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.

Continue reading “Hollow Victory of Anti-Bully Law”

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..

 

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

 

 

Somewhat Improved Healthy Workplace Bill

… But Still Needs Work

The heretofore anemic  Healthy Workplace Bill (HWB) has received a dose of iron in its latest iteration in Massachusetts.

The version of the  HWB subpumping ironmitted for consideration to the Massachusetts’ legislature omits  the  $25,000 cap on damages for targets who were not subjected to demotion or dismissal.

The Workplace Bullying Institute has pushed the HWB, written by Suffolk University Law Professor David C. Yamada,  for more than a decade as part of state-by-state campaign to pass workplace anti-bullying legislation.  More than 20 states have considered the HWB bill since  2002 but none as yet have adopted it.  This year the bill is under consideration in about a half dozen states.

International scholars criticized the HWB in recent years because it was far less protective of targets of workplace bullying than laws and regulations of other industrialized countries.

This blog criticized the HWB’s  requirements that targets prove malice and psychological damage (the latter was expressly rejected by the U.S. Supreme Court in federal anti-discrimination laws) and the unreasonably low cap on damages.

The revised bill still defines an abusive work environment as one where “an employer or one or more of its employees, acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm, psychological harm, or both.”

How would one go about providing that a  bully acted “with intent to cause pain  or distress?”  I have no idea. Suggestions?

In addition,  workplace bullying almost always involves psychological harm. The bill’s requirement to prove psychological harm penalizes poor people and members of minority groups who tend to visit mental health professionals far less frequently for monetary or cultural reasons.  In addition, this approach was explicitly rejected by the U.S. Supreme Court as a requirement in race and sex  discrimination cases involving a hostile workplace . (Harris v. Forklift System510 U.S. 17 (1993)).

The proposed  Massachusetts bill,  sponsored by Rep. Ellen Story and Sen. Katherine Clark.

A far better alternative to the problem of workplace bullying has been proposed by State Sen. Richard “Tick” Segerblom of Nevada.

Segerblom proposed extending the umbrella of  discrimination laws to protect any worker who is exposed to a “hostile work environment.”  Currently, only workers who have protected status under these laws by virtue of their race, sex, national original, etc. are protected.

If an employer or an employee are held to be in violation of the law, the Massachusetts bill  provides  that a court can  order any relief that is “deemed appropriate, including, but not limited to: reinstatement, removal of the offending party from the complainant’s work environment, back pay, front pay, medical expenses, compensation for pain and suffering, compensation for emotional distress, punitive damages, and attorney’s fees.”

According to the proposed bill, an abusive workplace environment is one where “an employer or one or more its employees, acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm, psychological harm, or both.”

Abusive conduct involves “acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature, and frequency of the conduct … .”  This includes but is not limited to:

  • repeated verbal abuse such as the use of derogatory remarks, insults, and epithets;
  • verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature;
  • or the sabotage or undermining of an employee’s work performance.

The proposed Massachusetts bill continues to distinguish between targets of  bullying who have and have not been subjected to an adverse employment action (i.e., demotion or dismissal).  The cap is gone but the latter still cannot  recover from the employer  damages for  emotional distress or punitive damages unless the “actionable conduct was extreme and outrageous.” This limitation does not apply to “individually named defendants.”  Thus, an employee who did not suffer an adverse employment action can only seek monetary damages from bully unless the actionable conduct was extreme and outrageous.

The bill also prohibits retaliation against targets who complain and anyone else who testifies, assists or participates in an investigation of workplace bullying.

The stated purpose of the Massachusetts bill is to provide a “legal incentive for employers” to prevent and respond to abusive treatment of employers at work.

Under the bill, it is  an “aggravating factor” if the abusive conduct exploits an employee’s known psychological or physical illness or disability. In that case, a single act that is “especially severe and egregious” would be actionable.

Employers  can escape liability by showing they exercised “reasonable care to prevent and correct  promptly any actionable behavior; and, the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.”

