NH Court Extends Liability for Sexual Harassment

working.oldtypewriterA somewhat  notorious case that illustrates the difficulty of holding sexual harassers to account is in the news again..

The New Hampshire Supreme Court ruled this month that an employee can be held liable for “aiding and abetting an unlawfully discriminatory practice committed by an employer” under the state’s anti-discrimination statute (RSA 354-A:2).

The ruling came in a case involving Fuller Oil Co. of Hudson, N.H. and its owner Frederick J. Fuller.

The company settled an EEOC sexual harassment complaint (without admitting liability) in 2005 by agreeing to pay five women a total of $750,000 and to institute company wide training in sexual harassment prevention. At the time, an EEOC official characterized Mr. Fuller as a “serial” sexual harasser.

In 2013, another EEOC sexual harassment complaint was filed charging Fuller with forcing office worker Nicole Wilkins to quit in 2011 when he allegedly grabbed and squeezed both of her breasts from behind while pinning her against her desk. The EEOC said the alleged assault was the culmination of a growing number of unwanted and inappropriate sexual comments and incidents of touching by Fuller. After Wilkins threatened to file an EEOC complaint, Fuller allegedly retaliated by firing Wilkins’ friend and co-worker, Beverly Mulcahey, for poor performance.

Fuller was subsequently arrested for the incident but settled that case by pleading no contest to a reduced charge of simple assault.

The company apparently refused to settle that case so the EEOC in 2014 filed a lawsuit charging both the company and Fuller with sexual harassment and retaliation. Fuller sought unsuccessfully to dismiss the case on the grounds that his behavior amounted to a single crude gesture and was not objectively offensive. The oil and propane company went bankrupt, which had the effect of staying the lawsuit against the company. Fuller’s attorney then argued that Fuller could not personally be held liable under New Hampshire’s anti-discrimination law for either sexual harassment or retaliation. A U.S. District Court judge asked New Hampshire’s highest court to interpret the state’s anti-discrimination law and decide whether it permits an individual employee to be held liable for aiding and abetting employment discrimination and  retaliation by the employer. New Hampshire’s high court answered “yes” this month.

The New Hampshire court noted the anti-discrimination law  provides that “any act of aiding, abetting, inciting, compelling or coercing another to commit an unlawful discriminatory practice, or attempting to do so, or obstructing or preventing any person from complying with the [law] is itself an unlawful discriminatory practice.”  The Court ruled that absolving individual employees from liability for aiding and abetting employment discrimination is “plainly inconsistent with the stated intent” of the law, which is to “eliminate and prevent discrimination in employment.” Furthermore, the court said individual employees can be held liable for retaliation.

The N.H. high court’s ruling permits Wilkins and Mulcahey to seek monetary damages from Fuller individually for aiding and abetting his former company’s alleged unlawful acts.

 

New Hampshire court adds ominous side note – state’s anti-discrimination law exempts employers with six workers or less.

The N.H. court’s ruling contains an ominous side note. The court noted that New Hampshire’s anti-discrimination law only applies to employers with six or more employees. The court said it is only logical to conclude that if an employer is exempt from the law, individual employees of the employer also are exempt from liability.  So God help workers who work for a New Hampshire company with fewer than six employees.

The case is U.S. Equal Employment Opportunity Commission, et al. v. Fred Fuller Oil Company, et al., Case No. 2015-0258 (Feb. 23, 2016).

Discrimination Victims Deserve REAL Justice

The EEOC has asked for public input so here goes:

Why is the EEOC operating the equivalent of a “get out of jail free card” for employers that engage in employment discrimination and retaliation?

When the EEOC determines there is reasonable cause for a charge of discrimination, the agency offers the employer (and the victim) the opportunity to participate in its free mediation program, where a neutral mediator assists the parties in reaching an early and confidential  resolution to a charge of discrimination.

In its 2014 performance report, the EEOC contends the mediation program is a “win for both Employees and Employers” but in the final analysis it is a much bigger win for employers.

