundly based on precedent concerning sex stereotyping -- developed in cases brought by women.

Legal Background on Sex Stereotyping

Back in 1989, the Supreme Court of the United States decided the landmark case of Price Waterhouse v. Hopkins. In that case, Ann Hopkins, a senior manager at the accounting firm of Price Waterhouse, was considered for, but denied partnership.

Statements in the review process leading to that decision described Hopkins as "an outstanding professional" who had a "deft touch," a "strong character, independence and integrity." Clients described her as "extremely competent, intelligent," "strong and forthright, very productive, energetic and creative." Others had a different view -- and a sexist one at that:

• One partner described her as "macho."


• Another suggested that she "overcompensated for being a woman"


• A third advised her to take "a course at charm school."


• Several partners criticized her use of profanity; in response, one suggested that they objected to this only "because it's a lady using foul language."

Hopkins sued for sex discrimination under Title VII. The Supreme Court, for the first time, addressed the legal significance of sex stereotyping in the context of Title VII case:

As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group ... "In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes."

As applied to Ms. Hopkins, the Court went on to say:

It takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring "a course at charm school."

Nor. . . does it require expertise in psychology to know that, if an employee's flawed "interpersonal skills" can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee's sex, and not her interpersonal skills, that has drawn the criticism.

While the Price Waterhousecase was hugely important at the time for victims of this type of discrimination, its main significance has had to do with technical issues regarding burdens of proof -- and little with to do with blazing a trail for litigation based on sex stereotyping evidence. So it came as a big surprise when the Second Circuit relied on the Price Waterhouse language above and reversed the district court in the Sassaman case.

Sex Stereotyping Sassaman As Likely To Harass female Employees

Holding no punches, the court in Sassaman stated that Gamache's decision to terminate Sassaman because men, as a group, have a propensity to sexually harass women, was "overt sex stereotyping." According to the Court:

Gamache appears to have defended his decision to credit Brant's allegations of sexual harassment by pointing to the propensity of men, as a a group, to sexually harass women. . .

A jury could reasonably construe Gamach's statement as persuasive evidence that he pressured Sassaman to resign because of his discriminatory assumptions about the propensity of men to sexually harass their female co-workers.

Failure to Investigate the Harassment Complaint

Compounding the problem for this employer was that it failed to investigate Brant's complaint. That too, according to the Court, constitutes evidence in support of Sassaman's claim. As the Court pointed out, when faced with a sexual harassment complaint:

The failure of an employer to conduct an adequate investigation or to undertake an appropriate response can constitute evidence in support of a Title VII plaintiff's allegations.

What's more, fear of a lawsuit , another defense raised by this employer, was also deemed to be a lousy excuse to terminate Sassaman. According to the Second Circuit:

An employer many not rely on an alleged fear of a lawsuit as a reason to shortcut its investigation of harassment and to justify an employment decision adverse to the putative harasser that itself violates Title VII.

This part of the decision is particularly interesting in light of the City Of New Haven's position in the Ricci case currently pending in the Supreme Court -- see Workplace Prof. Blog, suggesting that the employer in Sassaman may have felt in something of a bind, liable to the coworker if the allegations of harassment weren't taken seriously"; the Ricci decision is also at the center of the controversy surrounding the Sotomayer nomination.

Conclusions

In sum, Sassaman prevailed for two related reasons:

1. He presented evidence which constituted male sex stereotyping.
2. Because of such stereotyping, his employer credited the woman's version of the sexual harassment events and failed to properly investigate the charges she lodged against him.

While the law prohibiting sex stereotyping as the basis for an adverse employment decision has been around for a long time, there are a paucity of decisions that rely on it to substantiate favorable outcomes for the plaintiff.

There has never been a case that I know of where a sex stereotyping argument has been used in favor of a man who claims to have been improperly accused of sexual harassment. What this means is that men who have been victimized by false accusations of sexual harassment now have a powerful case to rely on that did not previously exist. Those deemed guilty of sexual harassment based on a "boys will be boys" knee-jerk reaction will finally have some relief.

Also, the defense of "we might get sued" may not carry the day to justify an unsubstantiated termination decision in such a situation. (We'll have to wait and see if the Supremes address this aspect of Ricci, in which the alleged discrimination may likewise have been motivated by fear of a lawsuit.) Employers, it seems to me, have a whole new can of worms to worry about.

