Category Archives: Harrassment

Seventh Circuit Opinion Focuses on Employee Handbook in Determining Whether Employer had Constructive Notice of Non-Supervisory Sexual Harassment

Contributed by Allison P. Sues, August 22, 2017

Employee handbookOn August 2, 2017, the United States Court of Appeals for the Seventh Circuit issued a decision in Nischan v. Stratosphere Quality, LLC providing clarity on what constitutes an employer’s “constructive notice” of harassment.

Michele Nischan worked as a project supervisor at Stratosphere Quality, LLC, a company that provides third-party inspection and quality-control services to car manufacturers. Nischan alleged that an employee of one of the client manufacturers “relentlessly” sexually harassed her by routinely rubbing himself against her and making offensive comments, amid other inappropriate actions.

Because the alleged harasser did not have supervisory authority over Nischan, Stratosphere could only be held liable for the alleged sexual harassment if it was negligent in discovering or remedying it. Normally, to prevail on this type of claim, the employee presents evidence that she made a concerted effort to report the harassment. Here however, it was undisputed that Nischan did not report the harassment during the relevant time period.

Nevertheless, an employer may be held liable even when an employee fails to report sexual harassment if the employer knew or should have known of the harassing conduct but failed to act. The Federal Appellate Court explained that constructive notice will generally attach when someone who has a duty to pass the information up the chain of command learns of the harassment.

Nischan claimed a fellow project supervisor (her peer) and an operations manager were both present when one of the incidents of harassment occurred. However she testified she was unsure whether the operations manager witnessed the harassment and he denied witnessing any conduct that constituted sexual harassment.  The lower court concluded there was no basis to impute liability to the employer because only her peer, not the higher level employee, knew of the harassment.

The Seventh Circuit disagreed.  Even though the project supervisor who witnessed the harassment held the same low level project supervisor position as Nischan and was not Nischan’s supervisor, the employer’s handbook required that any employee with any supervisory responsibility report observed instances of harassment up the chain of command or to human resources. The Seventh Circuit noted that the employer “is accountable to the standard of care it created for itself” and that because the employer’s own rules “required [the project supervisor] to report the sexual harassment that she observed, Stratosphere had constructive notice of the harassment.”

Bottom Line: This case serves as a reminder that each company’s unique employee policy may guide the court in determining an employer’s legal obligations. Employers should review their harassment and reporting policies and ensure that all employees that fall under its scope receive proper training on identifying harassing behavior—even if it is directed at another—and promptly reporting it.

Responding to Violence in the Workplace – A “Catch 22” for Employers

Contributed by Michael Wong, August 10, 2017

Workplace investigation

The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many federal and state laws that may protect certain employee conduct. More importantly, because an employer has no objective “litmus test” for predicting which employee may become violent under particular triggering circumstances, there is no foolproof way to effectively eliminate the hazard.

Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplace, as disciplining or terminating the problem employee can result in a legal claim as well.

In Mayo v. PCC Structurals, Inc., 795 F.3d 941, 942 (9th Cir. 2015), the employer, PCC, terminated the plaintiff, Thomas Mayo, after he made threatening comments to three co-workers that he was going to bring a gun to work and start “shooting people.” After the threats were reported, the employer took the proper precautions by immediately suspending the plaintiff, barring him from company property, and notifying the police. The police took him to the hospital for medical treatment on the basis that he was an imminent threat to himself and others.

After taking three months of leave under the FMLA and Oregon’s equivalent state law, a treating psychologist cleared Mayo to return to work, but recommended a new supervisor assignment. Instead, the employer terminated Mayo. Plaintiff then sued PCC alleging he was terminated because of his disability in violation of the Americans with Disabilities Act (ADA) and state law.

In Mayo v. PCC, the United States Court of Appeals for the Ninth Circuit held that an employee who made serious and credible threats of violence against coworkers is not a qualified individual with a disability under the ADA or Oregon’s disability discriminatory law. In granting summary judgment to the employer, the Court held that an essential function of almost every job is the ability to appropriately handle stress and interact with others, and that an individual is not qualified and cannot perform the essential functions of the job if he or she threatens to kill co-workers – regardless of whether such threats stem from a mental condition or disability.

What should employers do?