The EEOC says its mediation program for private sector complainants  achieved a resolution in 7,846 out of a total of 10,221 mediations conducted for all types of discrimination.  The effort yielded $144.6 million in monetary benefits for complainants. Simple division indicates the EEOC’s mediation effort yielded $18,430 per mediation for private sector workers in 2014.

A payout of less than $20,000 per mediation is a bona fide windfall for employers, who might otherwise be forced to spend a hundred thousands dollars or more to defend a lawsuit, plus a potentially staggering damages award.

But $20,000 is a pittance at best for many – if not most – victims of employment discrimination – especially those who lost their jobs or who were not hired because of illegal discrimination.

There’s the rub

The EEOC is not supposed to be in the business of protecting discriminatory employers from the reasonable consequences of their harmful actions. Continue reading “Discrimination Victims Deserve REAL Justice”

Appeals Court Puts Judge on Hot Seat in Trucking Case

The U.S. Court of Appeals for the 8th Circuit has rejected an order requiring the EEOC to pay $4.7 million in attorney fees and costs  to CRST Van Expedited, Inc., one of the nation’s leading transport companies, in an egregious sexual harassment case involving female truck driver trainees.

This lawsuit, perhaps more than any other in recent history, demonstrates the extent to which federal courts have moved away from the worthy goal of addressing serious employment discrimination to engaging in pro-business partisanship, sweeping generalizations and moronic procedural disputes.  It also raises questions about whether the EEOC, in the current environment, can actually carry out its goal of promoting  more strategic use of agency resources by emphasizing high stakes litigation involving multiple victims.

At various points, Chief Judge Linda R. Reade of the U.S. District Court of Iowa dismissed all of the 154 plaintiffs in the EEOC case and  ruled the agency  must pay CRST, one of the nation’s leading transport company, a whopping $4.7 million in attorneys’ fees and costs.

The 8th Circuit’s ruling constitutes a step in the right direction. The appeals court remanded the case back to the district court with instructions to reassess the attorney’s fee award. Among other things, the appeals court is asking Reade to explain why she dismissed dozens of sexual harassment claims as frivolous, unreasonable or ungrounded.  Moreover, the Court rejected Reade’s award of attorney fees with respect to 67 claimants whom Reade dismissed from the case under a controversial ‘failure to conciliate” theory.

Several federal circuits have ruled the EEOC must engage in individual conciliation or negotiations with an employer with respect to each and every claim in a class action lawsuit, even if the employer has indicated no willingness to settle.  This requirement allows guilty employers to delay adjudicting the issue of discrimination, constitutes a colossal waste of  EEOC resources, and ultimately severely limits the agency’s ability to file class action employment discrimination lawsuits.

Reade dismissed  67 potential class members from the CRST lawsuit on the grounds that the EEOC failed to engage in  “bona fide” conciliation efforts with CRST. She did not even consider the merits of the plaintiff’s claims, some of which involved shocking allegations of sexual harassment and abuse lodged by female truck driver trainees who were stranded in isolated conditions on the road.  These women alleged that CRST did little or nothing in response to their complaints.

The 8th Circuit ruled that the EEOC’s duty to conciliate does not constitute an element of a claim. Therefore, the appeals court said , the EEOC didn’t lose those 67 claims and the CRST was not a prevailing party with respect to those claims.  The appeals court concluded that CRST is not entitled to an award of attorneys’ fees for the claims dismissed under the “failure to conciliate” theory.

Continue reading “Appeals Court Puts Judge on Hot Seat in Trucking Case”

Company Liable for Lovestruck HR Director

A federal appeals court in Puerto Rico has rejected the narrow limitations imposed by the U.S. Supreme Court on who is considered to be a “supervisor” in employment discrimination cases.

The U.S. Court of Appeals for the First Circuit held that Developers Diversified Realty Corp (DDR) can be held liable for sexual harassment by Rosa Martinez, an HR officer for the company, who engineered the ouster of Antonio Velázquez-Pérez, a company regional general manager, after he rebuffed her advances.

Both Martinez and Velázquez worked in the Puerto Rico offices of DDR, a shopping center management company based in Ohio.

