Tag: “workplace harassment”

OSHA Suit Linked to Bullying

osha-logoThe U.S. Occupational Health and Safety Administration (OSHA) has initiated what appears to be one of its first – if not its first – lawsuit involving  workplace bullying.

The U.S. Department of Labor (DOL) filed the lawsuit earlier this month against a Fort Lauderdale business owner who fired a worker after the worker complained to OSHA that the worker was subjected to discrimination because he complained about hostile workplace conditions at the company.

According to an OSHA press release, Duane Thomas Marine Construction LLC and its owner, Duane Thomas, are charged with terminating the worker in violation of Section 11(c) of the Occupational Safety and Health Act (OSH Act).  Section 11 (c)  prohibits discriminating against any employee because the employee has filed a complaint related to the OSH Act or has exercised a right  afforded by the Act.  The employee was not identified by OSHA.

The case  involves what appears to be essentially a campaign of workplace bullying.

The OSHA press release states the employee complained that Thomas on numerous occasions between Dec. 9, 2009 and Feb. 25, 2011 “committed workplace violence and created hostile working conditions. He allegedly behaved abusively, made inappropriate sexual comments and advances, yelled, screamed and made physically threatening gestures, in addition to withholding the employee’s paycheck.”   The employee worked directly for Thomas at the company’s custom marine dock installation services site on Marco Island.

The case is significant because the General Duty Clause of the OSH Act requires employers to provide safe and healthful workplaces for their employees.  However, OSHA has not shown any leadership with respect to workplace bullying, even  though overwhelming research shows that workplace bullying causes potentially serious short and long-term health consequences.  OSHA typically enforces safety standards that relate to traditional industrial hazards, such as high noise levels, chemical exposure, electrical or fall hazards, etc.

Shortly after Thomas was notified of the OSHA complaint, OSHA states that Thomas  had the company’s computer passwords changed to deny the employee remote access to files and then terminated the employee.

The lawsuit seeks back wages, interest, and compensatory and punitive damages, as well as front pay in lieu of reinstatement. Additionally, it seeks to have the employee’s personnel records expunged with respect to the matters at issue in the case and to bar the employer from committing  future violations of the OSH Act.

Teresa Harrison, OSHA’s acting regional administrator in Atlanta, said, “Employees have the right to raise workplace violence concerns without fear of retaliation.”

The lawsuit, Solis v. Duane Thomas Marine Construction LLC and Duane Thomas, was filed in the U.S. District Court for the Middle District of Florida, Fort Myers Division.

Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the Secretary of Labor requesting  an investigation by OSHA’s Whistleblower Protection Program.   The  program enforces the whistleblower provisions of more than 20 statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.

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.

OSHA: A Sleeping Giant Awakes?

whip in

Many countries around the world consider workplace violence to be an important worker health and safety issue but the U.S. Occupational Safety and Health Administration has been oddly silent on this issue..

 That’s why it is significant that OSHA recently cited a  Dallas company for safety violations following a robbery that resulted in the  horrific death of a store clerk at a Whip In convenience store in Garland, Texas. 

 The OSHA citations carry proposed fines that are  underwhelming – $19,600.   However, the action sends a message to convenience store owners that they would be well advised to pay attention to the issues of workplace violence. 

 In May of 2012, the store clerk, Nancy Harris, 76, died from second- and third-degree burns after she was set on fire during the robbery. Police said Matthew Lee Johnson, 36, arrived at the Whip-In shortly after the store opened at 7 a.m. on a Sunday. Officers said he carried in a bottle of flammable liquid and used it to douse Harris and then set her on fire — after clearing out the cash register.

OSHA cited TMT Inc., owner of the Whip In chain,  for four serious safety violations.  OSHA contends that if the employer had implemented appropriate control measures and provided training to ensure awareness of potential violence, it is possible that Ms. Harris’ death could have been avoided.

OSHA could not cite any specific violations of their safety standards, so each store was cited with violating OSHA’s “general duty clause” for failing to provide a workplace free from recognized hazards likely to cause serious injury or death.

