Outten & Golden: Empowering Employees in the Workplace

Archive for October, 2010

Check Laws to Learn if You Can Take Time Off to Vote

Friday, October 29th, 2010

Image: James Parks

Each American citizen 18 years old or older has a right to vote and most—not all—have the right to take time off to vote. Thirty-three states have laws on the books requiring employers to give workers time off to cast a vote. The District of Columbia and 17 states do not.

With so much at stake in Tuesday’s election, working families are mobilizing to get out every vote. So, it is important to know if you can get time off to vote or if you have to go before or after work. To find out what the law is in your state, visit the website www.CanMyBossDoThat.com.

The new site offers an interactive list of laws in each state and Washington, D.C. The site also provides links to the specific laws, which differ from state to state. For example, in Minnesota, workers can take time in the morning on Election Day, but not the afternoon. In Massachusetts, only mechanical, retail and manufacturing workers can take time off. The law in North Dakota doesn’t require employers to let employees off to vote, it only “suggests” that they do it.

The site also provides information on which states protect workers from retaliation based on how they vote or because of political activity outside of work. As many people learned when a woman was fired for her John Kerry bumper sticker in Alabama in 2004, without state protection, workers are not protected from retaliation for their political views or how they vote.

Says Anne Janks, director of the site:

These new resources will help workers understand if they have any rights and how to get the time off to vote. We also hope that states which do not give these most basic rights to ensure a vibrant democracy will consider passing protections for their citizens.

So check the site to see what your rights are, but, by all means, make sure to vote Nov. 2.

CanMyBossDoThat.com is a non-profit website with more than 750 pages educating workers about their rights. Many employment rights are based on state laws. Topics also outline federal and state-specific protections. The site was started in 2009 by Interfaith Worker Justice (IWJ) to provide clear, usable, specific information for workers and their advocates.

To read more information about your voting rights as it relates to employment, visit Workplace Fairness’ Voting Rights Page.

This article was originally posted on AFL-CIO Now Blog.

About the Author: James Parks had his first encounter with unions at Gannett’s newspaper in Cincinnati when his colleagues in the newsroom tried to organize a unit of The Newspaper Guild. He is a journalist by trade, and worked for newspapers in five different states before joining the AFL-CIO staff in 1990. His proudest career moment, though, was when he served, along with other union members and staff, as an official observer for South Africa’s first multiracial elections. Author photo by Joe Kekeris

Rescued Chilean Miners Greeted As Heroes -- but They're Also Victims

Thursday, October 28th, 2010

mikeelkfotoThe 33 Chilean miners trapped underground for 69 days have been treated like heroes since their rescue this week. They were invited to the country’s presidential palace for a special soccer game. A Greek mining executive offered to pay for them to take an all-expense paid trip to Greece to just relax for a few weeks on Greek beaches. Many other companies have made huge donations to their families.

They are being viewed as heroes, but some disagree with this characterization.

“The miners are not ‘heroes,’ as they have been called around the world for surviving underground for over two months,” Néstor Jorquera, president of the Chilean mineworkers union, CONFEMIN, told the Inter Press Service. “They are victims.” Many in the international labor movement have complained that news accounts have ignored the poor treatment of workers by the mining company, which intially refused to pay their wages after the miners were trapped underground on Aug. 5.

San Esteban, the company that operates the mine, claimed they had no money to pay the workers who were trapped under the mine. In fact, the company was apparently so broke that it couldn’t even pay the costs of the recovery. The government of Chile was forced to pay for a rescue that some say could cost anywhere between $10- $20 million.

As a result, the president of Chile, Sebastian Pinera, vowed to make major changes to the way workers are treated in Chile. “Never again in our country will we permit people to work in conditions so unsafe and inhuman as they worked in the San Jose Mine, and in many other places in our country,” he said.

It’s important to note that working conditions in Chile are notoriously unsafe. There were more than 191,000 workplace accidents, including 443 deaths, in a country with only a population of 17 million people in 2009, an astronomical rate for such a small country.

President Pinera set up a commission in August to write a report on workplace safety, which is due to be delivered on Nov. 22. The president also announced the creation of a new mining agency to more strictly enforce mining safety laws and increase funding for safety programs.

