EEOC Whacked Again on Background Checks

Ct Rejects Race Discrimination Initiative

Another court has rejected the U.S. Equal Employment Opportunity Commission’s initiative to combat race discrimination by limiting the use of criminal background checks in hiring.

The U.S. Court of Appeals for the Sixth Circuit in Michigan this week upheld a lower court ruling requiring the EEOC to pay $751,942.48 in fees and costs to Peoplemark, a temporary-employment agency with offices in Michigan, Tennessee, Kentucky and Florida.

The award includes $526,172 in fees to Peoplemark’s in-house expert, an amount the EEOC  called astounding, inappropriate and poorly documented.

 EEOC Director Jacqueline Berrien recently maintained that the EEOC does not challenge an employers’ decision to conduct criminal background checks but instead challenges screening processes that are not job related and consistent with business necessity and which have a disproportionate impact on African-Americans.

The EEOC filed a complaint in 2008 alleging that Peoplemark had a blanket policy of denying employment opportunities to persons with felony records and that this policy had a disparate impact on African Americans.

Obvious?

Initially, it appeared obvious that Peoplemark had a policy of denying employment to applicants with felony records. Peoplemark used  an application form that asked applicants if they have a felony record and conducted independent investigations into the criminal records of all applicants. Most importantly, Peoplemark’s Associate General Counsel Judd F. Olsten actually admitted to the EEOC that Peoplemark had a company-wide policy of rejecting felon applicants

Peoplemark did not did not deny the existence of a company-wide policy against hiring felons until July 2009 – almost two years after the EEOC began investigating and a year after the  EEOC’ filed its complaint.

The appeals court notes that Peoplemark had  turned over 178,888 discovery documents to the EEOC by Oct. 1, 2010 which showed that Peoplemark had referred felons to job opportunities.  The fee award  dates October 2010.

According to the appeals court: “When discovery clearly indicated (Peoplemark’s Chief Counsel’s) statements belied the facts, the Commission should have reassessed its claim.”

The appeals court also noted the EEOC identified a class of 286 individuals that included applicants that did not have felony convictions and applicants who obtained employment through Peoplemark despite their criminal records.

The EEOC and Peoplemark agreed by joint motion to dismiss the case in March, 2010, with Peoplemark held to he prevailing party for fee purposes.  The EEOC argued it could have filed an amended complaint stating a valid claim against e at that time, an argument the court found to be irrelevant.

The award includes  $219,350.70 in attorney’s fees, $526,172 in expert witness fees (for 123.55 hours of work) and $6,419 in other expenses.

The case involved a complaint by Sherri Scott, an African-American with a felony conviction, submitted an application and was not referred for employment.  She filed a discrimination complaint under Title VII of the Civil Rights Act and the EEOC began an investigation.

In August, Judge Roger Titus of the U.S. District Court for the District of Maryland dismissed a lawsuit brought by the EEOC in 2009 against Freeman, Inc., a service provider for corporate events, which alleged Freeman unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants.

The Attorney Generals  of West Virginia, Colorado, Alabama, Georgia, Kansas, Nebraska, Montana, South Carolina and Utah have complained about the EEOC background check policy.

The EEOC last summer filed lawsuits against BMW and Dollar General Store for refusing to hire individuals with felony records. In the Dollar Store case, the individual was incorrectly reported as having a felony record when she did not.

The Bureau of Justice Statistics has estimated that approximately 9 percent of all men will serve time in state or federal prisons, including 28 percent of black males, 16 percent of Hispanic males, and 4 percent of white males.

Courts Scrutinize Employer “Look” Policies

Dreadlocks and Hijabs

An employer’s vision of a company’s “culture” can be risky business when it involves the appearance of workers.

Abercrombie & Fitch recently settled two lawsuits involving a provision of its dress code or “Look Policy” that prohibited Muslim employees from wearing a hijab (religious scarf) on the job.

Meanwhile, the U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Catastrophe  Management Solutions, a Mobile, Alabama catastrophic  insurance claims company, for alleged discrimination against a  black applicant for employment because she wore dreadlocks.

