Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Harassment’

What #MeToo Can Teach the Labor Movement

Friday, December 29th, 2017

My first #MeToo memory is from the kitchen of the Red Eagle Diner on Route 59 in Rockland County, N.Y. I was 16 years old, had moved out of my home, and was financially on my own. The senior waitresses in this classic Greek-owned diner schooled me fast. They explained that my best route to maximum cash was the weekend graveyard shift. “People are hungry and drunk after the bars close, and the tips are great,” one said.

That first waitressing job would be short-lived, because I didn’t heed a crucial warning. Watch out for Christos, a hot-headed cook and relative of the owner. The night I physically rebuffed his obnoxious and forceful groping, it took all the busboys holding him back as he waved a cleaver at me, red-faced and screaming in Greek that he was going to kill me. The other waitress held the door open as I fled to my car and sped off without even getting my last paycheck. I was trembling.

Although there were plenty of other incidents in between, the next time I found myself that shaken by a sexual assault threat, I was 33 and in a Manhattan cab with a high-up official in the national AFL-CIO. He had structural power over me, as well as my paycheck and the campaign I was running. He was nearly twice my age and size. After offering to give me a lift in the cab so I could avoid the pelting rain walking to the subway, he quickly slid all the way over to my side, pinned me to the door, grabbed me with both arms and began forcibly kissing me on the lips. After a determined push, and before getting the driver to stop and let me out, I told the AFL-CIO official that if he ever did it again I’d call his wife in a nanosecond.

These two examples underscore that behind today’s harassment headlines is a deeper crisis: pernicious sexism, misogyny and contempt for women. Whether in in our movement or not, serious sexual harassment isn’t really about sex. It’s about a disregard for women, and it shows itself numerous ways.

For the #MeToo moment to become a meaningful movement, it has to focus on actual gender equality. Lewd stories about this or that man’s behavior might make compelling reading, but they sidetrack the real crisis—and they are being easily manipulated to distract us from the solutions women desperately need. Until we effectively challenge the ideological underpinnings beneath social policies that hem women in at every turn in this country, we won’t get at the root cause of the harassment. This requires examining the total devaluation of “women’s work,” including raising and educating children, running a home and caring for the elderly and the sick.

It’s time to dust off the documents from the nearly 50-year-old Wages for Housework Campaign. The union movement must step in now and connect the dots to real solutions, such as income supports like universal high-quality childcare, free healthcare, free university and paid maternity and paternity leave. We need social policies that allow women to be meaningful participants in the labor force—more of a norm in Western Europe where unionization rates are high.

Sexist thought is holding our movement back

Sexist male leadership inside the labor movement is a barrier to getting at these very solutions This assertion is sure to generate a round of, “She shouldn’t write that, the bosses will use it against us.” Let’s clear that bullshit out of the way: We aren’t losing unionization elections, strikes and union density because of truth-telling about some men in leadership who should be forced to spend out their years cleaning toilets in a shelter for battered women. And besides, we all know the bosses are far, far worse—and have structural power over tens of millions of women in the United States and beyond.

Some of the sexual harassers who see women as their playthings are men on “our side” with decision-making roles in unions. This mindset rejects real organizing, instead embracing shallow mobilizing and advocacy. It rejects the possibility that a future labor movement led by women in the service economy can be as powerful as the one led by men in the last century who could shut down machines. Factories, where material goods are produced by blue collar men are fetishized. Yet, today’s factories—the schools, universities, nursing homes and hospitals where large numbers of workers regularly toil side by side—are disregarded, even though they are the key to most local economies. Educators and healthcare workers who build, develop and repair humans’ minds and bodies are considered white and pink collar. This workforce is deemed less valuable to the labor movement, because the labor it performs is considered women’s work.

While presenting on big healthcare campaign wins at conferences, I’ve had men who identify as leftists repeatedly drill me with skeptical questions such as, “We thought all nurses saw themselves as professionals; you’re saying they can have class solidarity?” I wonder if these leftists missed which workers got behind the Bernie Sanders campaign first and most aggressively. I’ve hardly ever met a nurse who didn’t believe healthcare is a right that everyone deserves, regardless of ability to pay.

When I began negotiating hospital-worker contracts, which often included the nurses, I routinely had men in the movement say things like, “It’s great you love working with nurses. They are such a pain in the ass at the bargaining table.” These derogatory comments came from men who can’t stand empowered women who actually might have an opinion, let alone good ideas, about what’s in the final contract settlement. Many hold a related but distinct assumption: that the so-called private sector is more manly—and therefore, important—than the so-called public sector, which is majority-women. This belief also contributes to the devaluation of feminized labor.

Capitalism is one economic system, period. The fiction of these seemingly distinct sectors is primarily a strategy to allow corporations to feed off the trough of tax-payer money and pretend they don’t. This master lie enables austerity, which is turning into a tsunami post-tax bill. And yet white, male, highly educated labor strategists routinely say that we need totally different strategies for the public and private sectors. Hogwash.

This deeply inculcated sexist thought—conscious or not—is holding back our movement and contributing to the absurd notion that unions are a thing of the past. These themes are discussed in my book No Shortcuts, Organizing for Power in the New Gilded Age (Oxford, 2016).

The union movement has increased the number of women and people of color in publicly visible leadership positions. But the labor movement’s research and strategy backrooms are still dominated by white men who propagate the idea that organizing once worked, yet not anymore. This assertion is presented as fact rather than what it is: a structuralist argument. The erosion of labor law, relocation of factories to regions with few or no unions, and automation are the common reasons put forth. The argument omits the devastating failure of business unionism, and its successor—the mobilizing approach, where decision-making is left in the hands of mostly white male strategists while telegenic women of color with “good stories” are trotted out as props by communications staffers.

If you think these men are smarter than the millions of women of color who dominate today’s workforce, then an organizing approach—which rests the agency for change in the hands of women—is definitely not your preferred choice. Mobilizing, or worse, advocacy, obscures the core question of agency: Whose is central to the strategy war room and future movement? As for loud liberal voices—union and nonunion—that declare unions as a thing of the past, the forthcoming SCOTUS ruling on NLRB v Murphy Oil will prove most of the nonunion “innovations” moot. Murphy Oil is a complicated legal case that boils down to removing what are called the Section 7 protections under the National Labor Relations Act, and preventing class action lawsuits.

