Category Archives: Harrassment

SB 75: NEW Anti-Harassment Law – A Serious Game Changer for Illinois Employers

Contributed by Jeffrey A. Risch and Julie A. Proscia, August 9, 2019

MAJOR CHANGES TO ILLINOIS EMPLOYMENT LAWS:  NEW MANDATORY SEXUAL HARASSMENT TRAINING, REPORTING AND DISCLOSURE REQUIREMENTS, RESTRICTIONS ON EMPLOYMENT AGREEMENTS, & SEVERAL OTHER MANDATES

ATTENTION Illinois employers of ALL sizes… Are you ready?  Today (August 9, 2019), Governor Pritzker signed Senate Bill 75 – the Workplace Transparency Act – into law.  Effective January 1, 2020, major new changes will forever alter how Illinois employers manage harassment and discrimination issues as well as other workplace controversies.

In fact, the changes will require ALL employers to update their training practices, key policies, personnel forms, severance agreements and arbitration agreements.  The changes will also impact how (and IF) employers will voluntarily resolve employment disputes or litigate such disputes not only in Illinois but anywhere in the United States.

MAJOR changes coming to Illinois include:

  • Limits the use of employment policies or other agreements intended to prevent an employee from reporting sexual harassment, such as non-disclosure agreements, arbitration clauses, and non-disparagement clauses for cases involving harassment, discrimination and retaliation. No such agreement can prevent an applicant, employee or former employee from reporting unlawful or criminal conduct to a government agency. Also, a mandatory arbitration provision is void if it’s a compulsory, unilateral condition of employment or continued employment.  Finally, strict confidentiality in any settlement or severance agreement is only valid IF: the provision is expressly preferred by the individual; expressly allows the individual to have the document reviewed by an attorney of their choosing; valid consideration is provided; there is no waiver of claims following the effective date; and it provides 21 days to the individual to consider the agreement and 7 days to revoke signature after execution (regardless of age).
  • Makes harassment and discrimination against bona fide independent contract workers illegal under the IL Human Rights Act.
  • Clarifies that it is illegal to discriminate against an employee if they are perceived to be part of a protected class (i.e. gender, sexual orientation, ethnicity), even if they are not.
  • Expands the Victims Economic Security & Safety Act (VESSA) to allow victims of gender violence to take unpaid leave from work to seek medical help, legal assistance, counseling, safety planning and other assistance.  Therefore, workplace harassment could, in theory, trigger VESSA rights in ways not contemplated before.
  • Prevents a union representative from representing both a victim of sexual harassment and the alleged harasser in a disciplinary proceeding.
  • Requires ALL employers, labor organizations and units of local government to disclose the number of final, non-appealable adverse administrative or judicial decisions of sexual harassment and discrimination against them (entered anywhere in the U.S.) to the Illinois Department of Human Rights beginning July 1, 2020 and each July 1 thereafter.
  • Requires ALL employers, labor organizations and units of local government to disclose the number of private settlements that involve sexual harassment and discrimination claims, entered anywhere in the U.S. in the previous 5 years, to the Illinois Department of Human Rights if requested to do so.
  • Requires ALL employers to annually train their employees on preventing sexual harassment. The Department of Human Rights is required to make a model sexual harassment training program available for employers to provide to their employees. Training shall include:  an explanation of sexual harassment; examples of conduct that constitutes unlawful sexual harassment; a summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.
  • Creates mandatory anti-harassment and discrimination policy distribution to ALL employees of restaurants and bars (NOTE: “restaurants” and “bars” are broadly defined) within the first week of starting employment, as well as, anti-harassment training. The anti-harassment training that restaurants and bars must conduct differs from that of other sectors and must include sections on conduct, activities, and/or videos related specifically to the restaurant and bar industries; an explanation of manager liability and responsibility under the law; and be available in both English and Spanish.
  • Creates the Hotel and Casino Employee Safety Act which will require ALL hotels and casinos to adopt anti-sexual harassment policies and make safety devices aka panic buttons available to certain employees by July 1, 2020. The anti-sexual harassment policies must have specific language and provisions that include language, amongst other items, that the complaining employee is permitted to cease work and leave the immediate area if he/she perceives danger until hotel or casino personnel or the police arrive to provide assistance, as well as, provisions that give the employee  paid time off  to file a police report or criminal complaint against the offending guest and/or testify as a witness against the offending guest.

