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Posts Tagged ‘hostile work environment’

New study confirms widespread reports of science’s sexual harassment problem

Tuesday, July 11th, 2017

In January 2016, Rep. Jackie Speier (D-CA) took to the House floor and delivered a blistering speech on a topic not often discussed outside the towers of academia: sexual harassment in the sciences.

“When I was made aware of it, I was astonished and disgusted,” Speier told Wired about the case she presented on the floor, based on a leaked report on harassment at the University of Arizona. But she wasn’t surprised: “It was consistent with what I have seen in science for a long time.”

As Speier notes, the idea that science has a sexual harassment problem is hardly new?—?particularly for female scientists, who’ve been dealing with and fighting against it for decades. But until recently, it didn’t get a lot of attention. Speier’s speech helped open up a dam, as female scientists came forward in droves to share their experiences with sexist discrimination and harassment.

And this week, new survey data confirms what the anecdotes told us: Women, and particularly women of color, working within the astronomical and planetary sciences are vastly more likely than their male colleagues to experience a hostile work environment based on their race or gender.

A series of scandals

Speier her speech began by referencing two high-profile cases that had shaken the world of astronomy and first brought the issue into the spotlight, the first of which centered on world-famous astronomer, tenured professor, and, as it turns out, serial sexual harasser Geoff Marcy.

Marcy had repeatedly violated the school’s sexual harassment policy and engaged in inappropriate behavior with female students, including unwanted massages, kisses, and groping, as a Title IX investigation leaked to Buzzfeed revealed. According to subsequent reports, his behavior dated back to previous academic posts and had gone on for decades with little consequence, despite numerous reports from women.

Despite the extensive documentation and report, Berkeley did not hand down punishment for Marcy. He resigned from his tenured position down after pressure from his colleagues.

Then, a similar story broke at Caltech, where newly-tenured astrophysics professor Christian Ott was suspended for inappropriate behavior toward two female graduate students?—?one of whom he fired after he fell in love with her, upending her research plans and ultimately causing her to leave the university to finish her studies elsewhere.

And on the floor, Speier outed yet another instance of harassment within astronomy: Timothy Frederick Slater, a professor at the University of Wyoming who obtained the post despite a documented history of sexual harassment at his previous job at the University of Arizona.

As the topic moved out of the shadows and into the mainstream, women from all across the sciences came forward with their own stories of gender-based discrimination and harassment.

Reformers, however, still faced a classic problem when it comes to sexual harassment: disbelief. Were these anecdotes just isolated incidents, or particularly high-profile examples of a widespread epidemic?

Now, new survey data published in the Journal of Geophysical Research is helping confirm that it’s the latter?—?and illustrate that when it comes to harassment and hostile workplace behavior, women of color, as a double minority, are the people at the greatest risk.

A culture of sexism

Researchers surveyed 474 astronomers and planetary scientists in an internet survey, asking about their experience with harassment over a period of five years. As they were particularly interested in the experience of women?—?who experience the majority of sexual harassment and gender discrimination in the workplace, and who also form a minority group within the scientific field at issue?—?they specifically targeted recruitment so they would be oversampling women relative to their numbers in the field.

They found that overall, women were more likely than men to experience a hostile work environment, and were far more likely to experience sexism and harassment.

“The results were initially worse than expected, as somebody who’s been working in and around these issues for some time,” study co-author Christina Richey told Inside Higher Ed. “It’s a little disheartening, but at least as we present this information it’s an opportunity for that gut-check moment. It forces conversations to start.”

Seventy-nine percent of women surveyed reported hearing at least some sexist remarks from their peers, and 44 percent reported hearing them from their supervisors. Women were also more likely than men to hear remarks about their physical ability or disability. Seventy-five percent of women reported hearing remarks from others about their mental abilities, as compared to 48 percent of men.

And in nearly every significant area, the researchers found that “women of color experienced the most hostile environment, from the negative remarks observed to their direct experiences of verbal and physical harassment.”

Forty percent of women of color reported feeling unsafe at work because of their gender, and 28 percent reported feeling unsafe because of their race. They also observed the highest frequency of problematic remarks, as compared to white men and men of color and white women, and were the most likely to report harassment based on their race.

White women and women of color experienced verbal harassment related to their gender about equally?—?with 43 percent and 44 percent reporting it, respectively.

Overall, the study paints a picture of endemic hostile experiences predicated by race, gender, and their intersections.