In its ruling , the appeals court acknowledged that the U.S. Supreme Court last year limited employer liability under Title VII of the Civil Rights Act in cases where a non-supervisor causes a discriminatory action. Martinez was not Velázquez’ supervisor.  However, the 1st Circuit court said, DDR should have known that Martinez’s recommendation that Velázquez be fired was the product of discriminatory animus and therefore can be held liable under Title VII for negligently allowing Martinez to cause Velázquez’s termination.

Noting the case presented issues that it had not addressed previously. the appeals court concluded that an employer can be held liable if  the co-worker acted for discriminatory reasons with the intent to cause the plaintiff’s firing; the co-worker’s actions were in fact the proximate cause of the termination; and the employer allowed the co-worker’s acts to achieve their desired effect though it knew (or reasonably should have known) of the discriminatory motivation.

The Court reversed the district court’s grant of summary judgment on Velázquez’s claim of sexual discrimination in violation of Title VII.

According the  opinion, Velázquez and Martinez had mutually flirted with each other when they both went to a company meeting in April 2008 and stayed at the same hotel. That night, Velázquez was walking with two female employees of the company when Martinez appeared in their path and asked where they were going.  Martinez followed Velázquez to his room,  tried to force her way in and refused to leave until Velázquez threatened to call security.  She then telephoned hm several times and sent a jealous email to one of the women that he had been walking with.  Shortly thereafter, Martinez threatened to have Velázquez fired, stating, “I don’t have to take revenge on anyone; if somebody knows your professional weaknesses, that person is me.”

Velázquez complained about Martinez’s behavior to his supervisor, who advised him to send her a “conciliatory” email because “[s]he’s going to get you terminated.” He and another male employee then jokingly suggested that Velázquez have sex with Martinez.

Martinez began a campaign of harsh criticism of Velázquez’s work, culminating with a recommendation that he be terminated. The top company official in Puerto Rico suggested that instead of termination Velázquez be issued a formal warning and placed on a Performance Improvement Plan.  Martinez went over his head and complained to two senior officials at the company’s headquarters in Ohio.

Meanwhile, Velázquez and Martinez went to another business meeting and stayed at the same hotel.  This time Martinez followed Velázquez into an elevator and said  she loved him and “wanted to have a romantic relationship with him.” Velázquez refused. That night, Martinez sent an email to the Ohio officials recommending that Velázquez be terminated immediately “because his behavior has been against the company code of conduct and has already impacted the trust form other team members.”

Four days later, on August 25, 2008, Velázquez was terminated for “[a]bsenteeism,” “[f]ailure to report,” and “[u]nsatisfactory performance.”

Tap on Wrist for ‘Egregious’ Sexual Harassment

Ct Slashes Jury’s Punitive Award

A decision by the U.S. Court of Appeals for the Ninth Circuit  this week raises questions about  the way courts calculate damage awards in discrimination cases.

A three-judge panel of the San Francisco-based court reduced what started out as a $868,750 jury award for punitive damages in a sexual harassment case to $125,000.

The defendant is the American Smelting and Refining Company (ASARCO),  a Sahuarita, Arizona company owned by Grupo Mexico Corp. that is the third largest copper producer in the US, with estimated earnings in excess of $800 million.

The appeals court agreed that ASARCO employee Angela Aguilar was the victim of “particularly egregious” sexual harassment while working for ASARCO from December 19, 2005 to November 8, 2006.  However, the court said it was required to lower the award because the ratio of punitive damages was excessive compared to the $1 the jury awarded Aguilar for compensatory damages .

Punitive damages are supposed to deter the defendant from engaging in future similar conduct. In other words, the punitive damages should be significant enough to get an employer’s attention so that it will change the illegal practices that led to the damages in the first place.   Will a $125,000 punitive damage award compel a billion dollar corporation to eliminate serious  sexual harassment at the Arizona plant? Not likely.

Statutory cap

The jury’s original punitive damage award was actually hit with a double whammy.

