Complaints To Supervisor/Harasser Are Sufficient To Overcome Affirmative Defense On Hostile Environment Claim

There’s lots of meaty reading in the Second Circuit case of Gorzynski v JetBlue Airways Corporation decided this month. The 31 page opinion hits multiple issues including sexual harassment, age discrimination, race discrimination, and retaliation.

The Federal District Court threw out the case on summary judgment. The Second Circuit Court of Appeals reversed and this is why.

Facts Of The Case

It’s a long story, but here’s the gist of it.

JetBlue hired Diane Gorzynski as a customer service agent in January 2000 for its operation at Buffalo International Airport. She was 54 years old at the time. In May 2000 she was promoted to the position of Customer Service Supervisor and stayed in that position until she was fired on July 5, 2002.

The customer service supervisors were managed by James Celeste, the General Manager. William Thro, a regional manager, was responsible for overseeing the General Managers of several JetBlue stations.

During her employment, Gorzynski experienced age and gender discrimination including sexual harassment. She also observed discrimination of other employees. The main culprit was her supervisor, James Celeste.

Gorzynski complained to Celeste on numerous occasions about the discrimination and harassment she experienced and about the discrimination and harassment of her co-employees.

She was retaliated against and fired, she believed, because of her complaints.

The Lawsuit

Gorzynski filed a lawsuit claiming that JetBlue:

* discriminated against her because of gender in violation of Title VII of the Civil Rights Act of 1964

* discriminated against her because of age in violation of the Age Discrimination in Employment Act

* retaliated against her for complaints to her supervisors about age and gender discrimination and race discrimination of co-employees in violation of Title VII and the ADEA

She also claimed numerous violations on the New York Human Rights Law.

The federal District Court granted JetBlue’s Motion for Summary Judgment of all claims. Gorzynski filed an appeal.

The Second Circuit Reverses

The Faragher/Ellerth Defense

One of the most important and interesting parts of the decision is its holding regarding JetBlue’s affirmative defense on which the District Court hung its hat to throw out Gorzynski’s sexual harassment claim – and it’s a holding which can effect lots of people.

In order to establish a hostile environment sexual harassment claim, a plaintiff must produce enough evidence to show that the workplace was:

* permeated with discriminatory intimidation, ridicule, and insult that is

* sufficiently severe or pervasive to alter the conditions of the victim’s employment and

* create an abusive working environment

In analyzing a hostile environment claim, the court is required to “look at the record as a whole and assess the totality of the circumstances.”

In this case, Gorzynski presented evidence that Celeste:

* grabbed Gorzynsi and other women around the waist

* tickled them

* stared at them as if” he was mentally undressing them”

* made numerous sexual comments including remarks about wanting to suck on or massage their breasts.

The District Court did not consider this evidence. Instead, it found that JetBlue was entitled to win as a matter of law because of its “affirmative offense” under the Supreme Court Faragher and Ellerth decisions.

The employer is entitled to raise the defense in certain sexual harassment scenarios involving supervisors and co-workers if it can show that:

* it exercised reasonable care to prevent and promptly correct any harassing behavior and

* the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm

With respect to the first element, JetBlue presented evidence of its sexual harassment policy (contained in its employee handbook) which stated that: “any crewmember who believes that he or she is the victim of any type of discriminatory conduct, including sexual harassment, should bring that conduct to the immediate attention of his or her supervisor, the People Department or any member of management.”

JetBlue argued that Gorxynski was not entitled to proceed on her sexual harassment claim because she failed to take advantage of the policy in the handbook when she:

* only complained to her supervisor — the harasser

* did not complain to other members of management.

The District Court agreed with JetBlue and granted judgment in its favor on Gorzyynski’s sexual harassment claim.

The Second Circuit rejected the District Court’s conclusion and reversed. It stated:

We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints.

Considering the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations, we decline to read the rule so rigidly.

Accordingly, we hold that an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser.

Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures.

In this case, the Court noted that:

* the other manager Gorzynski could have complained to was Thro — the regional manager

* the evidence showed that Thro was not receptive to receiving complaints from employees

* the evidence also showed that Thro was intimidating

* Thro retaliated against those who made complaints

Therefore, the Second Circuit held — in reinstating the sexual harassment claim — the question of whether or not Gorzynski unreasonably failed to take advantage of the options provided in the sexual harassment policy was a jury question.