SB 75 is a BIG game changer for employers in Illinois and requires a review and revision of employment contracts, arbitration, severance and settlement agreements, employee handbooks and training programs. It is imperative that companies and HR professionals work with their legal team to develop policies, procedures and strategies to ensure compliance.  Also, litigation risk tolerance and one’s general appetite to resolve controversies should be evaluated closely as well in light of the new disclosure and reporting obligations.

Don’t Let Your Lattes Go Cold When Employees Complain About Customer Harassment

Contributed by Heather Bailey and Jeff Glass, April 23, 2019

A currently pending federal case reminds us that hospitality employers could have claims for sexual harassment and discrimination brought against them based on the alleged inappropriate conduct of their customers. 

The case is Hashway v. Starbucks Corp. (D.R.I., No. 1:19-cv-00125), filed on March 11, 2019. The plaintiff is a former female Starbucks barista. The case arose from the alleged inappropriate conduct of a male customer. The claim was that the customer allegedly would routinely come to the store and stare at the employee, make lewd and inappropriate comments about her breasts, and generally make her feel uncomfortable.

The barista alleged that eventually she arranged with her co-workers to go to the back of the store whenever the customer would come in and return to the front once he left — which was extremely stressful on the employee. Despite this attempt to avoid contact with him, she claimed that the customer continued to come in the store and make additional lewd and inappropriate comments to her. This culminated in her claiming to have a panic attack at work in front of her co-workers. She eventually sought treatment for the anxiety allegedly caused by the customer.

Render illustration of Harassment title On Legal Documents

According to the employee, she repeatedly reported the problem to Starbucks management both at the store and at the corporate level. The employee alleged she was told that management spoke with the customer, but no further action was taken against the customer. When the conduct continued the employee complained again. At that point, she was allegedly told that her options were to (1) serve the customer and engage in friendly conversation with him, (2) change her hours to avoid him, or (3) transfer to another Starbucks. The latter two options were not viable for her. The customer purportedly was a frequent visitor to the store and so changing shifts would not result in avoiding him. The alternate Starbucks location could not guarantee the employee weekday or full time hours, which she needed because she had another job on the weekends.  As such, she claimed that she had no choice but to continue working at the store and to continue to go in the back to avoid the customer when he would come in.

Subsequently, other employees purportedly complained to management of discriminatory comments by the customer, including the alleged sexual harassing comments by the customer directed at the employee. Despite the additional reports, management and Human Resources allegedly did not take any action. Rather, the general manager and supervisor of the store were alleged to have advised the employee that she could no longer go in the back when the customer came in and must serve him.

The employee alleged that, after she made repeated complaints, she was disciplined for attendance issues that other employees were not disciplined for and then was terminated because she had been 15 minutes late for a shift, an infraction which normally did not lead to termination. The employee filed a charge of discrimination alleging that her termination was due to her complaints about sexual harassment by the customer. She then filed suit, alleging sexual harassment and that she had basically been forced to endure the sexual harassment in order to keep her job. At this time the case is still pending.

Although the facts alleged in this case may seem extreme, it is certainly not unusual in the restaurant and bar industry to have patrons (both male and female) who make inappropriate comments – even physical contact – to bartenders and wait staff. This case is a reminder that such allegation and complaints must be taken seriously, and proactive steps need to be taken immediately to protect the employee from purported inappropriate and harassing conduct.

Some general practice tips include:

  • Start an immediate investigation into your employee’s complaints about the customer.
  • Immediately keep your employee safe and away from the harassing customer.
  • Determine a course of action on how to respond to the employee’s complaint, which may ultimately include asking the patron not return to your establishment. This action should not punish the employee for complaining.
  • Train employees on how to react and what to say to customers who are making them feel uncomfortable.
  • Train management on how to handle these situations.
  • When in doubt, contact your labor and employment counsel to guide you through this process to minimize risk.   

Remember, if the patron is allegedly acting inappropriately to one employee, s/he is probably doing it to others as well. How you handle the situation could make a major difference on whether that employee will take you to court or not.

The #MeToo Effect on Your Company

Contributed by Beverly Alfon and Allison Sues, November 13, 2018

#MeToo

#MeToo on white paper

As we draw closer to the end of 2018, let’s reflect a bit and look forward with purpose.  The U.S. Equal Employment Opportunity Commission (EEOC) recently released preliminary FY 2018 sexual harassment data that is consistent with the #MeToo movement:

  • Sexual harassment charges increased by more than 12 percent – the first increase in at least eight years;
  • EEOC focused on harassment claims and filed 66 harassment lawsuits; and
  • EEOC recovered nearly $70 million for sex harassment victims (up from $47.5 million in 2017).