The lower court immediately reduced the $868,750 punitive damage assessment to $300,000 pursuant to a statutory cap placed on such awards by the U.S. Congress.  However, the  lower court refused to further reduce the punitive damage award because of the egregious nature of the harassment suffered by Aguilar.  ASARCO had argued the award should be reduced to $2,500.

The appeals court agreed that ASARCO’s conduct supported  a “very large punitive award” but said the U.S. Supreme Court ruled in 1996 that punitive damages must bear a “reasonable relationship”  to compensatory damages under the due process clause of the U.S. Constitution.  If left to stand, the appeals court said, the ratio of $300,000 in punitive damages to $1 in compensatory damages would be among the highest (if not the highest) ratio since 1996.

“The Supreme Court has repeatedly emphasized the importance of the ratio inquiry and we cannot set it aside … [W]e conclude that the highest punitive award supportable under due process is $125,000, in accord with the highest ratio we could locate among discrimination cases.”

One member of the three-judge appellate panel, Judge Andrew D. Hurwitz, issued a partial concurrence/dissent, arguing the court should affirm the earlier $300,000 judgment because it fell within the statutory cap on damages in Title VII cases.

The Harassment

Here’s a very abbreviated account of what Aguilar experienced while working  at ASARCO:

  • Her supervisor, a very large man, asked her out every day and refused to train her or help her when she rejected him. When she asked for help, he would press up against her. She was afraid he might rape her. ASARCO’s HR Department and said there was nothing it could do.  She transferred to another unit.
  • There was no functioning women’s restroom in the building so the company rented a “porta-potty” for Aguilar’s use.  It was vandalized repeatedly with pornographic graffiti directed at her. She reported it to HR and the mill supervisor in 2006 but photos showed that visible pornographic graffiti remained on the toilet in 2007.
  • Another supervisor told Aguilar “your ass is mine” and often gave her conflicting orders, snapping his fingers at her, telling her to watch herself, yelling at her and threatening her with termination.  Needless to say, management did nothing when Aguilar complained. ASARCO maintained in the litigation that the supervisor’s behavior was not motivated by sex but instead by his general boorishness toward everyone.

Aguilar finally quit.

The case, State of Arizona v. ASARCO, was initially filed by Arizona on behalf of Aguilar and the state. Aguilar subsequently filed her own lawsuit.

Sexual Harassment and Due Process

Harasser may not be due ‘due process’

Is an elected official who  allegedly “sexually harassed” more than a dozen women entitled to job protection?

That seems to be the ludicrous debate in San Diego right now. A group of supporters  are demanding due process for Mayor Bob Filner, who admits engaging in “intimidating contact” toward women over a period of years.

Filner was scheduled to return to work at City Hall on Monday after undergoing two weeks of “behavioral therapy.”   He didn’t show and is said to be  negotiating the terms of his departure with city leaders.

Normally, one thinks of due process in a criminal context.   For example, criminal defendants are entitled to a hearing on bail and to have  an attorney appointed to represent them under certain circumstances.

Due process is not an automatic right in the employment context, unless the worker is protected by a  contract or a union agreement.  The American concept of “at will” employment holds that a worker can be fired for any reason as long as it is not an illegal reason (e.g., sex or race discrimination).

Filner, 70, has not been charged with a crime –  though maybe he should have been.

If the allegations against him are true, his conduct could  arguably rise to the level of  an  assault and battery or an aggravated assault with respect to at least three of his victims.

According to The Los Angeles Times,  Filner allegedly forcibly kissed two women and groped a female staffer.

America treats sexual harassment as a civil rights violation, rather than a crime.  The victim’s  redress  normally Is limited to filing a lawsuit seeking monetary damages against the harasser.  But many of the behaviors that constitute sexual harassment – especially the part that involves physical contact –  also fall within the realm of criminal statutes.

If  you don’t think that sexual harassment should be a crime – imagine having a person who is  more powerful than you are  forcibly jamming his tongue down your throat or pinning  you against a wall to lick your face.

Attorney Marco Gonzalez  said women who worked for Filner coined the phrases “the Filner headlock” and “the Filner dance” to describe how he isolates women and then makes unwanted advances.

