Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

In gender discrimination cases under Title VII, a jury can award back pay and front pay, but also can award compensatory damages if it believes that an employee was harmed emotionally or psychologically by the alleged harassment or hostile work environment. The 1st U.S. Circuit Court of Appeals recently affirmed a $1.6 Million damages award against a Massachusetts hospital and a male physician, and in favor of a female neurosurgeon who claimed hostile work environment and retaliation under Title VII. Tuli v. Brigham & Women’s Hospital, 1st Circ., No. 09-1731, August 29, 2011.

Dr. Sagun Tuli, a female neurosurgeon, brought claims against her employer, Brigham & Women’s Hospital and her supervisor, Dr. Arthur Day, after a yearly review of her medical staff credentials resulted in a conditional reappointment. Tuli, who was hired into the hospital’s Department of Neurosurgery in 2002, acted as the department’s professionalism officer and representative to the hospital’s Quality Assurance and Risk Management (QARM) Committee, which required her to investigate and report on other doctors’ case complications. As QUARM representative, Tuli investigated three of Day’s cases, all three of which ultimately were reported to the state’s Board of Registration of Medicine. In addition, Tuli raised concerns to the hospital’s chief medical officer that Day was inappropriate and demeaning to women, including Tuli.

In 2007, Tuli’s medical staff credentials were due for review by the hospital’s credentialing committee. The results of that review would determine whether Tuli would continue to have “privileges” at Brigham & Women’s – that is, whether she would be allowed to practice medicine at the hospital. Day presented Tuli’s case to the committee in unflattering terms, including a suggestion that she would benefit from anger management training. The committee then conditioned Tuli’s reappointment on obtaining an evaluation by an outside agency (“Physician Health Services”) and on agreeing to comply with that agency’s recommendations.

Tuli subsequently filed a lawsuit asking for a preliminary injunction to prevent the loss of her privileges. She also alleged gender discrimination, claiming both disparate treatment and hostile work environment, based upon Day’s behavior toward her. The district court granted the preliminary injunction. Shortly after that, a jury decided Tuli’s claims, awarding $1 Million in compensatory damages against the hospital on Tuli’s hostile environment claim, $600,000 against the hospital in compensatory damages on her retaliation claim, and $20,000 against Day personally for economic harm on a “tortuous interference with business” claim. At that point, the lower court entered a permanent injunction, keeping the hospital from withdrawing Tuli’s privileges at the hospital. The hospital appealed on all counts.

On appeal, the First Circuit upheld the jury’s verdict, as well as the permanent injunction. It found that the evidence showed that Day frequently had questioned Tuli’s authority, calling her a “little girl,” and asking whether she really could do a “big operation.” In addition, the First Circuit upheld the use of evidence at trial that included incidents outside of the applicable 300-day statute of limitations. In other words, it upheld Tuli’s evidence to the jury of Day’s behavior over the course of her employment, and not simply behavior within the 300 days prior to her first formal claim. Under this “continuing violation” theory, if an act contributing to the claim occurs within the filing period, the entire time period of the alleged hostile environment can be considered by the jury for purposes of determining liability.

While this case is a warning to employers on the risks associated with hostile environment and retaliation claims, the warning is especially strong for hospital and health care systems that directly employ physicians. First, the income level of the individual involved typically translates into higher damages awards when juries find in their favor; and second, the risk created by the overlap between the credentialing process and hostile environment cannot be ignored, especially when an alleged harasser is directly involved in the credentialing process.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The 1st U.S. Circuit Court of Appeals reminds us that while Congress’ antidiscrimination laws are designed to protect workers’ rights, they are “not intended to function as a collective panacea for every work-related experience that is in some respect unjust, unfair, or unpleasant.” Consistent with this statement, the court dismissed the claims of four female radiology technicians who complained that their supervisor’s abrasive behavior and its resulting “nerve-wracking” work environment caused each of them to leave her employment at a Department of Veterans Affairs (VA) hospital. Ahern, et al v. Shinseki, 1st Cir., 09-1985, December 13, 2010.

Eileen Ahern, Debra Auger, Maureen Mastalerz, and Lynda Parker were employed as radiology technicians in the diagnostic imaging service (DIS) of a VA Hospital in Providence, Rhode Island. All four reported to a chief technologist (Joan Beaudoin) who, in turn, reported to the administrative officer, Mehrdad Khatib, who was in charge of personnel management. When Khatib first took over, the DIS employed 16 staff technologists, 14 of whom were female. Khatib hired contract technologists, 11 of whom were male and 7 of whom were female.

Beginning in 2003, the plaintiffs and several of their co-workers complained to Beaudoin about Khatib’s management style, claiming that Khatib was creating “stressful working conditions” and a “hostile working environment.” Khatib was advised of the issues, and was asked to work to resolve them.

Early in 2004, Khatib advised Beaudoin that the 4-day workweek schedule by certain of the technologists, including all four plaintiffs, was creating inefficiencies, and asked Beaudoin to change that schedule to a regular 5-day workweek. This change was not implemented, although Beaudoin ultimately instituted a modified version of Khatib’s proposal that included keeping the 4-day workweek intact.