These statistics do not include the many charges that individuals have filed with state agencies, internal complaints made with employers, lawsuits filed by employees in state or federal courts, or settlements of those claims.

These notable statistics come just one year after the EEOC released an online resource, Promising Practices for Preventing Harassment, in which the agency focused on a checklist of four core elements to “enhance employers’ compliance efforts” when it comes to addressing workplace harassment.

  • Leadership and Accountability – Consistent and demonstrated commitment of senior leaders to maintain a culture in which harassment is not tolerated. Such commitment should be demonstrated, by allocating workplace time to training on harassment, consistently disciplining any employees who harass others, and seeking out feedback from employees on the effectiveness of the employer’s anti-harassment measures.
  • Comprehensive and Effective Harassment Policy – Policy should be clear and communicated to all employees, at every level of the organization. The policy should explicitly apply to applicants and every type of employee, and must make clear that the employer will not tolerate harassment of employees by anyone, including customers, clients, or any other individuals at the worksite. The policy should be easily understandable and periodically reviewed and updated.
  • Effective and Accessible Harassment Complaint Systems – The system should welcome questions, concerns and complaints. It should encourage employees to report potential problems, and provide for prompt, thorough and neutral investigations. It should be flexible enough to allow employees to choose from multiple channels to make their complaint.
  • Effective Harassment Training – Employees need to be aware of leadership values, the policy and complaint systems.  Regular, interactive, and comprehensive training of all employees must be understandable and tailored to the specific workforce.

These guidelines are significant because they are issued by the federal agency that is charged with enforcing federal anti-discrimination laws – and courts are starting to take notice.  Under Title VII of the federal Civil Rights Act, even if an employee does not suffer an adverse employment action (e.g., demotion, termination, etc.), an employer can be held liable for harassment by a supervisor.  However, the employer may avoid liability if it can prove that (a) the employer exercised reasonable care to prevent/correct any harassment; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.  As a result, most employers have an anti-harassment policy in their handbooks for the purpose of defending against claims.  Recently, however, a federal appellate court acknowledged the existence of an employer’s anti-harassment policy, but specifically asked, “Was the policy in place effective?” In Minarsky v. Susquehanna County, No. 17-2646 (3d Cir. 2018), the plaintiff alleged that she had been harassed by her supervisor for a number of years. The district court granted summary judgment to the employer under the Faragher/Ellerth standard because she never complained to her employer about the harassment. However, the Third Circuit appellate court reversed and remanded the case based on evidence that although the supervisor was reprimanded twice and ultimately fired, the supervisor’s conduct toward the plaintiff was not isolated. Other employees previously complained about similar behavior by the supervisor, and the employer took no action in response. The court held that whether the employer took reasonable care to detect and eliminate the harassment and whether Minarsky acted reasonably in not availing herself of the employer’s anti-harassment safeguards should be decided by a jury. The mere existence of an anti-harassment policy and the plaintiff’s failure to make a complaint pursuant to that policy was not sufficient for the appellate court to uphold summary judgment for the employer.

On the legislative front, California, New York (both city and state), and Delaware, have passed laws that now require employers to train all employees on harassment prevention. New York City requires bystander intervention training. California has specific time and content requirements for its training. Notably, these all seem to be in line with what the EEOC’s Task Force on the Study of Harassment in the Workplace called for in its 2016 report and again in its 2017 compliance guide.  In this growing number of states and cities, employers are no longer allowed to shirk off training for fear of “stirring the pot,” or out of a reluctance to commit resources to anti-harassment efforts.

All of this points to is a rising legal standard for what will suffice to establish an affirmative defense for employers.  A dormant anti-harassment policy in the employee handbook will no longer cut it.

BOTTOM LINE:  In this period of heightened awareness, control what you can by fully implementing the terms of your anti-harassment policies so that your company is in its best defensible position when these harassment claims arise. While we understand that not all employers have the resources to devote to the loftier goals encouraged by the EEOC, there are three concrete steps that you can take to begin mitigating your risks:

  1. Confirm the last time that your company educated all employees on your anti-harassment policy and complaint procedures – and consider another round of training for all levels of employees;
  1. Seek a legal audit of your company’s complaint process;  and,
  1. Seek a legal audit of your company’s investigation procedures (i.e., whether best practices for investigation, documentation and follow-up are being utilized).

 

#MeToo Prompts Stiffer Sexual Harassment Laws

Contributed by Suzanne S. Newcomb, July 6, 2018

In January we reported on a change in federal tax law aimed at discouraging confidentiality in sexual harassment and abuse settlements. Since then Tennessee, Washington, New York, and New York City have enacted sexual harassment prevention measures including discouraging confidential settlements.