But Jorquera, president of CONFEMIN, says this is not enough. He called for Chile to agree to the International Labor Organization’s (ILO) Convention 176 on Safety and Health in Mines, like most industrialized countries around the world have done.

Whether or not Chile signs on to that convention will make clear how serious the country’s leaders are about reforming mine safety laws. It won’t be much of a surprise if the media, which often neglects workplace safety issues, quickly moves on after the rescue and ignores mining safety issues in Chile and elsewhere. But let’s hope Pinera, and the rest of Chile’s leaders in government, act now to ensure we never have to watch another harrowing subterranean story like this unfold.

This article was originally published on Working In These Times.

About the Author: Mike Elk is a third-generation union organizer who worked previously for the United Electrical, Radio, and Machine Workers (UE). Currently, he works at the Campaign for America’s Future in Washington, D.C. Additionally, he has worked as a staffer on the Obama-Biden Campaign and conducted research on worker owned cooperatives at the Instituto Marques de Salamanca in Rio de Janeiro, Brazil. When Mike is not reading twenty blogs at a time, he enjoys jazz, golden retrievers, and playing horseshoes.

What Anita Hill did for America

Wednesday, October 27th, 2010

Marcia GreenbergerThis week Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, called Anita Hill and left a message on her answering machine inviting her to apologize for testifying during Clarence Thomas’ confirmation hearings.

The call brought back, with surprising immediacy, those 1991 hearings. For those too young to remember, the hearings may be little more than a paragraph in a history text. But it’s hard to overstate their importance.

For women at the time, Professor Hill’s testimony was riveting and unforgettable. The country watched on TV as Hill related her personal story — describing the sexual harassment she said she endured while working for Thomas as a federal government employee — before a Judiciary Committee composed entirely of men. Not a single woman senator. (Thomas denied the allegations.)

The issue of sexual harassment was out of the shadows.

Before Hill’s testimony, sexual harassment was viewed as a problem for victims, predominantly women, to solve on their own. Most women suffered in silence rather than jeopardize their careers by complaining, even though sexual harassment had been defined as a form of sex discrimination that could be illegal more than a decade earlier by the courts and the federal Equal Employment Opportunity Commission (or EEOC).

When it first appeared that Professor Hill’s allegations might not even be aired, outraged women jammed congressional switchboards with phone calls, and seven women members of the House of Representatives, including Rep. Eleanor Holmes Norton, Rep. Louise Slaughter and then-Rep. Barbara Boxer (who was elected to the Senate the following year) marched to the Senate to demand a serious and respectful hearing.

Professor Hill was berated and personally attacked during the hearing. Former Wyoming Sen. Alan Simpson waited until Anita Hill’s testimony was concluded to announce, for example, that “I really am getting stuff over the transom about Professor Hill,” without providing any details or substantiation about what he was referring to.

Such treatment became the subject of dinner table conversations around the country, as did the problem of sexual harassment itself. And those conversations continued wherever women met.

Pundits speculated that the Anita Hill testimony would forever intimidate women from ever coming forward again, but the opposite happened.

After the hearings, the number of claims of sexual harassment filed with the federal EEOC (the very agency headed by Clarence Thomas where Anita Hill said he had sexually harassed her) more than doubled between 1991 and 1998 (from 6,883 to 15,618).

And women demanded better legal protection. Congress strengthened remedies for victims of sexual harassment at work by passing the Civil Rights Act of 1991, providing damages for the full range of injuries that victims might suffer and giving victims the right to trial by a jury of her peers.

Major victories in the courts struck blows against widespread sexual harassment that women suffered in the workplace, from the mines to Wall Street. Employers took notice, so that now anti-harassment policies are more robust and company training programs are commonplace.

In the aftermath of Anita Hill’s testimony, Justice Thomas was narrowly confirmed to the Supreme Court by a vote of 52 to 48. In what became known as “the Year of the Woman,” record numbers of women were elected to Congress: 28 women were elected to the House of Representatives, more than doubling the total number of female representatives to 47, and four new women joined the only two women then serving in the Senate.

One of those new female senators from the class of 1992, Dianne Feinstein of California, now sits on the Senate Judiciary Committee. Anita Hill dedicated her career to combating discrimination, including sexual harassment, and opening equal opportunity to all in the workplace and beyond.