In April 2004, the plaintiffs, along with three female and two male coworkers, submitted a formal complaint about Khatib, suggesting that he had proposed the 5-day workweek in retaliation for the employees’ initial complaints against him, and complaining that he had treated a particular male employee “with more respect” than others, that he was “bullying” the staff, that he harbored “unreasonable and unrealistic expectations,” and that he was setting employees up to “look and feel like failures.” While the complaints were identified as “sex discrimination,” they included a statement that Khatib also treated certain male employees “horribly.”

All four plaintiffs ultimately left the VA Hospital and filed a lawsuit, claiming gender-based discriminatory hiring, retaliation, and constructive discharge. The lower court entered summary judgment for the hospital, which was upheld by the First Circuit on appeal.

The First Circuit found that because none of the plaintiffs actually applied for any of the positions filled by Khatib, there could be no gender-based discrimination against hiring them. In response to the claim of retaliation, the Court held that the plaintiffs were unable to show the required “materially adverse action” that underlay the claim. While the plaintiffs pointed to Khatib’s attempt to change their 4-day workweek, the Court specifically found that “[m]erely proposing a change in an employee’s schedule does not, in and of itself, constitute a materially adverse action.” Because Khatib’s plan was never brought to fruition, no materially adverse action occurred and, therefore, no retaliation could be proven. In response to the plaintiff’s last claim, the Court found that the allegation of constructive discharge was not sufficiently supported, because the plaintiffs failed to show that their working conditions were “so difficult or unpleasant that a reasonable person . . . would have felt compelled to resign. While the Court agreed that plaintiffs’ evidence showed that Khatib’s behavior “created divisiveness and unrest among employees who worked under him,” and that it “may have engendered a “nerve-wracking environment,” that environment was not based on gender. The Court pointed out that “generally disagreeable behavior and discriminatory animus are two different things.”

Working for a difficult or even unreasonable supervisor can be burdensome, but unless evidence exists to show that such behavior by a supervisor is gender based, Title VII is not the appropriate vehicle for recourse. Of course, this case should not be read to justify overlooking or ignoring complaints made by employees. An employer’s obligation to effectively and promptly investigate employee complaints should not be taken lightly. While Title VII and other state and federal antidiscrimination laws are not meant to be viewed as a code of general civility, the parameters set by those statutes should be reviewed, understood, and enforced by employers, in order to avoid the risk of liability that accompanies their violation.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In an unpublished opinion, the 3d U.S. Circuit Court of Appeals has upheld a lower court’s decision to dismiss an employee’s claims of discrimination, hostile work environment, and retaliation, based largely upon the “extraordinary lengths” to which the employer went to investigate the issues complained of by the employee. Wood v. University of Pittsburgh, 3d Cir., No. 09-4469, September 23, 2010.

Deborah Wood was employed as a systems analyst by the University of Pittsburgh. Upon beginning her work on a project in a Biostatistical Center at the University, Wood was provided a retention letter that informed her that the continuation of her position was contingent upon the renewal of non-university grants that funded the project. In 2007, approximately 90% of the project’s funding was provided by grants from the National Institute of Health (NIH). In June of that year, Wood was informed that she was one of 17 individuals selected for discharge during a reduction in force, after the NIH announced that it would reduce funding of the project by over two million dollars. 

On the day of her discharge, Wood served the University with a federal court complaint asserting gender and race discrimination. Her claims were based upon incidents about which she had complained during the years preceding the reduction in force. In 2005, Wood had become convinced that someone was tampering with her office computer, and reported her belief that the computer had been remotely accessed by an unknown user. She also claimed that someone was entering her office when she was not present. Her supervisor responded to these concerns by installing a lock on the office door, by purchasing and installing software to monitor the computer usage, and by asking the University’s computer services department to review activity related to the computer. After months of investigation, including over 150 hours spent by the supervisor himself, no evidence of improper tampering was found. 

Wood was not satisfied, and contacted the University’s HR department to express that dissatisfaction. The HR department then initiated its own investigation through the summer of 2006, providing a new computer to Wood, reformatting her hard drive, and reviewing additional event logs. In November 2006, Wood alleged that someone had broken into her locked office. That report led to an investigation by campus police, along with additional forensic work by the computer department, again without evidence of inappropriate or unlawful activity. Wood considered these efforts to be “inadequate,” and filed a charge of gender discrimination with the EEOC in December 2006.

In 2007, after learning of the NIH decrease in funding and the impending layoffs, the project director offered to Wood an opportunity to interview for a new position in another section of the same project group. Wood declined the offer, and was discharged on July 12, 2007. She served her lawsuit upon the University on that same date.

The lower court dismissed Wood’s race claim prior to discovery because Wood had failed to assert that specific claim in her EEOC charge. After a period of discovery, the court also granted summary judgment in favor of the University on the remaining claims, and Wood appealed that decision. The Third Circuit upheld the dismissal of Wood’s gender discrimination claim, based upon Wood’s failure to demonstrate that the University had retained similarly situated employees who were outside of the protected class (which would have raised an inference of discriminatory animus). Dismissal of her retaliation claim was upheld because the University proffered evidence of a legitimate non-discriminatory reason for Wood’s discharge – undisputed evidence that the project’s budget was reduced when NIH funding was withdrawn, thereby necessitating layoffs. 