And this culture has an effect: Thirteen percent of women reported skipping at least one class, meeting, fieldwork, or professional event due to feeling unsafe, as compared to 3 percent of men. Twenty-one percent of women of color reported skipping professional events due to feeling unsafe, as did 18 percent of men of color. Only 2 percent of white men reported skipping at least one event due to feeling unsafe.

This result underlines a common theme with workplace sexual harassment: Often, when men in power harass their employees, it’s the women on the receiving end whose careers pay the price.

A discriminatory environment creates a leaky pipeline

This study specifically focused on astronomy and the planetary sciences?—?one area within the sciences where women are particularly scarce, and where some of the highest-profile scandals have occurred.

Reports indicate, however, that the problem stems across disciplines and even across academia. According to a 2015 report, one in three female science professors reported experiencing sexual harassment at some point in their career.

One likely reason sexual harassment in the sciences is prevalent is because of gender imbalances in the field: While women now outnumber men in social and some biosciences, they remain drastically underrepresented in engineering, physics, and computer science.

Academia is also a world where length of career matters. For decades, women weren’t even accepted to technical or scientific degrees. Now, that legacy still lingers in the ranks of those who lead University departments or who built powerful research legacies?—?and therefore are in charge of the course of young careers. That means that more often than not, even as more women are being encouraged to choose STEM careers, those in charge of mentorship, funding, and career opportunities are men.

All of this has a perpetuating effect: Women remain stubbornly underrepresented in the sciences, and part of that is because the pipeline is leaky.

In engineering, for example, women earn only 19 percent of bachelor’s degrees, and then on top of that 40 percent of female degree earners leave the field, citing hostile work cultures, limited advancement opportunities, and unsupportive supervisors.

That’s a problem not just for women, but also for science in general, because it means that fields are missing out on bright minds.

The authors of the study offer several suggestions for remedying the environment for women and women of color in science?—?including adopting codes of conduct protecting vulnerable populations, providing diversity and cultural awareness training, and helping women and women of color to build communities of peers.

They also recommend that when abuse is reported, that the perpetrators be sanctioned swiftly, justly, and consistently, “as this is the only way to signal consequences to the target and the broader community.”

This article was originally published at ThinkProgress on July 11, 2017. Reprinted with permission.

About the Author: Laurel Raymond is a reporter for ThinkProgress. Previously, she worked for Sen. Patrick Leahy (D-VT) and served as a Fulbright scholar at Gaziantep University in southeast Turkey. She holds a B.A. in English and a B.S. in brain and cognitive sciences from the University of Rochester, and is originally from Richmond, Vermont.

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.

Crossing the Line: The Ninth Circuit’s Guidelines for Flirting at Work

Friday, September 17th, 2010

Patrick KitchinAfter months of complaining that a female co-worker had repeatedly harassed him to have sex with her, Rudolpho Lamas’s boss offered a suggestion.  Maybe, the boss said, Rudolpho should try walking around the office singing, “I’m too sexy for my shirt.”  Everyone at work thought the situation was hilarious:  a widower turning down the explicit sexual advances of an attractive woman.  But Rudolpho Lamas and his lawyers are not laughing.

When does flirting at work cross the line and become sexual harassment under Title VII of the Civil Rights Act, Lamas’s lawyers asked.  And, does Title VII impose different standards on men and women in sexual harassment cases?  Finally, do gender stereotypes have a place in the jurisprudence of Title VII?

Earlier this month the Ninth Circuit Court of Appeals in San Francisco answered Rudolpho’s attorneys’ questions in a case involving a man who alleged he had been sexually harassed by a female co-worker in direct violation of Title VII.  (E.E.O.C. v. Prospect Airport Services (9th Cir. 9/3/2010).) The Court’s decision is interesting, not so much for its ultimate finding—that Title VII indeed provides equal protection to male and female victims of sexual harassment is well established—but for the way the Court considers socio-cultural stereotypes about gender in the context of a Title VII claim.

Before turning to the drama of E.E.O.C. v. Prospect Airport Services, a few words about the stage on which Rudolpho Lamas’s story is now playing out.

It is illegal to discriminate in the terms and conditions of employment based on the gender of a person under Title VII of the Civil Right Act.  Under Title VII, sexual harassment is considered to be a form of sex discrimination.

A Title VII sex harassment claim can be based on two theories of liability:  (1) economic quid pro quo; or (2) hostile environment.

In a typical case of quid pro quo sexual harassment, “a supervisor relies upon his [or her] apparent or actual authority to extort sexual consideration from an employee.”  Hensen v. City of Dundee 682 F.2d 897 (11th Cir. 1982). “Have sex with me,” says the supervisor, “and you’ll get that promotion.”