The voicemail message from Justice Thomas’s wife is a reminder of a moment in time that put a spotlight on sexual harassment. But our country still needs more discussion about the serious harm it causes.

Sexual harassment has certainly not gone away.

The National Women’s Law Center, for example, recently filed an amicus brief in a lawsuit where a female electrical maintenance technician in a male-dominated workplace says she was constantly harassed — with supervisors and co-workers routinely referring to women with demeaning and derogatory words, displaying provocative photos of naked and partially clothed women in common areas throughout the workplace (and not responding to her repeated requests that the photos be taken down), and excluding her from key daily meetings.

Whether bullying and harassment in schools or making women’s lives miserable in the workplace, it’s time to make sure our laws are strong enough, our institutions committed enough, and our public debate serious enough to give women and girls the protections they need and deserve.

There’s still work to be done. For example, Congress needs to eliminate arbitrary limits on damages for sexual harassment victims and to change current legal standards that make it more difficult for students to prove sexual harassment than other claims of discrimination in schools.

Any less not only does an injustice to women and girls, but to our country as well, which needs the talents and skills of us all to thrive.

The opinions expressed in this commentary are solely those of Marcia Greenberger.

This article was originally posted on CNN.

About The Author: Marcia D. Greenberger is Co-President, and co-founder, of the National Women’s Law Center, which since 1972 has been involved in virtually every major effort to secure and defend women’s rights. She testified at the Senate hearings against the nomination of Clarence Thomas to the Supreme Court based on his record, before the information concerning Anita Hill became public. Anita Hill currently serves as a board member of the National Women’s Law Center.

Outsourcing Jobs...that Can't be Outsourced

Tuesday, October 26th, 2010

Martin FordPeople who work in knowledge-based fields like information technology, accounting, graphic design or legal research are probably well aware that their jobs are susceptible to being outsourced to a low wage country. In fact, I suspect that economists underestimate the impact that this practice will have on the job market as improving technology makes offshoring cheaper and more accessible to smaller businesses. That may be especially true if weak consumer demand continues to push businesses to focus on cost-cutting rather than revenue growth.

But what about people who have jobs that involve physically interacting with their environment? Those jobs can’t be offshored, right? Well…

There’s an article in the San Jose Mercury News today on the emerging remote-controlled robot industry:

Remote-controlled robots are entering the workforce

The declining prices for telepresence robots will encourage experimentation among companies and entrepreneurs, who will find new uses for them, analysts say.”These robots will have a network effect,” said Hyoun Park, an analyst at the Aberdeen Group, a technology research firm. “The more robots there are, the easier it will be to work remotely in ways we haven’t thought about before.”

As as these technologies become more prevalent, I think one of the new ideas that will emerge will be offshoring the control function. So you’ll have a worker in India or Bangladesh who can do a job that requires physical proximity in a developed country. Some jobs that “can’t be outsourced” … might just get outsourced.

I have a section on this in my book The Lights in the Tunnel: Automation, Accelerating Technology and the Economy of the Future (get the free PDF), which focuses on how technology and globalization are likely to result in increasing structural unemployment:

Those jobs that require significant hand-eye coordination in a varied environment are currently very difficult to fully automate. But what about offshoring? Can these jobs be offshored?In fact they can, and we are likely to see this increasingly in the near future. As an example, consider a manufacturing assembly line. Suppose that the highly repetitive jobs have already been automated, but there remain jobs for skilled operators at certain key points in the production process. How could management get rid of these skilled workers?

They could simply build a remote controlled robot to perform the task, and then offshore the control function. As we have pointed out, it is the ability to recognize a complex visual image and then manipulate a robot arm based on that image that is a primary challenge preventing full robotic automation. Transmitting a real-time visual image overseas, where a low paid worker can then manipulate the machinery, is certainly already feasible. Remote controlled robots are currently used in military and police applications that would be dangerous for humans. We very likely will see such robots in factories and workplaces in the near future.

As I’ve written previously, I don’t think economists understand the extent to which technology is playing a role in the current unemployment crisis–and more importantly how things are likely to progress in the future. Technology and globalization are not going to stand still while we wait for the job market to recover. They will continue to progress and even accelerate. That will make it very difficult to drive the unemployment rate back down without some very effective policies in place.

This article was originally posted on The Huffington Post.

