Undercover Lawyer

Episode #4: Illegal Retaliation at Work

August 12, 2008

MP3 Audio: Episode #4: Illegal Retaliation at Work (25.63mb) Download

In Episode #4 of the Hostile Workplace Podcast we discuss illegal retaliation.
For the Quick Tip we discuss the importance of "timing", especially when it comes to retaliation claims.

During the show I mentioned the blog article by "Careerguyd" about violence in the workplace.  If you would like to read that article yourself just click HERE.

I also mentioned that one of the members of the Forums has her own blog that is worth reading.  That is "HR Wench" and you can reach her blog by clicking HERE.

Finally, I revealed that my ace WordPress customizer is Sherry Dedman of Blog-Solace.  If you have your own blog and would like a technical expert to help you spiff it up, add complex plug-ins, or you just need some advice, you can check out Sherry's blog about blogs HERE and her forum about the technical side of blogs HERE.

Be sure to come to the forums and let me know which states you want added first to the new "State Law Resources" section.

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Episode #3: Straight-to-Straight Same Sex Harassment

July 28, 2008

MP3 Audio: Episode #3: Straight-to-Straight Same Sex Harassment (34.92mb) Download

Announcements

In epsisode three I mentioned that you can follow me on Twitter. In you are not familiar with it, Twitter is a “micro-blogging” site, where people can post short, text message length updates about what they are doing each day. You can see it for yourself at www.Twitter.com . My username on Twitter, if you would like to follow me, is “Undercover_Lawr”.

Quick Tip

For the Quick Tip, we talked about how employees have zero expectation of privacy for anything done with their work computer, or their work network (like signing in from home – still utilizes work network)

Feature Segment – Straight Male to Straight Male Sex Harassment

Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998)

Facts of the Case

Joseph Oncale, a male, filed a complaint against his employer, Sundowner Offshore Services, Inc., alleging that he was sexually harassed by co-workers, in their workplace, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). On appeal from a decision supporting a district court's ruling against Oncale, the Supreme Court granted certiorari.

Question

Does the prohibition against sex discrimination, set out in Title VII of the Civil Rights Act of 1964, apply to same-sex sexual harassment?

Conclusion

Yes. In a unanimous opinion, the Court held that while Title VII does not prohibit all verbal or physical harassment in the workplace, it does bar all forms of discrimination "because of" sex. Such discrimination, whether motivated by sexual desire or not, is actionable so long at it places its victim in an objectively disadvantageous working condition, regardless of the victim's gender.

Written Option: http://supreme.justia.com/us/523/75/index.html

 

Davis v Coastal Intern. Sec., Inc, 275 F3d 1119 (2002)

Facts:

The extended and rancorous workplace dispute giving rise to this action began in 1996 after Coastal International Security hired Wallace Davis to work as a security guard at the Environmental Protection Agency. While serving as a supervisor early in his tenure, Davis disciplined two other Coastal security guards, Aaron Smith and Everett Allen, for various on-the-job infractions. Smith and Allen, apparently infuriated by their discipline, launched a retaliatory campaign against Davis, which they began by repeatedly slashing his tires.

After Davis complained to his supervisor, Coastal required the three men to sign a memorandum of understanding in which they agreed to set aside their differences. This agreement accomplished nothing. When Davis was demoted Smith and Allen visited his work station and taunted him about the demotion. Approximately six months into their campaign against Davis, Smith and Allen expanded their repertoire. Smith approached Davis at his work station and grabbed his (Smith's) crotch, made kissing gestures, and used a phrase describing oral sex. After Smith twice repeated this performance, Davis complained to his supervisor, who convened a meeting with Davis, Smith, and Coastal's project manager for the EPA facility. Because Smith denied Davis's accusations, and because Davis failed to provide corroborating evidence, the project manager took no formal action, but admonished both Davis and Smith to “ act like grown men.”