Murphy Oil blows a hole through the legal safeguards that non-union workers have enjoyed for decades, eviscerating much of the tactical repertoire of so-called Alt Labor, such as class-action wage-theft cases, and workers participating in protests called by nonunion community groups in front of their workplaces. The timing is horrific and uncanny: As women are finally finding their voices about sexual harassment at work, mostly in nonunion workplaces (as the majority are), Murphy Oil will prevent class action sexual harassment lawsuits.

Unions can’t win without reckoning with sexism and racism

The central lesson the labor movement should take from the #MeToo movement is that now is the time to reverse the deeply held notion that women, especially women of color, can’t build a powerful labor movement. Corporate America and the rightwing are out to destroy unions, in part, so that they can decimate the few public services that do serve working-class families, including the Children’s Health Insurance Program (CHIP), Medicaid, Medicare, Social Security and public schools. Movements won these programs when unions were much stronger. It makes sense that unions, and the women’s movement, should throw down hardest to defend and grow these sectors, largely made up of women, mostly women of color, who are brilliant strategists and fighters.

The labor movement should also dispense of the belief that organizing and strikes can’t work. It’s self-defeating. Unions led by Chicago teachers and Philadelphia and Boston nurses, to name a few, prove this notion wrong. The growing economic sectors of education and healthcare are key. These workers have structural power and extraordinary social power. Each worker can bring along hundreds more in their communities.

Another key lesson for labor is to start taking smart risks, such as challenging the inept leadership in the Democratic Party by running its own pro-union rank-and-file sisters in primaries against the pro-corporate Democrats in safe Democratic seats, a target-rich environment. As obvious as it might sound, this strategy is heresy in the labor movement. Women who marched last January should demand that gender-focused political action committees, such as EMILY’s list, use support for unionization as a litmus test for whether politicians running for office will get their support. No more faux feminist Sheryl Sandberg types.

It’s time for unions to raise expectations for real gender equality, to channel the new battle cry to rid ourselves of today’s sexual harassers into a movement for the gender justice that women in Scandinavian countries and much of Western Europe enjoy. To think of winning what has become almost normal gains in many countries—year-long paid maternity and paternity leave, free childcare, healthcare and universities, six weeks’ annual paid vacation—is not pie-in-the-sky. To fight for it, people have to be able to imagine it.

The percentage of workers covered by union-negotiated collective agreements in much of Western Europe, the countries with benefits women in this country desperately need, is between 80 percent and 98 percent of all workers. This compares to a paltry 11.9 percent in the United States, as of 2013. This is far beyond a phased-in raise to $15 and hour—still basically poverty, and a wage that most women with structural power in strategic sectors already earn.

Women can’t win without building workplace power

There’s enough wealth in this country to allow the rich to be rich and still eradicate most barriers to a genuine women’s liberation, which starts with economic justice in the workplace. Upper-class mostly white women drowned out working-class women, many of color, in the 1960s and 1970s. The results of second-wave feminism are clear: Even though some women broke corporate and political glass ceilings and won a few favorable laws, individual rights will not truly empower women. Unions—warts and all—are central to a more equal society, because they bring structural power and collective solutions to problems that are fundamentally societal, not individual.

Women in the United States are stuck with bosses who abuse them, because to walk out could mean living in their cars or on the streets—or taking two fulltime jobs and never spending a minute with their kids. Similarly, women are stuck in abusive marriages, because the decision to stop the beating means living on the streets. European women from countries where union contracts cover the vast majority of workers don’t, to the same extent, face the decision of losing their husband’s healthcare plan, or not having money to pay for childcare or so many of the challenges faced by women here. This country is seriously broken, and to fix it we must build the kind of power that comes with high unionization rates, which translate into political—not just economic—power.

Naming and shaming is not sufficient. Women need to translate the passion of this moment into winning the solution that will help end workplace harassment. A good union radically changes workplace culture for the better. The entire concept of a human resources office changes when a union is present. For example, when entering the human resources office, women aren’t alone: They’ve got their union steward. Union contracts effectively allow women to challenge bosses without being fired. Good unions do change workplace culture on these and many issues. Why else would the men who control corporations, and now the federal and most state governments, spend lavishly on professional union busters and fight so damn hard to destroy unions?

It’s going to take a massive expansion of unions again—like what happened in the 1930s, the last time unions were declared dead—before we can translate #MeToo into a demand that raises all workers’ expectations that this country can be a far more equal society. If we commit to this goal, we can achieve it. This time, the people leading the unions will be the same people who saved the nation from Roy Moore, because women of color are already at the center of the future labor force.

I went from sexual harassment in male-heavy restaurant kitchens to sexual harassment as a rare woman allowed into the kitchen cabinet of many successful campaigns. Whether it is union leaders ignoring the experience and genius of workers in today’s strategic employment sectors of education and healthcare, politicians following the corporate line or individual bad bosses harassing their employees, all of it comes down to a disrespect and disregard for women, especially women of color. If we focus on the power analysis, the answer is staring us in the face. There is no time to waste. Everyone has to be all-in for rebuilding unions.

This article was originally published at In These Times on December 27, 2017. Reprinted with permission.
Jane McAlevey is an organizer, author and scholar. Her first book, Raising Expectations (and Raising Hell), published by Verso Press, was named the “most valuable book of 2012” by The Nation Magazine. Her second book, No Shortcuts: Organizing for Power in the New Gilded Age, published by Oxford University Press, was released late in 2016. She is a regular commentator on radio and TV. She continues to work as an organizer on union campaigns, lead contract negotiations, and train and develop organizers. She spent the past two years as a Post Doc at the Harvard Law School, and is presently writing her third book—Striking Back—about organizing, power and strategy, forthcoming from Verso.

The Blue-Collar Hellscape of the Startup Industry

Tuesday, December 5th, 2017

On November 13, Marcus Vaughn filed a class-action lawsuit against his former employer. Vaughn, who’d worked in the Fremont, California factory for electric automaker Tesla, alleged that the manufacturing plant had become a “hotbed for racist behavior.” Employees and supervisors, he asserted, had routinely lobbed racial epithets at him and his fellow Black colleagues. 

Vaughn said he complained in writing to the company’s human resources department and CEO Elon Musk, but Tesla neglected to investigate his claims. In true tech executive fashion, Musk deflected Vaughn’s misgivings, shifting the blame to the assailed worker. “In fairness, if someone is a jerk to you, but sincerely apologizes, it is important to be thick-skinned and accept that apology,” he wrote in a May email. In late October, according to Vaughn’s suit, he was fired for “not having a positive attitude.”