Image: verbotomy.com

This post  originally appeared in George's Employment Blawg.

• Email This
• Print
• Comments
• Trackbacks

For all employees who are subjected to a sexually hostile work environment, the recent case of Gallagher v.. C.H. Robinson  from the Sixth Circuit Court of Appeals is fantastic news -- and that's an understatement.

There are so many women who are faced with a regular onslaught of  dirty jokes, pornography, demeaning references about women, and sexual bantering in the workplace.  For those victims, this case is a godsend.

Here's what happened in the case. 

Julie Gallagher worked for C.H. Robinson Worldwide Inc. in a sales position in the Cleveland office. The area in which she worked had 20 employees and 3 support staff.

The sales staff worked in cubicles that were organized in pods in an open floor plan. Short dividers between the cubicles provided little privacy.

During the four months during which Gallagher worked at C.H.Robinson ("CHR") she described a “locker room” atmosphere characterized by unprofessional behavior and an environment that was hostile to women. 

According to the evidence the work atmosphere was filled with:

• Prevalent use of foul language
  

• References to female customers, drivers, and co-workers as" bitches, whores, sluts, dykes and cunts"
  

• Pornography and nude pictures of girlfriends in various sexual poses
  

• Dirty jokes and graphic discussions of sexual liaisons, fantasies and preferences on a daily basis

In addition, Gallagher was personally:

• Called a bitch in anger on several occasions
  

• Called fat and referred to as a “heifer with “milking udders”

• Told that by hiring her CHR covered it’s “girl quota and fat quota”

Gallagher complained frequently to the branch manager, Greg Quest, but things only got worse. Four months after starting, and following an incident during which some drunk male so-workers “flipped her off”, she finally quit and took a job working for a former employer.

Gallagher filed a case for hostile environment sexual harassment under both state (Ohio R.C. 4112.02)  and federal law (Title VII of the Civil Right Act of 1964).

What's truly shocking about this case is that the district court judge -- for reasons that I am at a complete loss to genuinely understand -- threw out the case.

Fortunately, the Sixth Circuit wrote a fantastic opinion reversing the district court judge. Here are the highlights and the meat of the decision -- all of which will be very helpful to other victims of this sort of disgusting conduct in the future.

• Email This
• Print
• Comments
• Trackbacks

Judge Samuel Kent was appointed to the bench for life by George Bush in 1990. For almost two decades, he served as the only federal judge in Galveston, Texas where he wielded great authority and "created a culture of fear."

On Monday, Judge Kent was sentenced to 33 months in prison for obstruction of justice because he sexually harassed court employees and lied about it to judges who investigated his misconduct.

Kent is the first federal judge in history to be indicted in connection with sexual crimes. Here's the story -- and it's a big one.

Two years ago, Cathy McBroom, Judge Kent's case manager, filed a sexual harassment complaint against Judge Kent with the 5th Circuit Court of Appeals. According to the Houston Chronicle:

She said the incident that prompted her to action — though it was not the first time Kent attempted to assault her — came in March 2007 when McBroom was summoned to Kent’s Galveston chambers.

She says the judge, a foot taller and 150 pounds heavier, forced his mouth on her breast and pushed her head toward his crotch with an explicit and obscene oral order. She fled in tears.

The first incident occurred in 2003.  At that time, according to the Chronicle:

 The judge returned from lunch that day and made a bizarre request for McBroom to show him the court’s exercise room ...

He pinned her to the floor, removed her shirt and only allowed her up when she begged and then threatened to scream.

Judge Edith Jones, Chief of the Fifth Circuit Court of Appeals, oversaw the panel of judges that investigated the accusation.

Following the investigation, Judge Kent was reprimanded, suspended for four months without pay, and transferred to Houston.

It turns out the Judge Kent lied to the panel about his sexual advances involving a second employee, his secretary Donna Wilkinson.

According to the NY Times story, Kent told the panel that the extent of his advances towards Wilkerson was one kiss. The indictment said that Kent repeatedly fondled Wilkerson against her will.

Kent eventually admitted to molesting both McBroom and Wilkerson. In a deal with prosecutors in February, Kent plead guilty to obstruction of justice as his trial was scheduled to begin.