A  recall effort is underway to oust Filner from the Mayor’s office though it is not a sure thing. Recall advocates have 39 days to collect 101,597 signatures from registered city voters.

I suspect the framers of the U.S. Constitution did not have someone like Mayor Bob in mind when they adopted the concept of  due process.

The Due Process Clause in the Fifth Amendment applies only to the federal government so  the pro-Filner folks must be thinking about the  Due Process Clause of the Fourteenth Amendment, which was adopted after the Civil War to protect the rights freed slaves.

Ratified in 1868, the Fourteenth Amendment declares,”[N]or shall any State deprive any person of life, liberty, or property, without due process of law” (§ 1).

Of course, Filner’s victims also have a due process claim – no  citizen or employee should be subject to “intimidating contact”  by the  Mayor of San Diego.

Judge Whacks EEOC With $4.7 in Fees

Case of Female Truck Drivers Crashes and Burns

It’s easy to forget that EEOC v. CRST Van Expedited, Inc. started with a 2005 sex discrimination complaint by a female truck driver trainee, Monika Starke, who said she was sexually harassed  by her two “Lead Trainers.”

 Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled recently that the U.S. Equal Employment Opportunity Commission must pay CRST, one of the nation’s leading transport companies,  $4,694,422.14 in attorney fees and costs stemming from the case.

Judge Reade’s decision  is brutally unsympathetic to the EEOC and the  255 female trainees and drivers who alleged sex discrimination and harassment against CRST.  She appears to be much more concerned about the supposedly unfair burden the litigation placed on CRST. 

The case began with a sex discrimination lawsuit filed by the EEOC on behalf of Starke and other similarly situated employees.  

 Court records show that Monika Starke alleged that one of the CRST trainers told her “the gear stick is not the penis of my husband, I don’t have to touch the gear stick so often”  and “You got big tits for your size, etc. . . “  She said she told him she was not interested in a sexual relationship with him and called the CRST dispatcher to complain.   “[I] was told that I could not get off the truck until the next day.”  she said.

 Starke’s other “Lead Trainer”  allegedly forced Starke to have sex with him while traveling from July 18, 2005 through August 3, 2005  “in order to get a passing grade.”

 Starke is described as a German who struggles with English. She and her  husband subsequently hired a lawyer and filed for bankruptcy.  They failed  to mention  the CRST lawsuit, prompting CRST to file a motion to prevent Starke from proceeding against CRST on grounds of judicial estoppel –  a doctrine that is meant to protect the integrity of the court.  Judge Reade granted the motion.

 In fact, Judge Reade granted CRST’s pre-trial motions to dismiss all of the complaints of sexual harassment and discrimination filed by the EEOC against CRST. 

  In a dozen cases, Judge Reade said the complaints were not “severe or pervasive” enough.

  In other cases, Judge Reade said CRST did not have legal (as opposed to real)  notice of the harassment and the “Lead Drivers” – who evaluated the performance of the female trainees – did not fall within the court’s technical definition of  supervisor in that they could not fire the trainees.

 Judge Reade dismissed 67 cases because the EEOC did not attempt to conciliate or negotiate with the CRST to settle the cases –  which appears to be a brand  new requirement that could severely limit the  EEOC in the future. Judge Reade conceded that dismissal was a  “severe” sanction for these complainants.

 The EEOC appealed Judge Reade’s dismissal of the case  to the U.S. Court of Appeals for the 8th Circuit.

Appeals Court

In its decision, the  Eigth Circuit agreed that the “Lead Drivers” are not supervisory employees and that CRST was not vicariously liable for sexual harassment/discrimination committed by these employees.  

 The  appellate court generally agreed that claims by female complainants that they were propositioned for sex by male trainers and drivers were not sufficiently severe or pervasive to support a hostile work environment claim. The Court said an individual must show “more than a few isolated incidents” to support such a claim.  (It was unclear exactly how many times  a worker must be propositioned for sex to qualify as being harassed.)

 However, the appeals court disagreed with the dismissal of the claims of three female plaintiffs and ordered them reinstated. The court also reversed Judge Reade’s earlier grant of attorney fees to CRST in the amount of $4,560,285.11.

