Ideas for Ending Sexual Harassment in the Workplace

Tracey Spicer, an Australian broadcaster and author, asked members of her vast social media network to suggest ways to end sexual harassment in the workplace.

And she got some interesting responses that are worthy of consideration here. The list was published recently by the web site of an Australian lifestyle network called NineHoney. 

What follows are just a few of the ideas. Those that I deem particular worthy are in bold:

  • Clearly define what comes under the umbrella of sexual harassment;
  • Teach children and parents about consent as part of a school program;
  • Re-frame the concept of what it is to be a good man – teach men to be better bystanders;
  • Empower HR Departments to take action if women are at risk;
  • The board and top executives should commit to a zero tolerance policy;
  • Sexual harassment should be a standing agenda item at board/management meetings.

Continue reading “Ideas for Ending Sexual Harassment in the Workplace”

The System is Rigged against Sexual Harassment Victims Inside and Outside of Congress

Many folks have expressed outrage that the system set up by the U.S. Congress to handle sexual harassment complains lodged against members of Congress is obviously rigged to protect the harassers.

But Congress’ system, while different, arguably is no worse than the system in place for everyone else. Sexual harassment victims are routinely denied justice by our nation’s court system.

According to a 2017  analysis  by legal research service Lex  Machina, very few employees who file federal job discrimination, harassment, and retaliation claims make it to court. From January 2009 through July 2017, Lex Machina found that of 54,810 cases that were filed in federal courts and closed, employees bringing the suits won just 584 times in trial, or about 1% of the total. Employers won 7,518 cases, about 14%. Another 3,883 cases, or 7%, were settled on procedural grounds, mostly dismissing the employee’s claims. What happened to the rest of the cases? According to Lex Machina, no one knows for sure why 78% of cases (42,742 cases) were dismissed by either the employee or both the employee and employer.

VICTIMS OF DISCRIMINATION WON IN COURT JUST ONE PERCENT OF THE TIME

Let’s compare the process in and out of Congress for handling sexual harassment complaints:

CONGRESS: Victims of sexual harassment by members of Congress have 180 days to bring a claim to the U.S. Congress Office of Compliance, the office responsible for handling workplace complaints.

EVERYONE ELSE:   Sexual harassment is a form of discrimination under  Title VII of the Civil Rights Act of 1964. Victims of sexual harassment cannot file a lawsuit until they go through the  U.S. Equal Employment Opportunity Commission’s complaint process, which can take years. Victims typically must file a complaint with the EEOC  within 180 days of the complained of harassment. Federal employees have a much shorter time limit and must file discrimination charges within 45 days from the date of the alleged violation.

CONGRESS: Victims of sexual harassment by a member of Congress are subject to up to 30 days of mandatory counseling, where they are informed of  their rights. They then have 15 days to decide whether to submit their claim to mediation. If they reject mediation or no settlement is reached, there is a 30-day cooling off period before they can file a lawsuit or request an administrative hearing. Victims of sexual harassment by members of Congress could potentially file a lawsuit in a couple of months.

EVERYONE ELSE;  Within 10 days of  the filing of a complaint of sexual harassment, the EEOC sends a notice of the charge to the employer. In some cases, the EEOC asks both the complainant and the employer to take part in mediation.  If one party refuses or mediation fails, the EEOC asks the employer to provide a written answer to the sexual harassment charge. The victim then has 20 days to respond to the answer.

The EEOC orders an investigation, which the EEOC says takes an average average of ten months to complete. At the conclusion of the investigation, the EEOC determines whether there is reasonable cause to believe that sexual harassment occurred.

Typically, the EEOC finds no reasonable cause and the complainant is sent a Notice of Right to Sue the harasser.

In the rare circumstance the EEOC finds there is reasonable cause to believe that sexual harassment occurred, the EEOC tries to reach a voluntary settlement with the employer.  If a settlement cannot be reached, the case is referred to EEOC legal staff, who decide whether the EEOC should file a lawsuit. The EEOC rarely files a lawsuit unless there is evidence of systemic sexual harassment involving multiple victims.

If the EEOC decides not to file a lawsuit, the EEOC sends the complainant a Notice of Right to Sue.

The vast majority of sexual harassment victims either can’t afford to file a federal lawsuit or their case is dismissed pre-trial after the employer files a motion for summary judgment.

Some fortunate complainants have the resources to pay a private attorney a retainer of many thousands of dollars and proceed to federal court.  But most of their cases are quickly dismissed.

A 2006 study by the Federal Judicial Center found that federal judges granted requests by the employer for dismissal of civil rights cases on a motion for summary judgment 73 percent of the time. Moreover, the win rate for victims of employment discrimination was 15% compared to 51% for plaintiffs in the non-employment context.

If a case survives an employer’s motion for summary judgment, it will likely languish in the court system for years.