Against this potential liability minefield, an employer should develop an effective written workplace violence preventative policy. For those who already have policies in place, it would be a good idea to review your policies and practices with your legal counsel to make sure that these issues and any potential concerns are properly addressed.

Ask yourself the following questions to see if your policy needs to be modified in light of the recent lawsuits:

  1. Do your policies advise employees that they will be subject to discipline (up to and including termination) if they “fail to foster collegiality, harmony, positive attitude, and good relations in the workplace?”
  2. Do you have a statement that there is “zero tolerance” regarding threats or acts of violence?
  3. Do your managers/supervisors know what steps should be taken if there is a threat, complaint of bullying or violence?
  4. Have your managers, supervisors and employees been trained on identifying signs and symptoms of behavior which may predict potential violence (erratic behavior; comments regarding violence, homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; evidence of violent tendencies or abuse of alcohol or drug use)?
  5. Have your managers and supervisors been trained and regularly reminded about the importance of good documentation and dangers of bad documentation?

EEOC Task Force Identified Risk Factors for Harassment in the Workplace

Contributed by Allison Sues, July 18, 2016

Last month, an EEOC Task Force issued a lengthy report on harassment in the workplace.  The report begins with mention of the prevalence of harassment claims, which appear in almost a full third of the employment discrimination charges that the EEOC received in 2015. Given this, the report recommends that employers reboot their anti-harassment measures. Among other helpful research and advice, the report discusses risk factors that make a workplace more susceptible to harassment, many of which are discussed below:

  • Workforce comprised of many young workers. Those in their first job may not yetjob training, classroom understand appropriate workplace behavior. Reduce this risk by providing orientation to all new employees covering anti-harassment rules and complaint procedures.
  • Workplace where the job requires completion of monotonous or low-intensity tasks. Employees who are not actively engaged may turn to harassing behavior to pass the time. Reduce this risk by considering restructuring job duties to reduce monotony.
  • Isolated workspace. An employee working in an isolated area, such as a housekeeper in an individual hotel room, may become a target for harassment given the lack of witnesses. Reduce this risk by ensuring that employees in isolated areas understand complaint procedures and by creating opportunities for employees to connect with each other to share concerns.
  • Workplace with a culture of alcohol consumption. Workplaces that tolerate or encourage drinking, such as in sales, allow employees to interact with lowered inhibition and impaired judgment. Reduce this risk by training coworkers to intervene if they observe alcohol-related misconduct and by effectuating a process for handling customers who are inebriated and inappropriate.
  • Workforce where some workers do not conform to workplace norms. An employee, such as a lone female working in a male-dominated group, may perceive remarks or humor that is part of the workplace norm as harassing. Reduce this risk by leadership communicating an expected workplace culture of civility, respect, and professionalism.
  • Decentralized workplace.  Local managers may feel unaccountable for their actions or be unsure of how to handle harassment complaints. Reduce this risk by ensuring that compliance training reaches all levels of the organization and by developing systems for employees in geographically diverse locations to connect and communicate.
  • Coarsened social discourse outside of the workplace. A community’s heated discussion of current events involving a particular protected group may impact treatment toward that protected group in the workplace. Reduce this risk by proactively identifying current events that are likely to be discussed in the workplace and reminding employees of the type of conduct that is unacceptable.

In addition to the risk reduction strategies discussed above, an employer may minimize its vulnerability to harassment simply by assessing its workplace for each risk factor and then paying closer attention to the relations of the implicated work groups. Proactive employers should use these risk factors as helpful starting points for conducting anti-harassment training and in monitoring their workplace for potential harassment.

 

Who Knew? Even the Boss Can Be Sexually Harassed

Contributed by Jamie Kauther

Although not prevalent, and seemingly counterintuitive, some federal courts have recently addressed the issue of subordinate sexual harassment of their supervisors. This conundrum is especially interesting as employer liability is usually determined by the status of the harasser, including a subordinate, co-worker, or supervisor of the victim. Under Illinois law there is strict liability for employers when the harasser is a supervisor of the victim – i.e., there are no defenses available to an employer if sexual harassment is shown.