The news of rancorous working conditions for Tesla employees is merely the latest in a series. Vaughn’s case signals the broader social and physical perils of couching traditional factory models within the frenzied, breakneck tech-startup framework of high demand, long hours and antipathy toward regulation.

Tesla’s Fremont facility has bred a number of allegations of abuse, from discrimination to physical harm. Vaughn’s is at least the third discrimination suit filed this year by Black Tesla workers alleging racism. A former third-party contracted factory worker, Jorge Ferro, has taken legal action to combat alleged homophobic harassment. The cruelty wasn’t strictly verbal: Not long before, in an ostensibly unrelated but similarly alarming turn of events, reports surfaced that production-floor employees sustained such work-related maladies as loss of muscle strength, fainting and herniated discs.

In response to Ferro’s allegations, Tesla told In These Times that it “takes any and every form of discrimination or harassment extremely seriously.” But the company denied responsibility on the grounds that Ferro was contractor, not an employee.

Tesla’s factory conditions evoke those reported at another Silicon Valley darling: Blue Apron. In the fall of 2016, BuzzFeed detailed the consequences of the lax hiring practices and safety standards governing the food-delivery company’s Richmond, Calif. warehouse. Employees reported pain and numbness from the frigid indoor temperatures and injuries from warehouse equipment. Many filed police reports stating co-workers had punched, choked, bitten or groped them, amid threats of violence with knives, guns and bombs.

At the time of these complaints, both companies had fully ingratiated themselves to investors. Tesla’s reported worth is so astronomical even the most technocratic corporate mediaand Musk himselfquestion it. Blue Apron, which went public this year, snagged a $2 billion valuation in 2015. (Blue Apron has since seen a marked decline, a development that maybe have been spurred by BuzzFeed’s report.) As a result, both companies have habitually placed escalating pressure upon their employees to generate product, their executives eyeing the potential profits.

Predictably, these companies’ legal compliance appears to have fallen to the wayside in the name of expediency. Tesla and Blue Apron factory employees have found themselves working 12hour shifts, in some cases more than five days a week. Tesla employee Jose Moran wrote of “excessive mandatory overtime” and “a constant push to work faster to meet production goals.”

In 2015, Blue Apron appeared to violate a litany of OSHA regulations, ranging from wiring to chemical storage. It also hired local temporary workers via third-party staffing agencies—likely to circumvent the costs of such benefits as health insurance. As BuzzFeed noted, these staffing agencies independently screened candidates in lieu of internal background checks. Compounding the problem, the company expected temps to operate machinery they were unqualified to handle. (Blue Apron has since euphemized its OSHA violations and claimed to have axed these staffing agencies. The company has not responded to requests for comment.)

Aggravating an already fraught atmosphere, the companies appear to have used punitive tactics to coerce laborers into greater productivity. While some Tesla workers are placed in lower-paying “light duty” programs after reporting their injuries, others are chided for them. One production employee, Alan Ochoa, relayed to the Guardian a quote from his manager in response to his pain complaint: “We all hurt. You can’t man up?”

Equally culpable is e-commerce goliath Amazon. Bloomberg reported that the company mounts flat-screen televisions in its fulfillment centers to display anti-theft propaganda relating the stories of warehouse workers terminated for stealing on the job. (This offers a blue-collar complement to the 2016 New York Times exposé on its draconian treatment of office employees.) According to a former employee, managers upbraid workers who fail to pack 120 items per hour, heightening their quotas and, in some cases, requiring them to work an extra day. Those who don’t accept overtime shifts, meanwhile, lose vacation time.

Amazon told In These Times, “We support people who are not performing to the levels expected with dedicated coaching to help them improve.”

It’s no wonder, then, that Blue Apron and Amazon warehouses generate high turnover. In fact, this is likely by design. By creating working conditions that not only extract vast amounts of labor at low costs, but also drive workers away, tech companies can skirt the obligation to reward employees with raises and promotions. A companion to the profit-mongering schemes of Uber, Lyft and now Amazon (through its Amazon Flex delivery vertical) to classify workers as contractors, this form of labor arbitrage ensures that owners of capital avoid the risk of losing wealth to hourly workers—a class they deem thoroughly disposable.

Tesla has caused similar workforce tumult, firing employees for the foggy offense of underperformance. Of the hundreds of terminated employees from both its Palo Alto, Calif. headquarters and its Fremont facility, many were union sympathizers who’d been in talks with the United Auto Workers. The move has thus aroused suspicions that the company sought to purge dissidents—a reflection of the anti-union posture that has characterized Silicon Valley for decades.

If the near-ubiquity of factory and warehouse worker exploitation in the news cycle is any indication, tech capitalists—through their regulatory negligence and toothless “solutions”—have fostered a culture of barbarism. Low-wage laborers have little to no recourse: They’re either left to endure imminent social and physical harm, or, should they seek protections against the anguish they’ve borne, are stripped of their livelihood.

The blue-collar hellscape Tesla, Blue Apron and Amazon have wrought is what laissez-faire, startup-styled late capitalism looks like. At a time of such disregard for the fundamental health, safety and humanity of low-tier workers, the tech-executive class has proven nothing is sacred—except, of course, the urge to scale.

This article was originally published at In These Times on November 29, 2017. Reprinted with permission.

 About the Author: Julianne Tveten writes about the intersection of the technology industry and socioeconomic issues. Her work has appeared in Current Affairs, The Outline, Motherboard, and Hazlitt, among others.

Do Nondisclosure Agreements Perpetuate a Toxic Workplace Culture?

Thursday, November 2nd, 2017

In Hollywood, the cat is out of the bag. Scores of women (and men) are pouring out pent-up tales of sexual assaults and sexual harassment by famous producers, directors and actors. Every day brings new accusations against some movie icon. A group of women at Weinstein Co. has asked to be released from nondisclosure agreements so they can speak publicly to Harvey Weinstein’s alleged decades of predatory abuse and brazen quid pro quo demands.

The mere fact that an entire group of employees at one company is seeking to be unmuzzled is testament to a deep problem. Nor is it limited to the entertainment industry. NDAs and “hush money” settlements are common in every employment sector, including government agencies.

Sweeping it under the rug … until someone notices the lumps

There are two types of nondisclosure agreements at play in scenarios like the Weinstein saga:

First, there are standard NDAs in employment contracts which prevent employees from speaking up about what they’ve seen or experienced. These are a preemptive strike against disclosures that would reflect negatively on the company. When victims, witnesses and allies are effectively gagged, offenders are off the hook and a culture that tolerates sexual harassment is perpetuated.

