Band-Aid Not Enough in Sexual Harassment Case

NOTE:  On 1/23/13, a federal judge  denied a request from a lawyer for Paul’s Big M Grocer to reduce the $467,269 punitive damages portion of the jury verdict against the store, former manager Allen Manwaring and the store’s owner, Karen Connors.

A federal appellate court panel has issued an important ruling that it is not enough for employers to pay off victims of sexual harassment. They also must fix the underlying problem that led to the harassment.

The U.S. Court of Appeals for the Second Circuit in New York ruled on Oct. 19, 2012 that a lower court abused its discretion in denying any injunctive relief in a sexual harassment case brought by the U.S. Equal Employment Opportunity Commission.

Injunctive relief is essentially a court order that requires the employer to stop the practices that led to the discriminatory conditions.

“At minimum, the district court was obliged to craft injunctive relief sufficient to prevent further violations of Title VII by the individual who directly perpetrated the egregious sexual harassment at issue in this case,” ruled a three-judge panel of the appeal courts.

The case, EEOC v. Karenkim, Inc., 11-3309 (2nd Cir. 2012), involved  Paul’s Big M Grocer, which is owned by Karenkim, Inc.,  in Oswego, New York. Karenkim  was found liable for sexual harassment and fostering a sexually hostile work environment in violation of Title VII of the Civil Rights Act of 1964.  The jury awarded the ten members of the class of defendants a total of $10,080 in compensatory damages and $1,250,000 in punitive damages. The  award was subsequently reduced pursuant to a statutory cap to a total of $467,269.

The store is owned and managed by Karen Connors, who hired the store manager, Allen Manwaring, in 2001.  Connors and Manwaring almost immediately began a romantic relationship and now are engaged and have a son together. Women who worked at the store, some as young as 16, complained to no avail that they were being sexually harassed by Manwaring. Some were  terminated after filing a complaint.

At one point, Manwaring was actually arrested and pled guilty to second degree harassment after he approached an employee, a  high school student, who was talking on the phone, stuck his tongue in her mouth as she was talking and then walked away “with a smirk on his face.”    In deposition testimony, Connors said she did not believe Manwaring had done anything wrong and accepted his explanation that he had “falleninto” the girl.

The store had no anti-harassment policy until 2007 and no formal complaint procedure until after the trial.

 The EEOC asked the court for an injunction because the store had “not adopted adequate measures to ensure that harassment of the kind at issue in this action does not recur.”  Specifically, the EEOC noted that Connors and Manwaring remained in a romantic relationship, that Manwaring still worked at the store as a produce contractor, and that following the verdict Manwaring continued to deny he had engaged in sexual harassment.

The district court denied the EEOC’s request for injunctive relief, ruling it was unnecessary and overly burdensome in that it would require the defendant to “alter drastically its employment practices …”

The appeals court said that ordinarily terminating a lone sexual harasser might be sufficient to eliminate the danger that the employer will engage in subsequent violations of Title VII. In this case, however, the Appeals Court noted that Manwaring,  the store manager, engaged in harassing conduct that was “unchecked for years” because he was involved in a romantic relationship with the owner – a relationship that continues.

The appeals court panel said the EEOC’s requested ten-year proposed injunction was overly broad but that the lower court at least should have prohibited the store  from directly employing Manwaring in the future and from entering the store premises. In addition to those provisions the EEOC had asked the court to order KarenKim to hire an independent monitor for the store.

The appeals court concluded that under Title VII, “[i]f the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate. … Once a violation of Title VII has been established, the district court has broad, albeit not unlimited, power to fashion the relief it believes appropriate.”

Canadian Jury Puts Employers on Notice

Kudos to Beverly Peterson at Our Bully Pulpit for noting this story from The Windsor Star newspaper, which highlights the contrast between the United States and Canadian legal systems with respect to workplace bullying.

Targets in the United States have little legal recourse in the legal system. There is no law against workplace bullying. If they  somehow make it to court – usually alleging some form of discrimination –  it is probable that a federal judge will dismiss their case before it ever reaches a jury.  It’s a different story in Windsor, Ontario, Canada, which has a law and where a target of bullying recently won a $1.4 million award after she was bullied out of her job at Walmart.

The Canadian jury of three men and three women, who decided that Boucher was constructively dismissed — in other words, forced out through abusive treatment — awarded her: from Walmart, $200,000 for intentional infliction of mental suffering, $1 million for punitive damages, and $10,000 for assault; and from her former supervisor, Jason Pinnock, $100,000 for intentional infliction of mental suffering, and $150,000 for punitive damages. .