Undeterred, Smith continued his vulgar comments and gestures, and Davis again complained to his supervisor. This time the supervisor warned Smith that he would be fired if his behavior continued. This seems to have gotten Smith's attention, for his lewd conduct ceased (although Davis alleges that Smith threatened his life on several subsequent occasions). Allen, however, twice approaching Davis and made precisely the same lewd gestures and comments that Smith had.

When Davis complained for a third time, Coastal conducted a full-scale investigation. Although the investigator interviewed ten employees, he concluded that the inquiry had been “hampered by the lack of a reliable witness to substantiate even one allegation of sexual harassment by ... Davis.” Notwithstanding this lack of corroborating evidence, the investigator recommended that Davis and Allen be reassigned (Coastal had terminated Smith for unrelated reasons). Shortly thereafter, Davis filed one final complaint, claiming again that Allen, despite his reassignment, had repeated the by-now-familiar lewd gestures and comments.

In January 2000, over three years after these events began, Davis filed suit in the United States District Court for the District of Columbia, alleging that Smith's and Allen's behavior amounted to sexual harassment and that Coastal and Securiguard “permitted ... Allen ... and ... Smith to make sexually vulgar gestures and statements.”

Legal Standard for Male to Male Sex Harassment:

The Court suggested three ways to prove that same-sex sexual behavior rises to the level of illegal sexual harassment: The plaintiff may show that the sexual behavior is motivated by actual homosexual desire; that the harassment is framed in “such sex-specific and derogatory terms ... as to make it clear that the harasser is motivated by general hostility” toward members of the same gender in the workplace; or that there is “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” Oncale, at 80-81, 118 S.Ct at 1002.

ROBINSON v FORD MOTOR Co 277 Mich App 146 (2007)

This case was brought under STATE LAW, Michigan Civil Rights Act (MCA). “Plaintiff alleging a sexually hostile work environment on the basis of sexual advances or solicitations under Civil Rights Act (CRA) must present some credible evidence that the harasser is motivated by sexual desire; however, the same cannot be said about the third type of action barred under the CRA, namely verbal or physical conduct "of a sexual nature." M.C.L.A. § 37.2103(i).”

Employee presented sufficient evidence to allow reasonable trier of fact to conclude that co-worker's conduct and communication inherently pertained to sex for purposes of employee's same-gender sexual harassment claim under Civil Rights Act (CRA); co-worker allegedly exposed his testicles and forced employee to touch them, hit employee's buttocks, exposed employee's underwear, digitally penetrated employee's buttocks, moved his hand between employee's legs toward his testicles, squeezed employee's nipples, threw pubic hair at employee, rubbed employee's personal property against his genitals, and pressed his erect penis on employee's back while forcing his fingers into employee's mouth.

FEMALE HARASSING MALE

Jones v U.S. Gypsum, 126 F Supp 2d 1172 (2000)

Legal Standard that Accuser Must Satisfy:

(a) she is a member in a protected group; (b) she was subject to unwelcome sexual harassment; (c) the harassment was based on sex; (d) the harassment affected a term, condition, or privilege of employment; and (e) the employer knew or should have known of the harassment and failed to take proper remedial action.

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Episode #2: Sexual Harassment Factors

July 13, 2008

MP3 Audio: Episode #2: Sexual Harassment Factors (36.59mb) Download

In The Hostile Work Place Podcast, Episode #2, we discuss the most explosive of work subjects, sexual harassment.� During the show we explain how the U.S. Supreme Court recognizes two types of sexual harassment:

1. Quid Pro Quo (latin for "something traded for something")
2. Hostile Work Environment based on sex

We also explain how you can evaluate whether or not an action can be considered sexual harassment by using the idea of "unwelcomeness".

