Band-Aid Not Enough in Discrmination Case

October 22, 2012 by Leave a Comment

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 discrimination. They also must fix the underlying problem that led to the discrimination.

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.”

Filed Under: DISPATCHES Tagged With: Allen Manwaring, anti-harassment policy, , EEOC v. Karenkim, federal court, , Karen Connors, , Oswego, , , U.S. Court of Appeals for the Second Circuit,

Link Between Workplace Bullying & Employment Discrimination

October 20, 2012 by Leave a Comment

One of the most common types of lawsuits facing American employers is a discrimination lawsuit.

Workplace bullying and discrimination are closely intertwined and one might even say that bullying precipitates many discrimination lawsuits

Discrimination involves unfair treatment of an individual or group of individuals because of a distinguishing characteristic that is protected under state or federal law, such as sex, race, national origin, disability, religion, etc.   But it also frequently also involves workplace bullying, which is the systematic and repeated harassment of an employee over a period of time..  One employee  - often  a supervisor – attempts to exercise improper power and control over another, often a subordinate.

Even people who despise women or minorities probably would tolerate them if they silently accept whatever abuse the bully chooses to inflict upon them, never outshine or demonstrate competence that threatens the bully and act with complete subservience at all times. Of course, that doesn’t always happens. Targets of discrimination often complain and demand to be treated with fairness. That’s when the workplace bullying begins in earnest. A bully cannot tolerate a target who refuses to aknowledge the bully’s “right” to exercise complete power and control over the target.

Employers never win when they are sued by workers. Among other things, employers have to spend money to defend themselves. It is estimated that it costs an employer $100,000 to defend even the weakest and least meritorious lawsuit, nevermind a strong case that may ultimately result in a settlement or a judgment for the plaintiff.

Last March, a physician’s assistant at a Sacramento hospital won a jury award of $168 million after alleging she was harassed by cardiac surgeons at the hospital.  She filed 18 complaints with the Human Resources Department, which not only ignored her complaints but actually fired her! She speculates the hospital’s failure to address her complaints was because the cardiac surgeons are the highest revenue producers in the hospital. The jury award included $128 million in punitive damages.

Many industrialized countries have adopted health and safety laws and other kinds of legislation to protect workers from bullying and harassment, and to require employers to provide all employees with a workplace free from bullying and psychological harassment.  But America has resisted efforts to protect workers here from bullying for more than a decade. Why?

Some unscrupulous employers use bullying  strategically to get rid of good employees and to avoid legal obligations, such as paying worker’s compensation or unemployment benefits.  Some unscrupulous employers use bullying to thwart unions and  drive out workers who demand their rights under the law. In some cases, the worker actually has a technical right  under some law to sue the employer but the reality is that few workers today can afford the legal process. And it’s biased in favor of employers anyway.

Finally, it is not inconceivable that there’s a lot of ignorance out there  about how much workplace bullying costs American employers – literally billions of dollars a year- in unnecessary turnover, lost work and needless litigation.

The unscrupulous employers are probably a small minority of American employers. Most employers want to follow the law and be good citizens. 

There is an easy and relatively inexpensive way for good employers to mimize the risk of a  potentially catastrophic discrmination lawsuit . They should adopt and rigorously enforce a general anti-harassment anti-bullying policy that makes it clear that bullying will not be tolerated by anyone in the organization, including cardiac surgeons and the Chief Executive Officer.  By the way, that’s also the right thing to do. Doesn’t every employee deserve to be treated with dignity and respect?

Those who are interested in reading more about this topic should read my new book, Surviving Bullies, Queen Bees & Psychopaths in the Workplace.

Filed Under: DISPATCHES Tagged With: , , , , , , , , , , , ,

Canadian Verdict Puts Employers on Notice

October 13, 2012 by Leave a Comment

Kudos to Beverly Peterson at Our Bully Pulpit for noting this story fromThe 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.

Filed Under: DISPATCHES Tagged With: , , , , , , , , , ,
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