In both cases, the employers allegedly interpreted their culture in such a way as to exclude workers who demonstrated physical or cultural characteristics  of race or religious identity.  Other employers run afoul of  Title VII of the Civil Rights Act of 1964 law when they interpret their culture in ageist or sexist ways.

Eliminating barriers in recruitment and hiring, especially class-based recruitment and  hiring practices that discriminate against racial, ethnic and religious groups,  older workers, women, and people with disabilities, is one of six national  priorities identified by the EEOC’s Strategic Enforcement Plan.

Dreadlocks

Chastity Jones was among a group of  applicants who were selected for a group interview by Catastrophe Management Solutions on May 12, 2010.  Jones, who is black, had blond hair that was dreaded in neat curls, or “curllocks.”  Jones was offered a position as a customer service  representative.

According to the EEOC, Jones’s offer of employment was rescinded later that day when  human resources staff met with Jones to discuss her training schedule and realized that Jones’s curled hair was in  dreadlocks.  The manager in charge told  Jones  the company did not allow dreadlocks and that she would have to cut  them off to obtain employment.  Jones  refused to cut her hair.

The EEOC argues that Catastrophe’s ban on dreadlocks discriminates against African-Americans is based  on physical and/or cultural characteristics in violation of Title VII. The EEOC filed suit in U.S.  District Court for the Southern District of Alabama (Equal Employment Opportunity Commission v. Catastrophe Management  Solutions, Inc., Civil Action No. ­­­­­­­­­­­1:13-cv-00476-CB-M).

“This litigation is not about policies  that require employees to maintain their hair in a professional, neat,  clean or conservative manner,” said C. Emanuel Smith, regional attorney for the EEOC’s Birmingham District Office.  “It focuses  on the racial bias that may occur when specific hair constructs and styles are  singled out for different treatment because they do not conform to normative standards  for other races.”

Third time’s the Charm?

The EEOC reports that three federal judges have issued rulings in different cases in recent years rejecting Abercrombie’s claim that it would create an undue hardship and/or violate Abercrombie’s free speech rights to require the company to permit employees to wear hijabs. Title VII requires employers to accommodate the sincere religious beliefs or practices of employees unless doing so would impose an undue hardship on the business.

Abercrombie & Fitch last month settled two EEOC lawsuits involving its “Look Policy” –  an internal dress code that included a prohibition against head coverings.

The settlement follows a ruling by U.S. District Judge Yvonne Gonzalez Rogers ruled that Abercrombie was liable for religious discrimination in the firing of Muslim employee Umme-Hani Khan for wearing her hijab.

Khan, 19, started working in  2009 at the firm’s Hollister store (an Abercrombie & Fitch brand targeting teenagers aged 14 through 18) at the Hillsdale Shopping Center in San Mateo, Calif.  As an “impact associate,” she worked primarily in the stockroom.  At first she was allowed to wear headscarves in Hollister colors. Several months later, she was informed that her hijab violated Abercrombie’s “Look Policy” and that she would be taken off schedule unless she removed the hijab while at work.  Khan refused and was fired on Feb. 23, 2010.

Judge Rogers rejected Abercrombie’s argument that its Look Policy goes to the “very heart of [its] business model” and any deviation from the policy threatened the company’s success. She said Abercrombie offered only “unsubstantiated opinion testimony of its own employees to support its claim of undue hardship.”  That testimony, she added, demonstrated “their personal beliefs, but are not linked to any credible evidence.”

Abercrombie settled Hahn’s case along with a lawsuit by Halla Banafa, who was not hired as an “impact associate” in Abercrombie’s Great Mall outlet in Milpitas, Calif., because of her headscarf. In April, U.S. Judge Edward J. Davila dismissed Abercrombie’s undue-hardship claims on summary judgment, citing the “dearth of proof” linking store performance or the Abercrombie brand image to “Look Policy” compliance.

The settlement requires Abercrombie to create an appeals process for denials of religious accommodation requests, inform applicants during interviews that accommodations to the “Look Policy” may be available, and incorporate headscarf scenarios into all manager training.  The company must make regular reviews of religious accommodation decisions to ensure consistency and provide biannual reports to the EEOC and Khan.  Khan and Banafa will also receive $71,000 under the terms of the settlement.