Here’s an excerpt from an article by a University of Windsor professor who analyzes the significance of the verdict:

 The $1.46-million award a former Walmart assistant manager won this week in Windsor for mistreatment by a boss could make workplaces more civil across Canada, says an expert on workplace bullying.

The Windsor ruling — the highest such award in Canadian history — for the first time has turned mass media attention to bullying at work, instead of simply, say, bullying at school.

“This is the big case and it’s going to change the way Canadians see workplace bullying, absolutely,” said Jacqueline Power, a University of Windsor assistant professor of business management who specializes in workplace bullying. “It’s similar to what sexual harassment was 20 years ago. People just had to put up with sexual harassment in the workplace. Then they started having large legal judgments and human resources departments began to take it seriously.”

Power said Ontario’s Bill 168, introduced in 2009 to protect workers from violence and harassment on the job, set the stage. But she said enforcement didn’t follow as promised, so it fell to court cases to lay out the law — starting with Meredith Boucher.

Last month Boucher launched a lawsuit against Walmart, where she had worked for 10 years, after she felt forced to leave the company in November 2009. A jury agreed the 42-year-old Chatham woman suffered daily abuse from Jason Pinnock, 32, then the manager of the east Windsor Walmart where she worked, who would berate her with profane and insulting language over six months, often in front of others.

She filed a suit alleging intentional infliction of mental suffering, sexual harassment and discrimination, and assault by an assistant manager who punched her in the arm two days in a row and was subsequently fired.

The jury of three men and three women gave her nothing for sexual harassment and discrimination, but handed her a whopping award for her other claims: $1.21 million against Walmart and $250,000 against Pinnock.

Power said the judgment sets another precedent beyond being the richest such award in Canada. She said it also marks the first time someone has successfully won for general bullying by a boss, without the victim having to fall into a special category of female, visible minority, gay or anything else.

“This is the first time that we have recognized that you can be a white male and still be treated badly at work,” she said, noting the irony that it took a woman to fight for such protection for all. “In the United States, they have decided explicitly that they will not enforce civility. But in Canada, we now look after white men, as well.

“So it’s an extremely brave thing for this person to bring it to court. And because she was so brave, she has changed the legal environment for all employees.”…

Boucher’s lawsuit is actually only the first of four against Walmart Canada,  all by female assistant managers seeking at least $500,000 in damages, all from the same store, all alleging the same thing in 2009 and 2010: abusive treatment by a manager….

“We are disappointed with the decision and surprised by the highly exceptional damages that have been awarded,” said Andrew Pelletier, vice-president of corporate affairs and sustainability for Walmart Canada. “We’re reviewing the decision in detail now and we will consider all options, including the possibility of an appeal.”

Pelletier said he is surprised not just by the size of the judgment but by the allegations.

A number of Walmart employees have launched suits against the company in the United States, however, where some workers have recently threatened to strike, despite the fact they are not unionized….

The woman at the centre of the case, meanwhile, says only one person treated her abusively but that it affected her deeply. Court heard that Boucher spoke to senior Walmart managers about the abuse several times. Not only was nothing done about it, she was told she would be held accountable for her accusations.

She became physically ill, lost weight, sought counselling, and was treated for stress. And then she took it to court, risking having to pay Walmart’s substantial court costs if she lost.

When the Employer is the Bully

One of the most difficult workplace bullying scenarios occurs  when the employer is the bully.

There may be no one to complain to except the harasser.

This scenario occurred to three former employees of a Baltimore medical practice who were subjected to sexual harassment  by two of the company’s highest ranking officials.  They complained to the U.S. Equal Employment Opportunity Commission  (EEOC ), which announced Tuesday that a federal jury had awarded the women $350,000 in damages.

The EEOC filed the lawsuit on behalf of the women against Endoscopic Microsurgery, alleging that Associate’s Chief Executive Officer, Dr. Mark D. Noar, M.D., and  its Chief Financial Officer Martin Virga subjected the women to frequent unwanted sexual comments, physically touching and grabbing a female worker’s rear end, kissing and blowing on female employees’ necks and other sexually egregious comments and touching.

According to the EEOC, after Linda Luz, a receptionist, rejected their advances, the medical practice began retaliating against her by issuing unwarranted discipline, rescinding approved leave, and eventually firing her.

Administrator Jacqueline Huskins also experienced unwanted sexual advances from Noar and Virga, as did nurse Kimberly Hutchinson from Noar.

The Baltimore jury of nine returned a unanimous verdict for the plaintiffs and awarded each woman punitive damages of $110,000. The jury also held the claimants were entitled to compensatory damages in amounts ranging from $4,000 to $10,000.

Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964.

It says something about this employer that it failed to negotiate a settlement in this case when it had the opportunity to do so. The EEOC filed suit after attempting unsuccessfully to reach a pre-litigation settlement through its conciliation process. Publicity from this fiasco is not likely to encourage new patients to flock to the clinic, nor is it likely to encourage confidence in these medical professionals from existing patients. Duh.

“This verdict is significant because it reminds high-level officials who function as the employer that their high level does not give them license to abuse women – they must treat employees as professionals,” said Debra Lawrence, regional attorney of the EEOC’s Philadelphia District Office.

 

Great Policy; No Follow-Through

The best policy in the world won’t protect you without follow-through.

That’s the lesson of a decision by the Seventh Circuit  Court of Appeals  in a Wisconsin sexual harassment case, Equal Employment Opportunity Commission v. Management Hospitality of Racine, Inc., et al., No. 10-3247 (Jan. 9, 2012,).

The defendant, a company owned by Salauddin Janmohammed  which operates 21 International House of Pancakes restaurants, had a “zero-tolerance”  anti-harassment policy in place, anti-harassment training, and a policy of investigations of complaints.

What it didn’t have was follow-through. Or, in the words of the Court, “the policy and complaint mechanism were not reasonably effective in practice.”

According to the Court:  “the presence of a sexual harassment policy is encouraged by Title VII [but] the mere creation of a sexual harassment policy will not shield a company from its responsibility to actively prevent sexual harassment in the workplace.”

The Court upheld an award of $105,000 to two teenage servers at an IHOP operated by the defendant in Racine.  Katrina Shisler and Michelle Powell said they were sexually harassed in 2004 and 2005 by an IHOP assistant manager in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

Normally, an employer can advance the so-called Faragher/Ellerth affirmative defense in a Title VII case sexual harassment claim involving a hostile work environment. This allows the employer to escape liability for damages if:

 (a) it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and

 (b) “the plaintiff employee unreasonably failed to take advantage of any protective or corrective opportunities provided by the employer or to avoid harm otherwise.”

The Court said the  Faragher/Ellerth affirmative defense was not available to the Management Hospitality because both teens had complained to managers about sexual harassment  and the managers did nothing.  The company did not begin investigating until a private investigator hired by an attorney for one of the teenager began asking questions.

The Court said a rational jury could have found that the sexual harassment occurred “every shift,”  was “highly offensive,” and included “physical touching.”

The Court said a rational jury also could conclude that the employer failed to follow its own policies by discouraging  employees from reporting complaints, providing inadequate anti-harassment training to supervisors, and failing to “promptly” investigate the complaints.

The EEOC filed suit on behalf of the two teenaged servers. A jury awarded one of the servers $1,000 in compensatory damages and the other $4,000 in compensatory damages and $100,000 in punitive damages.

Ron Paul to sexual harrassment victims — Go home?

Unlike Herman Cain, his former competitor in the GOP presidential race,  Ron Paul is not facing accusations of sexual harassment.

However, Paul, a member of the U.S. Congress from Texas, may be accused of having stunningly little understanding of the problem.

Earlier this month, Paul told Fox News he is standing by statements he made in a 1987 book, Freedom Under Siege, that workers who are targets of sexual harassment must bear some responsibility for the abuse and do not require any special legal protection.

“Why don’t they quit once the so-called harassment starts?” wrote Paul. “Obviously the morals of the harasser cannot be defended, but how come the harassee escapes some responsibility for the problem about sexual harassment in the workplace.”

Earlier this month, host Chris Wallace of  Fox News Sunday asked Paul whether he still agreed with those 1987 statements.  Paul said he does, adding that neither verbal and physical harassment  warrants a federal law.

Regarding the issue of verbal harassment, Paul said:  “If it’s just because somebody told a joke to somebody who was offended, they don’t have a right to go to the federal government and have a policeman come in and put penalties on those individuals. They have to say maybe this is not a very good environment. They have the right to work there or not work there.”

Paul said workers who are victims of physical sexual harassment also do not require protection from a federal law because there already are laws prohibiting assault and rape.

“Because people are insulted by rude behavior, I don’t think we should make a federal case about it. I don’t think we need federal laws to deal with that. People should deal with that at home,” he said.

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment, which is a form of sex discrimination. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

The U.S. Supreme Court repeatedly has said that Title VII doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious.  Harassment becomes illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

In other words,  to be actionable, victims of sexual harassment must feel their very freedom to work  is … under siege.