#MeToo

#MeToo on sketchbook 

In Tennessee and Washington it is now unlawful to condition employment on an agreement not to disclose workplace sexual harassment although confidential settlements are still permitted in both states. The Washington state law further clarifies that non-disclosure policies and agreements do not prevent discovery or witness testimony in administrative or civil judicial actions and tasks the state’s Human Rights Commission with developing model policies and best practices to prevent sexual harassment.

New York recently passed an aggressive state-wide anti-harassment law which mandates annual training, prohibits mandatory arbitration of sex harassment claims, and severely limits an employer’s ability to keep the underlying facts of such claims confidential as follows:

  • Effective Immediately Employers must protect non-employees in their workplace from sexual harassment and are liable to non-employees (i.e. contractors, subcontractors, vendors, consultants or others providing services) if the employer’s agents knew or should have known of the harassment and “failed to take immediate and appropriate corrective action.”
  • Effective 7/11/2018
    • It becomes unlawful to require employees to arbitrate sexual harassment claims (this provision will likely be challenged as violating the Federal Arbitration Act).
    • It becomes unlawful to require confidentiality as to the facts and circumstances underlying a claim of sexual harassment unless confidentiality is the complainant’s preference. If the complainant indicates he or she prefers confidentiality, the employer must wait 21 days while the complainant considers the proposed confidentiality provision and, if the complainant chooses to accept the provision, the complainant must be allowed seven days to revoke the agreement. Note, unlike the ADEA, the NY State law does not appear to allow the complainant to waive any part of the 21 day consideration period.
  • By 10/9/2018 employers in the state must (1) adopt a written sexual harassment policy and (2) provide “interactive” sexual harassment training to all employees annually. Both the policy and the training must meet the strict standards set forth in the statute.

New York City enacted its own ordinance which extends the time period for filing sexual harassment complaints to 3 years; expands the prohibition of sexual harassment to all employment and independent contractor relationships (unless the contractor is itself an employer) regardless of number of employees; effective 9/6/2018 will require employers to display a new mandatory poster and provide an information sheet to all employees upon hire; and effective 4/1/2019 will require employers to provide annual “interactive” sexual harassment training which meets the minimum standards outlined in the ordinance to all employees (including managers, supervisors and interns).

Employers with operations in New York must act now to ensure compliance. Others should remain alert as many other jurisdictions are considering similar measures.

 

I Heart You! Office Romance and Risk Management

Contributed by Beverly Alfon, February 13, 2018

As most turn their thoughts to love and romance this Valentine’s Day, we remind you of the potential liability that Cupid’s arrow may unleash. In this post-Weinstein and #MeToo period, the thought of office romance may catapult an employer into sheer panic. Although a recent CareerBuilder survey indicates that office romance is at a 10-year low, the stats are still telling: 36% of workers admitted to having dated a colleague in the past year. Of workers who had an office romance, 30% dated someone in a higher position. Yikes. A soured relationship at work can result in a broken heart for the employer – usually in the form of a sexual harassment claim. How can an employer address this?

A Love Contract?

heart

Red outline of heart on white background

These things exist. They are written relationship agreements that employers seek from employees to confirm the existence of a consensual relationship. The employer’s goal is to mitigate risk by documenting the employer’s expectation that they comply with all existing policies, including anti-harassment policies. They can also be used to set ground rules for other conduct, including public displays of affection (PDA), favoritism – and retribution (in case the relationship turns sour).  However, while these contracts can be a good “band-aid” for addressing the relationship, if a company does not have an anti-harassment program or policy regarding office relationships; it is not the best option.

A love contract alone will not likely defeat an employee’s claim of harassment. Most sexual harassment plaintiffs can claim that they were coerced into signing one because their employer presented the agreement in the context of their at-will employment. Practically, a love contract is also difficult because it requires employees to admit to the existence of a relationship in the first place. In the same CareerBuilder survey, 41% of the workers kept their romance a secret – and almost 25 of survey respondents admitted to an affair with a colleague where one person involved was married at the time.

Snap out of it!

You can more effectively mitigate legal risk by focusing on your anti-harassment program. If you don’t have a written policy in place, invest the time and dollars to get one. Having a policy on the books is not enough. It should be supplemented with annual interactive training courses (a legal requirement for California employers) – ones tailored for non-supervisory and supervisory employees. The goal is to document that employees have been trained on the internal complaint procedures. Equally important is training your supervisors on how to avoid harassment claims and how to properly handle claims if the supervisor receives knowledge of a claim. A solid anti-harassment/discrimination program demonstrates employer good-faith and can form a defense against such claims.