About The Author: Martin Ford is the founder of a Silicon Valley-based software development firm.  He holds a computer engineering degree from the University of Michigan, Ann Arbor and a graduate business degree from the University of California, Los Angeles. He is the author of The Lights in the Tunnel: Automation, Accelerating Technology and the Economy of the Future (available from Amazon or as a FREE PDF eBook) and has a blog at econfuture.wordpress.com.

Which Side Are You On: Election Edition?

Monday, October 25th, 2010

Image: Bob RosnerOkay, the election is right around the corner. The purpose of this column is not to tell you who to vote for, or even what to vote for. It’s simply to try to help you to clarify what is important to you. If I do a good job, you won’t even know my political leanings.

Foreclosures — Do you think that the cash support should go to the bankers or the people being foreclosed on? Ironically words like responsibility can be applied or not applied to both sides of this equation.

Sure we’re all mad at the banks. They took huge risks, kept their profits and stuck us with their losses. Which candidates are most inclined to hold the banks accountable? And which candidates are inclined to take contributions from said bankers? The rhetoric isn’t as important as the money flows, in my humble opinion.

Health Care — Health care is another popular political piñata today. Do you long for the old system of health care? Or do you think it makes sense to have someone looking over the insurance companies’ shoulders?

The wars — Is this a question of pride and winning or is it more of an issue of cutting our losses?

Unemployment assistance — 99 weeks does seem like a long time to get help for being unemployed. Too many too long. But if you know people who’ve been out of work that long, you know the struggle that they’re facing.

Political theater or political action — Which candidates are inclined to roll up their sleeves and work to get things done?

This shouldn’t be done from the hip. Definitely take out your voting pamphlets and  do some research on your options. Your steady hand is needed on the ship of state’s rudder.

About The Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected]

Wrestling With Racial Bias, New York Firefighters Resist Reform

Friday, October 22nd, 2010

Michelle ChenNew York City’s firefighters have been embroiled in racial and ethnic politics throughout their history, and the Fire Department’s latest civil rights controversy has stoked a political standoff and a hiring freeze.

The FDNY is still reeling from a federal court ruling in August that put firefighters at odds with anti-discrimination law. The judge ruled that the Department’s recent hiring exam was systematically discriminated against Black and Latino candidates.

But to accommodate the need to hire new personnel, the court offered the city the option of initiating an interim hiring process, as long as the procedures were not discriminatory. The city has so far refused. So now, a long line of frustrated aspiring firefighters remain in limbo, denied a fair shake at obtaining a coveted spot in the ranks of New York’s Bravest.

The Center for Constitutional Rights and lawyers representing the Vulcan Society, an association of Black firefighters, accused the FDNY of obstruction:

We had searched for the least disruptive, least discriminatory, and most fair ways to hire this class. Judge Garaufis, rather than forcing any one method on the City, opted to give it the choice to select the method it preferred.  Instead, the City continues to obstruct any efforts at collective resolution and drag its feet when it comes to diversifying the firefighter workforce.

This suit is in some ways the inverse of the famous Ricci v. DeStefano case, in which a group of mostly white firefighters in New Haven sued over the city’s rejection of exam results that might have invited charges of racial discrimination. In New York City, advocates for Black firefighters charged that the city’s exam process effectively imposed racial barriers.

The controversy is especially heated not just because of firefighters’ status as urban folk heroes, but because the bias at play here isn’t blatant racism but a more subtle intransigence that’s embedded in the institution’s cultural mindset.

While the FDNY’s defenders posture themselves as victims of political correctness, the crux of Judge Garaufis’s ruling was fundamentally not about constructing a race-conscious hiring process, but rejecting tests that simply don’t do their job:

The City has not shown that the current examination identifies candidates who will be successful firefighters. Because the test questions do not measure the abilities required for the job of entry-level firefighter, the examination cannot distinguish between qualified and unqualified candidates, or even between more and less qualified candidates…. What the examination does do is screen and rank applicants in a manner that disproportionately excludes black and Hispanic applicants. As a result, hundreds of minority applicants are being denied the opportunity to serve as New York firefighters, for no legitimate or justifiable reason.

The FDNY’s problem is that it can’t really justify why its squad bears so little demographic resemblance to the city it serves. While Blacks and Latinos make up only 4 and 7 percent of the city’s firefighters respectively, the plaintiff’s lawyers point out, “More than half of Los Angeles and Philadelphia’s firefighters, and 40 percent of Boston’s are people of color.”