Second, there are nondisclosure “agreements” thrust upon victims after the fact when they report harassment/assault or threaten legal action. In exchange for a payoff and/or a specifically worded NDA, they keep their jobs or walk away with a settlement and never speak of it again. The alternative is the threat of being blacklisted and smeared.
Again, this dynamic is not unique to Hollywood. Sexual harassment and coerced silence happens in every industry.

How nondisclosure agreements inhibit sexual harassment claims

A few mavericks have violated their NDAs with the Weinstein Co., knowing the company would face fierce public backlash if it tried to enforce the confidentiality agreements. But most people who are subject to NDAs do not have the upper hand. They can be terminated, sued and “outed” for breaching the agreement. The contract may specify monetary damages greater than the original settlement.

One-third of the 90,000 complaints to the Equal Employment Opportunities Commission in 2015 involved workplace harassment. About 45 percent of those cases were sexual harassment. A report by the EEOC revealed that taking formal action is the least common response for women or men who reported being sexually harassed at work.

Why would they not file a formal complaint or lawsuit? Some fear termination or other retaliation. Others fear they won’t be believed or that nothing will change. And some take no action because their hands are tied by employment agreements.

Many employment contracts and NDAs require that claims against the employer – including sexual harassment — be resolved through arbitration. Employers favor mandatory arbitration clauses because (a) there is no risk of a big jury award and (b) the proceedings are private. Whatever the outcome, it is kept quiet. For victims of sexual harassment who want their abuser exposed, arbitration is a dead end.

Nondisclosure agreements are not ironclad

The mere threat of enforcing an NDA is very effective. Some victims do not want the public exposure, expense and stress. Settling and staying mum was their way of making the best of an awful ordeal and moving on.

However, NDAs are not as bulletproof as most employees think. No employment agreement can supercede state or federal laws. A victim of a crime cannot be prevented from talking to police or testifying in court. An employer cannot prevent an employee from reporting sexual harassment to the EEOC. A settlement agreement and NDA only prevents the employee from suing the company and speaking publicly about the incident. And if the agreement was overreaching or coerced, it may not be enforceable.

If you are subject to a nondisclosure agreement, you also cannot be barred from talking to a lawyer. An employment law attorney can explain your rights, your legal options, and any possible consequences of breaching the NDA.

This blog was originally published at Passman & Kaplan, P.C., Attorneys at Law on November 3, 2017. Reprinted with permission. 

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

What Do Roger Ailes & Charlie Sheen Have in Common? Both Wanted to Hide Alleged Abuse of Women

Friday, July 15th, 2016

paulblandLast week, longtime Fox News anchor and host Gretchen Carlson filed a lawsuit against Roger Ailes, the chairman of Fox News, alleging that he sexually harassed her in the workplace. Within a day, Ailes and his lawyers asked a court to force the case into arbitration, under a special gag order that would block anyone from publicly disclosing any of the evidence in the case or the outcome of the arbitration.

The lawsuit alleges that Ailes sabotaged Carlson’s career after she “refused his sexual advances and complained about severe and pervasive sexual harassment.” Her complaint, which can be found here, alleges that her time at Fox News was riddled with Ailes’s inappropriate references to his own sexual history and marital issues and juxtaposed with a vocal interest in Carlson as a sexual partner. Ms. Carlson further alleges that Ailes used his power against her when she denied his advances, taking several steps that culminated in her being dismissed.

According to Fox News and Ailes, none of this is true. But instead of welcoming the chance to vindicate themselves in court, they want to move the case to a secret arbitrator.

Just Like Charlie?  Just after the news came out that Charlie Sheen was HIV positive, and he publicly admitted having unprotected sex with at least a couple of partners after his diagnosis, another revelation was widely reported: he’d been requiring visitors to his home to sign arbitration clauses with confidentiality provisions. And Sheen admitted on TV that he had paid “millions” to settle claims relating to his HIV status. These revelations created a very serious possibility:  that the secrecy of his arbitration clause made it possible for him to engage in risky behavior, then pay off injured women in secret proceedings, and then repeat the whole thing. When you look at the contracts guests to his home were required to sign it’s sort of bizarre, but the upshot of the arbitration ploy was pretty much the same as it is in the Roger Ailes case: it’s a way for a powerful man to impose a shroud of secrecy over allegations of serious mistreatment of women.

And these are not the only two cases involving this kind of allegation. Today’s New York Times reports how Ailes’ effort to force Ms. Carlson into arbitration is reminiscent of the actions of the infamous former head of American Apparel, Dov Charney, who was able to force a number of cases involving allegations of sexual harassment into secret arbitration.

Secrecy as the Driving Force. From the perspective of an employee, there’s a lot not to like about being forced to sign an arbitration clause as a condition of keeping your job, or applying for a job. For one thing, as the Washington Post reported, a substantial scholarly study of many thousands of arbitration cases (and a comparable pool of court cases) discovered that workers are less likely to win cases in arbitration than they would be in court, and that when workers do recover some kind of award in arbitration, that their recoveries tend to be pretty dramatically lower than they would have been in court.

But in the Ailes case, there’s something else afoot as well. While arbitration is always far more shadowy than the public court system (it’s generally incredibly hard for a journalist or member of the public to get copies of pleadings or evidence put before an arbitrator, for example, unless one of the parties to the case send the materials to them; arbitrators often don’t issue public opinions; etc.), the Fox News arbitration clause has a specific and broadly written gag order that goes far beyond the typical arbitration clause. And in Ailes’ pleadings in a New Jersey federal court, trying to force the case into arbitration, he and his lawyers specifically complain that Ms. Carlson’s allegations have become a matter of widespread public discussion. The conclusion of Mr. Ailes’ brief stresses that arbitration is necessary to make sure that the case cannot “sully his reputation in public,” apparently without respect to whether the actual facts would justify harm to his reputation. The point is not a search for the truth and exoneration; it’s to shut Ms. Carlson up.

Hypocrisy About Transparency:  As a news organization, Fox has repeatedly called for transparency with respect to all sorts of allegations against important public figures.  For example, Fox is very jacked up to try to break up an alleged “cover up” with respect to Secretary Clinton’s emails. And Fox was extremely interested in trying to make sure that every fact came out about allegations of problems at the World Bank.