Remaining Issues Of Fact For The Jury

Age Discrimination

Gorzyski established a prima facie case of age discrimination:

* she was over 40

* she was qualified for her position

* she was fired

* she was replaced by a woman in her 40’s

JetBlue countered this inference of age discrimination with its “legitimate business reason”: it fired Gorzynski because of her “management style,” “unprofessional conduct and poor interpersonal skills” and the “hostile work environment she created.”

The District Court found that Gorzynski did not present any evidence that JetBlue’s reasons were false or pretextual – and threw out her age discrimination claim.

The Second Circuit disagreed. Some of the evidence it noted was:

* the negative evaluation Gorzynski received from Celeste — a 2 out of 5 — was conducted after he had supervised her for only one week

* a contemporary, anonymous crewmember gave her a 4 out of 5

* at the same time Celeste gave Crowly, a 30 year old customer service rep. a 4 out of 5 even though Crowly had been written up and counseled on numerous occasions –Celeste then promoted him

* JetBlue’s investigation regarding an incident which immediately preceded Gorzynski’s discharge was “questionable at best”

* Celeste told Gorzynski she reminded him of his 80 year old aunt

* younger employees were not disciplined for violating numerous policies including smoking and sleeping on the job

The Court stated:

Given the cumulative weight of this evidence, we believe that a reasonable jury could find not only that the explanations given by JetBlue for Gorzynski’s termination were pretextual, but also that, together with Celeste’s passing comment about his aunt, it was her age that was the ‘but for’ cause of Gorzynski’s termination.

Accordingly, we vacate the District Court’s dismissal of Gorzynski’s age discrimination claims.

(the case also has a very interesting discussion of “age plus” discrimination in connection with her claim that Celeste discriminated against older women)

Retaliation

The District Court also dismissed Gorzynski’s claim that she was discharged in retaliation for complaining about race, gender and age discrimination.

In order to establish a retaliation claim, the plaintiff must show

1. that she participated in a protected activity
2. suffered an adverse employment action
3. a causal connection between her engaging in the protected activity and the adverse employment action

The Second Circuit reversed the District Court’s holding on the retaliation claims noting in part:

* five months – the time between Gorzynski expressed concern about a co-workers race discrimination and her discharge – was “not too long to find a causal relationship.”

* a complaint about a sexual harassment incident two months before her discharge sufficiently alleged a causal connection between her protected complaint about sex discrimination and her termination

* Gorzynski’s statements in her affidavit that there was unequal enforcement of the rules at the Buffalo station with respect to older employees versus younger employees should have been considered by the Court

In sum, the Court said

JetBlue has articulated a legitimate nondiscriminatory reason for Gorzynski’s termination, and Gorzynski has produced evidence that casts significant doubt on that rationale, leaving a triable issue as to whether JetBlue retaliated against her for complaining about prohibited discrimination.

Lessons To Be Learned

The decision is filled with points of law that are very helpful to employees who have filed employment discrimination claims. It gives numerous examples of what may be considered evidence of disparate treatment, pretext, and retaliation.

It also has a very interesting discussion of gender/age “plus” discrimination, where a subset of women are being discriminated against in the workplace, ie., older women, or black women, but not all women — which in reality is quite common.

Most noteworthy is the discussion of the Faragher/Ellerth defense. While it is critical for those who have been sexually harassed to complain to someone in management, the opinion makes it clear that victims of sexual harassment will not lose their rights because they did not complain to each person designated in a company’s sexual harassment policy.

Complaints to the supervisor/harasser are sufficient. That particular point of law will be a huge help to many victims.

Images: www.bajanfuhlife.com/news/news

*This article was originally published in Employee Rights Post on February 28, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

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

In a landmark decision, California’s Supreme Court held that two women who were not involved in a workplace affair had grounds to sue because the women who were having affairs with the boss received preferential treatment.

Prison and party don’t normally go together in my mind. But after reading about the workplace where the harassment took place, California’s Valley State Prison for Women, I’ll have to think again about what goes on behind those guard gates and razor wire.