While the fine is a pittance, it is not inconceivable that the TMT will face a civil lawsuit as a result of Ms. Harris’ death and  the OSHA action could be a significant factor in  such a lawsuit.

 OSHA’s Dallas Area Office opened an investigation at the Garland store in May after the robbery and later investigated the company’s three other stores in Dallas and Mesquite. OSHA  found that workers at those locations were exposed to the same or similar workplace violence hazards.  TMTemploys more than 60 employees across the Dallas-Fort Worth area.

According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries (CFOI), of the 4,547 fatal workplace injuries that occurred in the United States in 2010, 506 were workplace homicides.

  OSHA defines workplace violence as any act or threat of physical violence, harassment, intimidation or other threatening and disruptive behavior that occurs at a work site.  According to OSHA, workplace violence  includes behavior ranging from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers and visitors.

 More information on workplace violence is available at OSHA’s website at www.osha.gov/SLTC/workplaceviolence.

Bullying Causes Co-Workers Stress

A recent study by researchers at New University of British Columbia (UBC) shows that co-workers who witness bullying  experience and may develop a stronger urge to quit than the actual direct targets of bullying.

According to the study: “Our results show that merely working in a work unit with a considerable amount of bullying is linked to higher employee turnover intentions.”

Sandra Robinson, a professor at the Sauder School of Business at UBC and co-author of the study, said society tends to assume that targets of bullying “bear the full brunt. However, our findings show that people across an organization experience a moral indignation when others are bullied that can make them want to leave in protest.”

The study is  published in the current edition of the journal Human Relations.

The researchers found that employees witnessing co-workers being bullied, or merely talking to them about their experiences,  tend to take  the targets’ perspective. As a result, they experience cognitive or emotional empathy, which includes imagining how another feels or actually sharing in another’s feelings. These empathetic responses contribute to the understanding that a significant moral violation has occurred and recognition that the victim does not deserve mistreatment. As a result of this moral uneasiness, bullying at large within a work unit will increase employee intentions to quit their work group

Data used for the study were collected through two surveys of a sample of 357 nurses in 41 units of a large Canadian health authority. The surveys used a series of questions to assess the level of bullying in each nursing unit and then asked participants to rate their positive or negative reactions toward statements like, “If I had a chance, I would change to some other organization.”

Findings show that all respondents who experience bullying, either directly or indirectly, reported a greater desire to quit their jobs than those who did not. However, the results also indicate that people who experienced it as bystanders in their units or with less frequency reported wanting to quit in even greater numbers.

Prof. Robinson said that prior research shows that intentions to quit are directly correlated with employees leaving their jobs. However, she warns that even if employees stay in their roles, an organization’s productivity can suffer severely if staff members have an unrealized desire to leave.

“Managers need to be aware that the behaviour is pervasive and it can have a mushrooming effect that goes well beyond the victims,” says Robinson. “Ultimately bullies can hurt the bottom line and need to be dealt with quickly and publicly so that justice is restored to the workplace.”

Lost in Discussion: Employers that Bully

 They Use Strategic Harassment and Exploitation

Most people who think of workplace bullies invoke the image of the combative boss played by Alec Baldwin in Glengarry Glenn Ross or the passive-hostile magazine editor played by Meryl Streep in The Devil Wears Prada.

But some workplace bullies are not individuals but the employer itself – a fact that often gets lost in the discussion of workplace bullying. Some employers use strategic harassment tactics on workers to avoid legal obligations, such as the payment of fair wages, workers compensation or unemployment insurance.

Employers that bully promulgate policies that take advantage of their workers. For example, they steal wages from their employees by intentionally misclassifying them as exempt and thus ineligible for overtime.

The Progressive States Network estimates that low-wage workers lose $51 per week to wage theft, or $2,634 per year.  That amounts to approximately 15% of their annual income

Some employers use strategic harassment to get rid of good employees. This occurs when an employer targets one or more workers for harassment to achieve an organizational goal.  Some employers, for example, make life miserable for workers when they want to downsize without paying unemployment insurance. Or they harass a “troublemaker” who has asserted a legal right to fair compensation or overtime, essentially forcing him or her to quit.

