Tag Archives: harrassment

Sexual Harassment of Lifeguard Yields $3.5m Pain and Suffering Jury Award

Contributed by Terry Fox

On August 24, 2012, a Washington, D.C., jury awarded Carmen Jean-Baptiste $3,500,000 for emotional distress for sexual harassment by her supervisor.  Jean-Baptiste was a 43-year-old lifeguard harassed by her male supervisor, Rodney Weaver.  Despite repeated complaints to others at the Takoma aquatic center about Weaver’s conduct, the harassment did not stop.  When Jean-Baptiste filed a written complaint, she was fired.

The jury foreman felt “embarrassed” by how the complaints by Ms. Jean-Baptiste were handled.  He stated that superiors ignored and stalled any action on the complaints.  The trial court has yet to award back pay damages to Ms. Jean-Baptiste.

This report is provided to those employers without enough worries to keep them up at night.  Some comfort may be taken from the limits provided by Title VII for private employers.  Non-monetary damages are capped by size of the employer to a maximum of $300,000 for a single employee complaint. However, state statutes sometimes have no limitations, as is the case with the Illinois Human Rights Act.  Pain and suffering is not limited in any manner by the Illinois Act, and punitive damages are also available.

Retaliation Claims are the New Race Discrimination Claims

Contributed by Jill Cheskes

Retaliation Claims v. Discrimination ClaimsHistorically speaking, race discrimination claims have been the most frequent type of claim brought before the EEOC year after year.  While the percentage of race claims has remained pretty constant since 1997 (about 36% of all charges filed with the EEOC), the percentage of retaliation claims has risen dramatically from 22.6% in 1997 to 36.3% in 2010 – surpassing the number of race discrimination claims for the first time. 

Retaliation claims, which essentially involve an employee complaining of discrimination and then suffering some sort of adverse action, like a termination, have long been considered more troublesome for employers than straight discrimination claims are.  This is because the underlying claim of discrimination need not be a valid claim at all, the employee need only have a good faith belief that he or she suffered discrimination.  This is not a high hurdle.

Additionally, the Supreme Court made these claims even easier in 2006 when it held that an adverse action is defined as anything that might dissuade a reasonable employee from making a complaint.  Prior to this holding, most courts required that in order for an action by the employer to be “adverse,” the action would have to cause some sort of tangible effect, such as a pay loss.  Today, anything that could dissuade an employee, whether it has a tangible effect on employment or not, could be considered retaliation.  This lower standard has been evident in several cases already.  For example, a case out of Wisconsin found that a situation where an employee was only threatened with discharge, but not actually discharged, suspended or even disciplined, was sufficient to state a claim for retaliation.  Employers beware!

Seventh Circuit: Post-Resignation Sex-Based Offensive Conduct Not Evidence of Pre-Resignation Hostile Work Environment

Contributed by Carly Zuba

What came first: the chicken or the egg?  Well, I’m not entirely sure.  However, due to the recent Seventh Circuit decision of Overly v. KeyBank National Association, I am sure of this: in the world of Title VII claims, a hostile work environment must come first – before an employee’s resignation – in order for an employee to effectively establish a hostile environment.  To expand, the Seventh Circuit recently held that a supervisor’s profane sex-based outburst towards a female former financial advisor was insufficient to show a hostile work environment under Title VII, since the outburst occurred after the female employee submitted her resignation.  You can read the case here

What exactly did supervisor Bielecki’s alleged outburst entail?  Upon receiving the resignation letter from Overly, the female employee, Bielecki decided to take an alternative approach to the traditional exit interview – he applauded, grabbed Overly’s arm to push her out the door, and yelled “Good Riddance Bitch.” 

For the record, it is not a good idea for a supervisor to exhibit this type of behavior towards an employee.  Nevertheless, the court found that:

By far the most disturbing evidence of gender bias comes after Overly had already resigned, but this cannot establish a hostile environment before her resignation. While it is unacceptable for a person to grab another in the workplace without permission, much less to refer to a woman as a “bitch,” Bielecki’s actions do not satisfy Overly’s burden to prove she suffered objectively severe and pervasive gender discrimination while working for KeyBank.

The court further held that Bielecki’s prior references to Overly as “cutie” five to ten times over the course of two months was not sufficiently severe or pervasive to create a hostile work environment, especially given the fact Bielecki stopped upon request from Overly. 

So while this case makes it clear that post-resignation offensive harassment will not constitute evidence of a pre-resignation hostile work environment in the eyes of the Seventh Circuit, employers should nonetheless ensure that employee resignations are handled in a professional manner; it’s always a good policy to abstain from name-calling.

Case Reminds Employers of the Importance of Conducting Prompt Internal Investigations!

Contributed by Jonathan Hoag

Once aware of workplace harassment, employers can avoid liability for its employees’ harassment if they take prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring.  Employers are not required to successfully prevent subsequent harassment, but the action must be calculated to achieve that result. Prompt investigation into alleged harassment is the hallmark of reasonable corrective action. The following case is a great example.

Maetta Vance was the only African-American employee in her department at Ball State University.  She became subject to racially charged disputes with co-workers and began filing complaints in 2005 regarding her coworkers’ offensive conduct.  Her allegations included her coworkers’ use of racial epithets, references to the Ku Klux Klan, threats of physical harm, and other unprofessional conduct.

In 2006, Vance, unsatisfied with the responses from her employer, filed two complaints with the Equal Employment Opportunity Commission (EEOC) alleging, among other things, a hostile work environment.  The EEOC issued a right to sue letter and she filed suit in federal court.  The district court ruled in favor of Ball State Universityand Vance appealed.

The 7th Circuit began its analysis by determining if the alleged harassment was perpetrated by supervisors or coworkers.  The 7th Circuit noted that employers are strictly liable for harassment by a supervisor, but the employer may assert an affirmative defense when the harassment does not result in a tangible employment action.  If the harassment is from coworkers, the employer is only liable if the employee can establish that the employer was negligent in discovering or remedying the harassment.  While Vance attempted to allege that some of the harassment stemmed from supervisors, the court rejected Vance’s assertions and focused on whether Ball State University properly responded to Vance’s complaints.  The court found school’s prompt action to investigate Vance’s numerous complaints to be key in upholding the district court’s ruling in their favor.

The court determined that within a two-year period, Vance filed multiple complaints involving negative encounters with coworkers and that the school had investigated each and every complaint with the same vigor and calibrated its response and action based on the results of its investigation.  Additionally, Ball State took appropriate disciplinary action when it substantiated the allegations set forth in one of Vance’s complaints.  It was equally important that Ball State thoroughly reviewed each complaint and, even when it could not substantiate the alleged conduct, the school still counseled all parties involved about the importance of civility in the workplace.

Ball State University took reasonable corrective action because it did not begin to ignore Vance’s complaints, nor did it begin to accept simple denials from the accused parties.  Instead, the school investigated each and every complaint in the same thorough manner.  As such, the court concluded that there was no basis for employer liability.

This case provides a reminder to employers of the importance of conducting a prompt and thorough investigation upon notice or awareness of workplace harassment, no matter how incredible the allegations may seem on the surface.  In addition, to fully protect against liability for coworker harassment, employers should document the investigation and take some form of corrective action to appropriately respond and address the information obtained from the investigation.