In a hostile work environment Title VII case, a co-worker or a supervisor’s gender-biased conduct is so severe or pervasive that the employee’s work environment is severely impacted.  “[W]hen a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex.”  Meritor Savings Bank, FSB v. Vinson, 477 US 57 (1986). And, of course, that is what Title VII’s gender provisions guard against:  discrimination based on sex.

This month’s Ninth Circuit case was based on the second of these two Title VII liability theories.  To maintain a gender-based, hostile environment case, a worker must show that:

(1) he or she was subjected to verbal or physical conduct of a sexual nature

(2) the conduct was unwelcome, and

(3) the conduct was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir.1991)

Element 1:  Conduct of a sexual nature

Lamas presented evidence that a female co-worker repeatedly asked him to go out with her and on several occasions made explicit references to her desire to have sex with him.  She wrote to him, “I’ve been thinking of you a lot lately. I’ve been having crazy dreams about us in the bath tub yeah in the bath tub… Seriously, I do want you sexually and romantically!”

The Court had no trouble finding that the conduct was sexual.  “She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes on.  Her proposition was for sex, not a cup of coffee together.”

Having established the conduct was of a sexual nature, the Court went on to consider whether Lamas might have welcomed the conduct.

Element 2:  Welcomeness

The Court next considered how the welcomeness element of the three-part prima facie case must be proved in a case involving a male victim and female harasser.  What evidence does a male victim of sexual harassment need to present to establish that the sexual advances of a co-worker were unwelcome?  The short answer is, the same evidence a woman needs to present.

Lamas’s employer apparently argued in the lower court that men are more likely than women to welcome the sexual advances of a co-worker.  Even Lamas admitted that “most men in his circumstances” would have welcomed the invitations.  So, what did the Ninth Circuit think about this digression into cultural stereotypes?  Not much.

The Court was quick to point out that suppositions about what most men wanted at work was itself a stereotype and, thus, was not evidence of anything.  “[W]elcomeness is inherently subjective, (since the interest two individuals might have in a romantic relationship is inherently individual to them), so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual propositions.”

“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.”  Though the reference to Marilyn Monroe is a bit old school, the message is clear and contemporary.  Men, like woman, have lots of reasons to reject sexual advances by co-workers, including religious beliefs, fear of sexual harassment lawsuits, fear of complications in the workplace, fear of pregnancy or, as the Court explained, fears about facing two decades of child support payments.  Or, the Court explained, “[Lamas] might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not.”

While the Court focused on the subjectivities of welcomeness, it observed that welcomeness has an objective component as well.  To hold the employer liable under Title VII, the unwelcomeness must be communicated. The employer must be told about the harassment so it can evaluate and respond to the allegations.  “Sometimes the past conduct of the individuals and the surrounding circumstances may suggest that conduct claimed to be unwelcome was merely part of a continuing course of conduct that had been welcomed warmly until some promotion was denied or employment was terminated. That is a credibility issue.”

Element 3:  Severe or Pervasive

Title VII is not a “general civility code” either.  It is not meant to protect workers against “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.”  Faragher v. Boca Raton, 524 US 775 (1998).

Title VII is designed to provide legal remedies to those employees who have been subjected to significant gender-based harassment and discrimination.  In other words, it protects employees who have been subjected to sexual conduct that is severe or pervasive.

Some conduct, such as a sexual assault of a co-worker, is severe enough to provide an immediate remedy to a worker under Title VII.  A sexual assault immediately creates an abusive working environment.

Less egregious conduct can provide grounds for a Title VII claim, as well, if:  (1) it happens often; and (2) it is of such nature that it is offensive to both the victim and a reasonable person in the victim’s circumstances.

Having a co-worker flash a nude picture of himself (or herself) to you one time at a holiday party might be offensive. The one-time, alcohol-driven transgression of a co-worker would not provide grounds for a Title VII claim, however.  But what if a co-worker (male or female) constantly displayed pornography on his (or her) computer in a cubicle shared with another worker?  What if this conduct was part of an attitude that permeated the workplace with gender bias?  If the cubicle mate’s objections and complaints were ignored by the employer, and the conduct continued, it might become pervasive enough to alter the conditions of the workplace in violation of Title VII.

Most Title VII claims involve a series of such increasingly troublesome events, none of which alone would support a strong Title VII lawsuit.  But taken together, they often do.  So, on a behavioral scale ranging from off-color jokes to things you only see on Mad Men episodes, the case law teaches that the more outrageous the conduct, the fewer times it must occur to be actionable, and vice versa.  The courts treat it as a classic inverse relationship.