Other employers knowingly tolerate bullies in their employ for crass economic reasons – athough that strategy can backfire.

Ani Chopourian filed at least 18 complaints with the Human Resources Dept. of Mercy General Hospital in Sacramento, CA, during the two years she worked there as a physician assistant. She was fired after the last complaint. A federal court jury in March awarded Chopourian $168 million in damages, believed to be the largest judgment for a single victim of workplace harassment in U.S. history.

Many of Chopourian’s complaints involved a bullying surgeon who she said once stabbed her with a needle. Another surgeon, she said, would greet her each morning with “I’m horny” and slap her bottom. Another called her “stupid chick” in the operating room and made disparaging remarks about her Armenian heritage, such as asking her if she had joined Al Qaeda.

Ms. Chopourian speculated that hospital administrators put up with misbehavior in the cardiac unit and tolerated the surgeons’ outsize egos because cardiac surgery tends to bring in the most money for any hospital facility.

Surveys show that workplace bullying is epidemic in the United States, where at least one in four American workers reports being bullied in the workplace.  Workplace bullying can cause a target to experience potentially severe psychological and physical illness, including clinical depression, post traumatic stress syndrome and stress-related chronic disease.

Much of the focus on the problem in the United States has involved a state-by-state campaign to pass a civil law that would allow targets of workplace bullying to seek damages from individual employers. However, such a law would do nothing to combat the systemic problem of employer bullying and abuse in the United States.

This blog is part of a loose-knit coalition of workplace anti-bully advocates that is calling upon the U.S. Secretary of Labor and the Obama administration to promulgate a comprehensive national solution to the problem of workplace bullying and abuse that would  address the problem of bullying employers.  If you agree, sign our petition at: http://www.thepetitionsite.com/1/protect-us-workers/?cid=FB_TAF.

I Will Ruin … Who?

NOTE:  State College of Florida President Lars Hafner subsequently  resigned on Oct. 30, 2012 with a $363,000 settlement agreement.  The board  voted 7-0 in January 2013 to hire a new president,   Dr. Carol Probstfeld,  formerly vice president for business and administrative services at the college.  Carlos Beruff, a realtor, remains on the board.  Sigh.

Go quietly or I will ruin you

That alleged threat is at the heart of what promises to be a costly battle between two titans at State College of Florida (SCF) in Manatee-Sarasota.

The Bradenton Herald reports that the college’s board of trustees voted  5-2 this week to ask Florida’s Attorney General to investigate an allegation of forgery against SCF President Lars Hafner.

Hafner says the vote stems from a campaign of bullying by SCF board chairperson Carlos Beruff.  He recounted a private conversation with Beruff about nine months ago in which Beruff allegedly told Hafner, “If you don’t go quietly, I’m going to ruin you and ruin your reputation.”

Beruff has accused Hafner of forging former board president Steve Harner’s name on a 2010 state grant application for SCF’s Collegiate School charter school. Hafner contends he signed Harner’s to the document with Harner’s permission.

Hafner accused Beruff of risking the college’s reputation for the sake of what Hafner called Beruff’s personal and political agenda against him.

“This has been nine months of, basically, a witch hunt, and of you bullying me,” Hafner said to Beruff. “You’ve been doing it in private so other board members were not aware of what you’re saying or doing.”

At a special board meeting called by Beruff , Beruff presented an affidavit from attorney Greg Porges, whom Beruff had hired privately to research the forgery question, in which Porges said Harner did not authorize Hafner to sign the grant application in his stead.

Hafner presented an affidavit directly from former president Harner, in which Harner stated he believed that in up to four instances he had authorized Hafner to sign his name on Harner’s behalf and with Harner’s “direction and instruction.”

Meanwhile, board member Jennifer Saslaw, one of two board members to vote against taking the case to the attorney general, said Harner told her that Hafner’s signature on the application was made with Harner’s approval.