Also, employers cannot be penalized if the complaint is based on an adverse employment action made for poor performance, misconduct or economic necessity, a reasonable performance evaluation or “an employer’s reasonable investigation about potentially illegal or unethical activity.”

The bill would require an employee to  file an action within a year of  the last act that constitutes the alleged violation.

Strippers are ‘Employees’

When is a worker  an employee who is entitled to a salary and unemployment benefits?

This question was at issue in a Kansas case that sheds light on the exploitative world of strip clubs and so-called gentlemen clubs.

Shortly after Milano’s, Inc. purchased a Topeka strip club called Club Orleans in 2002,  company President John Samples began treating the club’s exotic dancers as independent contractors rather than employees.  This meant the dancers were no longer paid even a nominal weekly wage, instead earning only tips paid by customers of Club Orleans. And they were not paid health or insurance benefits.

In 2005,  one of the dancers filed an unemployment claim, prompting the state to assign an auditor to investigate Milano’s. The auditor concluded  the dancers were not independent contractors but were employees under Kansas law.

Milano’s challenged the auditor’s determination on various technical grounds and two  lower courts upheld the determination. The case finally reached the Supreme Court of the State of Kansas.

Earlier this month, the Kansas Supreme Court  ruled that the determinative question was whether the dancers had the status of employees under common law rules that determine the employer-employee relationship. The Court said in Milano’s, Inc. v. Dep’t of Labor that the critical common-law factor in the analysis was the employer’s right of control over the employee and her work.

The record showed that the dancers were required to sign what was essentially  a “contract for hire” in the form of an application to work at Milano’s. The contract required the dancers to  abide by the house rules and gave Milano’s the right to fine or terminate the dancers.  Furthermore,  Milano’s, without consulting the dancers, adopted a  minimum tip policy for various types of dances and required the dancers to accept drinks from customers. Milano’s enforced the house rules.

According to the Court:

“Ample substantial competent evidence in the record before us, as echoed in the factual findings below, demonstrates that Milano’s possessed such a right of control over the dancers at Club Orleans. Most telling, the house set various rules, and dancers’ violations of those rules were punishable by fines and termination.”

The Court concluded that exotic dancers subject to a right of control by the owner of the club where they perform are employees under the “usual common law rules” incorporated into K.S.A. 44-703(i)(1)(B) of the Kansas Employment Security Law.

Although the ruling was limited to unemployment insurance benefits, it could have an impact on other independent contractors who seek employee status to be eligible for employment benefits such as workers compensation, disability benefits, etc.

Wage theft is epidemic  in the United States, according to the Progressive States Network (PSN),  a non-partisan, non-profit organization dedicated to supporting the work of progressive state legislators around the country and to the advancement of state policies that support issues that matter to working families.

Wage theft occurs when employers  misclassify workers as exempt employees when they are actually non-exempt employees (who are entitled to overtime)  or  misclassify workers as  independent contractors when they are truly employees.

The PSN estimates that more than 60 percent of low-wage workers suffer wage violations each week. On average, the PSN reports, low-wage workers lose $51 per week to wage theft, or $2,634 per year.  For low-wage workers, that amounts to 15 percent of their annual income, at average earnings of $17,616 per year.

Chicago’s Innovative Effort to Stop Wage Theft

cityofbroadshoulders

The city of Chicago this month  became the second, and biggest, city to pass an ordinance addressing the problem of  wage theft.

The Chicago ordinance appears to be an innovative and potentially highly effective initiative to combat a  problem that disproportionately affects low wage workers and undocumented immigrants.

  The ordinance states any licensee that is in the business of debt collection must comply with federal and state wage and hour laws. It states that failure to comply with these laws  can result in the revocation of the company’s business license for at least four years.  The ordinance potentially covers most licensees, since most  companies  engage in debt collection in the ordinary course of business. This includes everything from licensed day care centers to hotels and beauty parlors.