Most interesting was the Court’s response to Wood’s hostile environment claim, in which she argued that she suffered persistent harassment which “must have been” the result of gender bias. Upholding dismissal of the claim, the Court pointed out that the University “went to extraordinary lengths” to investigate Wood’s allegations; the Court found no evidence to suggest that any aspect of that investigation was influenced by gender bias. 

The fact that the Court was able to review and remark upon that evidence in such detail indicates that the University thoroughly investigated the incidents reported by Wood and fully documented its efforts. Employer must recognize that such investigation and documentation are the cornerstones of an effective defense against claims of unlawful discrimination and hostile environment.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

An employer’s failure to keep an female employee apprised of its response to her complaints of sexual harassment, and its further failure to follow through on remedial actions could lead a reasonable jury to find that the employer did not take the complaints seriously. Such failures form the basis of a recent decision by the 8th U.S. Circuit Court of Appeals in which the Court denied an employer’s post-trial motion regarding a $100,000 jury verdict. Sheriff v. Midwest Health Partners, P.C., 8th Cir., No. 09-3367, August 30, 2010.

Sheri Sheriff was a licensed physical therapist employed by Midwest Health Partners in Nebraska. Midwest had acquired a chiropractic clinic in 2003 and had asked Sheriff to run the clinic’s physical therapy department. After she began working at the clinic, one of the employed chiropractors (Dr. Meyer) began to act toward Sheriff in a way that made her uncomfortable, including touching her and putting his arm around her. When she informed one of the nurses about Dr. Meyer’s conduct, Sheriff was told to “get used to it,” because “that’s just the way he is.”

Dr. Meyer’s conduct continued, and Sheriff ultimately reported the issue to Midwest’s management. Sheriff also wrote a letter to Meyers, explaining that the advances were “NOT okay!” and that she did not want further physical contact with him. Meyers apologized to Sheriff and said it wouldn’t happen again.

In spite of the fact that Midwest’s president (Dr. Vrbicky) was aware of a prior female patient’s complaint involving Meyer, no one from Midwest discussed Sheriff’s allegations with Meyer until Sheriff learned of that complaint, and of other instances involving another female patient. At that point, Sheriff spoke to Midwest’s Practice Manager about the situation. In addition, Meyer again began to touch, grab, and embrace Sheriff, wrapping his arm around her and touching her breasts. Sheriff then obtained an attorney who wrote to Midwest, advising it “to take aggressive action to protect itself,” and making several recommendations to stop Meyer’s behavior. Seven weeks later, in November 2005, Midwest met with Meyer, asking him to participate in counseling and requesting that he sign an acknowledgement of his inappropriate behavior. He did neither, and his behavior with respect to Sheriff took on a condescending and intimidating tone.

In a January 4, 2006 letter, and at a January 13, 2006 meeting, Midwest again set forth its remedial recommendations, and again, Meyers refused to participate. Finally, on February 23, he agreed to attend sexual harassment training, but only attended one of five sessions. Durin this same period, Sheriff was told that Meyer would be terminated within 45 days. He was not, and Sheriff was given no reason for that turn of events.

On April 11, 2006, Sheriff resigned and brought a legal action against Midwest. At trial, a jury awarded to Sheriff $100,000 on her hostile work environment claim, and Midwest filed a post-trial motion for judgment in its favor. The 8th Circuit denied that motion, finding that the jury had a reasonable basis for its verdict.

The Eighth Circuit’s opinion includes two points of which employers should be aware: first, it rejected Midwest’s argument that Meyer was simply a “touchy person” who patted men on the buttocks and, therefore, his conduct was gender neutral and not sexual harassment. Once again, a federal appellate court has rejected that argument, pointing to the fact that in this case, there was no evidence that Meyer “pulled men into his body” nor was there evidence of any complaints by men or by male patients. Secondly, at least three times in its opinion, the Court mentions the fact that Midwest failed to apprise Sheriff that it was taking action in an attempt to remedy the complained-of situation, or failed to follow up on the termination action that it told her that it was taking. It cites those failures as a possible basis for the jury’s finding that Midwest did not take Sheriff’s complaints seriously. Whether or not that was the reason for Midwest’s failures, it is important to note that this Court believed that open communication with Sheriff regarding Midwest’s remedial efforts was an important element of the employer’s responsive actions to Sheriff’s complaints. While there is no legal obligation to inform a complainant of each and every detailed step in a disciplinary action taken against an alleged harasser, the fact that the complainant is treated with courtesy and respect, and is a full participant in the process, can play a role in the way that a court or a jury views the credibility and effectiveness of the employer’s attempted remedial actions.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The 9th U.S. Circuit Court of Appeals has held that a female co-worker’s “relentless” pursuit of a male employee, including verbal comment and suggestive notes, could form the basis of a sexually hostile environment, even without any physical conduct of a sexual nature. EEOC v. Prospect Airport Services, Inc., 9th Cir., No. 07-17221, Sept. 3, 2010.

