In July, the Franklin County Court of Appeals affirmed the termination of a county employee for engaging in distasteful and inappropriate behavior towards, and mistreatment of, members of the public while representing the county at the Reynoldsburg Tomato Festival. Maurer v. Franklin County Treasurer, 2008-Ohio-3468 (7/10/08). In particular, evidence showed that, while he had been assigned to staff the county office’s fair booth, he sat in the chairs of the adjacent church booth, played with the children’s toys and then – over their protests -- wiped his hands on the skirts, thighs and calves of the two young women staffing the church booth. The women reported his conduct, which was then investigated. His termination followed a previous one-day suspension and mandatory sexual harassment training for giving a co-worker a candy valentine saying “big boobs.”
Following an investigation of his misconduct, he was informed that it was being recommended that he be terminated because "it has been alleged that you acted and spoke inappropriately and thus sexually harassed two women at the Reynoldsburg Tomato Festival." The letter further informed [the employee] that his conduct violated R.C. 124.34(A) because "it constitutes immoral conduct, discourteous treatment of the public, mistreatment of the public and sexual harassment * * *." His conduct also violated internal office policies. Indeed, “because [his] mistreatment of the public was a major offense in [the office’s] progressive discipline policy that permitted [his] immediate discharge from employment, the court concluded [his] conduct toward [the two young women[ warranted termination of his employment.”
The employee attempted to defend his behavior by arguing that it had been welcomed. In particular, he testified that the women had likewise wiped their hands off on his shorts and laughed when he, in turn, wiped his hands off on their skirts. However, the ALJ from the SPBR found his testimony to be inconsistent and, thus, not as credible as the testimony of the two women.
Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-3468.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
Showing posts with label sexual harassment. Show all posts
Showing posts with label sexual harassment. Show all posts
Tuesday, August 5, 2008
Tuesday, April 8, 2008
EEOC Announces $505K Settlement for Sexual Harassment of Teenagers by Restaurant Supervisor.
Yesterday, the EEOC announced that a Colorado “McDonald’s restaurant franchise will pay $505,000 and provide significant remedial relief to settle a sexual harassment lawsuit” brought by the EEOC “on behalf of a class of young female employees, including teens.”
“The EEOC’s suit, Civil Action No. 06-cv-01871-MSK-CBS, was filed in U.S. District Court for the District of Colorado against JOBEC, Inc., a management company, and the interrelated corporations Colorado Hamburger Company, Inc. and Farmington Hamburger Company, Inc., who operate McDonald’s franchises in Durango and Cortez, Colo., and Farmington and Aztec, N.M. “ The Commission’s suit alleged that Tiawna Shenefield, now known as Tiawna Jacobson, Brandi Michal and a class of females, many of whom were 15 to 17 years old, were subjected to egregious sexual harassment in the workplace by their male supervisor. The harassment allegedly included the supervisor biting the breasts and grabbing the buttocks of the class members, making numerous sexual comments, as well as offers of favors in exchange for sex. Such alleged conduct violates Title VII of the Civil Rights Act of 1964.”
“Under the terms of the consent decree resolving the case, the defendants will pay the two named victims and their attorney, Lynne Sholler, of Durango a total of $450,000 for compensatory damages and attorney fees. An additional $55,000 will be distributed to two other class members represented by the EEOC. The decree also provides for significant non-monetary relief, including letters of apology to the victims; training on sex discrimination in the defendants’ Colorado and New Mexico facilities; posting notices of non-discrimination in all of the defendants’ workplaces; and an injunction prohibiting discrimination and retaliation.”
Insomniacs can read the EEOC’s full press release at http://www.eeoc.gov/press/4-7-08.html.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
Wednesday, February 20, 2008
Sixth Circuit: Dooming Employers With Serial Sexual Harassers and Rumor Mills.
Yesterday, in Hawkins v. Anheuser-Busch, Inc., No., 07-3235 (6th Cir. 2/19/08), a unanimous Sixth Circuit Court reinstated the co-worker sexual harassment claims of two women and affirmed the denial of the similar claims of two others. The women were subjected to lewd comments and offensive touching by the same nefarious individual. The Court imposed a higher standard of responsibility on an employer when faced with a serial harasser: “An employer’s responsibility to prevent future harassment is heightened where it is dealing with a known serial harasser and is therefore on clear notice that the same employee has engaged in inappropriate behavior in the past.”
