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Is it illegal to discriminate against a Caucasian employee against because of her friendship with and advocacy for African-American co-employees? According to a new decision from the Sixth Circuit Court of Appeals, Barrett, et al v. Whirlpool Corporation, the answer is yes. 

In this important case, three Caucasian production workers  sued Whirlpool claiming that they were retaliated against and subjected to a hostile work environment. They said it was because they were friendly  with African American co-employees and stuck up for them when faced with racial hostility at work.

Title VII of the Civil Rights Act of 1964, and 42 U.S.C. Sec.1981 both forbid discrimination on the basis of association with or advocacy for non-whites.

While admitting that association discrimination claims could be valid, Whirlpool contended that the plaintiffs' claims fell short because the associations with their black co-workers were only casual work friendships and not the type protected under these statutes. Only a significant association that extends outside of the workplace could give rise to a claim according to Whirlpool.

Put another way,  Whirlpool argued that the only kinds of  association claims which can be brought are the kind where an employee was discriminated against because of an intimate or family relationship with a minority like the cases where:

•  an employer discharged an employee after leaning that his daughter was bi-racial (see 6th Circuit  Court of Appeals, Tetro v. Elliott Popham Ponitac, Oldsmobile, Buick, & GMC Trucks, Inc.) or
• an employer discharged an employee upon learning of an interracial marriage (see llth Circuit Court of Appeals, Parr. v Woodman of World Life Ins. Co.)

The Court  rejected this argument and held (like the7th Circuit Court of Appeals in Drake v. 3M ) that associational discrimination could be found in the case of friendship between co-workers of different races:

If a plaintiff shows that 1)she was discriminated against at work 2) because she associated with members of a protected class, then the degree of the association is irrelevant. … The absence of a relationship outside of work should not immunize the conduct of harassers who targets an employee because she associates with African-American co-workers.

While the Court  of Appeals found insufficient evidence to support two of the employees claims, it found in favor of the third -- Treva Nickens, a Caucasian woman who worked at Whirlpool since 1983 and testified:

• it was commonplace to hear racist jokes and racist slurs including he word “nigger”
• she complained on a daily basis about theses comments but that her supervisor refused to do anything to stop it.
• she was harassed for “hanging around with blacks”
• she was told that “she needed to stay with her own kind”
• when she reported the conduct she was physically threatened
• she was directly harassed by her supervisors
• she was denied promotions for higher paying jobs because she spoke out on behalf of her African American friends.

The Court also held reaffirmed the proposition that advocacy on behalf of African-American co-workers was protected. According to the Court:

[A]s long as a plaintiff offers proof that she was, in fact, discriminated against because she advocated for protected employees, she may state a discrimination claim under Title VII.

The bottom line is that  when friends stick up for their minority co-workers in the face of discrimination or harassment, and as a result are subjected  to a a hostile work environment , there is legal protection.  I don't  remember seeing another case quite like it .

What's more, there is little doubt that its reasoning extends beyond race and can be relied upon to protect co-workers who stick up for women, the disabled, or anyone else in a protected class if the individual is then harassed because of it.

This is an excellent case for the promotion of fairness and dignity in the workplace and one that  all managers and human resource professionals should keep in their back pocket. 

 image:http://images.publicradio.org

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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

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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

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