But when it comes to allegations that relate to their own chairman, they seem to be awfully keen on making sure that the evidence of the case – in moving it to arbitration – be kept secret from the public.  If the case proceeded in the public court system, by contrast, then the actual truth – whether it’s good for Ailes and Fox or not – would come out.

So What Happens Now? It turns out, as the New York Times explained in some detail, that there’s a good chance that Ailes’ strategy won’t work.  Ms. Carlson has a number of good arguments against the enforcement of the arbitration clause, perhaps most notably that Mr. Ailes is not a party to the arbitration clause or named in it.

But if Ailes does succeed, then not only is Ms. Carlson less likely to win her case, but the American public and women in the workplace will be the losers. Because once again, a powerful man accused of mistreating women in the workplace will have been able to sweep all of the facts about the dispute under the big rug of forced arbitration. It’s easy to see why every significant civil rights organization or group that advocates for workers strongly opposes the use of forced arbitration in the work place, and they all keep urging the Congress to ban these clauses.

This piece was co-written with Kenda Tucker, Communications Intern at Public Justice.

This blog originally appeared on dailykos.com on July 14, 2016. Reprinted with permission.

Paul Bland, Jr., Executive Director, has been a senior attorney at Public Justice since 1997. As Executive Director, Paul manages and leads a staff of nearly 30 attorneys and other staff, guiding the organization’s litigation docket and other advocacy. Follow him on Twitter: .

New Pages to wrap up 2014!

Wednesday, December 31st, 2014

Paula Professional CroppedTo wrap up 2014 Workplace Fairness has added 105 new pages to keep you informed about the latest developments in employment law.

We now offer detailed information, by state, on the processes for filing a workers compensation claim, and for filing an unemployment claim. Find out how to file a claim in your state, what deadlines you might face, and what benefits you may be eligible for.

In our Discrimination section we’ve added a new page on genetic information discrimination, including the Genetic Information Nondiscrimination Act (“GINA”).  As technology progresses by leaps and bounds, new issues of privacy and discrimination can come up in the workplace.  This page answers questions that many workers may have about how accessible their genetic information is to employers.

In our Harassment section our new page on the effects of domestic violence in the workplace helps victims of domestic violence to understand how their situation at home may affect their work and what rights they have when they are treated negatively because of it.

Finally, in our Unions and Collective Action section we’ve added information about the 24 states that currently have right-to-work laws, and what that means for workers.  This page provides an explanation of what right-to-work laws are, and what they mean for workers in states that have instituted them.

No free pass to discriminate against immigrant workers: Salas v. Sierra Chemical Co.

Friday, October 3rd, 2014

Low-wage workers—regardless of immigration status—shoulder more than their fair share of workplace violations, including unpaid wages, unsafe working conditions, and discrimination and harassment.  Immigrant low-wage workers are particularly vulnerable—working under constant fear that if they exercise basic workplace rights, they will suffer retaliation that could result in the separation of their families; loss of homes and property; or return to violence or extreme poverty in their home countries.

This fear of retaliation is based in fact.  We as advocates have seen it happen time and time again—and it overwhelmingly leads to workers staying silent, leaving employers without even a slap on the wrist when they break the law.

Scofflaw employers do not and will not stop violating the law if they are not held accountable for their violations to all workers.  Any other type of piecemeal enforcement, or lack of enforcement, encourages employers to hire vulnerable undocumented workers, disregard labor laws as basic as the minimum wage, and then fire them when they complain – all to the economic disadvantage of employers who do follow the law.

Earlier this summer, the California Supreme Court in the Salas v. Sierra Chemical Company case agreed, deciding that companies that hire undocumented workers (knowingly or not) do not get a free pass to discriminate against them.

In that case, Mr. Salas sued his former employer, Sierra Chemical Company, for failing to bring him back to work after he injured himself and claimed workers’ compensation benefits. Mr. Salas alleged the company retaliated against him for filing his claim and discriminated against him because of his injury. But a jury never got the chance to decide whether he was right. The company claimed that because Mr. Salas was not authorized to work in the U.S. in the first place, the company shouldn’t be liable for failing to hire him back. A lower court agreed and dismissed the case (giving the company a free pass to discriminate in the bargain).

The California Supreme Court said not so fast. On the one hand, the law says that people without work authorization shouldn’t be working. But on the other hand, the law says that all workers should be protected from discrimination.

In a careful decision, the California Supreme court balanced these two concerns.  It allowed Mr. Salas to take his case to a jury, finding that a company can be liable for discrimination even against undocumented employees.  At the same time, the court held that undocumented employees cannot seek a court to be hired back by the company that has discriminated against them.

This decision demonstrates an understanding of the reality of the California workplace, which is  increasingly made up of workers of all immigration statuses, including green card holders and naturalized U.S. citizens.  It also includes 1.85 million undocumented workers, who constitute nearly 10% of the total workforce.

Against this backdrop, the Supreme Court confirmed that employers cannot violate the law—by discriminating or otherwise—and then later be immunized from liability for those violations. The court recognized that leaving undocumented workers without the protection of the law would actually give employers a strong incentive to “look the other way” when hiring and then turn around and use their immigration status to ultimately exploit them.  That would be bad news for employers who actually honor their obligations to treat workers fairly and legally when it comes to hiring, pay, and non-discrimination in the workforce.

Mr. Salas will now have the chance to take his case to a jury, who will decide whether he wins or loses.  But the Salas decision is a solid win for all law-abiding Californians – employees and employers alike.

This article originally appeared in CELA Voice on October 2, 2014. Reprinted with permission. http://celavoice.org/

Beaman[1]About the Author: Megan Beaman is a community-based attorney who roots her work in the notion that all people deserve access to justice, and who understands the larger struggles for immigrant and worker justice in California and nationwide. Beaman’s practice is founded on her years of advocacy and activism in working class and immigrant communities, and tends to reflect the predominate needs of those communities, including many cases of discrimination, harassment, unpaid wages, immigration, substandard housing, and other civil rights violations. The client communities Beaman most often represents are overwhelmingly Latino and Spanish-speaking. Beaman also works and volunteers in a number of other community capacities, including as a coordinator for the Eastern Coachella Valley Neighborhoods Action Team.

Kish-Kevin-2011-04[1]

 

About the Author: Kevin Kish is the Director of the Employment Rights Project at Bet Tzedek Legal Services in Los Angeles. He leads Bet Tzedek’s employment litigation, policy and outreach initiatives, focusing on combating illegal retaliation against low-wage workers and litigating cases involving human trafficking for forced labor.