After the first complaint in 1993, the defendant employers fired the harasser, but he was reinstated following a union grievance arbitration. Apparently thinking that they would never be rid of the harasser following that arbitration, the employer failed to take significant action when they continued to receive complaints from female employees about the harasser’s lewd comments and touching. Rather, the employer generally responded by transferring the women to other production lines. After receiving additional complaints about more harassment and violent retaliation, the employer in July 2003 again fired the harasser, who lost his union grievance in arbitration. The following month, the harasser killed his girlfriend and committed suicide.
The district court granted the employer summary judgment on the harassment claims, but the Court of Appeals reinstated two of the claims because it found (1) sufficient evidence of a hostile work environment and (2) insufficient action by the employer to stop the harassment.
One of the allegations involved the harasser setting fire to one of the women’s car at her home after work. The Court noted that it had “not decided whether off-premises harassment by a co-worker may be considered as part of the severe or pervasive test under Title VII’s sexual harassment provisions” and deferred that issue to the retaliation claims.
The district court refused to consider evidence of the harasser’s conduct towards other women unless they were also directed to or in the presence of the particular plaintiff. The Court, however, held that the court and jury should have considered “evidence of other acts of harassment of which a plaintiff becomes aware during the period his or her employment, even if the other acts were directed at others and occurred outside of the plaintiff’s presence.” The Court believed that such evidence was relevant to show that the plaintiff subjectively found the work environment to be hostile. In other words, mere rumors of sexual harassment constitute evidence of harassment if the plaintiff had ever heard about them.
The degree to which these other acts should be relevant depends on a variety of factors, including the act’s proximity in time to the harassment at issue. “The further back in time the prior at occurred, in other words, the weaker the inference that the act bears a relationship to the current working environment. On the other hand, more weight should be given to acts committed by a serial harasser if the plaintiff knows that the same individual committed offending acts in the past. This is because a serial harasser left free to harass again leaves the impression that acts of harassment are tolerated at the workplace and supports a plaintiff’s claim that the workplace is both objectively and subjectively hostile.”
Even if the plaintiff proves the existence of a hostile work environment, the employer is only liable if it knew or should have known of the harassment yet failed to take prompt and appropriate corrective action. The employer is not liable for “mere negligence, but is liable if its response manifest indifference or unreasonableness in light of the facts the employer knew or should have known.”
With that in mind, the Court found that the employer’s response was unreasonable when a female employee asked to be transferred because the harasser was making her life miserable even though she never provided any details or described the harasser’s behavior. The fact that the harasser had harassed in the past was enough to put the employer on notice that it should investigate further.
The Court also refused to absolve the employer for liability when it transferred each of the complaining employees away from the harasser. “Although some courts have indeed found that simply removing a harasser from a victim’s work environment is sufficient to preclude liability, none of these cited cases involved a serial harasser.” “An employer’s responsibility to prevent future harassment is heightened where it is dealing with a known serial harasser and is therefore on clear notice that the same employee has engaged in inappropriate behavior in the past.” Employers “that take affirmative steps reasonably calculated to prevent and put an end to a pattern of harassment – such as personally counseling harassers, sending them letters emphasizing the company’s policies and the seriousness of the allegations against them, and threatening harassers with serious discipline if future allegations are substantiated – are more likely to be deemed to have responded appropriately.” In one case, an employer avoided liability by formulating an observation network to monitor the harasser, checked with the victim daily to ensure that she had not been further bothered by the harasser and warned the harasser after another complaint that he would be fired if there were any further substantiated complaints. In this case, there was evidence that the employer never counseled the serial harasser after his arbitration reinstatement or even put a letter of warning in his personnel file.
As for the employer’s feeling of helplessness after the arbitration reinstatement, the employer’s “inability to permanently discharge [the harasser] the first time that he sexually harassed an employee . . . does not excuse its failure to take appropriate action in response to subsequent incidents. Even if the [employer’s] determination that it had insufficient evidence to sustain a charge of harassment . . . was reasonable, that does not mean that it had no responsibilities to take other remedial steps to ensure [the harasser] did not harass other women. The remedies of Title VII would be rendered impotent if employers dealing with serial harassers were allowed to throw up their hands after their first effort to deal with the harasser provided unsuccessful. A company faced with a pattern of harassment must both respond appropriately and take increasingly effective steps designed to end the harassment. The failure to do so suggests indifference and permissiveness on the part of management,” although a jury may later sympathize.
The claims of the women who complained of harassment shortly before the harasser was fired were dismissed since the termination of the harasser constituted sufficient remedial action by the employer.