The only reasonable explanation appears to be a latent tolerance, if not active defense, of an entrenched white majority. Below the surface lies a complex fraternal subculture rooted in the sinewy traditions of Old New York, when fire companies operated more like ethnic gangs than a government agency.

Today, the FDNY may function more or less as part of the city’s vast bureaucracy, but its resistance to court-ordered reform betrays an arrogance grandfathered from an earlier time.  With their refusal to institute an interim hiring process, they’ve apparently decided that for now, they’d rather put up a good fight, than work with the community to figure out a way to sustain its ranks without violating civil rights. Old habits are hard to extinguish.

This article was originally posted on Working In These Times.

About the Author: Michelle Chen’s work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Racewire.org. She can be reached at [email protected]

Millions Face Bleak Winter When Jobless Aid Ends Nov. 30

Thursday, October 21st, 2010

Image: Mike HallMore than 1 million long-term unemployed workers a  month will lose their unemployment benefits—the weekly check that helps keep a roof over their families’ heads and food on the table—if Congress doesn’t act by Nov. 30.

That’s the date the extended unemployment insurance (UI) benefits program expires. But Congress does not return to work until Nov. 15 and then will adjourn again for the Thanksgiving holiday, leaving just a few days when lawmakers are in town to extend the lifeline that has been so vital as unemployment continues to hover near 10 percent.

Click here to sign a petition to Congress to act quickly and extend the UI program before it expires Nov. 30.

Christine Owens, executive director of the National Employment Law Project (NELP), says that in 2009 alone, UI benefits have kept 3.3 million American families— including 1.5 million children— from falling into poverty.

With the holiday season approaching, it would be especially cruel to families and bad for businesses to cut off these benefits. Any cuts would also be a drastic departure from how unemployment insurance has functioned ever since the Great Depression; Congress has never cut back on federally-funded jobless benefits when unemployment is so high.

NELP in recent days launched an online campaign—UnemployedWorkers.org—as resource to mobilize support and push Congress to act before the Nov. 30 deadline. That will be a big lift because for the past two years, Republicans have tried to block every extension of the extended UI program.  Says Owens:

Congress took seven weeks to reauthorize the extensions when benefits expired last June, and in that time, more than 2 million unemployed Americans and their families lost their jobless benefits.

Some Republicans and radio blowhards (see video) have even claimed unemployment insurance benefits—an average of just a little more than $300 a week—make jobless workers so comfortable, they won’t go out and look for work. Not that there’s much out there. Owens calls the claims “insulting and infuriating.”

In the video, Christopher J., a marketing professional out of work for more than a year, says:

There’s no such thing as pickiness when you don’t have a job. I have tried every job. I will go and apply for a maintenance position.  I have done that maintenance position when I was in college.

UnemployedWorkers.org features:

  • Fact sheets on the jobs crisis and the role of unemployment insurance in rebuilding the economy.
  • Weekly tracking of jobless claims data, national and regional unemployment news and other items related to the recovery.
  • Online actions, including a petition to Congress, call-ins and letter-writing to elected officials.
  • Workers’ stories, in blog posts and videos, and a forum for workers to contribute their own.
  • Real-time feeds on Facebook, Twitter and YouTube.
  • Expert advice for unemployed workers about jobless benefits.

This article was originally posted on AFL-CIO Now Blog.

About The Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL- CIO in 1989 and have written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.

Few And Far Between: Court Decides Female on Male Hostile Environment Sexual Harassment Case

Wednesday, October 20th, 2010

Assumption That Men Welcome Sexual Harassment Is Sex Stereotyping In Violation Of Title VII

You don’t often see sexual harassment cases in which the woman is the aggressor and the man is the victim. Many people (including some judges) don’t interpret those facts to constitute sexual harassment in violation of Title VII. That’s why the recent case of EEOC v. Prospect Airport Services from the Ninth Circuit Court of Appeals is so important.

What Happened In The Case

Rudolpho  Lamas worked for Prospect Airport Services at McCarran International Airport in Las Vegas. He worked as a passenger assistant helping passengers who needed wheelchair assistance.