Herman Cain: Sexual Harasser?

Since this article was written another woman came forward and claimed that she had an affair that lasted more than a decade with Republican presidential candidate Herman Cain .  After denying it, Cain dropped out of the race on 12/3/11. 

*    *    *

Three women independently say Republican presidential candidate Herman Cain sexually harassed them when they worked for him while he served as President and CEO of the National Restaurant Association between 1996 and 1999.

A fourth woman, Sharon Bialek,  said that during this time period she contacted Cain to ask for a job. Sitting in a parked car with Cain, she says, Cain pushed his hand under her skirt and pushed her head toward his crotch.  “I was very, very surprised and very shocked. I said, ‘What are you doing? You know I have a boyfriend. This isn’t what I came here for.’ Mr. Cain said, ‘You want a job, right?’”

Other women may have come forward but for a vague threat of retribution made last week by Lin Wood, Cain’s defense attorney, who said that any new women who are thinking of coming forward with allegations against the candidate should “think twice” before they do.

So there Cain stood, Saturday night, behind a podium in South Carolina, alongside other Republican candidates, answering questions about foreign policy in a nationally televised debate, as if there is no question but that he possesses the character to occupy the highest office of our land, the President of the United States.

What happens when a worker is subjected to sexual harassment by the CEO of the company? Most are shocked and emotionally traumatized. They fear, justifiably, that they will lose their job or suffer retribution if they do not submit. This is not like innocent flirting or misguided chivalry. Sexual harassment is on a continuum of violence that includes rape and bullying.

Karen Kraushaar, one of the two women who settled sexual harassment claims while they worked at the National Restaurant Association while it was led by Cain, told the New York Times:

When you are being sexually harassed in the workplace, you are extremely vulnerable. You do whatever you can to quickly get yourself into a job someplace safe, and that is what I thought I had achieved when I left.”

Ms. Kraushaar now works as a spokeswoman for one of the three inspectors general at the Treasury Department.

In our criminal justice system an individual is deemed innocent until proven guilty but this is an election and not a criminal trial where an innocent defendant might be imprisoned or executed.

What does it take to raise serious questions about whether a person possesses the good moral character that one would at least hope to see in a future U.S. President?

Is it enough that four women independently accuse the same man of essentially the same type of abusive behavior over a period of years? Suppose one of these women is lying? That would leave three.  Is that enough?

Kraushaar and another woman who worked for Cain at the National Restaurant Association received substantial financial settlements (one got a year’s salary) from the association in exchange for their silence and agreeing to forfeit their right to sue for damages. Generally employers do not shell out tens of thousands of dollars without proof of wrongdoing. Had there been no settlements, it is quite possible that at least one lawsuit would have been filed against Cain and the restaurant association.  Presumably that is what the restaurant association paid to avoid.  What weight should society now place on Cain’s claims of innocence?

If that’s not enough, Cain initially said there were no financial payoffs to the women.

Cain has inferred that the allegations by the women represent a Machiavellian plot dreamed up by Democrats to assassinate his character but isn’t it more likely that the Democrats would prefer Cain, a former head of Godfather Pizza, to former governors Mitch Romney and Rick Perry?

Ultimately, this is less a question of politics than it is a question of character. Cain was a man who had supervisory authority over three women who say he sexually harassed them, and he had the power to hire the fourth. What did he do with that power? When all is said and done, Cain sounds more like a workplace bully than a credible candidate for  U.S. President.

Veronica v. Jugheads?

July 11, 2011 – Veronica would never work here.

The New York Daily News reports that Archie Comic Publications is suing co-Chief Executive Officer Nancy Silberkleit  for alleged bullying.  Silberkleit says the company is best by jugheads resistant to female supervision.

Meanwhile, Oregon.Live.com published an article in last year quoting Silberkleit, a former third grade art teacher, as stating she was stunned by the old boys’ network she encountered upon assuming the post of co-CEO following the 2009 death of her husband, Michael Silberkleit, the son of an original co-founder of the company, Louis Silberkleit.

“I’m a mother coming into a very male-oriented business,” Silberkleit told Oregon Live. “I’m not getting any support. I felt very alone.”

The lawsuit seeks to bar Silberkleit from the company’s Westchester, NY,  headquarters and to stop her from representing the company at Comic Con International later this month in San Diego.

The lawsuit alleges Silberkleit  is a foul-mouthed tyrant prone to outbursts about male genitalia and that several employees are fearful of her “erratic” behavior and bullying.