A general workplace romance or “fraternization” policy can address concerns over PDA and favoritism. Don’t play footsie over this. Specifically address office relationships to make it clear that you expect professional and respectful behavior of all employees, regardless of any personal relationship between them. You can prohibit PDA in the office or on company time. And yes, you can forbid romantic relationships between supervisors and subordinates. According to a 2013 survey conducted by SHRM, of businesses that had a romance policy, 99% banned supervisor-subordinate relationships. And, it’s no wonder. In addition to harassment claims, soured relationships can result in claims of assault and battery, false imprisonment and defamation against the alleged harasser. Inevitably, the employer will be rolled into any related litigation.

Bottom Line: Love contracts are uncomfortable and not very effective.  It is more effective to prohibit the risky conduct in the first place. Implementing a strong anti-harassment program and addressing employee relationships in a policy will go further in mitigating risks.

 

EEOC Actively Enforces Equal Pay Violations

Contributed by Jonathon Hoag, November 28, 2017

The EEOC’s Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021 identified “Equal Pay” as a priority area that demands focused attention. The EEOC’s recent press releases show it is actively fulfilling this strategic mission.

gender equality

Gender equality scale

In the third scenario, the EEOC obtained a judgment against a pizza restaurant for violating the Equal Pay Act. Two high school friends-one male and one female-applied to be “pizza artists” and both were hired. However, the female applicant received $0.25 less an hour in starting pay. When she realized this discrepancy, she contacted the restaurant to complain. In response, the restaurant withdrew the offers of employment to both individuals. The EEOC’s attorney referenced the vast amount of recent news related to sexual harassment and stated unequal pay is simply another form of sex discrimination in the workplace. Further, the EEOC stressed that it will continue to thoroughly investigate and enforce equal pay requirements.

Bottom Line

The overwhelming media coverage of sexual harassment and unequal treatment in the workplace reinforces that employers must make equal treatment a top priority. Periodic review of policies and practices, with attention to pay policies, remains critical to limit employer exposure to lawsuits alleging unequal pay or treatment.

Oh No, Not You (Again): Serious Enforcement of Harassment Policies Is Absolutely Necessary

Contributed by Steven Jados, November 22, 2017

During the past several weeks, it seems that every day has featured new allegations of sexual harassment involving celebrities, politicians, and others in positions of power.

These allegations invite a question to employers: Do you want to be in the news for all the wrong reasons? No? Good, because this moment in time should impress upon all businesses the importance of vigilant enforcement of anti-harassment policies.

HandbookThe first step in enforcement is ensuring that anti-harassment policies are properly communicated to all employees—from entry-level to C-Suite.  All employees should be told, in no uncertain terms, on day one of their employment and regularly thereafter, that they have the right not to be sexually harassed at work. The company’s management—all the way to the top of the organization—must also be put on notice that employees have the right not to be sexually harassed at work, and that credible allegations of harassment will carry real consequences for those who engage in such unacceptable behavior.

Employees must also be trained on how to make internal complaints of harassment within the company.  On that point, employees should know that they can contact human resources, or any appropriate member of management with whom the employee is comfortable with, to disclose improper conduct without fear of retaliation.

Training must also extend to human resources and all members of management, so that they know to recognize harassment complaints for what they are—and so the company’s investigation and enforcement procedures can promptly be put into action. Management must take all complaints or possible situations of harassment seriously, and investigate them to their reasonable conclusion.  There can be no off-the-record complaints; companies cannot look the other way because an accused manager was “just kidding” or, even worse, because an individual “gets to do whatever he or she wants.”  In the end, appropriate disciplinary action and re-training must follow when the company’s investigation determines that harassment occurred.

While proper investigation procedures can shield companies from liability in certain circumstances, failures in implementation, training, investigation, and enforcement of anti-harassment policies are more likely to result in legal liability, negative publicity and adverse financial implications.

Attention employers: Do you have questions on how to implement or communicate anti-harassment policies? Are you uncertain how you should respond to employee complaints? Do you need help in training your employees and management on company anti-harassment policies and procedures? Or, like many employers, are you simply hesitant to investigate harassment allegations against high-level managers?

Ultimately, if you are asking these questions, the best approach is to seek the advice of experienced employment counsel so that potential areas of liability can be contained and minimized, or better yet, eliminated as soon as possible.