Lamas, a recent widower, started working for Prospect in April of 2002. That fall, Sylvia Munoz, a married co-worker began making sexual advances to Lamas. Munoz repeatedly:

  • propositioned him for sex
  • asked him out
  • wrote him love notes which were sexually explicit
  • performed gestures simulating fellatio when he walked by
  • recruited co-workers who were telling him that she loved him and wanted him
  • approached him in the parking lot at work and gave him a sexually suggestive photograph

Lamas never made overtures towards Munoz and told her and their co-workers over and over that he was not interested – but she didn’t stop.

Lamas complained to his boss but nothing was done. He talked to his next supervisor up the chain, Dennis Mitchell, and gave him one of the “love” notes. Mitchell told Lamas that he “did not want to get involved in personal matters.” Eventually Mitchell told Munoz that he knew she was “pursuing a coworker … and the coworker wanted the advances to stop.”

But Munoz did not stop and the harassment continued. He testified that every time he walked by her there was something — a gesture, licking her lips suggestively, asking if he “wanted to have some fun”, performing “blow job imitations” — and that it was embarrassing and causing constant pressure at work.

Co-workers began to speculate that Lamas was a homosexual — so in addition to having to deal with Munoz’s remarks and gestures, Lamas had to face co-workers remarks suggesting that he was gay. Lamas complained to four different Prospect management officials about the harassment, but nothing was done to stop it. Munoz kept up the behavior.

Lamas felt helpless, was crying, and consulted a psychologist about his distress. His performance began to suffer. Lomas was demoted because of “complaints about job performance “and his “negative attitude.” A few months later, in June of 2003, Lamas was fired.

The District Court Decision

Munoz filed a lawsuit in the federal district court in Nevada for sexual harassment. The district court concluded as a matter of law that Munoz’s conduct was not severe and pervasive enough to amount to sexual harassment for a reasonable man.

In its decision grating judgment against Lamas, the district noted that most men would have “welcomed” the behavior, but Lomas admitted that due to his Christian background he was embarrassed instead. It also noted that Munoz never filed a written report complaining about the conduct.  Lamas appealed.

The Ninth Circuit Court Of Appeals Reverses

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, which includes sexual harassment in the form of a hostile work environment. Both sexes are protected under the law.

In a hostile environment sex harassment claim, the plaintiff must prove that he or she:

  • was subjected to verbal or physical conduct of a sexual nature
  • which was unwelcome
  • and sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment

In addressing the each of the elements and burden of proof as applied to this case, the Court found the following:

Conduct of a sexual nature

Whether Lamas was subjected to “verbal or physical conduct of a sexual nature” is an “easy question” according to the court.

Munoz propositioned him for sex. Munoz wrote to him that she dreamed of him in a bath, that she gave good “body wash,” and that she wanted him sexually. She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes. His proposition was for sex, not a cup of coffee together. After she recruited coworkers to pressure Lamas, they mocked him suggesting he was homosexual.

Welcomeness

In addressing whether the conduct was welcome or not the Court stated:

It cannot be assumed that because a man receives sexual advances from a woman those advances are welcome. …. This is a stereotype and welcomeness is inherently subjective, so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual advances.

Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons.

… Lamas unquestionably established a genuine issue of fact regarding whether the conduct was welcome.

Severe or Pervasive

It is well established that sporadic use of abusive language, gender-related jokes, and occasional teasing will not, standing alone, establish a hostile environment sexual harassment claim.

As stated above, in order to establish a violation, an employee must prove that the unwelcome sexual conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

Whether a working environment is objectively abusive is determined only by looking at all of the circumstances which may include:

  • the frequency of the discriminatory conduct
  • its severity
  • whether it’s physically threatening or humiliating
  • whether it unreasonably interferes with an employee’s work performance

No single factor is required. In this case, the Court found that:

Monoz’s continued advances created an environment that Lamas reasonably perceived as hostile and abusive. Lamas’ emotional testimony about his co-worker statements about Munoz’s interest in him, his complaints to his supervisors and Prospect managers, as well as his complaints to the EEOC and State of Nevada all evidenced pervasiveness amounting to an abusive work environment.