Joe Miller, the other board member to vote against involving the attorney general, questioned whether Beruff was attacking Hafner at the behest of Gov. Rick Scott, whose has proposed eliminating tenure for university employees and cutting the pay of university and college presidents.

Judge Ed Nicholas, a member of the SCF Foundation, accused the SCF board of “destroying the morale of this school” and driving away donors.  “Ever since you’ve been chairman, you’ve done nothing but attack this college or attack the staff,” Miller said. “I’m not sure who’s running things, the governor or this board.”

Hafner also said he was exploring whether Beruff violated state statutes by sharing information about Hafner’s evaluation.

One can’t help but wonder whether at any point the above officials considered other options to settle their difference? Say, mediation?  Counseling about the proper role of the administration versus the board? A duel?

Feds Anti-Bully Plan

Minnesota’s largest school district will take wide-ranging steps to protect LGBT students from bullying and harassment under the terms of a settlement reached in a lawsuit filed by the U.S. Dept. of  Justice (DOJ) and the U.S. Dept. of Education’s Office of Civil Rights (OCR).

The Anoka-Hennepin School Board approved the proposed settlement on Monday but it must still be approved by U.S. District Judge Joan N. Ericksen to take effect. The federal agencies will monitor the district’s compliance with the agreement until 2017.

The settlement is  significant with respect to the problem of workplace bullying for two reasons.

It sheds light on what the DOJ and the OCR deem to be important steps to address the general problem of harassment.

And the feds based their lawsuit on alleged violations of laws that potentially could apply to targets of workplace bullying — Discrimination on the basis of sex in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S.Constitution; Title IV of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000c–2000c-9 (Title IV), and; Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681–1688 (Title IX).

There are major differences between how the law treats students and adults but the Minnesota school settlement could be interpreted as evidence that society no longer condones bullying and harassment on the basis of sex or perceived sexual orientation. If that is the case, harassment of this type should not be acceptable in either schools or the workplace.

Authorities began investigating the Anoka-Hennepin School District in 2010 after receiving a complaint that it had failed to adequately address peer-on-peer harassment on the basis of sex and sexual orientation. The Southern Poverty Law Center and the National Center for Lesbian Rights subsequently filed a lawsuit on behalf of six students, who will received $270,000 under the settlement.

The students said they faced a constant torrent of anti-gay slurs due to their actual or perceived sexual orientation. They also said they were choked, shoved, urinated on and even stabbed with a pencil.

The students said an 18-year-old “gag rule” adopted by the district hampered the efforts of teachers to end the harassment and stigmatized gay and lesbian students.The policy required staff to stay neutral on LGBT topics in school. The policywas replaced in February with a new policy that requires district staff to affirm the dignity and self-worth of all students, including LGBT students.

Among other things, the settlement requires the District to:

  • Retain an Equity Consultant to provide a systemic review and recommend any needed revisions to district policies related to harassment, as well as district procedures relating to the investigation and response to incidents of harassment, parental notification, and tracking of harassment incidents.
  • Hire a Title IX/Equity Coordinator to implement district policies and procedures, monitor complaints, ensure that district administrators and staff adhere to sex and sexual orientation-based discrimination laws, and identify trends and common areas of concern.
  • Work with the Equity Consultant and Title IX Coordinator/Equity Coordinator to develop improved and effective trainings on harassment for all students and employees who interact with students.
  • Ensure that a counselor or other qualified mental health professional to be available during school hours for students in need.
  • Hire a mental health consultant to review and access current practices in the district relating to assisting students who are subject to harassment.
  • Provide additional specificity to further strengthen the District’s annual anti-bullying survey.
  • Expand the district’s harassment-prevention task force formed the summer of 2011 to advise the district regarding how to best foster a positive educational climate for all students.
  • Work with the Equity Consultant to further identify hot spots in district schools where harassment is or becomes problematic, including outdoor locations and on school buses, and work with the Equity Consultant to develop actions that better align with a safe, welcoming school environment.
  • Require District personnel  to investigate, address, and respond appropriately to every harassment incident, whether reported (verbally or in writing) by the harassed student, a witness, a parent, or any other individual; observed by any District employee; or brought to the District’s attention by any other means;
  • Provide contact information, including the physical address, phone number and email address, for the District’s Title IX Coordinator and Equity Coordinator.
  • Develop procedures for parental notifications that are sensitive to a student’s right of privacy regarding his or her real or perceived orientation or gender identity.
  • Provide a link on the school web site to an incident reporting form and allow direct electronic submission of complaints.