Putting It All Together

By looking at the all of the circumstances of the workplace in Prospect Airport Services, the Ninth Circuit found sufficient evidence of unlawful sexual harassment to send the case back to the trial court for further proceedings.   The female employee’s conduct obviously was sexual.  And Lamas made it clear that he wanted the conduct to stop.  The conduct was pervasive and had a serious negative impact on conditions at work.  Lamas’s job performance suffered.  When the harasser told her co-workers about her efforts to seduce the victim, they mocked Lamas and questioned his sexuality.  Lamas complained several times to his supervisors about the harassment, but nothing was done.

If Rudolpho Lamas can convince a jury that all of this is true, then he will have proved all of the elements of a Title VII sex harassment case.

Guidelines for Flirting at Work?

In its decision earlier this month, the Ninth Circuit made it clear it does not consider all romantic overtures, or even all sexual propositions, to constitute unlawful sexual harassment

People spend most of their waking hours with other people at their workplaces, so that is where many meet and begin social relationships, and someone has to make the first overture. Some people have more social finesse than others, and many might suggest coffee or a trip to an art exhibition rather than sex, but mere awkwardness is insufficient to establish the “severe or pervasive” element.

Directly propositioning a co-worker to have sex might be incredibly cheeky and against company policy (it could get a person fired), but it does not violate Title VII.  “Had Munoz merely asked Lamas to go out on a date, or to see whether they might have a romantic relationship, or straightforwardly propositioned him for sex, and then quit when he clearly told her no, the EEOC would not have shown enough evidence to survive summary judgment.”

Does this mean that acting like a normal, socio-sexual human being at work is legal under federal law?  Undoubtedly so; but the definition of normal remains as subject to context, credibility and the uncertainties of the civil litigation system as ever before.

Has the Ninth Circuit now established federal guidelines for flirting at work that are applicable to men and women across the country?  Not really.  But, what the Court has done is to restate well established principles of law: men and women have identical employment rights, as well as identical burdens of proof, in sexual harassment cases brought under the Civil Rights Act.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere. For more information about his practice you can visit his website here.

Employee Rights Short Takes: Hostile Work Environment, GINA, FMLA And More

Thursday, June 3rd, 2010

Here are a few Short Takes worth sharing:

Sex Bias Case Ends With Huge Punitive Damages Award

The drug maker Novartis was hit with $250 million in punitive damages last week because of discrimination against thousands of female sales representatives. Issues involved discrimination in pay, promotion and pregnancy. The punitive damages award represented 2.6 of the company’s 2009 $9.5 billion revenue. Earlier in the week, the jury awarded $3.3 million dollars in compensatory damages to 12 of the women who testified. The case is reported to be the largest discrimination verdict ever.

Genetics Discrimination

Complaints were filed against MX Energy, a Connecticut natural gas retailer, under Title II of  Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment. The new federal law took effect on November 21, 2009.

GINA prohibits discrimination against employees or applicants because of genetic information. GINA also restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.

The charging party Pamela Fink, claims that her employer fired her, despite years of glowing evaluations, after learning she tested positive for the breast cancer gene. Fink filed complaints against her employer with the Connecticut Commission on Human Rights and Opportunities and the federal Equal Employment Opportunity Commission. About 90 GINA-related complaints have been filed nationwide since the law went into effect. This should be an interesting case to follow. For more about genetic discrimination, read here.

Rights Of Undocumented Workers

With all the talk about illegal immigration, one might wonder what the rights are of the over eight million undocumented workers in this country. Carolina Nunez, a law professor at Brigham Young University’s Reuben Clark Law School, wrote an interesting article about the topic which you can read here. The piece appeared in the Spring 2010 issue  of the Clark Memorandum, a publication of BYU’s J. Reuben Clark Law School.

Should undocumented workers enjoy the same workplace protections that authorized workers enjoy? When and how much should immigration status matter? Does being here count for anything? It is no surprise that the answers are less than clear.

Recent Cases Of Interest From The Circuits

Plaintiff Wins FMLA Appeal: In Goelzer v. Sheboygan County, Wisconsin Dorothy Goelzer was fired from her administrative job with the county government after 20 years. Her supervisor told her about the termination decision two weeks before she was scheduled to begin two months of leave under the Family and Medical Leave Act.

Goelzer had taken a significant amount of authorized FMLA during the four preceding years to deal with her own health issues as well as those of her husband and mother. The defendants claimed she was fired because they wanted to hire someone with a “greater skill set.” The district court granted judgment against Goelzer.