In a third lawsuit not part of this settlement, a district court in Tulsa, Okla., ruled on July 2011  that it was religious discrimination for Abercrombie not to hire a Muslim applicant for a sales position due to her hijab. The case is pending on appeal.

EEOC Defends Criminal Background Checks

They’re Permitted Unless …

The EEOC has been slammed in recent weeks for filing discrimination lawsuits against employers who used criminal background checks to assess job applicants that resulted in the disproportionate exclusion of minority group members.

A feEEOCderal judge ridiculed the EEOC in August for a seeming double standard, noting the EEOC itself uses criminal background checks with respect to hiring employees at the EEOC.

Jacqueline A. Berrien, chairperson of the EEOC, recently responded to a July 24,2013 letter from nine state Attorney Generals asking the EEOC to reconsider its April 25, 2012 Enforcement Guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

She said the Guidance merely clarifies and updates a longstanding EEOC policy and does not prohibit employers from using criminal background checks in hiring.

She said an employer can be held liable for discrimination if it “uniformly administers a criminal background check that disproportionately excludes people of a particular race, national origin, or other protected characteristic, and is not ‘job related for the position(s) in question and consistent with business necessity’ within the meaning of Title VII. However, she said employers can avoid liability by using the EEOC’s recommended two-step process when evaluating criminal history checks of applicants. The EEOC recommends that employers:

1. Use a ‘targeted’ screen of criminal records that considers such factors as the nature of the crime, the time elapsed and the nature of the job.

2. Use a follow-up individualized assessment of employees who are screened out to ensure the employer is “not mistakenly screening out qualified applicants or employees based on incorrect, incomplete, or irrelevant information.” The second step also gives individuals a chance to correct errors in their records.

Berrien said the EEOC’s proposed individualized assessment process does not add significant additional costs for employers.

She said an employer does not have to conduct an individualized assessment “if it can demonstrate that its targeted screen is always job related and consistent with business necessity.”  She called the individualized assessment “a safeguard that can help an employer to avoid liability when it cannot demonstrate that using only its targeted screen would always be job related and consistent with business necessity.”

In August, Judge Roger Titus of the U.S. District Court for the District of Maryland dismissed a lawsuit brought by the EEOC in 2009 against Freeman, Inc., a service provider for corporate events, which alleged Freeman unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants. See EEOC v. Freeman, No. 09-CV-2573 (2013).

Titus notes the EEOC conducts criminal background investigations as a condition of employment for all positions and conducts credit background checks on approximately 90 percent of its positions. He acknowledged that credit and criminal background checks adversely affect some groups more than others but maintained that these checks are essential.

Berrien did not address the issue of background checks conducted by the EEOC on its job applicants.

Earlier, Berrien said recent EEOC lawsuits against BMW and Dollar General did not challenge the employers’ decisions to conduct criminal background checks but instead challenged screening processes that have a disproportionate impact on African-Americans that the commission believes are not job related and consistent with business necessity.

The Bureau of Justice Statistics has estimated that approximately 9 percent of all men will serve time in state or federal prisons, including 28 percent of black males, 16 percent of Hispanic males, and 4 percent of white males.

The Attorney Generals who complained about the EEOC policy are from West Virginia, Colorado, Alabama, Georgia, Kansas, Nebraska, Montana, South Carolina and Utah.

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.

 

One-Two Punch by Anti-Worker Court

The U.S. Supreme Court continued its march toward being the most anti-employee rights court in modern U.S. history by issuing two decisions this week that make it more difficult for workers to gain the protection of federal discrimination laws.

In both decisions, the Court was divided along the same ideological lines. Voting in the majority were  Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy  and Alito.  Dissenting were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Supervisor?

In the first case, the Court threw out a lawsuit filed by a Maetta Vance, a black catering worker at Ball State University in Indiana. who said a white colleague whom she regarded as a supervisor slapped and intimidated her. Vance also said she was generally subjected to racially offensive  epithets in the workplace.

 The Court said the alleged harasser didn’t meet the legal definition of supervisor, even though the woman’s job description said she was a supervisor, because she couldn’t fire Vance.  