In exchange, the government agreed to drop five charges that he had repeatedly groped his secretary and his case manager, touching their genitals and breasts against their will.

The sentencing hearing was on Monday, and both women made statements.The  Chronicle reported that Ms.McBroom expressed anger over the fact that Kent attempted to portray her as an enthusiastically consensual and spurned lover:

Being molested and groped by a drunken giant is not my idea of an affair  .... I will forever be scarred because of what happened in Galveston.

• Email This
• Print
• Comments
• Trackbacks

What if your employer goes into your personal e-mails and tries to use them against you?  According to the Fourth Circuit Court of Appeals case of Van Alstyne v. Electronic Scriptorium, Ltd. your employer could get involved in a big legal nightmare it never imagined.

As very well put by Frank Steinberg at the New Jersey Emplyment Law Blog  I doubt whether ESL's president thought that he was letting himself in for this kind of trouble when he decided to peruse the private e-mails of the object of his office affections.

Here's what happened in the case.  Bonnie Van Alstyne worked for Electronic Scriptorium Limited ("ESL")  a small data conversion company owned and operated by a man named Edward Leonard and his wife Brett. Van Alstyne was a friend of the family and was hired to be the  Vice-President of Marketing.

According to Van Alstyne, during the time she worked at ESL Leonard sexually propositioned her. She rejected his advances. Five months later she was terminated. 

Van Alstyne  filed a sexual harassment charge with the Equal Employment Opportunity Commission. She also filed several other claims for benefits and unpaid commissions in Virginia state court.

In what appears to be a purely vindictive move, ESL sued Van Alstyne in a separate case in Virginia state court.  During the depositions in the case, ESL's counsel started asking Van Alstyne questions about various e-mails which were marked as exhibits.

It turns out that these e-mails were from Van Alstyne's personal e-mail account that Leonard had improperly accessed.

By way of background, Van Alstyne had a company e-mail account during the time she worked at ESL.  Like many employees, Van Alstyne also had a private password-protected e-mail account which she used to handle personal matters from time to time as needed (hers was with AOL).

When Leonard got caught, he first said that he only had a few of  Van Alstyne's personal e-mails. That statement turned out to be "not entirely true" according to the Court:

Leonard ultimately admitted to accessing Van Alstyne’s AOL account at all hours of the day, from home and internet cafes, and from locales as diverse as London, Paris, and Hong Kong. During discovery, Leonard produced copies of 258 different emails he had taken from Van Alstyne’s AOL account.

• Email This
• Print
• Comments
• Trackbacks (1)

Last week Katie Couric did an excellent and important story on the topic of sexual assault in the military on the CBS evening news.The story was prompted by an annual Pentagon study presented to the Congress on March 17th. The alarming data from the CBC story and Pentagon report included the following:

• One in three female soldiers will experience sexual assault while serving in the military 
  

• For fiscal year 2008, there were 2,923 reports of sexual assaults among active duty U.S. troops worldwide, up from 2,688 reported the previous fiscal year

•  80 percent of rapes are never reported - making it the most under-documented crime in the military

For someone like me who follows subjects like this, the news was not new. It seems like there is a constant stream of awful stories about sexual abuse involving the military and there has been for many years.

Last summer, for example, there was a CNN article about a House panel which was investigating the way the military handles reports of sexual assault. The story relayed testimony from Congressman Jane Harman of California.

Rep. Harman said she recently visited a Veterans Affairs hospital in the Los Angeles area, where women told her horror stories of being raped in the military:

'My jaw dropped when the doctors told me that 41 percent of the female veterans seen there say they were victims of sexual assault while serving in the military,' said Harman . ..

'Twenty-nine percent say they were raped during their military service. They spoke of their continued terror, feelings of helplessness and downward spirals many of their lives have taken since.

'We have an epidemic here,' she said. "Women serving in the U.S. military today are more likely to be raped by a fellow soldier than killed by enemy fire in Iraq.'

And that's not all.  A few years ago CBS reported frightening statistics about sexual abuse by military recruiters which included the following:

• More than 100 young women who expressed interest in joining the military in the past year were preyed upon sexually by their recruiters

• Women were raped on recruiting office couches, assaulted in government cars and groped en route to entrance exams

• The Army, which accounts for almost half of the military, has had 722 recruiters accused of rape and sexual misconduct since 1996
  

And it gets even worse if you can believe it.  At the end of 2007, Newsweek published a disturbing story about sexual abuse by military chaplains. 