The Seventh Circuit Court of Appeals reversed this month stating that comments suggesting frustration with her use of leave, Goelzer’s favorable performance reviews, and the timing of her termination could lead a jury to conclude that Goelzer was fired because she exercised her right to take FMLA. This is a very good case for those who are claiming an interference or retaliation claim under the FMLA.

Employers Liable For Third Party Harassment: In Beckford v. Department of Corrections, Melanie Beckford, and thirteen other female employees, claimed that the Florida Department of Corrections failed to remedy the sexually offensive conduct of inmates  — including the frequent use of gender-specific abusive language and pervasive gunning, the notorious practice of inmates openly masturbating toward female staff. The jury found in favor the plaintiffs and awarded each $45,000 in damages.

The Department appealed and contended that it could not be liable under Title VII unless its staff actively encouraged or participated in the harassment. The Eleventh Circuit affirmed the verdict and concluded that the jury was entitled to find the Department liable because it unreasonably failed to remedy the sexual harassment by its inmates. The Court said:

It is well established that employers may be liable for failing to remedy the harassment of employees by third parties who create a hostile environment. …It makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer.

Employees are often harassed at work by individuals who are not employees. This case, which holds that employers are liable for harassment by third parties, is an important affirmation of this particular aspect of employer liability under Title VII.

images: www.hivplusmag.com charityrisk.squarespace.com

*This post originally appeared in Employee Rights Post on May 24, 2010. Reprinted with permission from the author.

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.

Employee Rights Short Takes: Wage Discrimination, Race Discrimination, Sexual Harassment and More

Tuesday, May 18th, 2010

Here are a few Short Takes worth sharing:

Sex Discrimination

Ninth Circuit Certifies Wal-Mart Class Action: In Dukes v. Wal-Mart, a decision from the Ninth Circuit Court of Appeals on April 26th, the Court certified a class in a Title VII lawsuit involving 1.5 million women seeking compensation for back pay. The Court remanded the case to the district court for a determination regarding punitive damages based upon several factors set forth in the decision. The next step is most likely a request for the Supreme Court to hear the case. For more about the case, see the California Punitive Damages Blog. For an interesting story about Betty Dukes, the Wal-Mart greeter and lead plaintiff  see the article here from the Huffington Post. This case is reported to be the largest class action in history.

Sexual Harassment

EEOC Collects $471,000 In Sex Harassment Case: The EEOC reported last week that Everdry Marketing and Management paid $471,096 in damages, plus $86,581 in post-judgment interest to 13 victims of sexual harassment. The payout stems from a four week jury trial in Rochester, New York and a Second Circuit Court of Appeals decision which affirmed the award in favor of the plaintiffs. The case involved a prolonged period of physical and verbal sexual harassment of mostly teenage telemarketers by male managers and co-workers at Everdry’s Rochester, N.Y. location including demands for sex, groping, sexual jokes and constant comments about the bodies of women employees. The story presents another example of the widespread problem of teenage sexual harassment in the U.S

Has The Sixth Circuit Had An Attitude Adjustment?

Two cases last month out of the Sixth Circuit  Court of Appeals made me think that attitudes on employment discrimination cases may be shifting.

Summary Judgment Reversed In Race Discrimination Case: In Thompson v UHHSS Richmond Heights Hospital, Inc, the plaintiff was terminated from her position as a food production supervisor when she was told that her position was eliminated in a restructuring. Thompson believed  that she was selected for termination because of her race and filed a lawsuit. The district court granted summary judgment against her. The Sixth Circuit reversed finding that evidence of Thompson’s superior qualifications in comparison to the employee who assumed most of her job duties showed that she was replaced and also showed pretext. In addition, evidence that a supervisor said to “get rid of” certain black employees whom he called “troublemakers,” which the district court gave “little weight,” corroborated accusations of discriminatory behavior according to the Court.

Sexual Harassment Verdict Affirmed On Appeal: In West v. Tyson Foods,Inc. the Court affirmed a sexual harassment award including $750,000 for past and future mental distress, and $300,000 in punitive damages. In addition to great language on damages, the Court also addressed the sufficiency of reporting sexual harassment to one supervisor as constituting “notice” and a “missing evidence” jury instruction from which the jury is entitled to draw a negative inference. The plaintiff, an assembly line worker, was subjected to a barrage of verbal and physical harassment – 10 to 15 times per shift — during her five weeks of employment at the Tyson Foods plant in Robards, Kentucky. The jury awarded more in damages that West’s lawyer requested which the Sixth Circuit both addressed and confirmed.

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*This post originally appeared in Employee Rights Post on May 12, 2010. Reprinted with permission.

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.

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