Justice Samuel Alito, writing for the majority in Vance v. Ball State University, said workers qualify as supervisors only if they can take  “tangible employment actions” against the alleged victim (i.e., hire,  suspend, transfer, demote, fire, discipline). 

The issue is important because employers are vicariously liable under Title VII of the Civil Rights Act of 1964  for discrimination by supervisors (but not co-workers) that culminates in a tangible employment action.

The dissent questioned why the majority chose to articulate its restrictive  definition of a supervisor:

“Not even Ball State, the defendant-employer in this case, has advanced the restrictive definition the Court adopts …  Yet the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII.”

 The  opinion completely rejects an approach adopted more than a decade ago by the U.S. Equal Employment Opportunity Commission and several appellate courts that a supervisor is an employee who has the authority to recommend tangible employment decisions or is authorized to direct the employee’s daily work activities.

The majority also rejects the common dictionary definition of the term:

su·per·vise:  to oversee (a process, work, workers, etc.) during execution or performance; superintend; have the oversight and direction of.  (Dictionary.com)

Under the decision, victims of illegal harassment by non-supervisors can still sue an employer for negligence if they can show the employer failed to monitor the workplace, respond to complaints or effectively discouraged complaints from being filed. The majority also said an employer can be held to have “delegated” the power to take tangible employment actions to employees upon whose recommendation it relies. The majority upheld the lower court finding  that Ball State was not negligent because it took “reasonable steps” to halt the discrimination.

Retaliation

In the second 5-4 ruling, the Court made it much more difficult for workers  to win claim o f retaliation against employers in discrimination lawsuits.

The plaintiff  in University of Texas Southwestern Medical Center v. Nassar,  Dr. Naiel Nassar, a physician, said he was denied a faculty position with a University of Texas medical center because he complained he was  the victim of discrimination on the basis of his Middle Eastern background.

 Justice Anthony M. Kennedy, writing for the majority, said a worker must show that retaliation was the “but for” reason that  the employer took action, not merely one of several motives.  In other words, the  plaintiff must show the retaliation would not have occurred “but for”  the defendant’s discriminatory conduct. 

Justice Kennedy cites the Court’s somewhat notorious ruling in  Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176.  In that case, the Court  distinguished  the Age Dis­crimination in Employment Act of 1967 from other discrimination claims by requiring plaintiffs to prove that age discrimination was the “but for” cause of any adverse employment action.  It is a rare case that an employer cannot point to at least one other factor to justify an adverse employment action. The Gross decision has made it exceedingly difficult for plaintiffs to win age discrimination claims.

In her dissent, Justice Ginsburg wrote:

“The ball is once again in Congress’s court to correct the error into which the court has fallen and to restore the robust protections against workplace harassment the court weakens today.”

The American Council on Education and five other higher-education groups urged the justices, in a friend-of-the-court brief, to base their test of whether someone is a supervisor on the amount of authority possessed by the worker rather than workplace titles or worker perceptions.

A recent study published in the Minnesota Law Review determined that the Court is  the most pro-business Court since World War II.

* See earlier coverage of Vance case.

 

 

 

Employer gets Immunity from Class Action

boardroom

Workers this week suffered another  potentially devastating blow when an influential appellate court ruled in Parisi v. Goldman Sachs & Co, that a former managing director could not file a class action lawsuit against  Goldman Sachs for sex discrimination because she had signed a contract agreement to arbitrate employment disputes.

The decision by the  Second Circuit Court of Appeals in New York creates a scenario that  allows a savvy employer to class-action proof itself.

The appellate court ruled that Lisa Parisi, a former managing director of Goldman Sachs, could not sue the company in a class action because she agreed to submit all employment disputes to binding arbitration when she signed a “managing director” agreement in 2003.  Since the “managing director” agreement is  silent as to class actions,  Parisi must proceed to arbitration  on an individual basis. Bottom line: Parisi can’t sue in class action and she can’t arbitrate in class action.

 Parisi, who was fired in 2008,  alleged Goldman Sachs conducted a “pattern and practice” of sex discrimination against top female employees in violation of Title VII of  the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the New York City Human Rights Law.  She said she could not proceed in arbitration with a class action claim without Goldman Sachs permission and thus was effectively being denied her right to sue the company for systemic sex discrimination.. In other words, she said the arbitration clause in her  agreement must be invalidated because arbitration would preclude her from vindicating a statutory  right to file a “pattern and practice” class action lawsuit.