 Last fall, the Broward County Commission in Florida passed an ordinance that allows employees who are owed $60 or more for work done in the county to turn to the county for help.  Before filing the complaint, however, the employee must write a letter to the employer outlining how much is owed. If the paycheck shows up within 15 days, the complaint wouldn’t be filed.

Epidemic

Wage theft is widely considered to be epidemic in the United States.

Aaccording to a report released last year by the Progressive States Network (PSN ) state laws are grossly inadequate to combat  “wage theft” by unscrupulous employers. Some states levy no fines at all for wage theft, according to the report, while most others invoke penalties smaller than a speeding ticket.

 There is, of course,  an overarching  federal law that prohibits wage theft – the Fair Labor Standards Act (FLSA) – but it largely relies upon voluntary compliance.

 The FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour and overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.

 The FLSA is technically “enforced” by the Wage and Hour Division of the U.S. Department of Labor (DOL) but, as the PSN report notes, the DOL has only one enforcement agent for every 141,000 workers, down from one per 11,000 workers in 1941.

 The PSN estimates that more than 60% of low-wage workers suffer wage violations each week.  On average, the PSN reports, low-wage workers lose $51 per week to wage theft, or $2,634 per year. For low-wage workers, that amounts to 15% of their annual income, at average earnings of $17,616 per year.

Misclassification of Employees

Rogue employers often evade complying with wage and hour laws by classifying non-exempt employees as exempt under the FLSA and thus not entitled to overtime.

I once worked for an organizaton that misclassified administrative assistants  as exempt, requiring them to work long periods of uncompensated overtime at conferences and events. After years of this, one employee filed an anonymous complaint with the DOL. The organization was forced to pay affected employees who were  then on the payroll minimal amounts to supposedly compensate them for their loss.  This was an insignificant penalty for the employer,  considering the years of abuse that had occurred and the many uncompensated victims who were no longer working at the company.

To qualify for an  exemption from the FLSA, an employee must be paid on a salary basis at a rate not less than $455 per week, must perform work directly related to the  management or business operation of the employer, and must be responsible for exercising independent judgment or discretion with respect to matters of significance.

 Another way that employers circumvent the FLSA is to classify employees as independent contractors. This is not inherently illegal but it can be if the purpose of the independent contractor classification  is to deny the employee access to benefits and protections – such as family and medical leave, overtime compensation, minimum wage pay and unemployment compensation.

 In 2011, the DOL launched a “Misclassification Initiative” to address the problem with respect to independent contractors. Thus far, the states of Iowa, California, Colorado, Connecticut, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington have signed memorandums of agreement to join the DOL initiative. The agreements will enable the DOL to share information and coordinate enforcement efforts with the participating states.

 Misclassification creates economic pressure for law-abiding business owners, who find it difficult to compete with those who are skirting the law. Employee misclassification also generates substantial losses for state Unemployment Insurance and workers’ compensation funds.

 Alderman Ameya Pawar spearheaded the Chicago effort to pass the wage theft ordinance is quoted as stating: “I sponsored this ordinance because it’s something that’s deeply personal to me.  I’ve worked with refugees in the past and I’ve seen how vulnerable populations have become victims to wage theft.”

OK for Dentist to Fire Object of Desire

flossIn a small office, an employee often has no where to go  when she is mistreated by an employer.

The perils of this predicament are amply demonstrated in a recent ruling by the Supreme Court of Iowa.

The all-male Court  ruled that a dentist did not violate sex discrimination laws when he fired his long-time dental assistant because he (and his wife) was afraid he would have an affair with her.

The  Court upheld a lower court’s grant of summary judgment  in the case of Nelson v. Knight, No. 11–1857 (Dec. 21, 2012). This means the Court concluded  there was absolutely no way a jury could decide against Dentist James H. Knight and hold in favor of his assistant, Melissa Nelson.  Therefore, the case was dismissed before  trial.

Knight said he fired  Nelson, who had worked for him for ten years,  after his wife insisted that Nelson had to go. He gave Nelson one month’s severance.