• Email This
• Print
• Comments
• Trackbacks

It's very well known and often bragged about that over 50% of law school graduates are women. So what's the problem with women in the legal profession?

The problem reported last week is that while women represent over 50% of those graduating from law school, they made up only 28% of those granted partnership at the 85 major law U.S. law firms according to a  new study published by the Project for Attorney Retention at the Hastings College of Law.

The disparity between the number of female law school graduates and female partners is quite remarkable. And it's not because the women are less intelligent or capable than their male counterparts. As cynical as I may be, I don't think anyone would even argue that.

While few want to come out and accuse the legal profession of  gender discrimination,  I have no problem doing so. (Of course, not every firm, not every lawyer)  It's all over the legal profession -- wage discrimination, lack of promotional opportunity, sexual harassment, pregnancy discrimination, stereotyping, including a particularly horrible record  for women of color. It's all there, and it occurs for many reasons.

We all know that many law firms have a hard time accommodating the needs of working wives and mothers.  While firms are certainly much better than they were twenty-five or thirty years ago about flexible schedules and part-time work, they still have a long way to go.

The Amercian Bar Association's (ABA) Commission on Women in the Profession studies this subject and published it's findings in 1988, 1995, and 2003. The contents are neither encouraging nor surprising. The last report notes:

Current data indicates that more and more firms are allowing part-time schedules, but women testifying at the the 2003 hearings still reported that choosing the part-time option posed professional risks.  A partner at a large national law firm reported a consensus at her firm that the part-time policy is simply 'words on a piece of paper''. . .[Y]our commitment to the firm is still questioned once you have decided to go on a reduced hours schedule.

In addition, women who have obligations to their families are eliminated from mentoring and networking opportunities with clients.  Often times even single women are eliminated from these events -- the golf game, the baseball game, the hunting trip -- simply because they are women.  If you don't  meet and interact with the clients, you don't get the business.  If you don't get the business, you don't produce the revenue and you don't make partner. It's really pretty straightforward.

There's also the plain old fashioned gender bias that is rampant in law firms. Many men believe that women should be home with their children and not working at all or don't have the appropriate composition to practice law. The fact that these views are held by lawyers, and that this attitude is illegal when acted upon in the workplace, does not seem to prevent many partners from discriminating against the women in their firms in a variety of ways.

The latest  ABA report on this subject included the following:

The 1995 report noted that '[b]oth men and women report that women lawyers are viewed as insufficiently aggressive, uncomfortably forthright, too emotional, or not as serious as men about their careers.  When women opt for family leave or report sexual harassment, these stereotypes are reinforced.'

In 2003, there was evidence that those stereotypes have not dissipated .....

One can hardly go a week without reading an article about a law firm being sued for or settling, or  losing  some kind of discrimination lawsuit.   It's not just because law firms are easy targets.  They really do discriminate against their lawyers at an extraordinary rate.

The fact is that many women simply leave the profession and won't sue.  I have had dozens of calls through the years from women who were discriminated against and sexually harassed at their firms.  Without exception, each decided not to sue for fear that they would never find another job.

So while it's better than it was, we are not nearly where we should be in our profession in terms of providing equal opportunity in the workplace. Wouldn't it be nice if we were at the forefront, instead of the rear, on this issue?

image:http://nylawblog.

• Email This
• Print
• Comments
• Trackbacks

Can a plaintiff support her sexual harassment claim with evidence of sexual harassment she did not observe? According to the Fourth Circuit Court of Appeals in Ziskie v. Mineta the answer is yes.

Cynthia Ziskie sued the Federal Aviation Administration for creating a sexually hostile work environment.

In support of her claim, Ziskie submitted affidavits from co-workers containing examples of crude and inappropriate behavior (i.e. making fun of pregnant worker’s breasts, commenting that women should be home taking care of children instead of working, calling a woman "an alien with big boobs" , calling a woman a “stupidvisor”, telling a female supervisor to “fuck off ”, etc.)