Prospect Airport’s Response

An employer is liable for an employee’s sexual harassment of a co-worker if it knew, or should have known, about the harassment and failed to take prompt and effective remedial action. According to the Court:

The record established that a jury could reasonably find that Prospect knew about the harassment, and that its response was inadequate. Lamas complained to his employer, but Prospect’s responses were ineffectual, and known by Prospect to be ineffectual. … Prospect’s actions were not enough to establish an affirmative defense for Prospect.

With that, the case was reversed.

Take Away

What was really interesting about the case was the district court’s reaction to the evidence — that is, this was not a case of sexual harassment because Lamas’ reaction to the sexual advances was not the same reaction most men would have.  Other judges may have a tendency to view the evidence the same way.

This opinion clearly addresses the problem of erroneously stereotyping men in the context of a sexual harassment case in which the man is the victim. It doesn’t come up all that often, but when it does, this new opinion for the Ninth Circuit should be very helpful to male employees who find themselves in a similar situation.

images: www.rollingrains.com www.stencilease.com

This article was originally posted on Employee Rights Blog.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

New Labor Research Center Opens at GWU

Tuesday, October 19th, 2010

Ravi BakhruLast Thursday night I had the privilege of being a part of the opening at a new research center in the George Washington University’s Estelle and Marvin Gelman Library. Officially named the International Brotherhood of Teamsters Labor History Research Center, the IBT’s collection of historic documents will be permanently housed here in an effort to encourage more study of organized labor.

As a result of this partnership, much of IBT’s historic document collection will now be accessible by scholars who have an interest in understanding the history and impact of organized labor in the 20th century. Among the more notable items are a wire recorder, believed to be one of the few remaining in the world, and a photo of Jimmy Hoffa and Martin Luther King Jr.

I was asked to provide some perspective as a student at GW, and found myself speaking before GW President Knapp and IBT President James P. Hoffa. Being involved in the education system for my entire life, I was all too pleased to provide such a perspective.

It seems obvious that IBT and organized labor has played a prominent role in the economic, political, and social development of our country. You can see its tangible effects in laws that protect worker safety and provide benefits like workers compensation and health care. And the laws are indicative of more than temporary acquiescence to organized labor. As a people, we enjoy a deep connection to our labor force that is constantly made stronger by our appreciation for their work and sacrifice. This connection was not made overnight, and it has not been an easy road traveled.

This is why IBT’s partnership with The George Washington University is essential. The resulting research center will not only provide us with an understanding of our past, but also supply a yellow brick road for our future. Primary documents in this collection will now be made available to students and scholars alike in an effort to broaden our perspective on a variety of topics. Classes of politics, economics, labor history, and women’s studies will all benefit from research done at this center.

A large portion of IBT’s collection has been transferred to the research center, but both IBT and GW are searching for more documents and records to add to the collection. Years in the making, the research center should prove to be a preeminent source of labor history. For more information you can visit the GWU press release here, and see the Gelman library homepage here.

library

About The Author: Ravi Bakhru is a third year law student at George Washington University. He currently works as an intern for Workplace Fairness, and has an interest in pursuing labor and employment  law in the future. To get in touch with Ravi, you can email him at [email protected]

Be The Change You Want to See

Monday, October 18th, 2010

Image: Bob RosnerRecently I saw an excellent speaker at an HR conference. She was enthusiastic, smart, well read and incredibly informed on her subject. Her topic was increasing employee involvement and I was very interested in her presentation.

Turns out she’d worked for a big company and she’d pioneered using online bulletin boards to solve work, and non-work related problems, by giving them a common space to solve problems. She gave examples of corporate problems that were solved quickly and efficiently. There was even a story about a worker who was able to locate a donor match for surgery quickly and efficiently.

There was only one problem, she never got the audience involved. During previous sessions speakers got the audience involved asking questions, making comments and offering solutions. It was truly an interactive experience.

But during the talk on employee involvement, nada. One person asked a question in ninety minutes. One.

Her session had great information. But she never modeled the topic she focused on, getting people involved.

We all have to be careful when we try to cut the same kind of corners at work. We should understand that our words are important, but not usually the most important part of our presentations. No, there is often a much bigger message that we need to understand and respect if our message is to gain maximum leverage for our audience.

It’s our actions. Read the speech that you’re about to give to see if your actions are aligned with it.

If they aren’t aligned, you’ve got options. You can increase your walk. You can decrease your talk. Anything to get them aligned will help the cause. Yours!

About The Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected]

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