Let me explain. Two Valley State women employees sued because they claimed that the warden promoted women who he was romantically involved with over women who were not sleeping with him. This is where the case gets interesting. The warden wasn’t having one affair. He wasn’t sleeping with two women at the same time. He managed to maintain THREE concurrent affairs. Actually the CNN description didn’t even stop there; its report said that he had “at least” three affairs.

This guy gives new meaning to the phrase “working around the clock.” I’m a guy and the thought of maintaining three affairs just wears me out. Then again, just being a warden, I thought, would manage to occupy your full attention too.

This case also is a great example of the law of “unintended consequences.” This is where we are so focused on what we are doing, that we fail to see its unintended results on the people around us. After reading much of the commentary surrounding this decision, there was a common thread that this case would obviously be overturned by the right coast Supreme Court (isn’t it interesting how the coast of both so completely aligns with their political affiliations?).

Whether the case is overturned or not, it clearly shows the danger of putting all your eggs in the workplace basket. Many of us spend a huge amount of time at work, we make all of our friends at work, we derive most of the meaning for our lives from work and yes, we often date the people at work.

This case points out that our actions, especially dating, can have an impact far beyond us. It’s like when you throw a rock into a calm lake and the wake generated flows in all directions. Relationships not only make work complicated for the people involved, it makes things complicated for everyone that they come into contact with.

What’s so ironic is that so many people seem to think that they are like Casper the Friendly Ghost at work—invisible. Nothing could be further from the truth. There is only one workplace dogma that I believe—no one can keep a secret indefinitely at work. And if you are a boss, well the odds go down even further. Because, whether you like it or not, every person who works for you is always watching everything that you do or say.

So according to the California Supreme Court, if you are a supervisor who dates at work, don’t be surprised if you are suddenly greeted by an orgy of lawsuits.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. If you have a question for Bob, contact him via bob@workplace911.com.

Author of Girl on Top: Your Guide to Turning Dating Rules into Career Success

Let’s face it. We spend more waking hours at work than at home. And considering the fact that men think about sex every 52 seconds (true stat!), to think that hookups aren’t taking place in the office is not only absurd, it’s naïve. Today’s working singles have little time to socialize with existing friends, much less meet enough new people to successfully find love.  An estimated 10 million couples met their mate at the office in 2003.  Some found themselves in sticky situations with far reaching career consequences, even resulting in the loss of their job. Others had a fling, married co-workers or engaged in extramarital affairs. It’s no longer just the classic image of the male boss chasing his female secretary around the desk. Women are initiating the trysts as well, and are even doing so with subordinates.

It is becoming more common for companies to ask workers to sign love contracts, which require them to alert their bosses to an office romance, confirm that it is indeed voluntary and inform them when they break up. Other companies have policies against in-office relationships. However, with or without these restrictions, negotiating an office love affair can be tricky. It’s difficult to avoid distractions, conflicts, and gossip, not to mention the complications if and when the relationship ends. Ultimately, if you start an office love affair, you need to keep your résumé up to date, because it’s likely that one of you will need to look for a new job.  Of course, if you understand the risks and insist on taking them for the sake of finding love, here are a couple of guidelines to follow:

Know Your Company’s Policy on Inter-office Dating
If there are special rules, make sure you talk together about it first and are clear about the potential ramifications before moving forward.

Don’t Keep It Secret
If you are hiding your relationship, it’s likely that you shouldn’t be in it in the first place.

Be Discreet and Act Professional
Nothing will put off your colleagues and superiors more than public displays of affection, much less sexual exchanges on office property. I’ve heard some great stories about the places in the office couples find to have sex; the boardroom seems to be the favorite, followed by the snack room and elevator. But these quickies are often discovered and may result in much more dire consequences than a little gossip around the cooler.

Be Aware of Sexual Harassment
This is true especially if you are thinking about starting a relationship with a subordinate. Even if you are both enthusiastic, if the relationship gets rocky, you might find yourself facing charges.  A subordinate is arguably incapable of consenting freely to a relationship with her supervisor, because of the inherent pressure and influence of a direct superior’s advances.  By the way, your company is the one that pays the harassment bill. And insurance doesn’t cover it.