Rudolpho Lamas began working for Prospect Airport Services in the Spring of 2002, shortly after the death of his wife in September of 2001. In the Fall of 2002, and without instigation from Lamas, a married female co-worker (Munoz) began to make sexual overtures toward Lamas after she heard that he had stated that he “missed coming home to a family.” In November, Munoz handed a note to Lamas, telling him she was “turned on” and wanted to “go out” with him. Lamas informed their boss (O’Neill) about the note, and was advised to let Munoz know that he wasn’t interested, and to tell Prospect’s managers if Munoz continued her actions. Although Lamas let Munoz know that her interest was not reciprocal, Munoz continued her advances, including additional notes and a photo of herself that Lamas found to be sexually suggestive. At this point, Munoz reported the continued activity to another company supervisor (Thompson), who told Lamas that she would report the incidents to the general manager (Mitchell) and talk to Munoz. She did neither.

At that point, Lamas received a third, and more explicit, note from Munoz; Lamas reported this note directly to Mitchell. At that point, Munoz had also recruited other co-workers to let Lamas know how she felt. In response to Lamas’ report, Mitchell said that he “did not want to get involved in personal matters” but ultimately spoke to Munoz and told her that Lamas wanted the activity to stop.

Unfortunately, the activity did not stop; it escalated into daily comments and suggestive remarks from Munoz. This continued through the Spring of 2003. At one point, Munoz made sexual comments to Lamas in front of airline passengers, embarrassing both Lamas and the passengers. Although Lamas had reported his concerns to four different managers, no remedial action was taken. In fact one of the managers told Lamas that the whole thing was “a joke” and that he should be singing “I’m too sexy for my shirt.” Lamas began to have problems at work, including the fact that his co-workers started rumors that Lamas was gay because he was rebuffing Munoz’ approaches. Lamas’ work performance deteriorated, and he ultimately was fired for poor performance in June 2003.

Lamas took his complaint to the EEOC, which found enough factual basis to support a hostile work environment, and filed suit on his behalf. The district court granted Prospect’s motion for summary judgment, concluding that Munoz’ conduct was not “severe and pervasive” enough to support a claim for hostile work environment. In its opinion, the court stated that Munoz’ conduct was not objectively unwanted for most men, and that “most men in [Lamas’] circumstances would have ‘welcomed’ the behavior he alleged was discriminatory.”

The lower court’s dismissal was reversed on appeal to the Ninth Circuit, which pointed out that under Title VII, “[b]oth sexes are protected from discrimination.” The appellate court pointed out that “it cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome.” This is a stereotype that the court refused to accept, and pointed out that “welcomeness” is an inherently subjective issue. However, it also added that unwelcomeness has to be communicated. Here, Lamas not only expressed his refusal to Munoz, he also continually stated – to his co-workers, his friends, and four different company managers – that his Christian background and the recent death of his wife led him to find Munoz’ actions inappropriate and offensive. The Court also pointed out that while not all propositions for romance are sexual harassment, Munoz’ conduct, including the continued advances after Lamas’ rejection, her involvement of co-workers in her efforts, the suggestive photograph, and her “relentless” sexual remarks created an environment that Lamas reasonably perceived as hostile and abusive.

Notably, the Court also pointed out that the company’s actions were insufficient to establish an affirmative defense to Lamas’ complaints. Prospect’s managers did little or nothing in response to Lamas’ reports, instead telling him he should be singing “I’m too sexy for my shirt.” While that remark is troubling, the fact that the complaints by Lamas were made by a man regarding the actions of a woman may have created a skewed response from the company. Employers must recognize that Title VII protects both genders, and that a male employee’s report of harassment should be investigated and responded to as effectively as one made by a female employee.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The 7th U.S. Circuit Court of Appeals has held that it is up to a jury to determine whether, in fact, a single instance of uninvited intimate physical contact may be sufficient to support a claim of hostile work environment. Berry v. Chicago Transit Authority, 7th Cir., No. 07-2288, August 23, 2010.

Cynthia Berry was hired by the Chicago Transit Authority (CTA) in 2002 as a carpenter. In January 2006, Berry was one of only two female employees among about 50 individuals working in Area 315, and was the only female of the 15 carpenters working there. During breaks, employees in Area 315 often played cards at a picnic-style table in a break area. During a morning break on January 17 or 18, Berry sat down at the table with three male employees. A fourth male employee, Carmichael, sat down straddling the bench, with his back toward Berry. According to Berry, Carmichael began rubbing his back against Berry’s shoulder. She jumped up, told him to stop, and moved to the other end of the table. Although another employee told Berry to get up, Berry remained seated. Berry alleges that Carmichael then lifted her from behind, grabbing her by the breasts, and rubbed her body against his before throwing her to the ground “with force.” She further alleges that Carmichael then pushed her into a fence.