 Knight admits that on several occasions he asked Nelson to put on a lab coat because her clothing was too tight, revealing and “distracting.”  Nelson denied that her clothing was tight or in any way inappropriate and said she complained to Knight at one point that his criticism was unfair.

 Nelson also recalls that  Knight once texted her to ask how often she experienced an orgasm. Nelson did not answer the text. The Court found it significant that  Nelson did  not remember ever telling  Knight not to text her or telling him that she was offended.

 When Knight’s wife found out that her husband and Nelson had been  texting each other, she confronted her husband and demanded that he terminate Nelson’s employment.  The Court finds it significant that Knight and his wife  consulted with the senior pastor of their church, who agreed with the decision.

After the firing, Knight told Nelson’s husband that nothing was going on but that he feared he would try to have an affair with her down the road if he did not fire her.

Nelson charged that Knight had discriminated against her on the basis of sex in violation of the Iowa Civil Rights Act. She contended that she would not have been fired if she were male. Nelson did not raise the issue of sexual harassment.

 The Court states in its decision that the question  to be decided was “whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction.”   In this case, the Court held that  Knight’s decision was driven by individual feelings and emotions regarding a specific person. The Court concluded Knight’s decision was not gender-based or based on factors that might be a proxy for gender.

The Court states that an employer does not violate sex discrimination laws by ” treating an employee unfairly so long as the employer does not engage in discrimination based upon the employee’s protected status.”

 The Court did concede that it might be possible to infer that gender was an issue if an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues.

 So if  Knight repeatedly fires future assistants because he thinks he might want to have an affair with them, or if Knights’ wife demands that he fire future assistants because she thinks he might want to have an affair with them,  presumably a Court could find discrimination  on the basis of sex.

Meanwhile, Melissa Nelson is unemployed, with one month’s severance.

This may not come as a surprise to some readers but, according to the Court’s web site, there are no women justices on the Iowa Supreme Court. The seven justices are Chief Justice Mark S. Cady, David S. Wiggins, Daryl L. Hecht, Brent R. Appel, Thomas D. Waterman, Edward Mansfield and Bruce Zager.  Justice Mansfield wrote the opinion.

Last Laugh? Not for NY Taxpayers

My Boss’s Voice Made Me Vomit!

That was the headline in a  2/15/11 story in The New York Post.

The story was about a lawsuit filed by New York Housing Authority Superintendent Anthony Dingles against  the New York City Housing Authority and his boss, Demetrice Gadson. Dingles alleged Gadson began a campaign of constant verbal attack after he complained to higher ups about her poor management techniques. As a result, he said he literally became sick when heard her voice. He said the stress forced him to get medication for his stomach and intestinal system, inflamed his bleeding prostrate and he was so beaten down emotionally that he began therapy.

The New York Post’s web blog carried mocking comments: “He’s obviously not married, or he’d be used to it,” and “Where are the Sopranos when you need them?”  The Post gave the incident its annual Golden Stapler “As the Stomach Turns” award.

After a nine-day trial, a federal jury in New York concluded in December that Gadson violated the Dingles civil rights by filing frivolous disciplinary charges against him in retaliation for complaints that were protected by the First Amendment of the U.S. Constitution.

The jury awarded Dingles only  “nominal” damages of $1.  However,even that small amount is a disaster for the Housing Authority because it entitles the attorneys who represented Dingles, Bennitta Joseph and Alexander Coleman, to collect attorney fees from the city.  Such fees could reach up to $450,000.  And this doesn’t take into account what the city paid to defend Gadson, as well as all of the lost work time, absenteeism, increased health costs, etc.

Taxpayers of New York City ultimately will pay the bill for Gadson’s bullying. It might have been avoided. The New York Senate passed a workplace anti-bully bill in 2010 but it subsequently died in the House.

Meanwhile, Dingles, who still works for the housing authority, succeeded in protecting his job and no longer is supervised by Gadson.  Which is not a bad result for Dingles.