The appellate court agreed with Goldman Sachs that no substantive statutory right exists for employees to pursue a class action “pattern-or-practice” claim.

The court’s decision reversed two earlier decisions by a federal magistrate and a  district court judge who both denied Goldman Sach’s motion to compel arbitration in the case.

 The ruling  is a  boon to employers who are prescient enough to force new hires or employees who are being promoted to sign over-reaching binding arbitration clauses;  it  effectively negates the possibility that the employee will participate in a costly class action lawsuit down the road.   

Goldman Sachs took the position that it could not be sued by Parisi in federal court because of the arbitration clause, and it could not be compelled to defend a class action suit in arbitration because the arbitration clause in the agreement Parisi signed  was silent as to the arbitration of class claims.

Goldman Sachs is not entirely of the woods. Parisi filed the class action lawsuit along with two other Goldman Sachs employees,  Shanna Orlich, an associate, and H. Christina Chen-Oster, a vice president, who reportedly did not sign binding arbitration agreements with Goldman Sachs and presumably could proceed without Parisi.

Parisi’s employment agreement  contained an  arbitration clause in which she agreed  to arbitrate any dispute, controversy or claim arising out of or based upon or relating to “Employment Related Matters.”  The agreement defined  “employment related matters” are defined as “matters arising out of or relating to  or concerning this Agreement, your hire by or employment with the Firm or the termination thereof,  or otherwise concerning any rights, obligations or other aspects of your employment relationship in respect of the Firm.”

 The appellate court reasoned that  the U.S. Supreme Court has consistently interpreted the Federal Arbitration Act as establishing a “federal policy favoring arbitration agreements.”  It also cited an earlier ruling in which the appeals court  concluded that in Title VII jurisprudence “pattern-or-practice” simply refers to a method of proof and does not constitute a “freestanding cause of action.”  Chin v. Port Authority of New York, 685 F.3d 135, 148 (2d Cir. 2012).

The arbitration clause in question states the Plaintiffs claims will be “finally settled by arbitration in New York City before, and in accordance with the rules . . . of, the New York Stock Exchange, Inc. (“NYSE”) or . . . the  National Association of Securities Dealers (“NASD”). If both the NYSE and NASD decline  to arbitrate the matter, the matter will be arbitrated before the American Arbitration Association  (“AAA”) in accordance with the commercial arbitration rules of the AAA. You agree that any  arbitration decision and/or award will be final and binding.”

Goldman’s appeal was supported by briefs from the U.S. Chamber of Commerce and the Securities Industry and Financial Markets Association. Parisi had support from the NAACP Legal Defense and Education Fund and the National Women’s Law Center.

The case is Parisi v. Goldman Sachs & Co, 2nd U.S. Circuit Court of Appeals, No. 11-5229.

When Workplace Bullying is Illegal

blackandwhiteWhat is the  difference  between workplace bullying and illegal harassment?

The major difference is that no law at present prohibits workplace bullying –  despite the fact that workplace bullying can severely impact an employee’s emotional and physical well-being.  And most other industrialized countries have enacted laws or regulations that address workplace bullying.

However, bullying  can become illegal when it creates a hostile or abusive work environment in violation of  federal or state civil rights laws, including Title VII of the Civil Rights Act of 1964.

 Generally, two factors must exist:

  •  The harassing conduct must create a “hostile work environment.”
  •  The harassing conduct must be directed toward a characteristic that is protected under  federal and state  civil rights laws.  Title VII makes it an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

Therefore, workplace bullying may be illegal if it creates a hostile or abusive work environment and it is directed toward an individual who has protection under federal and state civil rights laws on the basis of race, sex, religion, national origin, etc.

What is a hostile work environment?  The U.S. Supreme Court says a hostile work environment  is a workplace that is permeated by discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive as to alter the conditions of a victim’s employment and to create an abusive working environment.  Harris v. Forklift Sys., 510 U.S. 17 (U.S. 1993).  The Court has repeatedly said that Title VII  does not prohibit simple teasing or a merely offensive utterance.