Several employees allegedly complained about Silberkleit’s antics, including an incident in 2010 in which she is said to have asked if sex toys were stored in an office safe, adding, “I need to adjust my balls.”

In April 2010,  Silberkleit is said to have walked into a meeting  “and referring to a book yelled out ‘PENIS, PENIS, PENIS, PENIS”” and then said, “My balls hurt.”

Her co-CEO is Jon Goldwater, the son of another co-founder of the company, John L. Goldwater. The company was founded in 1939.

Complacent Employer Hit With $95 Million Award

Note:  On July 7, 2011, U.S. District Court Judge J.  Michael Reagan granted Aarons’ motion to reduce the compensatory damages award for Alford’s Title VII sexual harassment claim pursuant to the statutory cap from $4 million  to $300,000.00 and the Court vacated the $50 million punitive damages award. Title VII authorizes the award of both compensatory and punitive damages but provides a cap on the total amount of damages recoverable based on employer size. See 42 U.S.C. § 1981a.   Reagan states in his opinion: “The Court notes that this remittitur results solely from the statutory cap and is not an expression of the Court’s opinion or the reasonableness of the jury verdict as to Count XII.”

East St. Louis, IL –A federal jury has awarded $95 million to a young woman who alleged she was the victim of a campaign of sexual  harassment and assault by a supervisor at  one of 1,800 stores operated by the rent-to-own company, The Aaron’s Inc.

The St. Louis Post Dispatch reported on June 10, 2011 that the jury in U.S. District Court in the Southern District of Illinois awarded the woman, Ashley Alford,  $95 million in compensation, including $15 million in compensatory damages and $80 million in punitive damages.  A cap on damages in federal sexual harassment cases will reduce the award to about $41.6 million.  A spokesperson for Aaron’s said the award does not accurately reflect the evidence in the case and Aaron’s plans to appeal.

The Aaron chain’s entire profit in 2010 was $118 million.

Alford’s attorney, David S. Ratner, said the award could be an all-time record for an individual plaintiff in  sexual harassment case.

Alford, who is in her mid-20s, began work as a customer service representative at the store in 2005. She said her supervisor, the store’s then-general manager, Richard Moore, engaged in a year-long escalating campaign of sexual harassment, beginning with crude sexual jokes and  ending with assault.

In the fall of 2006, Alford alleged, Moore sneaked up behind her as she was sitting on the floor of the stockroom and hit her on the head with his penis. In another incident,  Moore  allegedly threw Alford to the ground, lifted her shirt and masturbated over her as he held her down. Moore  is awaiting trial on a criminal charge related to the accusations in St. Clair County Circuit Court.

It appears that Aaron’s was complacent. Alford called a company harassment hotline in May 2006, but an investigator never contacted her.  At some point after the call, the suit claims, she was approached by Moore’s supervisor, who confronted her in front of Moore about his alleged harassment and warned Moore to “watch his back” because of the complaint.

In their verdict, jurors found that Moore had assaulted and battered Alford, and found Aaron’s liable for “negligent supervision,” ‘sexual harassment” and “intentional infliction of emotional distress.”

In a press release, Chad Strickland, Vice President of Associate Resources for Aaron’s, Inc., said Moore’s alleged acts “are not only completely inconsistent with everything our Company believes in and stands for, but are also far outside the scope of his employment and were never condoned by the Company.”

According to its web site,  “Over 55 million households across North America know and trust the Aaron’s name. Aaron’s, Inc. New York Stock Exchange ticker symbols are AAN and AANA.”

Aaron’s stock was down .04 percent on June 13, 2011.

 

A Matter of Personal Space

The U.S. Court of Appeals for the First Circuit ruled on Oct. 6, 2010 in the case of Vera v. McHugh that a supervisor’s allegedly intentional encroachment on a subordinate’s personal space was severe and pervasive enough to constitute sexual harassment under Title VII.

The plaintiff , a U.S. Army soldier, shared a small office with her male supervisor.  She  alleged that for three months he stared at her,  sat very close to her,  made it difficult for her to leave the office and called her “babe” on one occasion. She alleged that he enjoyed her discomfort, and would smirk at her reaction to his behavior.

The First Circuit reversed a grant of summary judgment for the Army, remanding the matter for jury trial. The court ruled the plaintiff alleged sufficiently severe and pervasive conduct to constitute a violation of Title VII if proven.

Federal courts take different positions with regard to the level of severity necessary to constitute a hostile work environment and sexual harassment under Title VII.

The First Circuit includes U.S. District Courts in Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.

The 94 U.S. judicial districts are organized into 12 regional circuits, each of which has a United States court of appeals. A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies.