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).

Hollow Victory of Anti-Bully Law

The recent controversy over the passage of an anti-bully law in Tennessee provides more evidence that a national solution is the only viable way to combat the epidemic of workplace bullying in the United States.

The Wall Street Journal recently reported upon the lack of enthusiasm for a new law passed by Tennessee’s legislature last May to protect public sector employees from workplace abuse. The upshot of the story was that the law actually provides little or no protection to public sector workers who are targets of bullying and workplace abuse.

Tennessee’s  “Healthy Workplace Act” calls for an advisory commission to create a model anti-bully policy for public sector workers by March 1, 2015.  The law states that if a public sector employer adopts the model policy or an equivalent anti-bully policy  “then the employer shall be immune from suit for any employee’s abusive conduct that results in negligent or intentional infliction of mental anguish.” Thus, if administrators  simply adopt a policy –  even if it is never enforced –  they will receive legal immunity from potential lawsuits.

Not only does the Tennessee law do little to protect workers, it potentially could make things worse by preventing targets of workplace abuse from seeking damages for emotional distress while removing what many consider to be the only real  incentive for employers to maintain a healthy workplace – the threat of a lawsuit.

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Court Requires CA Attorneys to be Civil

“And do as adversaries do in law — strive mightily but eat and drink as friends.”  – William Shakespeare, The Taming of the Shrew.

It has been a long time (400 years?) since lawyers were held up as the poster children for civility. Rambo tactics and scorched earth strategies can be seen in courtrooms around the country. As a result, surveys show that respect for the legal profession has plummeted and almost everyone associated with the practice of law is miserable.

But that may be changing.

The California Supreme Court recently became one of a half-dozen states to require that new lawyers promise to play nice. Starting May 23, new lawyers must take a pledge to be admitted to the California bar in which they promise to strive to conduct themselves “at all times with dignity, courtesy, and integrity.” A civility provision also has been incorporated into attorney oaths in South Carolina, Utah, New Mexico, Florida and Arkansas.

The California initiative is part of a movement called “Civility Matters” that was started about five years ago by the American Board of Trial Advocates (ABOTA), which requires its members to treat everyone – opponents, witnesses and judges – with dignity and respect.

The entire California oath for new attorneys is now:  “I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability. As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.”

By including a civility clause, the state Supreme Court effectively empowers itself to withdraw its permission for an offensive attorney to continue to practice law in that state. It remains to be seen, of course, how the Court will choose to enforce the rule.

Nadir of Professionalism?

A few decades ago, the bar began to change with the unchecked proliferation of law schools churning out attorneys who were forced to hustle for work and who, sometimes, pursued victory at all costs.

In 2009, U.S. District Judge Gene Ellen K. Pratter documented the decline in attorney professionalism in a Pennsylvania case brought by a school custodian who alleged race discrimination and retaliation . Higgins v. Coatsville Area Sch. Dist., No. 07-4917, slip op. at 10 (E. D. Pa. Sept. 16, 2009) (mem. op.).

Judge Pratter observed that the lawyers in the case, Lewis Hannah and James E. Ellison,  “crossed the line between appropriately aggressive advocacy and unrestrained, pointless offensive name-calling” during a deposition of a school official identified as Dr. Walker.  She quotes from a transcript of the deposition:

“For instance, when Defendants’ counsel, Mr. Ellison, objected to a question posed by [plaintiff’s counsel] Mr. Hannah  to Dr. Walker, Mr Hannah responded, “Shut up. You are such an a-hole.” Mr. Ellison’s rejoinder was, “Next question. Dr. Walker, [Mr. Hannah]’s off his meds today. Pay no attention to that.”

Judge Pratter said both attorneys were at fault but that Hannah “racheted the acrimony higher and the standards lower, using a few choice epithets for Mr. Ellison, by angrily referring to defense counsel at least four times as, among other things, a certain unattractive end-piece of anatomy.”

At one point, Judge Pratter said, Hannah called Ellison “boy” – both Hannah and Ellison are African-Americans. Pratter noted that one of the allegations brought by Hannah’s client, also an African-American, was that Dr. Walker allegedly called him “boy.”   Ellison and Dr. Walker walked out of the deposition and Ellison sought sanctions against Hannah.

“Treating an adversary with advertent discourtesy, let alone with calumny or derision, rends the fabric of the law,” observed Judge Pratter.

She required Hannah to attend a continuing legal education course dealing with civility and professionalism. In an apparent reference to the Shakespeare’s quotation above, the judge also required both counsel to meet together “for an informal meal in an effort to facilitate the repair of their professional relationship” and then report back to the court.

Judge Pratter referred to various rules of professionalism adopted by Pennsylvania  bar associations. “Perhaps the adversaries in this case can be reinspired to achieve the Shakespearean vision and the aspirational goals of the very rules of professional conduct by which counsel have pledged to abide, wrote Judge Pratter.

Another Defeat for Healthy Workplace Bill

TIME FOR A NEW APPROACH

The decade-long strategy of adopting state-by-state legislation to deal with workplace bullying in the United States has suffered yet another defeat.

The Maine House of Representatives recently voted 87-56 to sustain Maine Gov. Paul LePage’s veto of a bill aimed at bullying in the workplace that had been adopted by Maine’s legislature.

 The bill, which was supported by the Workplace Bullying Institute (WBI), directed the Maine Workers’ Compensation Board to study psychological and physical harm employees suffer due to abusive work environments. 

 In his veto message, the governor said the study was unnecessary because the Workers’ Compensation Board already provides benefits to employees who suffer physical and psychological injuries on the job.

 Maine was the 24th state to consider some version of the WBI’s proposed  Healthy Workplace Bill  but no state has yet to adopt it.

 This blog advocates a federal and national solution to the problem of workplace bullying, which affects one in every three or four workers in the United States. So far about 8,000 targets of workplace bullying have signed a petition demanding action from the Obama Administration.

 Ruth and Gary Namie, founders of the WBI, have led  a decade-long campaign to pass proposed legislation called The Healthy Workplace Bill.

 Drafted by Suffolk University Law Professor David Yamada, the bill was overhauled earlier this year after criticism by workplace anti-bully advocates that it offered far less protection to targets of workplace bullying than similar legislation in other countries.  

The Namies, who aggressively market consulting services and book sales on the WBI web site,  and Mr. Yamada, who formed an organization called The New Workplace Institute, have not cooperated with other workplace anti-bully advocates who formed a coalition last year (Protect US Workers) to  support a federal solution to workplace bullying.

America lags far behind Europe, Canada, Australia and many other industrialized countries in protecting workers from bullying, which is widely considered to be a health-harming form of workplace violence..