On the following day, Berry reported the incident to one of her supervisors (Gorman), who – according to Berry – told her that she was a “pain in the butt” and that she could lose her job if she filed charges against Carmichael. Berry alleges that Gorman also said that he was “going to do whatever it takes to protect CTA.” However, Gorman reported the incident to a CTA EEO investigator, and collected statements from Berry and the others who witnessed the incident for review by the investigator. In the meantime, Berry called the police, reporting that she had “been attacked” at work. The police spoke to Berry, Carmichael and Gorman, and determined, based on that investigation, that Berry actually had been the aggressor. The CTA investigation ultimately resulted in the same finding. Berry contends that Gorman sabotaged the investigation to prevent the alleged harassers from being punished; she then filed a lawsuit alleging gender discrimination, hostile work environment, and retaliation. The lower court granted summary judgment in CTA’s favor, dismissing all of Berry’s claims. It dismissed the gender discrimination claim based on the absence of an adverse employment action, and the retaliation claim because Berry raised the issue only during the summary judgment process. The lower court also found that the hostile environment claim could not go forward because CTA took prompt and reasonable steps to discover and rectify the actions complained of by Berry.

On appeal, the Seventh Circuit upheld the dismissal of the gender discrimination and retaliation claims, but reversed the dismissal of the hostile environment claim. In order for that claim to survive summary judgment, Berry had to show that she was subjected to unwelcome conduct because of her sex, that the conduct was so severe or pervasive that it created a hostile environment, and that there was a basis for CTA’s liability. Berry argues that she experienced a hostile environment when Carmichael allegedly rubbed his body with hers; she also argues that Gorman’s dismissive comments to her about her complaints form the basis for CTA’s liability. The lower court had discounted Berry’s uncorroborated testimony on those issues when it found in CTA’s favor.

The Seventh Circuit spelled out the principles upon which it based its decision, specifically finding that personal knowledge or first-hand experience of a plaintiff can create a “disputed fact” that can only be resolved by a jury. According to the Seventh Circuit, the lower court improperly discounted Berry’s testimony, which was based on her own personal encounters with both Carmichael and Gorman and therefore, according to the Seventh Circuit, could create issues of material fact sufficient to preclude summary judgment. The Court further held that a single act can create a hostile environment if it is severe enough. Carmichael’s actions, as alleged by Berry, qualify as such an act. Notably, the Seventh Circuit also determined – based solely on Berry’s uncorroborated testimony of Gorman’s remarks – that a “reasonable factfinder” could come to the conclusion that CTA, through its manager, had “maliciously thwarted any legitimate investigation, and that CTA was therefore negligent or worse in responding to [Berry’s] report of harassment.”

The primary method for employers to avoid this situation is to be able to show thorough and detailed investigation training, and to ensure that managers’ responses to complainant/employees are consistent, objective, and by-the-book, in order to establish some defense to the uncorroborated testimony of such employees.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

For the second time in as many weeks, a federal appeals court decision rests on the determination that an alleged harasser who makes gender-specific slurs and comments can create a hostile work environment for a female employee, even though the harasser is an “Equal Opportunity Harasser” who makes crass and offensive remarks to “everyone, regardless of gender.” Sharon Kaytor v. Electric Boat Corp., 2d Circ., No. 09-1859-cv, June 29, 2010.

Sharon Kaytor worked for Electric Boat Corporation for nearly 20 years as an administrative assistant, beginning in 1998. During most of that time, Kaytor worked for Daniel McCarthy, one of the managers in the engineering department. Kaytor alleges that in 2004, McCarthy seemed to “undergo a change of character.” Although he didn’t touch Kaytor in a sexual or violent way, McCarthy allegedly began to make inappropriate remarks to Kaytor including references to her body and how she smelled. Further, according to Kaytor, on nearly a dozen occasions, McCarthy threatened to hurt, choke, or kill her. At first, Kaytor ignored the remarks, knowing that McCarthy was going through a divorce. However, in April 2005, Kaytor informed McCarthy that she was going to report certain offensive remarks that he had made regarding Kaytor’s visit to her gynecologist. In response, McCarthy is alleged to have stated “I’ll kill you” if a report was made. Subsequently, for Administrative Assistants’ Day, McCarthy gave to Kaytor a potted plant – a pussy willow – with an arguably sexual message attached to it.

After that incident, Kaytor complained about McCarthy to HR. Immediately following the report, Kaytor was transferred to work for an engineer who reported directly to McCarthy, and who – according to Kaytor – treated her “poorly,” changing her work hours, and screaming at her for the “whole department” to hear.

Although Kaytor continued to work for Electric Boat, she filed administrative charges and, ultimately, in December 2006, a lawsuit alleging retaliation at her job. The lower court granted summary judgment for the company, saying that the incidents complained of by Kaytor were not sufficiently severe and pervasive to constitute a sexually hostile work environment. The court specifically held that “a reasonable jury” could not infer that the multiple threats to kill Kaytor were made “because of Plaintiff’s sex,” and concluded that, absent those threats, the other incidents complained of were not pervasive enough to adversely affect Kaytor’s work environment. The lower court also pointed out that because McCarthy was crass with everyone, regardless of their gender, he was not targeting Kaytor because of her sex.