Tinder on Fire: How Women in Tech are Still Losing

Thursday, August 21st, 2014

  A “whore,” “gold-digger,” “desperate loser,” and “just a bad girl.”  These are only a handful of the sexist comments that Whitney Wolfe, co-founder of the mobile dating app Tinder, alleges she was subjected to by chief marketing officer Justin Mateen.  Last month, Wolfe brought suit against Tinder for sex discrimination and harassment.  Wolfe’s legal complaint details how Mateen sent outrageously inappropriate text messages to her and threatened her job, and how Tinder CEO Sean Rad ignored her when she complained about Mateen’s abuse.  Wolfe claims that Mateen and Rad took away her co-founder designation because having a 24-year-old “girl” as a co-founder “makes the company look like a joke” and being a female co-founder was “sluty.”

The conduct, which Wolfe’s complaint characterizes as “the worst of the misogynist, alpha-male stereotype too often associated with technology startups,” unfortunately remains the norm, and Wolfe is not alone in her experience.  Last year, tech consultant Adria Richards was fired after she tweeted and blogged about offensive sexual jokes made by two men at a tech conference.  After one of the men was fired from his job, Richards experienced horrendous Internet backlash, including rape and death threats.  She was then fired by Sendgrid after an anonymous group hacked into the company’s system in some twisted attempt at vigilante “justice.”

In 2012, junior partner Ellen Pao filed a sexual harassment suits against a venture capital firm, alleging retaliation after refusing another partner’s sexual advances.  And back in 2010, Anita Sarkeesian was the target of online harassment after she launched a Kickstarter campaign to fund a video series to explore female stereotypes in the gaming industry.  An online video game was even released in which users could “beat up” Sarkeesian.  These are just some of the many examples of demeaning attacks against women in the testosterone-driven tech world.

There are many state and federal laws that prohibit the kinds of workplace harassment that these women experience, including the federal Civil Rights Act of 1964, the California Fair Employment and Housing Act, the Bane and Ralph Act, and the California Constitution.  These laws provide strong protections against gender harassment in employment and other contexts.  So why do these attacks on women continue to happen in an industry that is supposedly progressive and populated with fairly educated adults?

It doesn’t help that tech companies are also notorious for their lack of diversity.  This year, Google released its first diversity report which revealed that 70 percent of its workforce was male, and 61 percent was white.  The workforce was also predominantly male and white at Facebook, Yahoo, Twitter, and LinkedIn. Another report this year shows that the percentage of women occupying CIO positions at companies has remained stagnant at 14 percent for the last decade.  These numbers confirm what the stories reflect — that this industry truly is “a man’s world.”  And this needs to change.

Some may dismiss Wolfe’s lawsuit and similar complaints as coming from women who are hypersensitive.  Indeed, Wolfe claims that when she complained about Mateen’s harassment, she was dismissed as being “annoying” and “dramatic.”  While some degree of social adaptation may be expected when joining any company, particularly freewheeling start-ups, there are limits that must be respected.  Those limits are crossed when the pressure to conform to a white, male norm is so great that women who challenge this norm are further harassed or their voices suppressed.

Unfortunately, this marginalization of women who challenge the macho culture even comes from other women, who blame the “feminists” for making it harder for women to advance in tech.  This also needs to change.  Women who speak out about sexism and misogyny in the tech industry deserve the support of their colleagues, and men who turn to vitriol and juvenile behavior to intimidate deserve censure.

But change will not be achieved without help from sources outside the industry.  Attorneys and employee advocates must continue to bring attention to the rampant sexism that is “business as usual” in the tech industry.  We need to encourage tech companies of all stages and sizes to comply with employment laws, adopt proper HR practices, promote diversity and inclusion, and use objective standards to measure performance.  If the tech industry is serious about encouraging young girls to become coders and developers, it also needs to place women in conspicuous leadership roles and pay real attention to change the “guy culture.”

The tech world doesn’t have to be a man’s world, and it shouldn’t be.

 This blog originally appeared in CELA Voice on July 25, 2014. Reprinted with permission. http://celavoice.org/author/lisa-mak/.
About the Author: The authors name is Lisa Mak. Lisa Mak is an associate attorney at Lawless & Lawless in San Francisco, exclusively representing plaintiffs in employment matters. Her litigation work focuses on cases involving discrimination, harassment, whistleblower retaliation, medical leave, and labor violations. She is an active member of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, a volunteer and supervising attorney at the Asian Law Caucus Workers’ Rights Clinic, and a Young Professionals Board member of Jumpstart Northern California working to promote early childhood education. She is a graduate of UC Hastings School of Law and UC San Diego.

"Bow at the Altar . . . of Political Correctness"

Thursday, October 24th, 2013

philip_miles_smallGender stereotyping claims, meet the super-manly world of ironworkers – men’s men. Macho men. Masculine men. What “real men” should be (you get the idea). In EEOC v. Boh Brothers Construction Co. (opinion here), the Fifth Circuit, sitting en banc, provided us with 68 pages of analysis on same-sex gender stereotyping harassment.

Let’s start with the harassing conduct. The crew superintendent called the plaintiff “pu–y,” “princess,” and “fa–ot”; often approached him from behind and simulated intercourse; exposed his penis while urinating in front of him; and teased him for using Wet Ones instead of toilet paper because (and I quote) that’s “kind of gay.”

The majority concluded that the evidence was sufficient to support a jury verdict that the defendant was liable for the harassment under Title VII. The divergent opinions in this case highlight a rift among judges when analyzing “shop talk” types of cases. One particular dissent pulled no punches in its condemnation of the majority (pardon the lengthy cut-and-paste, but this really highlights the differences among the judges):

By deftly extending the applicable law, Judge Elrod and the en banc majority—with the best of intentions—take a deep bow at the altar of the twin idols of political correctness and social engineering. Because that is a demonstrable departure from reason and experience and imposes an unsustainable burden on private employers in Texas, Louisiana, and Mississippi, I respectfully dissent . . . .

In a world in which comments on Wet Wipes or pink shirts can be considered discrimination on account of sex, the American workplace becomes more like a prison than a place for personal achievement, individual initiative, and positive human interaction; one’s speech is chilled as a condition of keeping one’s job. As Judge Jones accurately observes, the majority opinion “portends a government-compelled workplace speech code”—“a ‘code of civility’ [imposed] on the American workplace.” Instead of resisting such an Orwellian regime, in which Big Brother (in the form of the EEOC or otherwise) constantly monitors the worksite to detect “improper” words and thoughts, the en banc majority fosters it without Congressional mandate.