Finally, if you find yourself in an office entanglement that has gotten tricky, or if you have doubts about how to handle the office politics around your affair, think about making use of the human resource department. They will be able to advise you and advocate for you should you need it. In general, while an office affair can work out, it’s often more trouble than it’s worth. But, as Shakespeare once put it, “The heart knows reason that reason knows not.” In other words, “sometimes we just can’t help ourselves.”

©2009 Nicole Williams, author of Girl on Top: Your Guide to Turning Dating Rules into Career Success.

About the Author: Nicole Williams, author of Girl on Top: Your Guide to Turning Dating Rules into Career Success, is the best-selling author of Wildly Sophisticated: A Bold New Attitude for Career Success and Earn What You’re Worth, and the founder of WORKS by Nicole Williams, the first media and content company marketed toward young professional women. Her advice is featured regularly in major media outlets including Elle, Cosmopolitan, Glamour, Marie Claire, the Wall Street Journal, and the Financial Times. Nicole also regularly appears on The Today Show, ABC’s Primetime, Good Morning America, Fox News, and CNN.

You can visit Nicole’s websites at www.NicoleWilliams.com and www.GirlOnTopBook.com.

The firing of 1,800 apparently undocumented workers at American Apparel’s Los Angeles garment factory, forced by a federal investigation, is an example of the Obama administration’s new approach to workplace enforcement, which avoids the Bush administration’s militarized raids.

Unlike other companies targeted for immigration enforcement, American Apparel’s factory boasts positive working conditions and relatively high wages. Workers have health and life insurance, paid English classes and even masseuses on the shop floor, yet the company has still managed to compete with cheap imported clothing and grow very profitable very quickly.

News coverage mentions American Apparel’s “proprietary” production system, so the logistics that let the company treat workers well and still profit in a globalized market may not be widely known. It remains to be seen how the company will survive, given the forced firings and the fact it was already suffering heavily from the recession. (And the fact that the company’s success is probably partly a fashion or social justice fad whose novelty is doomed to fade.)

My initial reaction to yesterday’s news was that a hypocrisy had been exposed, since American Apparel’s very existence is based around its Made in the USA label, and—rightly or wrongly—I associated that label with consumers who are not fans of undocumented immigrant workers.

Then I realized that if American Apparel management guessed their employees were undocumented (they contend they didn’t), publicly embracing the workers as the part of the American workforce they are makes a statement.

Founder and CEO Dov Charney, a Canadian immigrant, has in the past spoken out for sweeping immigration reform, as described in this New York Times story. Apparently the federal investigation, started under the Bush administration, was already underway as Charney launched this ad campaign.

Meanwhile, it is impossible to ignore the fact that while shop floor conditions at American Apparel appear to be very positive, Charney’s one-on-one interactions with his employees, at least female ones, leaves a lot to be desired (as In These Times reported in 2005).

At least three ex-employees have filed sexual harassment suits against Charney, who is known to conduct business in his underwear or even while naked. He describes these habits as creative freedom, which his employees apparently don’t appreciate (see MSNBC’s report here).

Employees told Businessweek, “It was a company built on lechery,” and “I thought it was a male contemporary perspective on feminism, but it turns out to be just a gimmick.”

Many also complain American Apparel’s ads offensively sexualize and objectify young women, especially young immigrant women of color. The company markets the fact that its ads feature employees, but I wonder if they are paid as much as professional models would be.

Ultimately it is ironic that, as one worker quoted by The New York Times points out, the fired workers are likely to end up at actual sweatshops or other under-the-table, exploitative work situations in the U.S.

In other words, while the current federal workplace enforcement policy is more humane and logical than the militarized raids of the past, without comprehensive immigration reform it still comes off as a relatively pointless or purely symbolic gesture.

About the Author: Kari Lydersen, an In These Times contributing editor, is a Chicago-based journalist writing for publications including The Washington Post, the Chicago Reader and The Progressive. Her most recent book is Revolt on Goose Island.

This post originally appeared in Working In These Times on October 1, 2009. Re-printed with permission from the author.