The District Court threw out Ziskie’s case holding that Ziskie’s sexual harassment was not severe enough to support the claim. The District Court refused to consider the affidavits of the other female employees and would only consider what Ziskie personally experienced. In reversing the decision of the District Court, the Fourth Circuit Court of Appeals said:

 When examining all the circumstances of a plaintiff’s workplace environment, evidence about how other employees were treated in that same workplace can be probative of whether the environment was indeed a sexually hostile one, even if the plaintiff did not witness the conduct herself. Hostile conduct directed toward a plaintiff that might of itself be interpreted as isolated or unrelated to gender might look different in light of evidence that a number of women experienced similar treatment.

The opinion noted that the district court’s “blanket refusal” to consider the testimony of the other women was inconsistent with the Federal Rules of of Civil Procedure  and Evidence which require that all relevant evidence be considered:

Even if  Ziskie did not witness the conduct  described herein, it is nonetheless relevant because it could contribute to the evidence offered to show that the workplace environment at the Washington Center was indeed a hostile one.

This is a hugely important decision for victims of sexual harassment. In order to prevail in these cases, the plaintiff must prove that the harassment was severe or pervasive. Far too often claims of sexual harassment fail, as did this one initially, because the judge finds that the victim’s testimony alone does not meet that burden. In other words, yes some harassment may have happened, but it wasn’t “severe or pervasive” so you lose and the case is thrown out.

This decision, which allows the testimony of the co-workers to establish the severity or pervasiveness of the sexual hostility in the workplace, will go a long way in helping women assert their rights.     

image: http://www.worktrauma.org/CKF60026.JPG

• Email This
• Print
• Comments
• Trackbacks

Why are we reading so much about male on male sexual harassment lately? 

Just last week the New York Times reported that Knicks basketball player, Ed Curry, was accused of sexual harassment by his former driver. On the same day, the ABA Journal reported  a story about a Nixon Peabody lawyer who sued for discrimination stating that he was  was regularly taunted, ridiculed, and subjected to partner's and co-workers  homophobic statements and comments about oral sex during his time at the law firm.

 A few days earlier, the 6th Circuit Court of Appeals decided, in Patterson v. Hudson Area Schools, that a school district could be held liable for its failure to stop the harassment of one of its students who was  taunted and victimized by name calling (ie. "queer " "fagot"  "pig")  and pushing  and shoving over a period of years all which escalated into an episode of sexual assault in the locker room.

Is male on male sexual harassment on the rise?  Are men more willing to report the harassment? Was male on male sexual harassment reported but were the courts unwilling to recognize it?

I tried one of the first male on male sexual harassment cases in the country in 1998 -- Hampel v. Food Ingredients Specialties, Inc. . The plaintiff Laszlo Hampel worked at FIS- Nestle in Solon, Ohio  in the production line as a cook.  In short,  the case involved one disgusting outburst of sexual provocation by my client's supervisor,  followed by reporting of the incident, a failure to act on the part of the company to take prompt, remedial action (required under the law) continued harassment by the supervisor, and homicidal behavior on the part of my client. These kinds of cases were simply unheard of ten years ago. 

Shortly before the trial, my father asked my what kind of case I was working on.  When I told him he responded,  "I wouldn't give you five dollars for that case. Why didn't he just punch him in the nose."  While my father's reaction certainly concerned me, fortunately the jury did not see it that way and awarded $1.6 million dollars the majority of which constituted punitive damages.

The case was of course appealed. The  Ohio Supreme Court  decision in Hampel   recognized male on male sexual harassment as a valid claim in line with Oncale v Sundowner Offshore Services, Inc   a case recently decided by the  United States Supreme Court. Interestingly though,  it  held that there  was no sexual harassment in our case, a decision which to this day I completely fail to understand no matter how many times I read it.  Fortunately for Mr. Hampel, the Court affirmed the verdict in sustaining the claim for intentional infliction of emotional distress.

So I come back to, how come we practice for over twenty five years and we see little to no cases of male on male sexual harassment and then we see three in  in one week? Does it have  anything to do with my father's "why doesn't he just punch him in the nose" method of resolving the problem?

Let's assume that employees out there are simply more aware of their rights and courts are more enlightened.

Images: http://www.gpac.org/images/PressReleasePics/maleworkplace.jpg and http://img.dailymail.co.uk/i/pix/2007/10_04/bullyingDM2810_468x720.jpg

• Email This
• Print
• Comments
• Trackbacks