Insomniacs may read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0081p-06.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
After the first complaint in 1993, the defendant employers fired the harasser, but he was reinstated following a union grievance arbitration. Apparently thinking that they would never be rid of the harasser following that arbitration, the employer failed to take significant action when they continued to receive complaints from female employees about the harasser’s lewd comments and touching. Rather, the employer generally responded by transferring the women to other production lines. After receiving additional complaints about more harassment and violent retaliation, the employer in July 2003 again fired the harasser, who lost his union grievance in arbitration. The following month, the harasser killed his girlfriend and committed suicide.
The district court granted the employer summary judgment on the harassment claims, but the Court of Appeals reinstated two of the claims because it found (1) sufficient evidence of a hostile work environment and (2) insufficient action by the employer to stop the harassment.
One of the allegations involved the harasser setting fire to one of the women’s car at her home after work. The Court noted that it had “not decided whether off-premises harassment by a co-worker may be considered as part of the severe or pervasive test under Title VII’s sexual harassment provisions” and deferred that issue to the retaliation claims.
The district court refused to consider evidence of the harasser’s conduct towards other women unless they were also directed to or in the presence of the particular plaintiff. The Court, however, held that the court and jury should have considered “evidence of other acts of harassment of which a plaintiff becomes aware during the period his or her employment, even if the other acts were directed at others and occurred outside of the plaintiff’s presence.” The Court believed that such evidence was relevant to show that the plaintiff subjectively found the work environment to be hostile. In other words, mere rumors of sexual harassment constitute evidence of harassment if the plaintiff had ever heard about them.
The degree to which these other acts should be relevant depends on a variety of factors, including the act’s proximity in time to the harassment at issue. “The further back in time the prior at occurred, in other words, the weaker the inference that the act bears a relationship to the current working environment. On the other hand, more weight should be given to acts committed by a serial harasser if the plaintiff knows that the same individual committed offending acts in the past. This is because a serial harasser left free to harass again leaves the impression that acts of harassment are tolerated at the workplace and supports a plaintiff’s claim that the workplace is both objectively and subjectively hostile.”
Even if the plaintiff proves the existence of a hostile work environment, the employer is only liable if it knew or should have known of the harassment yet failed to take prompt and appropriate corrective action. The employer is not liable for “mere negligence, but is liable if its response manifest indifference or unreasonableness in light of the facts the employer knew or should have known.”
With that in mind, the Court found that the employer’s response was unreasonable when a female employee asked to be transferred because the harasser was making her life miserable even though she never provided any details or described the harasser’s behavior. The fact that the harasser had harassed in the past was enough to put the employer on notice that it should investigate further.
The Court also refused to absolve the employer for liability when it transferred each of the complaining employees away from the harasser. “Although some courts have indeed found that simply removing a harasser from a victim’s work environment is sufficient to preclude liability, none of these cited cases involved a serial harasser.” “An employer’s responsibility to prevent future harassment is heightened where it is dealing with a known serial harasser and is therefore on clear notice that the same employee has engaged in inappropriate behavior in the past.” Employers “that take affirmative steps reasonably calculated to prevent and put an end to a pattern of harassment – such as personally counseling harassers, sending them letters emphasizing the company’s policies and the seriousness of the allegations against them, and threatening harassers with serious discipline if future allegations are substantiated – are more likely to be deemed to have responded appropriately.” In one case, an employer avoided liability by formulating an observation network to monitor the harasser, checked with the victim daily to ensure that she had not been further bothered by the harasser and warned the harasser after another complaint that he would be fired if there were any further substantiated complaints. In this case, there was evidence that the employer never counseled the serial harasser after his arbitration reinstatement or even put a letter of warning in his personnel file.
As for the employer’s feeling of helplessness after the arbitration reinstatement, the employer’s “inability to permanently discharge [the harasser] the first time that he sexually harassed an employee . . . does not excuse its failure to take appropriate action in response to subsequent incidents. Even if the [employer’s] determination that it had insufficient evidence to sustain a charge of harassment . . . was reasonable, that does not mean that it had no responsibilities to take other remedial steps to ensure [the harasser] did not harass other women. The remedies of Title VII would be rendered impotent if employers dealing with serial harassers were allowed to throw up their hands after their first effort to deal with the harasser provided unsuccessful. A company faced with a pattern of harassment must both respond appropriately and take increasingly effective steps designed to end the harassment. The failure to do so suggests indifference and permissiveness on the part of management,” although a jury may later sympathize.
The claims of the women who complained of harassment shortly before the harasser was fired were dismissed since the termination of the harasser constituted sufficient remedial action by the employer.