The hypersensitivity that is blessed unintentionally by the majority nudges the law in a direction that hastens cultural decay and undermines—if even just a little bit—an important part of what is good about private employment in the United States. Societies, and the legal systems of which they are mutually supportive, decline slowly, but ultimately with tragic consequence: “Not with a bang but a whimper.”

Wow, tell us how you really feel! So, what’s the takeaway for employers? Crackdown on same-sex harassment and gender stereotyping. The dissent demonstrates that employers might have a receptive ear in litigation – but trust me, if you’re counting votes at a circuit court in an en banc review of a jury verdict then you’ve already lost even if you win. That type of legal battle doesn’t come cheap.

This article was originally printed on Lawffice Space on October 11, 2o13.  Reprinted with permission.

About the Author: Philip K. Miles III, Esq. is the creator of Lawffice Space.  He is an attorney with McQuaide Blasko, a full-service law firm headquartered in State College, Pennsylvania.  He belongs to the Labor and Employment, and Civil Litigation Practice groups.  Lawffice Space is an independent law blog focusing on labor and employment law.

Iowa Supreme Court re-affirms statutory right of jittery, insecure spouses to interfere in the workplace

Monday, July 29th, 2013

Curt SurlsImagine the pilot episode of a revival of the 1970’s situation comedy “The Mary Tyler Moore Show.”  It is July 2013.  After a painful break-up with her fiancé, 30-year-old Mary Richards relocates to Des Moines, Iowa, to start a new life.

Mary interviews for a secretarial position at a local television station with Executive Producer Lou Grant.  Lou is an overweight, balding, married father of three grown daughters.  Lou offers Mary an associate producer position, reporting directly to him.  Lou’s wife Edie is threatened by the presence of an attractive, young woman in the workplace.  Edie demands that Mary be fired immediately.  Lou admits that he is attracted to Mary, even though their workplace relationship has been strictly professional.  Lou fires Mary.  He replaces her with Rhoda.  In Iowa in 2013, Mary has no legal recourse.

This month, the Iowa Supreme Court reaffirmed its controversial December 2012 decision holding that a fifty-something Fort Dodge, Iowa dentist acted legally when he fired his 32-year-old dental assistant for being too attractive.  Although the dental assistant had shown no interest in her married boss, both the dentist and his wife feared that he would be powerless to resist her charms.  In a decision insulting to both major genders, the Court reasoned that the firing did not constitute gender discrimination because it was not “because of sex.”  Instead, the Court reasoned, it was motivated by the dentist’s feelings of attraction for a specific person (I suppose you could call it “because of sexy”).

The latest version of the case, Melissa Nelson v. James H. Knight, DDS, P.C. can be read in full here.

Here is the official photo of the Justices of the Iowa Supreme Court.  See if you can spot what they all have in common.

scotus

Melissa Nelson was only 20 when she was hired by Dr. James H. Knight as a dental assistant.  For ten years, she was an exemplary employee.  She regarded her boss as a “father figure.”  Dr. Knight, on the other hand, found himself growing increasingly attracted to his young assistant.   In 2009, Dr. Knight’s wife insisted that her husband’s unilateral attraction to Ms. Nelson was a threat to their marriage.  Dr. Knight and his wife consulted with the senior pastor of their church, who blessed the decision to terminate Ms. Nelson.   Ms. Nelson sued for gender discrimination.  The trial court and the Supreme Court of the State of Iowa agreed with the Knights — and their pastor–and held that firing Ms. Nelson for being a potential threat to Dr. Knight’s marriage did not constitute illegal gender discrimination.

The Court’s original decision in late 2012 was greeted with outrage and ridicule.  In June 2013, the court withdrew its opinion and agreed to reconsider the matter, giving rise to the hope that they had seen the light and would permit the case to go to trial.  Those hopes were dashed when the Court reaffirmed its position that there is a difference between an employment decision based on personal feelings towards an individual and a decision based on gender itself.  “In the former case, the decision is driven entirely by individual feelings and emotions regarding a specific person,” stated the opinion’s author, Justice Edward M. Mansfield (he’s the one in the back row, far left).  “Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender.”

Wait a minute, argued Ms. Nelson’s attorneys and reasonable people everywhere.  Of course it was “because of sex.”  If she were not female, she wouldn’t be in danger of involuntarily attracting the unwanted attention of her heterosexual male boss.  If it is illegal to sexually harass an employee, why should an employer escape liability for firing an employee out of fear that he was just about to harass her.  Under this logic, even an employee who spurns the sexual advances of her supervisor is vulnerable to dismissal under a fabricated “my wife made me fire you to save our marriage” defense.

But back to Mary Richards.  In the eponymous spin-off series “Lou Grant,” Lou found a job as a newspaper editor for the fictitious Los Angeles Tribune.   What if he re-hired Mary?  Could Edie get her fired again in California?  Not likely.

The Iowa Supreme Court was interpreting Iowa law and federal law from the United States Court of Appeals for the Eighth Circuit.   The Court relied heavily on 8th Circuit precedent holding that sexual favoritism is, in essence, a private matter between the parties that doesn’t warrant regulation as gender discrimination.  California state law takes a broader view of the impact of sexual favoritism on the workplace environment.  Our Supreme Court has recognized that sexual favoritism is not merely a private matter.  Instead, favoritism can create an atmosphere demeaning to women, giving rise to claims of a hostile work environment by both men and women.  California courts are, therefore, likely to view conduct such as Dr. Knight’s in the broader context, and find a termination under similar circumstances in California to be discriminatory.

And besides.  Why would Lou even listen to Edie?  They got divorced after the third season of “The Mary Tyler Moore Show,” and Edie promptly remarried.  You can watch the wedding here.

Article originally appeared on CELA Voice on July 25, 2013.  Reprinted with permission. 

About the Author: Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation and has worked for the State of California as counsel to the Director of the Department of Industrial Relations.  CELA VOICE is a project of the California Employment Lawyers Association.  Our goal is nothing short of changing the discussion about issues of importance to California employees.  Our method is simple.  We will amplify the voice of worker advocates on issues that are vital to our economy, our way of life, even our health. The contributors to the CELA VOICE bring a unique perspective to understanding what is working and, too often, what isn’t working in California workplaces.