The Second Circuit disagreed, finding that a rational jury could infer from McCarthy’s sexual comments and inappropriate remarks that the gender neutral threats of violence that he directed toward Kaytor were, in fact, because of her gender. Further, in response to the “Equal Opportunity Harasser” argument, the appellate court pointed out a prior case in which it held that “the inquiry into whether ill treatment was actually sex-based discrimination cannot be short-circuited by the mere fact that both men and women are involved . . . . It would be exceedingly perverse if a male [supervisor] could buy . . . his company immunity from Title VII liability by taking care to harass sexually an occasional male worker, though his preferred targets were female.”

The important issue for employers is that a court’s analysis of whether harassment is “based on sex” will take into account the totality of the circumstances, and will consider both the complainant’s reaction to events and whether a reasonable person would find such events abusive. In addition, evidence that the alleged harasser may have had “designs” on the complainant (as Kaytor alleged that McCarthy had, in this case, based upon his comments about her body and her scent) will add context to other remarks that may not include sexual references or gender-based comment. Importantly, a company must recognize that the fact that an harasser also makes remarks to male employees will not, by itself, serve as a defense to claims for sexual harassment or hostile environment.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The 4th U.S. Circuit Court of Appeals has determined that an alleged harasser who makes gender-specific slurs and comments can create a hostile work environment for a female employee, even though the harasser is an “Equal Opportunity Harasser” who makes sexually offensive remarks to “anybody, any time.” EEOC v. Fairbrook Medical Clinic, P.A., 4th Circ., No. 09-1610, June 18, 2010.

Dr. Deborah Waechter was employed at Fairbrook Medical Clinic, which is owned and run by Dr. John Kessel. During her employment, Waechter was the target of a number of remarks by Kessel having to do with her body, her sexual relationship with her husband, and Kessler’s self-label as a “breast man.” In addition, Kessler made crude jokes to both the men and the women in the office, and reveled in being a “shock jock” who made outrageous remarks to both male and female employees. Waechter ultimately resigned her position and filed a lawsuit against Fairbrook. The lower court granted summary judgment for Fairbrook, dismissing Waechter’s claims with a finding that Kessler’s conduct was not based on Waechter’s gender and was not “severe,” and that it was not uncommon in a medical setting to use off-color jokes to “ease the tension.” The Fourth Circuit disagreed with and reversed that determination.

Title VII of the Civil Rights Act prohibits discrimination “because of sex.” The purpose of this prohibition, according to the U.S. Supreme Court, is to “strike at the entire spectrum of disparate treatment of men and women in employment.” In order to establish a violation of Title VII, an employee must show that the complained-of conduct was unwelcome, was based on her sex, was sufficiently “severe and pervasive” to alter the conditions of her employment and create an “abusive work environment” that was attributable to the employer.

In this case, Fairbrook argued that Kessel did not make the inappropriate remarks to Waechter because of her sex, and argued that Kessel was a generally crude person who made vulgar comments to men and women alike. The Fourth Circuit dismissed that contention, stating that although Kessel made offensive remarks to both men and women, his use of sex-specific and derogatory terms indicated that he intended to demean women. Further, the Court pointed out that Kessel’s proposals of sexual activity were not of the type that would have been made to someone of the same sex, as they involved breast pumping and “wild” sex after pregnancy. Based on these remarks, a jury could reasonably conclude that the purpose of Kessel’s comments was to embarrass and discomfit a woman in his employ.

The Court then addressed the issue of whether Kessler’s comments created an objectively hostile environment. In response to Fairbrook’s argument that employees in a medical clinic deal with human bodies every day and therefore have a more casual response to anatomical references and jokes, the Court responded that Kessel’s remarks went beyond merely crude behavior when they “ventured into highly personal territory,” including Waechter’s pregnancy, her body, and her personal life with her husband. The Court refused to accept the argument that because a medical setting deals with human anatomy on a regular basis, it is somehow “liberated from professional norms.” The Court determined that a jury could find that Kessel’s behavior was sufficiently severe and pervasive to establish an objectively hostile work environment.

While Fairbrook attempted to assert the affirmative defense available to employers since the Supreme Court’s decisions in Faragher and Ellerth in 2008, it was unable to show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” The clinic never conducted an investigation or took any other corrective actions, in spite of the fact that Waechter complained to Kessel – the owner – on several occasions, and to at least one other manager.