The truth of the matter is there is no justice for the vast majority of victims of sexual harassment because the system is rigged to protect employers and not workers. That’s true both inside and outside of Congress. And federal judges from privileged backgrounds and posh colleges  have mostly worked for corporations. They can’t empathize with workers and feel these cases are trivial disputes that waste of their precious time.

I recommended in my book, Betrayed: The Legalization of Age Discrimination in the Workplace, that Congress establish a special court to consider employment discrimination complaints, staffed with specialized judges who really care about and understand the issues.

Ratchet Up the Consequences for Employers that Ignore Sexual Harassment

A perusal of recent headlines shows that companies will place their heads firmly in the sand to keep harassers on the payroll if the company is focused on short term profits.

Despite potential ruinous risk to reputation, costly turnover, lost work time and higher health care costs (among other things) the fact of the matter is that many employers  tolerate sexual harassment when the harasser is valuable to the organization. In some ways, the on-going wave of public sexual harassment incidents is similar to the problem with unsafe cars manufactured in the United States in the 1960s. It was cheaper for car makers to settle lawsuits out of court than to manufacturer safer cars.

In February, 21st Century Fox renewed Bill O’Reilly’s contract  knowing that he was in the process of settling a sexual harassment complaint by a news analyst, who eventually received a $32 million settlement.  O’Reilly, then  the most-watched figure on cable TV, had earlier settled several other sexual harassment claims out of court.

Producer Harvey Weinstein had several Oscars to his credit but he was a notorious bully for years, not to mention sexual predator (or worse). He also was known to engage in physical violence at the office on occasion.

TMZ says  Weinstein’s 2015 employment contract states that if the Weinstein Company had to pay settlements for his sexual or other misconduct, he must reimburse the company and pay an escalating set of fines: $1 million for the fourth and any subsequent instance.

Congress must insure employers that ignore evidence of sexual harassment face consequences that make it more expensive for them to do nothing than to act.

The complacency of Fox and the Weinstein Company demonstrates how little employers today fear the American legal system, which they count on to  work on their benefit. Typically, employers retain  human resource officers and legal staff who are trained to protect the company from sexual harassment complaints. Courts permit employers to make the legal process as long and difficult as possible for the victims, who often have few resources because they were driven out of their jobs by the employer and the harasser.

A recent development has made it even easier for employers. When the EEOC finds there is reasonable cause to believe the employer is guilty of sexual harassment, it offers a free and confidential mediation program whereby the employer can settle the matter – usually for peanuts – without even having to go to court. And it’s all secret!

Both Fox and The Weinstein Company knew or should have known of their employee’s abusive behavior but apparently they concluded the benefit of retaining the abuser outweighed the cost of paying the occasional out-of-court settlement.  What is needed is serious consequence for employers who ignore evidence of sexual harassment. And by that I mean serious.  A company that is making a profit of X billion should be ordered by a court to pay a percentage of its profit in damages. In that way, society will insure that employers take sexual harassment seriously.

More than Half of Women in Workplace Bullied

More than half of women are bullied at work– often by members of their own sex, according to the largest survey of its kind ever conducted in the United Kingdom.

The gender equality group, Opportunity Now, and PwC, an international  professional services group, commissioned a survey that included interviews with nearly 23,000 women and more than 2,000 men.

The group recently issued a report,  “Project 28-40,”  which urges employers to recognize that “harassment and bullying still occur, despite well-meaning policies. Call it out, deal with perpetuators, and make it simple and straightforward to report.”

Helena Morrissey, chairperson of Opportunity Now, said the key  to improve the workplace for women should be training  excellent managers; this will  achieve “much more than yet another initiative  or programme.”

Fifty-two percent of the women who responded to the survey said they experienced bullying at work within the past three years. The rates were highest for Black British / African /Caribbean women (69%), women with disabilities (71%), bisexual (61%) and lesbian and gay women (55%).

Without being specific, the report states that  the biggest enemy facing women in the office or other workplaces may be other women.  The researchers conducted ten focus groups to gain insight from the survey findings.  “Women often experience bullying by female colleagues and line managers, a point echoed by focus groups participants who thought female bullies felt threatened by potential and ability and so exploited their position or authority to undermine,” said the report.

More than one in four of the women surveyed said they had experienced overbearing supervision or misuse of authority, or were deliberately overloaded with work and subject to constant criticism. One in six of the women experienced exclusion and victimization or were intentionally blocked from promotion or training opportunities.

The researchers conclude that the data shows the extent to which workplaces are “dysfunctional, inefficient and fundamentally unjust” to women.

An additional 12% of women reported experiencing sexual  harassment within the past three years. One in eight said they had been sexually harassed – defined as “unwelcome comments of a sexual nature.”  This includes unwanted physical contact or leering, asking for sexual favors, displaying offensive material such as posters, or sending offensive emails or texts of a sexual nature.

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.

 

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

 

 

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.