Under both state and federal law, Illinois employers are liable for sexual harassment by a victim’s co-worker when they (1) knew or should have known of the offensive behavior; and (2) failed to take immediate and appropriate corrective action. Under federal and most state laws, except Illinois which is strict liability, an employer is automatically liable for sexual harassment by a supervisor against a subordinate unless it can show that (1) it reasonably acted to prevent and to correct harassing behavior; and (2) the harassed employee unreasonably failed to take advantage of the employer’s preventive and corrective actions or otherwise failed to avoid harm. Presently it is unclear what standard applies when the victim is the supervisor.

This issue was addressed on July 20, 2015 in Simmons v. DNC Hospital Management of Oklahoma, LLC, 2015 WL 4430967, wherein the court denied summary judgment for the employer on the employee’s claimed sexual harassment at the hands of her subordinate. The court explained the employer essentially forced the employee to quit through its failure to remedy the complained of harassment. The Simmons case serves as a stark reminder that even when a supervisor is complaining of harassment by a subordinate, the employer still has a duty to stop the harassment regardless of what action the victim could have taken herself.

Further, courts across the country have started adopting standards to apply in supervisor-victim instances. Some recent court decisions have adopted a hybrid standard that meets in the middle between the reasonableness standard applied to co-worker harassment and the much higher burden imposed on supervisor harassment. This standard is as follows:

An employer may be held liable for the harassment of a supervisor by a subordinate if the employer knew or should have known of the harassment and failed to implement prompt and appropriate action; but an employer will not be liable for the sexual harassment of a supervisor by a subordinate where the supervisor-plaintiff had the ability to stop the harassment and failed to do so. 

Knudsen v. Bd. of Sup’rs of Univ. of Louisiana Sys., 2015 WL 1757695, at *5 (E.D. La. Apr. 16, 2015)

Although this is a “unique fact twist” on the sexual harassment theory, it is one that has gained traction with federal courts recently. What is important to note is that NO court has held that an employer is not liable for subordinate harassment of a supervisor. As such, although the area is still in development, employers should start incorporating this situation into their training and ensuring that all supervisors are aware that the employer’s harassment policies apply to these situations as well. Only proactive prevention, training, and correction will protect against costly litigation.

Employer’s Prompt Investigation and Action Prevents Liability For Retaliation and Co-Worker Harassment Claims

Contributed by Jon Hoag

Once again, the court has reiterated that employers can avoid liability by promptly investigating and remedying claims of harassment.  In Jensen v. Styrolution Am. LLC, Judge Guzman of the Northern District of Illinois dismissed a retaliation and harassment complaint against the employer based on proof that the employer took prompt remedial action when it learned about allegations of harassment.

Jensen claimed that he was harassed by a male co-worker, Hefele.  Jensen reported the incidents to his immediate supervisor, who intervened.  Jensen admitted that the harassment would stop for a while, but he claimed it would eventually continue.  Jensen complained to his immediate supervisor when the harassment began to escalate and the complaint was communicated to upper management and human resources.  Human resources conducted an investigation and determined that both individuals had violated the company’s policies.  After the investigation, the employees were assigned to work different shifts and did not have any further dealings or interactions.  There were no further complaints of harassment. 

The court found that the employer properly intervened and took reasonable measures to put a stop to the harassment.  When the harassment picked back up and escalated, the supervisor reported the matter to upper management.  Most importantly, the employer conducted an investigation and took remedial action.  The court stressed that a prompt investigation is the hallmark of reasonable corrective action.  Furthermore, the employer’s findings through its investigation showed that the employer’s reason for terminating Jensen – violation of company policy – was honest.  As such, Jensen could not establish that he was retaliated against for complaining about harassment.

The courts do not require employers to make wise, accurate and well-considered decisions to avoid liability when making adverse employment decisions (although it doesn’t hurt).  The courts will look to see if the employer conducted a prompt and reasonable investigation to show that the employer’s lawful reason for the adverse action was honest.

‘That’s too funny’: A Defense to Claims of Sexual Harassment In the Workplace

Contributed by Beverly Alfon

Last month, an Illinois federal court entered summary judgment against an employee who complained of sexual harassment in her workplace by her supervisor.  How did the employer defeat it?  The answer is in the e-mails.