Insomniacs may read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0081p-06.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
Wednesday, January 16, 2008
Defamation and Privilege in the Workplace
Last month, the Ohio Court of Appeals affirmed the dismissal of most of the claims of defamation and tortious interference brought by a discharged supervisor against the employees’ and union officials whose allegations had led to his termination. Gintert v. WCI Steel, Inc., 2007-Ohio-6737 (12/14/07). In that case, the supervisor had been accused over the course of a couple of years of, among other things, sexually harassing two male co-workers, making racial slurs and leaving work early without permission to begin his vacation. He then brought suit against the employees who made the allegations and the union stewards who brought the allegations to the attention of management, which terminated. (The lawsuit against the employer was stayed when the employer filed for bankruptcy).
The Court dismissed all but one of the claims because the challenged statements were reasonably connected with the union grievance procedure and, therefore, were protected by a qualified privilege. “Under the doctrine of qualified privilege, statements made in good faith on a matter of common interest between an employer and an employee, or between two employees, concerning a third employee are protected in an action for defamation. . . . If the requirements for the qualified privilege are established, then the burden falls on the plaintiff to show by clear and convincing evidence that the statements were made with actual malice, i.e., that the statements were made with knowledge or reckless disregard for their truth or falsity.” In addition, Ohio recognizes “that "union officers and employees are immune from personal liability for acts undertaken as union representatives, on behalf of the union."
However, the court found that one of the sexual harassment accusations could have been made with actual malice because the plaintiff supervisor denied categorically to having made any of the alleged sexually harassing statements and this raised a question of fact as to whether the defendant made the accusation with knowledge or reckless disregard for the truth. Nonetheless, the court dismissed the tortious interference claims because of the same privilege and held that the accusations were not outrageous enough to sustain an emotional distress claim.
Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/11/2007/2007-ohio-6737.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.
Wednesday, January 2, 2008
Ohio Appeals Court Affirms OCRC Finding that One Week of Sexual Comments is Enough To Constitute Harassment
- Last year, the Fayette County Court of Appeals affirmed a decision by the Ohio Civil Rights Commission that a Washington Court House dentist had sexually harassed a chair-side dental assistant for about a week and then constructively discharged her about a month later when he retaliated against her for complaining. Jordan v. Ohio Civ. Rights Comm., 173 Ohio App.3d 87, 2007-Ohio-3830. The court found sufficient evidence in the record to support the OCRC conclusions that one week of comments could create a severe and/or pervasively hostile work environment based on the following testimony:
· The assistant began keeping a diary of the dentist’s comments after he stated to her on her first day that he assured her that her mistakes were minor and then “stated, ‘eventually you'll know what I'm thinking * * * but then you'll probably want to slap me.’”
· On her second day of work, he followed her around and then “grabbed her from behind and pulled her against him.”
· He told her that his “wife was going on vacation and suggested that [she] should meet him at a restaurant called The Dock in Chillicothe.
· He “frequently invited her over to his home to show her his horses and described to her in detail the horses' breeding habits.”
· He “repeatedly suggested that she ‘needed a sugar daddy’ and that he had several friends that would ‘drop money’ on her if she had sex with them.
· He “talked to her about taking Viagra and that the ‘prostitutes in Vegas hated when men took Viagra because it wore them out.’”
· He said that" he couldn't tell anything about [her] body type because he hadn't seen me undressed."
· He offered “to show her nude photos from the internet and told patients that she used to work in a strip club.”
· After a patient commented that she was left-handed, he “responded to the patient that "left-handed women make better lovers."
Following this last incident, the assistant testified that she finally confronted appellant for embarrassing her in front of the patient and informed him that she did not appreciate his sexually-oriented comments and asked him to stop making those types of comments. According to the testimony, the dentist stopped being friendly to her, ignored her and criticized her frequently. About six weeks after she was hired, she quit without notice when the dentist objected to her making long-distance telephone calls to her boyfriend from the office telephone.
The OCRC awarded her both front and back pay, but the Court remanded the case to the OCRC to explain the basis for its financial calculations. The Court determined that the dentist’s sexually harassing conduct was sufficiently severe and pervasive even though it only lasted about a week because it affected her work performance and involved one incident of inappropriate touching (i.e., the hug). It also concluded that there was no abuse of discretion in finding that the dentist had constructively discharged the assistance because "[t]he evidence in the record supports the finding that Respondent singled Complainant out for treatment that became unbearable and intolerable and unreasonably altered the terms and conditions of her employment which forced Complainant to resign."
Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/12/2007/2007-ohio-3830.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.
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