One of the three employees whose case was reinstated was Sherry O’Donnell,  who spent  seven days on the road with a male co-driver who asked her on three to five occasions to drive naked;  refused her request to stop at a truck stop so she could go to the bathroom,  ordering her instead to urinate in the parking lot; and, “in a culminating incident grabbed O’Donnell’s face while she was driving and began screaming that ‘all he wanted was a girlfriend.’ Regarding this third incident, O’Donnell testified that Sears grabbed her face so vigorously that it caused one of her teeth to lacerate her lip.”

Her lead trainer began screaming that ‘all he wanted was a girlfriend.’ He grabbed her face so vigorously that he caused one of her teeth to lacerate her lip.

 The other complainant, Tillie Jones, testified that during a two-week training trip, her Lead Driver, wore only underwear in the cab and on several occasions rubbed the back of her head, despite her repeated requests that he stop. He allegedly referred to Jones as  “his bitch” five or six times and, when Jones’s complained about his slovenly habits, ordered Jones to clean up the truck, declaring “that’s what you’re on the truck for, you’re my bitch. I ain’t your bitch. Shut up and clean it up.”  Like many of CRST’s Lead Drivers, Jones said he routinely urinated in plastic bottles and ziplock bags while in transit, leaving  his urine receptacles about the truck’s cab for her to clean up.  

 The appeals court ruled the EEOC established material issues of fact regarding the harassment that O’Donnell and Jones allegedly suffered. “We hold that the district court erred in concluding, as a matter of law, that the harassment they suffered was insufficiently severe or pervasive,” the court said.

 Finally, the Court rejected Judge Reade’s finding that the EEOC itself was barred by the doctrine of judicial estoppel from proceeding on Monika Starke’s behalf, noting the EEOC had not misrepresented any facts to the court.  That brought Ms. Starke case back into the litigation.

 After the appeals court’s decision, CRST agreed to pay Ms. Starke $50,000 to settle Ms. Starke’s case, which most people would interpret as a victory for Ms. Starke. 

 The EEOC decided it could not proceed with respect to O’Donnell complaint, citing the “law of the case.” This presumably refers to Judge Reade’s ruling that the EEOC was required to directly engage in “conciliation” with CRST on each complaint.  

 Which left Ms. Jones as the sole surviving plaintiff.

Even though  the appeals court ruled in the EEOC’s favor with respect to several issues, Judge Reade ruled CRST was the ‘prevailing party” in the case and was entitled to almost $5 million in fees and costs.

 The final award to CRST is actually larger than the earlier award by Judge because Judge Reade included fees and costs expended by CRST related to the appeal.

 Judge Reade was appointed to the federal court in 2002 after being nominated by President George W. Bush.

 

Still OK to Fire Irresistable Attraction

The all-male Supreme Court of Iowa has upheld its earlier decision that a dentist did not discriminate when he fired his long-time dental hygienist whom he found to be an irresistible attraction. 

 In its decision, the Court focused upon the purported reason that the dentist fired the hygienist, rather than the dentist’s behavior. 

The Court said the legal question it must decide was: “Can a male employer terminate a long-time female employee because the employer’s wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee?” 

The Court concluded that Dr. James H. Knight did nothing illegal when he fired  hygienist Melissa Nelson because Knight’s wife insisted that he do so –  not because of sex discrimination.

The Court upheld the firing last December but agreed to reconsider the case after a the ruling was widely criticized. (Ms. Nelson appeared in a skit lampooning the decision  on  Comedy Central.)  At that time, this blog observed that employees  often have little protections against discriminatory behavior when the employer is the boss.

Even though  Knight admitted that  the alleged threat to his marriage would not have existed if Nelson were male, the Iowa Court said the record did not support a conclusion that Knight took an adverse employment action against  Nelson “because of a gender-specific characteristic.” 

Nelson, who worked for  Knight, for about ten years,  alleged he violated the Iowa Civil Rights Act because she would not have been fired if she had been male.

