Tag Archives: Sexual harassment

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.

#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.

 

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.

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.

EEOC Enters Historic First Settlement in Sexual Orientation Case

Contributed by Carlos Arévalo, July 20, 2016

settlementBack on our March 8, 2016 blog, we reported about two new lawsuits filed by the EEOC based on sexual orientation. On June 28, 2016, the EEOC reached a historic first settlement on one of these lawsuits. In the case against Pallet Companies, doing business as IFCO Systems North America, the EEOC alleged that the company discriminated against a woman by terminating her for complaining about harassment associated with her sexual orientation. Yolanda Boone, a forklift driver at IFCO’s Baltimore plant, complained that her supervisor harassed her by repeatedly making comments about her sexual orientation. This included comments such as “I want to turn you back into a woman,” “I want you to like men again” and “you would look good in a dress.” Despite Boone’s complaints to management, the harassment continued. Following additional complaints to the general manager and HR, Boone was purportedly terminated.

While the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion, it does not explicitly include sexual orientation as a basis.  Nevertheless, the EEOC maintains that harassment based on sexual orientation is covered under the prohibition against discrimination based on sex. To date, no federal appeals court has issued a ruling adopting the EEOC’s approach to sexual discrimination claims involving sexual orientation.  However, cases are pending in the 2nd, 7th and 11th Circuits.

The settlement award includes $7,200 in back pay, $175,000 in damages to Boone, and $20,000 to the Human Rights Campaign, an LGBTQ advocacy group. As part of the settlement, IFCO will also retain an expert to develop workplace training addressing sexual orientation, gender identity and transgender issues in the workplace.

In light of the terms of the settlement, and as we suggested in our earlier blog, employers nation-wide should review and revise their EEO policies to ensure conformance with the EEOC’s enforcement strategy, even if their state does not already protect sexual orientation. Employers should also ensure that management and supervisory employees are trained to identify potential instances of discrimination and harassment based on sexual orientation, and how to address employee complaints relating to sexual orientation as the failure to do so could have severe legal and financial consequences.

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.