This case raises a number of issues of which employers should be aware. First, the “Equal Opportunity Harasser” defense is not applicable if the remarks made by such a person are gender-based and could be interpreted to shock, intimidate, or alienate an individual of that gender. Second, the casual nature of a workplace is not sufficient to support an argument that harassing and humiliating behavior against one gender is okay. Third, with absolutely no attempt to investigate or otherwise exercise reasonable care to stop the harassment, an employer will be unable to provide the affirmative defense available under the prevailing Supreme Court cases. Antidiscrimination training and policies should be developed and implemented to assist employers in dealing with these issues and in avoiding legal liability for claims of hostile work environment.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The EEOC announced on May 5, 2010 that Ohio-based Everdry Marketing and Management, Inc., has paid over $500,000 in damages in interest to satisfy a judgment against that company stemming from a 2006 jury trial. The original claims were filed by 13 women, mostly teenagers at the time of the incidents, who worked at the company’s Rochester, N.Y., location as telemarketers. EEOC v. Everdry Mktg. & Mgmt., Inc., W.D.N.Y., No. 01-cv-6329, judgment satisfied, 5/5/10.

The case originally was filed by the EEOC in 2001 as part of its “Youth@Work” initiative, targeted at training young people about illegal workplace discrimination and harassment. The complaint included claims that male managers and co-workers at the Rochester franchise of Everdry verbally and physically harassed the young women between 1998-2002, making numerous sexual remarks and jokes, and on one occasion, promising a raise in return for sexual acts. Following a multi-week trial in federal court in New York in October of 2006, a jury originally awarded $585,000 in damages to the 13 plaintiffs; that amount ultimately was reduced to $471,096. The jury concluded that the Rochester affiliate at which the incidents occurred was part of an “integrated enterprise,” and that Everydry therefore violated Title VII of the Civil Rights Act by allowing the harassment.

Afterwards, Everdry appealed the verdict on the basis that as a franchise, the Rochester affiliate was not part of the Everdry company. The 2d U.S. Circuit Court of Appeals rejected that argument and affirmed the jury verdict, specifically affirming the award of punitive damages assessed by the jury against the company. Everydry corporate headquarters has paid the judgment - although none of the complained-of incidents occurred at its corporate facilities in Ohio - plus $86,581 in post-judgment interest. The Rochester affiliate is no longer in operation.

This case points out two things: first, that sexual harassment training is extremely important, especially if a company has related or affiliated entities in other geographic locations, and for which it ultimately may be held responsible; and second, that the EEOC is persistent in enforcing federal laws banning workplace discrimination.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

When an individual claims to have been racially harassed by co-workers, he or she must show that the employer was negligent either in discovering or remedying the harassment. An employer can avoid liability for co-worker harassment if it takes prompt and appropriate remedial action that is likely to prevent the harassment from recurring. Recently, the 7th U.S. Circuit Court of Appeals analyzed specific actions taken by a company after a noose was found hanging in a workplace, and found those actions to have been sufficient to uphold summary judgment in the company’s favor. Porter v. Erie Foods International, Inc., 7th Cir. No 08-1996, August 7, 2009.

Tremeyne Porter was the only African-American working on the third shift in Erie Foods’ Rochelle, Illinois facility. During his work shift on August 12, 2004, Porter saw a noose, made out of white nylon rope, hanging from a piece of machinery. An on-site supervisor, Santos, directed another employee to take down the noose, and then discussed the matter with Porter. She asked Porter if he knew who was responsible, but he denied knowing who the perpetrator was. Santos then tacked the noose to a bulletin board in her office, which was within sight of individuals passing that office. She later testified that she did so to remind her to follow up on the issue.

Early the next morning, Santos followed up with the first shift supervisor – asking if he had any information about the noose – and then informed her own supervisor (Jacobs) and a member of the human resources department (Goffinet) about the matter. Concerned, Goffinet immediately spoke to his own supervisor about the matter. That evening, Goffinet held a group meeting with Santos, Porter, and the entire third shift, stating that workplace harassment would not be tolerated, and reiterating the company’s anti-discrimination policy. Subsequently, Goffinet spoke privately with nine of the 15 third-shift workers, and held an extensive discussion with Porter. Porter told Goffinet that he “would not say” who made the noose, because he didn’t want anyone to be fired.

Around this same time, another co-worker, Alverez, showed a noose to Porter and to some other employees; Alverez then stated to Porter that if Porter showed the noose to anyone, he would “look for him,” which Porter interpreted as a threat to him and to his family. Shortly after, Goffinet followed up with Porter, asking for additional information on the reported harassment. During that meeting, Porter mentioned that he had been threatened by another employee, but would not identify that person. Goffinet then asked whether Porter wanted to change shifts. Porter declined the offer. Santos also continued to follow up with Porter during subsequent shifts, asking whether he knew who hung the noose, and asking first and second shift supervisors if they had obtained any further information.

On August 14, Porter filed a police report about the nooses, including co-worker names, but stated that he did not want the police to visit the workplace or the individuals – he simply wanted the harassment to stop. On August 16, a locker fell on Porter while he was changing into his work clothes. Porter was hit by the falling locker, but suffered no injury. After Porter reported the incident to Santos, Goffinet had the lockers bolted to the wall within a day.

On August 19, Porter quit his job. He ultimately filed a lawsuit alleging race-based harassment, constructive discharge, and retaliation. The district court granted summary judgment in Erie’s favor. That decision was upheld on appeal by the Seventh Circuit, based largely on the actions taken by Erie during the brief period of Porter’s employment.