Sexual Harassment Victim Wins Important Appeal In Second Circuit

Tuesday, December 29th, 2009

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

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

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

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

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

Here’s what happened in the case:

The Harassment

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

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

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

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

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

The Reporting

Duch told three people about the harassment:

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

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

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

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

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

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

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

    2. Rosemary Christiano: The EEO Liaison

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

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

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

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

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

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

      The Lower Court’s Opinion

      Duch filed a sexual harassment lawsuit pursuant to Title VII of the Civil Rights Act of 1964 and the statutory laws of the state of New York and New York City.

      The Defendants requested that Duch’s claims be dismissed as a matter of law and the federal District Court agreed holding that:

      • OCA provided a reasonable avenue of complaint
      • no reasonable fact-finder could conclude that the employer-defendants had actual or contsrtructive knowledge of the alleged harassment
      • even assuming the employer defendants did know or should have known about the harassment, their response was reasonable

      Duch filed an appeal to the Second Circuit Court of Appeals.

      Sexual Harassment Law

      The law of sexual harassment is a bit complicated.

      In short, in order to prove a hostile environment sexual harassment claim Duch was required to establish that:

      • the harassment was sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment and
      • there was a specific basis for imputing the conduct creating the hostile work environment to the employer

      Proving the harassment was not the problem — Duch could provide that proof with her testimony.

      The thorny issue in this case turned on whether Duch could impute the conduct that created the hostile work environment to her employer – and that depended on who did the harassing and who knew about it.

      When the harassment of an employee is done by an officer, owner, or manager the company will in most circumstances be automatically liable for the illegal conduct.

      When the harassment is that of a co-worker, the employer is not automatically liable. In a co-worker harassment case like this one, Duch was required to have proof that her employer:

      • knew about the harassment or
      • in the exercise of reasonable care should have known about the harassment  and
      • failed to act promptly to stop it

      The District Court found that Duch failed to properly report Kohn’s harassment and as a result her employer was not liable.  Duch appealed.

      The Court of Appeals Decision

      The Second Circuit Court of Appeals reversed and in its opinion gave us some helpful guidance on what does and does not constitute sufficient reporting by a victim of harassment for purposes of imposing employer liability.

      Conversations With Christiano

      Because Christiano was a co-worker without supervisory authority, her knowledge could only be imputed to her employer if:

      • she had an official duty to act, and whether in light of her knowledge
      • her response was unreasonable

      There was no dispute that Christiano knew about Kohn’s harassment.  Duch however told Christiano “absolutely not “  to tell Jukabek about it.

      The Court found that Christiano acted reasonably in honoring Jukabek’s request. In so doing, the Court acknowledged:

      [T]here is certainly a point at which harassment becomes so severe that a reasonable employee simply cannot stand by, even if requested to do so by a terrified employee.

      In this case, however, the Court sided with the defense. It did so because it concluded that:

      • there was no evidence that Christiano was aware of the psychological toll that Kohn’s harassment was allegedly inflicting on Duch
      • therefore the jury could not conclude that Christiano breached a duty to Duch and
      • the defendant employer could not be liable because of Christiano’s inaction

      Conversations With Jakubek

      The evidence involving Jukabek caused the Court to reach a different conclusion than it did with Christiano and reversed the district court.

      That’s because Jukabek was Kohn’s supervisor, and as such, “was charged with a duty to act on the knowledge and stop the harassment.”

      As the Court stated:

      Where the person who gained notice of the harassment was the supervisor of the harasser (e.g. had the authority to hire, fire, discipline, or transfer him, knowledge will be imputed to the employer on the ground that the employer vested in the supervisor.

      The Court held that there was sufficient evidence from which the jury could find that Jakubek knew, or should have known about the harassment including proof that Jakubek:

      • knew that Duch asked for a change in her work schedule when she was scheduled to work alone with Kohn
      • asked Kohn about it, and Kohn admitted that he did or said something “he should not have”
      • knew that Kohn had engaged in sex-related misconduct toward females in the past
      • told Kohn, in reference to his conduct towards Duch, to “cut it out and grow up”
      • knew that the subject of working with Kohn caused Duch to become emotional , teary and red, and lose her composure
      • said “good”, when Duch said she didn’t want to talk about it, because “I don’t want to know what happened
      • agreed to change Duch’s schedule so that she didn’t have to work with Kohn alone

      Based on the above, according to the Court, Jakubek had a duty to make at least a minimal effort to discover whether Kohn had engaged in sexual harassment, and encourage (rather than discourage) her to reveal the full extent and nature of the harassment.

      The Court wrote:

      In so holding, we do not announce a new rule of liability for employers who receive nonspecific complaints of harassment from employees.

      We merely recognize that, under the existing law of this Circuit, when an employee’s complaint raises the specter of sexual harassment, a supervisor’s purposeful ignorance of the nature of the problem – as Jakubek is alleged to have displayed —will not shield an employer from liability under Title VII.

      Accordingly, notwithstanding the District Court’s observation that Jakubek ‘was never told of, and did not witness, the alleged harassment,’ we hold that a reasonable jury could conclude that Jakubek knew, or in the exercise of reasonable care should have known about the harassment.

      The Adequacy Of The Response

      According to the District Court, even if the employer knew about the harassment, the response was reasonable. The Court of Appeals disagreed:

      Although Jakubek did adjust the schedule so that Duch and Kohn would not be working together without other court officers on duty, Kohn’s harassment persisted and escalated during the months that followed.

      A formal investigation of Kohn was not commenced until January 2002, after Duch informed another co-worker of the harassment and three months after the date upon which a jury could find that Jakubek first learned of the harassment.

      Under these circumstances, we cannot say as a matter of law, that defendants’ response was ‘effectively remedial and prompt.’

      Lessons To Be Learned

      It’s very common for victims of harassment to be fearful of reporting the harassment. It’s also common for an employee to confide in a co-employee, or supervisor, without making a formal complaint and to say,  “don’t tell anyone.

      What we learn in this case is that those informal and non-specific conversations can trigger an employer’s obligation  to investigate and take appropriate action to stop the harassment.

      We also learn that those conversations may not satisfy an employee’s obligation to report harassment — and that of this very much depends on what level of authority the person has who hears what the victim has to say and how much the victim reveals.

      This case provides lots of valuable legal analysis in some gray area of sexual harassment law which have been infrequently addressed in the past.

      In my opinion, it’s an important and useful decision for all employers, victims of harassment, and all practitioners of employment law.

      images:  thestar.com

      www.hush-collection.com

      About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

      *prior results do not guarantee a similar outcome

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