NOTE:  A  target of illegal harassment does not have to suffer a nervous breakdown to gain the protection of Title VII. The U.S. Supreme Court says that as long as the environment would reasonably be perceived and was perceived as hostile or abusive, there is no need for it also to be psychologically injurious. The court says psychological harm could be taken into account but is not required by the statute.

To sum up,  there may be no substantive difference between  the conduct that constitutes serious workplace bullying and the conduct that is acknowledged under the law to create an illegal hostile or abusive work environment.  The harassing conduct can be identical, with the exact same devestating  result.

The significant difference between serious workplace bullying and illegal harassment  is a legal distinction pertaining to  the characteristics of the  target of the conduct.

Nevada State Sen. Richard Segerblom has proposed making Title VII “status blind” so that the law provides a remedy for  all targets of a hostile or abusive workplace, whether or not they fall within a category that is now  protected under the law.

 As Shakespeare once observed: “If you prick us, do we not bleed.”

Individuals who are targets of workplace bullying may have other legal recourse, in addition to federal and state civil rights laws.  All targets of workplace bullying  are  encouraged to consult an attorney who specializes in employment law for employees (not companies) to discuss the specific facts of their case and any potential legal remedies within their jurisdiction.

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.

Crime & Sexual Harassment

_41030565_mugging_203_bbcWhy isn’t sexual harassment a crime in the United States?

 It is in France.

 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 and a fine of approximately $56,000 for serious cases.

 The new French law defines harassment as imposing on someone, in a repeated way, words or actions that have a sexual nature and either undermine the person’s dignity because of their degrading or humiliating nature or create an intimidating, hostile or offensive situation.

 In the United States, sexual harassment is prohibited by Title VII of the 1964 Civil Rights Act. The remedy is civil, which means it is up to the victim to sue and the damages are monetary and/or  injunctive relief.  In criminal cases, a prosecutor sues on behalf of the state and may seek  fines and imprisonment.

It can be very difficult to win a sexual harassment case in the United States. The  U.S. Supreme Court has ruled that U.S. law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious.  This leaves a lot of room for interpretation by judges, especially with respect to whether sexually harassing conduct  is frequent enough  and severe enough to be actionable.

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that WirelessComm, a Northern California distributor for the Metro PCS cell phone service provider, had agreed to pay $97,000 to settle a sexual harassment lawsuit filed by the agency.

 According to the EEOC’s lawsuit, the store manager of WirelessComm in Watsonville, CA,    subjected then-19-year-old Deisy Mora to abuse throughout her seven months of employment at the store

He frequently commented about her physical  appearance, texted her photos of himself and the words “Te quiero” (‘I love  you’ in Spanish), and referred to women in general with slurs and epithets.

In addition, the EEOC said, the store owner  contributed  to the harassmen by inviting Ms. Mora to travel with him, asking her and others if  they were pregnant and, on one occasion, asking her to text photos of herself  and other female staff members.

The EEOC says Ms. Mora’s complaints were not addressed and she eventually quit her job  when she could no longer endure the harassment.

 What happened to the store manager and the store owner?

Under the consent decree, WirelessComm agreed to train the store owner and staff regarding anti-discrimination laws.  But there is no indication the WirelssComm store owner and store manager didn’t understand anti-discrimination laws in the first place, only that they didn’t place any importance on these laws and didn’t follow them.

The EEOC said  WirelessComm also  agreed to hire an equal employment opportunity consultant and a human resources consultant to revise its EEO policies; monitor the workplace; respond to any allegations of harassment arising during the three-year  pendency of the decree; and report harassment complaints to the EEOC.

In other words, WirelessComm will start following the law.

In  the final analysis, it seems like a small price  to pay for a campaign of a harassment waged by two adult men in positions of authority against a  vulnerable teenager.  If the store owner and store manager had mugged Ms. Dora while she was walking down a street, they’d probably spend at least some time in jail.  Here  they stole  her peace of mind and robbed her of  financial security in a time of high un employment.

 The United States recognizes two types of sexual harassment: (1) quid pro quo and (2) hostile environment.