The Court said Knight’s motive for firing Nelson was his desire to allay his wife’s concerns over Nelson’s “perceived”  threat to their marriage. “The civil rights laws seek to insure that employees are treated the same regardless of their sex or other protected status … , Dr. Knight’s unfair decision to terminate Nelson (while paying her a rather ungenerous one month’s severance) does not jeopardize that goal,” said the Court.

Nelson, who was 20 when she began working for Knight in 1999, denied ever flirting with Knight and said she considered him to be a friend and father figure.

 During the last year and a half of her employment, Knight began making sexual comments to her. Among other things, he complained that her clothing was too tight and asking her to put on a lab coat.  Knight acknowledged he told Nelson that “if she saw his pants bulging, she would know her clothing was too revealing.”

Nelson and Knight began texting during the last six months of Nelson’s employment.  Knight admits he asked her how often she experienced an orgasm. The Court found it significant that Nelson, who did not answer the text, “does not remember ever telling Dr. Knight not to text her or telling him that she was offended.”

Knight’s wife, Jeanne, discovered that Knight and Nelson were texting and demanded that he terminate Nelson’s employment because Nelson “was a big threat to our marriage.”

In both of its rulings the Court upheld a pre-trial ruling by a lower court judge, who granted Knight’s request for summary judgment in Nelson v. Knight, No. 11–1857 (Dec. 21, 2012).. Thus, the Court has twice concluded that there is absolutely no way that a jury could legally  decide against Knight and hold in favor Nelson. The Court’s holding means that there will be no trial in the case.

The Court notes that Nelson, did not file a sexual harassment lawsuit. or allege a hostile work environment.

 

Stopping Sexual Harassment

In the past, this blog has questioned why sexual harassment is not a criminal offense in the United States as it is in France.

Now the U.S. Equal Opportunity Commission (EEOC) has filed a second complaint against a business owner who is  characterized as a “serial” sexual harasser because he paid  $780,000 to five women in 2003 to settle a sexual harassment complaint.

The EEOC alleges that Fred Fuller Oil Company, a Hudson, N.H.-based oil company, violated federal law when  owner Fred Fuller sexually harassed two women, caused the constructive discharge of one, and fired the other.

Fuller allegedly forced Nichole Wilkins to quit in July 2011 after he sexually assaulted her by grabbing and squeezing both her breasts from behind while pinning her against her desk.  The EEOC says this assault was the culmination of a growing number of unwanted and inappropriate sexual comments and incidents of touching by Fuller. 

 Fuller then allegedly created a sexually hostile work environment for Wilkin’s friend and co-worker, Beverly Mulcahey. Shortly after Wilkins notified Fuller in October 2011 that she intended to file an EEOC charge of discrimination, Fuller fired Mulcahey for poor performance.

Déjà Vu

The EEOC sued Fred Fuller Oil Company in 2003 and settled that case in July 2005, winning  $780,000 in relief for five women.  As part of the settlement, the company agreed to undergo training aimed at conforming to Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment.

Markus L. Penzel, trial attorney in the EEOC’s Boston Area Office, said in a press release last month, “The Commission characterized Fred Fuller as a ‘serial sexual harasser’ in its first lawsuit.  Unfortunately, that still seems to be true.”

With sincere respect to Mr. Penzel, it is more than unfortunate that additional women were allegedly targeted by Fuller.  If the EEOC’s complaint is true, these women not only suffered emotional distress but were hounded out of their jobs, resulting in a loss of their financial well-being.

The women who worked for Fred Fuller Oil Co. probably have little in common with  Sherly Sanburg, the billionaire Harvard University graduate and  chief financial officer of Google. She implies in a recent bestselling book that women are partly responsible for their own lack of equality in the workplace. 

The reality is that victims of sexual harassment often are single mothers living paycheck-to-paycheck, with few other employment options, and college students who are trying to earn money to pay their tuition. These women are vulnerable, often not believed, sometimes blamed, almost always powerless and utterly disposable.   

Get Serious!

There’s been a lot of discussion about sexual harassment in the military as a result of publicity surrounding alleged improper sexual conduct of military officers who are responsible for protecting  women from sexual harassment. Surveys show that a third of American women report experiencing sexual harassment in the workplace.