In Jacober v. U.S. Department of Agriculture, et al., Case No. 3:10-cv-0422 (S.D. Ill. Sept. 17, 2012), a loan specialist filed suit alleging, among other things, that her supervisor sexually harassed her in the workplace by publishing inappropriate photographs of himself and a young female intern.  The court rejected Jacober’s claims on the fact that Jacober did not allege conduct that was both objectively and subjectively offensive to support a claim of sexual harassment. In examining the totality of circumstances, the court found that:  

(1) The pictures were not of a sexual nature even though the supervisor’s arms and a small portion of his torso were visible;

(2) Jacober was not present when the photographs were taken;

(3) Jacober did not assist with the creation of the PowerPoint presentation that contained the photographs;

(4) The supervisor never showed the pictures to Jacober or discussed them with her; and,

(5) Jacober was not subjected to the pictures, but rather voluntarily chose to view them after she heard about them.

The most significant factor for the court, however, was the employer’s evidence demonstrating that Jacober received and generated photographs from her e-mail that were more revealing and potentially offensive than those at issue in the lawsuit.  For example, one of the emails that she received was of man from the rearview with his backside completely revealed.  Jacober responded to the sender “That’s too funny” – clearly finding it humorous enough to forward to her daughter.  Accordingly, the court found, “Plaintiff’s own actions therefore, make it unbelievable to this court that she could find the photographs to be unwelcome sexual conduct that made her work environment intolerable.  She tolerated, and in fact, generated further distribution of images that were more revealing…much more sexual in nature than the one of [her supervisor].”

Bottom line:  Evidence of the complaining employee’s tolerance of similar conduct at the workplace can help an employer to defeat claims of harassment and discrimination.  Make sure that your company’s electronic communication and social media policies are in place and up to date. Monitoring and maintaining data on employee use of e-mail and social media at work is not easy or inexpensive, but it could hold the key to your company’s defense to claims of harassment and discrimination.

What’s In A Word? Seventh Circuit Determines That the Word “Bitch” May Constitute Title VII Sexual Harassment, Though Context Is Key

Contributed by Carly Zuba

It goes without saying that employers should be strictly prohibiting name-calling in the workplace – such behavior undermines employee self-confidence and morale, which can then result in a lack of productivity.  But if that isn’t reason enough, employers should take a look at the recent Seventh Circuit case of Passananti v. Cook County (7th Cir., No. 11-1182, 7/20/12).  This decision provides employers with yet another compelling reason to forbid name-calling: gender-based name-calling and epithets can result in costly sexual harassment claims for employers.

In this case, Passananti filed a sexual harassment and hostile work environment suit against her former employer, Cook County.  She alleged that her immediate supervisor repeatedly called her a “bitch” in front of other employees, constantly yelled at her and belittled her authority.  Additionally, she claimed that the supervisor falsely accused her of tampering with an inmate’s urine sample and of having sexual relations with another inmate.  The case went to trial and the jury returned a $4.1 million judgment for Passananti against the county.

The Northern District of Illinois, however, did not agree with the jury’s sentiments and granted the county’s post-trial motion for judgment as a matter of law. The court recognized that the supervisor’s statements were vulgar and rude, but relied on a line of Seventh Circuit cases in deciding that the use of a gender-specific derogatory name (e.g. “bitch”) does not, by itself, constitute sexual harassment. 

Story’s not over, folks.  Along comes the Seventh Circuit, deciding to reinstate the harassment verdict. In so doing, the court reasoned that a reasonable jury could in fact find that the supervisor’s repeated, hostile use of the word “bitch” indicates that the alleged harassment occurred “because of” sex.  Notably, the Seventh Circuit focused on context – the supervisor’s other conduct, including his false accusation that Passananti was engaging in sex with an inmate, gave the jury ample reason to infer that his use of “bitch” occurred on account of Passananti’s gender. 

It is important to note that despite this decision, the Seventh Circuit reaffirmed previous cases in which it found that the repeated use of “bitch” in the workplace does not automatically constitute sexual harassment – the court acknowledged that although “bitch” is a gender-specific word, it does not always mean that the word is being used to target someone’s gender.

And now for the coveted takeaway: Employers, in conducting internal investigations, ensure that you are investigating not only the core of any alleged verbal harassment (i.e. what was actually said), but also the context of that harassment.  It is important that you ask about the alleged harasser’s tone, demeanor and other behavior in determining whether harassment actually occurred.