Harassment was defined in the federal lawsuit as ” … the use of derogatory language, intimidation, and threats; unwanted physical contact and/or physical violence, or the use of derogatory language and images in graffiti, pictures or drawings, notes, e-mails, electronic postings and/or phone messages related to a person’s membership in a protected class.”

The lawsuits will be dismissed with the district denying fault or wrongdoing.

Federal investigators reviewed more than 7,000 district documents and included interviews with more than 60 individuals, including current and former students, parents, district staff, teachers and administrators.

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.

Target can have job, not $4.4 million

Here’s yet another case where a jury “got it” but the court did not.  Not only did the appeals court minimize the trauma of workplace abuse in its ruling but it did not hold the employer accountable for failing to halt workplace abuse. PGB

Court Overturns Jury Award

James McKelvey was an Army soldier in 2004 when he lost his right hand trying to defuse a roadside bomb in Iraq.

After recovering at a base in Germany and at Walter Reed Army Medical Center, McKelvey moved back to Michigan, and in February 2006 accepted a civilian job with the army as an operations specialist first at Selfridge Air National Guard Base and eventually at the Detroit Arsenal.

There he became a target of verbal abuse regarding his injury by his supervisor and co-workers, and his supervisor either failed to give him work to do or gave him demeaning work assignments.

McKelvey quit on February 16, 2007 to take a non-military job in the local sheriff’s department, saying he had only stayed that long at the armory because he had a wife and child to support. He then filed a lawsuit alleging he was essentially fired – or constructively discharged – because of a hostile work environment stemming from discrimination because of his disability.

A Michigan federal court jury ruled for McKelvey on both claims but it awarded no damages on the hostile-work-environment claim.  Instead, the jury awarded McKelvey $4,388,302 in front pay on the constructive-discharge claim. Front pay is money awarded for lost compensation during the period between judgment and reinstatement, or if reinstatement is not feasible, instead of reinstatement.

The trial court judge immediately vacated the jury’s award, finding that it was not supported by law.

This week, an appellate court found that McKelvey was constructively discharged from his job at the armory but agreed with the trial court that the proper remedy is reinstatement and not the $4.4 million jury award. (See McKelvey v. Secretary of United States Army, No. 10-1172 (Dec. 14, 2011).

The appeals court said “reasonable minds” could find that McKelvey was constructively discharged from his job at the armory because “ … the crux of this claim turns on the harassment McKelvey endured. McKelvey presented evidence that (a supervisor and coworker) repeatedly called him, among other derogatory things, “all fucked up,” “a piece of shit,” “worthless,” and “a fucking cripple.” … Repeated over the course of nine months, this constant stream of invective could sustain a finding of constructive discharge.”

And yet, the appeals court said, the proper remedy in McKelvey’s case is reinstatement. The court said the $4.4 million award of front pay was too “speculative” for a relatively young man of 38 years old and any trauma McKelvey might experience by returning to the job would be mitigated by the fact that he would have different supervisors and four of his six co-workers would be new, with no connection to the prior harassment.

The  Army had argued that McKelvey could not claim constructive discharge because conditions had improved two months before he quit. According to the appeals court,“This gap is too short for us to say as a matter of law that McKelvey’s workplace was no longer intolerable, and is shorter than the gaps in cases where an employee’s delay in leaving precluded a finding of constructive discharge.”  However, the court said it might agree that McKelvey had waited to long to quit if he had stayed much longer.

The appeals court said McKelvey is entitled to back pay from the time he was constructively discharged until the Army offered him reinstatement  following the trial in his case.