Employers have done far too little to halt sexual harassment and the EEOC lacks the resources to effectively address this problem. 

It appears that Fred Fuller  was not deterred by a monetary fine. He  also did not appear to  benefit from education about what constitutes improper sexual conduct in the workplace or training on  how to comply with Title VII of the Civil Rights Act. What might have deterred Mr. Fuller?

 France’s  Law

France’s General Assembly enacted a new sexual harassment law on July 31, 2012 that includes criminal penalties of up to three years in prison.

New articles in the French Labor Code and the Penal Code state:

“Harassment is the fact of imposing on a person, in a repetitive fashion, statement or behavior of a sexual connation which violate a person’s dignity by virtue of their degrading or humiliating character or create as concerns such person an intimidating, hostile or offensive situation.”

Under the French law, it is considered an “aggravating circumstance” if a perpetrator of workplace sexual harassment is abusing his or her authority.

If Fred Fuller had snatched the purse of his first victim, he would have been lucky to get just a warning.  If he had continued this behavior, he would  have spent time in jail. That’s because stealing a  purse is a crime. 

Shouldn’t it be a crime to steal someone’s peace of mind and financial livelihood?  

Oregon Interns Get Harrassment/Discrimination Protection

InternsUnpaid interns are especially vulnerable to predatory behavior in the workplace because they are young and inexperienced.

However, many courts have ruled that unpaid interns are not protected by state and federal harassment and discrimination laws.

This week the Oregon legislature agreed to extend workplace protections against harassment and discrimination to unpaid interns.  These protections formerly were reserved only for employees.

The Oregon Senate unanimously passed HB 2669, sending it to Gov. John Kitzhaber for signature. The Oregon house unanimously passed the bill last month. Kitzhaber has indicated that he will sign the bill. 

The new law will give unpaid interns legal recourse against employers for workplace violations including sexual harassment; discrimination based on race, color, religion, gender, sexual orientation, national origin, marital status or age; and retaliation for whistleblowing, among other things.

With no protection in state law, you might think that unpaid interns could turn to federal law. You’d be wrong.

The Equal Employment Opportunity Commission has issued  guidelines that provide coverage to volunteers under Title VII of the Civil Rights Act of 1964 “if the volunteer work is required for regular employment or regularly leads to employment with the same entity.”  However, unpaid interns have been unable to bring sexual harassment or civil rights complaints under Title VII  because judges have not found them to be “employees”  to whom protections are explicitly afforded.

According to a  2010 study by the Economic Policy Institute (EPI), federal courts have consistently found that the question of whether an individual is compensated for his or her work by an employer is the first test for determining employee status. Accordingly, unpaid interns, or even interns paid by an entity other than an employer, do not receive workplace discrimination protection.

The EPI study reports that the leading precedent for the failure to protect unpaid interns is the case of O’Connor v. Davis,  126 F.3d 112 (2d Cir. 1997).  Bridget O’Connor was required to complete an internship for her college degree and chose to work at a local psychiatric center. There, O’Connor allegedly was subject to repeated sexual harassment by one of her supervisors, Dr. James Davis. The district court summarily dismissed O’Connor’s complaint because the plaintiff, as an unpaid intern, did not receive compensation from the center, and thus did not qualify as an employee protected under Title VII. The decision was upheld on appeal.

Oregon Labor Commissioner Brad Avakian told the Associated Press that interns had contacted his office looking for help in the past and “we had to tell them that the law did not protect them.”

Under the measure, an intern who alleges workplace harassment or discrimination, among other violations, can bring a lawsuit against the employer or file a formal complaint with the Oregon Bureau of Labor and Industries.

Avakian said the idea for the bill came from a legislative intern at the Bureau of Labor and Industries. He said the intern discovered the loophole and brought it to his attention.  In 2011, a similar bill failed to gain traction. This year, however, the bill passed with broad support from civil rights groups and a student advocacy group.

The Oregon law  does not create an employment relationship and does not affect wage or workers’ compensation laws.

 Photo by: John Amis