 Quid pro quo is Latin for “this for that.” This type of harassment occurs when a  boss or supervisor asks for a sexual favor in return for a job benefit.

 Hostile environment sexual harassment occurs when the harassment is so severe or pervasive that it creates a sexually intimidating or abusive work environment. Hostile environment sexual harassment must be:

  • based on sex (sexual conduct, sexual comments, or nonsexual conduct that is based on your gender);
  • unwelcome (you must show that you do not enjoy the harasser’s attention and that you are not encouraging it); and either
  • severe (one or more serious incidents that affect your job) or pervasive (a pattern or series of smaller incidents that are so widespread that you have trouble doing your job as a result).

SEXUAL HARASSMENT, DINE EQUITY & PEANUTS

peanutsThe EEOC has been settling lawsuits at a frenzied pace of late, some for the monetary equivalent of peanuts.

This week, the EEOC settled for $1 million a sexual harassment case filed against IHOP restaurants in New Mexico that are owned and operated by Fahim Adi.  The EEOC says the case is the second-largest litigation settlement ever reached by the EEOC’s Albuquerque Area Office.  An EEOC press release says:  “At least 22 women are expected to receive relief through the decree.”

If it  is only  22 women and they split full amount of the award equally among themselves  – without any deductions by the EEOC for fees and costs – they will each get about $45,454.

I submit that this is not a large amount of money for women – some were teenage girls – whom the EEOC says were subjected to sexually offensive conduct by Lee Broadnax, then manager of the defendant’s IHOP restaurant. The EEOC doesn’t go into details but says Broadnax’ illegal conduct included sexual comments, innuendo and unwanted touching (i.e., otherwise known as battery).

Some of the women were forced to quit their jobs because IHOP did nothing when they complained.  People who work as servers at a pancake house generally are not well-to–do and this is not an economy where jobs are easy to find.  Some of the victims were pretty college girls en route to a better future but others were mature women (including several members of a minority group).

One wonders how many IHOP  employees were forced to tolerate abuse because they had children to feed at home and no other options?

The figure of $1 million particularly pales when one considers the IHOP brand is owned by Dine Equity, Inc., which is based in Glendale, California and also owns the Applebee’s Neighborhood Grill & Bar brand.

According to Nation’s Restaurant News  magazine, Dine Equity had $7.9 billion in food service sales in 2011, making it  the ninth rranked in the United States for  “systemwide foodservice sale.”  For the quarter ending Sept. 30, 2012, DineEquity’s net income almost quadrupled to $58.7 million.  DineEquity operates almost entirely through subsidiaries and over 400 franchisees, which operate 1,842 Applebee restaurants and 1,535 IHOPs  around the world.

Dine Equity  vigorously enforces any encroachment upon the the IHOP brand.   One wuld hope that Dine Equity also would vigorously enforce the human rights of employees in IHOP and Applebee restaurants.  What could Dine Equity do?  For one thing, Dine Equity could train franchisors to follow  discrimination laws and respond appropriately to complaints. Dine Equity also could get rid of franchisors that tolerate hostile work environments and fail to respond to discrimination complaints.  Now that would get their attention!

Don’t get me wrong. If the EEOC had not taken on this case, it is quite possible that some of these victims would not have gotten anything at all (except, possibly Post Traumatic Stress Syndrome).  Courts seem to be utterly unsympathetic to victims of employment-related discrimination these days, which is probably why it is so prevalent in society. Poor people can’t afford to hire lawyers and pay court costs.  But lets get real – $1 million is  not exactly a windfall for people who likely suffered emotional trauma and stress and whose lives were completley upended by an IHOP franchisor.

In addition to the monetary relief, the decree prohibits the defendants’ IHOP restaurants from further discriminating or retaliating against its employees and requires IHOP to implement policies and practices that will provide its employees a work environment free of sex discrimination and retaliation. The defendants must also provide its employees in Bernalillo and Sandoval County IHOPs with anti-discrimination training and notice of the settlement.

In this case, the IHOP franchisor ignored the women’s sexual harassment complaints. Training cannot solve an employer’s lack of motivation to protect its workers from sex discrimination.