Because Title VII is not a “strict liability” statute, an employer can defend against allegations of co-worker harassment by showing prompt and effective response to reports of such harassment. In this case, the Court determined that the steps taken by Santos and Goffinet show that they took the issue seriously and made a reasonable effort to bring the harassment to an end. (However, the Court also labeled Santos’ unfortunate placing of the noose on her bulletin board as “ill advised,” and found that it may have indicated a “lack of recognition of the powerful message of racial hatred that a noose evokes.”) The facts that both of these managers informed their own supervisors of the incident, made attempts to find out who was responsible, reminded employees of company anti-discrimination policies, and followed up with Porter, formed the basis of prompt and effective remedial action sufficient to defend against Porter’s claims of co-worker harassment. Further, because an employee has a duty to reasonably “avail [himself] of the employer’s preventive or remedial apparatus,” Porter’s failure to fully report or cooperate in the investigation of the harassing incidents undermined his claims. According to the Court, an employee’s subjective fears of confrontation or retaliation does not alleviate the duty to alert an employer to alleged harassment.

The important point for employers in this case is the Court’s statement that “In assessing corrective action, our focus is not whether the perpetrators were punished by the employer, but whether the employer took reasonable steps to prevent future harm.” Those “reasonable steps” will differ, depending on the specific facts of the situation being addressed. However, the actions taken by the company in this case should stand as a minimum checklist of a “prompt and effective” reaction to incidents of co-worker harassment.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The basis of an employer’s liability for a claim of hostile work environment under Title VII depends upon whether the harasser is the complainant’s supervisor or merely a co-worker. When a hostile work environment is created by a co-worker, the employer is liable only if the employer failed to provide an avenue for reporting the harassment, or if the employer knew or should have known of the harassment but failed to take prompt and appropriate remedial action. Under Title VII, an employer “knew or should have known” about workplace harassment if “management level employees had actual or constructive knowledge about the existence of a sexually hostile environment.” Therefore, once a management level employee has enough information to raise the probability of sexual harassment in the mind of a reasonable employer, the employer is deemed to be on constructive notice of that harassment.

Recently, the 3d U.S. Circuit Court of Appeals affirmed summary judgment in favor of an employer, holding that the individual team leaders who were aware of certain harassing behavior were not the “management level personnel” referred to in Title VII and, therefore, that the employer could not be held liable for the claims of harassment made by the plaintiff. Huston v. Proctor & Gamble Paper Products Corp., 3d Circ., No. 07-2799, June 30, 2009.

Priscilla Huston was employed by Proctor & Gamble’s Mehoopany, Pennsylvania plant for more than 10 years, working as a technician on teams that operated large paper manufacturing machines. In 2004, Huston allegedly heard about a number of instances in which certain of her male team members exposed themselves to other male employees. She reported those specific incidents only to her team’s “process coach” (Romanchick) and a “machine leader” (Traver), but not to senior management. Huston alleges that she subsequently witnessed two similar incidents herself. She reported those two incidents to a senior-level manager and a human resource manager. An investigation was begun on the day that the incidents were reported. Discipline ultimately was imposed to all team members, including Huston, after it was discovered that the entire team used vulgar language at work – a practice that the company had been working to eliminate. Although Huston’s disciplinary history was such that she could have been terminated for this infraction, she was simply asked to be “mindful of her language” at work.

In the fall of 2004, P&G identified a costly problem occurring at the plant, and was able to trace the problem to a lack of care on the part of the technicians, including Huston. At that point, all technicians were informed that they risked termination if caught fabricating data for machine data logs. In spite of this warning, Huston admittedly falsified certain data into the logs, and was terminated from employment. She then filed a complaint asserting a sexually hostile environment, claiming that Romanchick and Travers were “managers” who put the company on notice of the plant’s hostile environment, and that the company should have acted sooner with respect to the hostile environment.

The Third Circuit affirmed a lower court’s dismissal of the case, finding that Romanchick and Travers did not qualify as management-level employees for purposes of Title VII and, therefore, that the company was not on notice of the hostile environment until Huston reported it to senior management. Unlike salaried managers, Romanchick and Travers were paid on an hourly basis, and had no actual authority to hire, fire, or discipline others. Instead, they performed essentially the same functions as the remaining team members, with certain additional oversight functions. According to the Court, an employee’s knowledge of sexual harassment may be imputed to the employer only when (1) that employee is sufficiently senior in the employer’s governing hierarchy so that such knowledge is important to that person’s general managerial duties; or (2) the employee is specifically employed to report or respond to sexual harassment.

This case provides a bright line definition of “managerial employee” with respect to Title VII’s use of that term by requiring knowledge of a hostile environment to reach an employee in the “governing body” of the company, as opposed to a mere “supervisory employee in the labor force.” According to the Court, “[a]lthough an employer has a duty to be reasonably diligent in attempting to discover co-worker harassment, an employer is not expected to know every instance of harassment that may occur between co-workers.” While this should not be read as permission to ignore or minimize instances of harassment that come to light, it allows employers to fully understand their duty under Title VII, and to respond effectively when allegations of sexual harassment are properly raised.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link