If unwelcomness is established, a court will look to four factors to evaluate whether a hostile work environment based on sex exists.� Those four factors are:

1. Frequency of the offensive conduct
2. Severity of the offensive conduct
3. Whether the offensive conduct was physically threatening or intimidating
4. Whether the offensive conduct interfered with the performance of your job duties

The case where these four factors were discussed most recently is Reeves v. C.H. Robinson Worldwide Inc. (April 28, 2008).

The two U.S. Supreme Court cases mentioned in the show are Burlington v. Ellerth and Faragher v. Boca Rotan.� Summaries of each and links to downloadable versions of the full case are immediately below.� However, if you would like to go straight to the forum where we are discussing this episode of the podcast just click HERE.

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)

Facts of the Case

After working for Burlington Industries for 15 months, Kimberly B. Ellerth quit because she allegedly suffered sexual harassment by her supervisor - Ted Slowik. Despite her refusals of Slowik's advances Ellerth did not suffer any tangible retaliation and was, in fact, promoted once. Moreover, while she remained silent about Slowik's conduct despite her knowledge of Burlington's policy against sexual harassment, Ellerth challenged Burlington claiming that the company forced her constructive discharge.

Question

Can an employee, who despite refusing sexually harassing advances by a supervisor suffers no adverse job-related consequences, recover against an employer under Title VII of the Civil Rights Acts of 1964, without showing that the employer was responsible for the supervisor's harassing conduct?

Conclusion

Yes. In a 7-to-2 opinion, the Court held that employers are vicariously liable for supervisors who create hostile working conditions for those over whom they have authority. In cases where harassed employee's suffer no job-related consequences, employers may defend themselves against liability by showing that they quickly acted to prevent and correct any harassing behavior and that the harassed employee failed to utilize their employer's protection. Such a defense, however, in not available when the alleged harassment culminates in an employment action, such as Ellerth's.

Faragher v. City of Boca Rotan, 524 U.S. 775 (1998)

Facts of the Case

After resigning as a lifeguard, Beth Ann Faragher brought an action against the City of Boca Raton and her immediate supervisors, alleging that the supervisors had created a sexually hostile atmosphere by touching, remarking, and commenting. Faragher asserted that this conduct constituted discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court concluded that Faragher's supervisors' conduct was sufficiently serious to alter the conditions of her employment and constitute an abusive working environment. The court then held that the city could be held liable. In reversing, the en banc Court of Appeals held that Faragher's supervisors were not acting within the scope of their employment when they engaged in the harassing conduct, that knowledge of the harassment could not be imputed to the City, and that the City could not be held liable for negligence in failing to prevent it.

Question

May an employer be held liable under Title VII of the Civil Rights Act of 1964 for the acts of an employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination?

Conclusion

Yes. In a 7-2 opinion delivered by Justice David H. Souter, the Court held that an employer is vicariously liable under Title VII of the Civil Rights Act of 1964 for actionable discrimination caused by a supervisor. The Court also held that such liability is subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of the plaintiff victim. "The City had entirely failed to disseminate its policy against sexual harassment among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors like [Faragher's]," wrote Justice Souter, "[u]nder such circumstances, we hold as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors' harassing conduct."

�

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Episode #1: The Hostile Work Place Podcast

June 24, 2008

MP3 Audio: Hostile Work Place Podcast #1 (17.72mb) Download

In episode #1 we discuss how in the current economy terminations and layoffs are increasing, but poor performance is often not the reason used to select who is let go and who is not.

We discussed the forum posting contest for the Month of July 2008, where the top three posters to the forums at http://www.UndercoverLawyer.com will win either an Apple iPhone (3G), an iPod Shuffle, or an iTunes gift certificate.� All three top posters will also win a copy of one of the Undercover Lawyer's books about work law, such as "Work Laws Exposed".

Finally, we refer to the article "10 Signs You are Bullied at Work" which is at UndercoverLawyer.com.� This article prompted a reader named Randall to write in with his compelling story, which became the main feature of Podcast #1.� You can read the article at: http://www.undercoverlawyer.com/archives/13.

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