Category Archives: Sexual Harassment

NEW CASE: Explains The Importance of Squashing Rumors And Gossiping At The Water Cooler

In a recent case (Parker v. Reema Consulting Services)the Fourth Circuit Court of Appeals held that employers may be liable under Title VII of the Civil Rights Act for failing to effectively address and stop gossip and rumors of an alleged sexual relationship between a female employee and a male supervisor.

Background
Evangeline Parker began working for Reema Consulting as an entry level clerk, in December 2014. During her employment with the company she was promoted six times with her final role as Assistant Operations Manager being awarded in March 2016. After her last promotion to Assistant Operations Manager, vicious rumors started circulating that Parker was afforded her position because she had a sexual relationship with a high-ranking male manager.

The rumors were further exacerbated when the high-ranking manager held a meeting with a group of employees about the rumor. He even went so far as to blame Parker for bringing the rumors to the workplace.

A month after Parker had complained to Human Resources about the vicious rumors and the managers behavior, her employment was terminated. Parker later filed a lawsuit claiming sexual harassment and retaliation claims under Title VII.

The Holding

The Court of Appeals found that the alleged hostile work environment was enough to justify Parker’s claims; thereby reversing the lower court’s previous dismissal of this lawsuit.

The Court believed that the “the sex-based nature of the rumor and its effects” created a hostile work environment for Parker.  This belief was supported by several factors.

First, the Court found that the rumors about Parker “plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labeled as ‘sluts’ or worse, prostitutes selling their bodies for gain.”

Second, the Court found that the alleged harassment reported by Parker was in fact severe and pervasive enough based on the behavior lasting approximately two months. Because the claim met the elements of sexual harassment, Parker’s complaint was protected activity. Therefore, they also reversed the ruling on the retaliation claim.

Employer Take Away

For years the pervasive ideology regarding the treatment of others has been, “Treat others the way you want to be treated”.

However, as the Federal Appeals Court has proved, this has evolved to, “Treat others the way they WANT to be treated.”

Frivolous accusations aside, it is incumbent on employers to exercise due diligence to protect the dignity and concerns of all under their employ.

As a result, all accusations should be investigated and addressed with the presumption of true merit until it can be significantly and thoroughly determined the accusation is unfounded. This due diligence will serve as protection in the event of future litigation and at a minimum serve to foster a sense of validation and dignity in all employees in an organization.

Turning a Blind Eye Can Cost a Company High Dollar Settlements

Recently, the EEOC laid a heavy hand on Green Apple, LLC, DBA Applebee’s Grill and Bar, for allowing two sisters to be sexually harassed for months by an assistant manager, which included physical groping, soliciting sex and enduring offensive sexual comments.  The sisters allege that despite multiple complaints to management, and the fact that many of these incidents were witnessed by members of management, the harassment was allowed to continue with no investigation or corrective action taken by the company.

The company was ultimately held responsible for creating a hostile work environment and was mandated to pay a $75,000 monetary settlement to the sisters. In addition, the company entered into a two-year consent decree to develop an auditing process to assist the company identify and address sexual harassment violations or potential violations; provide anti-harassment training to all area directors, general managers, assistant general managers, and assistant managers; and to report to the EEOC all complaints of sex-based conduct or comments made by employees.

In legal terms, this is called Vicarious Liability, which means an employer is liable for a hostile work environment created by a supervisor, manager or an individual perceived to have authority over employees. Continue reading Turning a Blind Eye Can Cost a Company High Dollar Settlements

CALIFORNIA EMPLOYERS — Be Sure To Reset The Clock On Employee Sexual Harassment Training

This past fall, California enacted  Senate Bill 1343,  a law that greatly expands the sexual harassment training requirements (AB 1825 training requirements) in California.

As we previously reported (in”NEW LAW: New Sexual Harassment Training Requirements For California Employers“), this law requires California employers with five or more employees provide sexual harassment training to both non-supervisory and supervisory employees (including all temporary and/or seasonal employees) as follows:

  • Existing Non-supervisory Employees: At least 1 hour of sexual harassment training by January 1, 2020.  Thereafter, sexual harassment training must be provided once every two years.
  • Non-supervisory Employees hired after January 1, 2020: At least 1 hour of sexual harassment training within 6 months of the employee’s hire date.  Thereafter, sexual harassment training must be provided once every two years.
  • Temporary or Seasonal Employees: At least 1 hour of sexual harassment training within 30 calendar days after the hire date or within 100 hours worked if the employee will work for less than six months.
    • NOTE: If the employee is employed by a temporary services employer, the training must be provided by the temporary services employer, not the client.
  • Existing Supervisory Employees: At least two hours of sexual harassment training must be provided by January 1, 2020.  Thereafter, sexual harassment training must be provided once every two years.
  • Supervisory Employees hired after January 1, 2020: At least 2 hours of sexual harassment training within 6 months of the employee’s hire date.  Thereafter, sexual harassment training must be provided once every two years.

Continue reading CALIFORNIA EMPLOYERS — Be Sure To Reset The Clock On Employee Sexual Harassment Training

NEW LAW: Illinois Employers Are Your Handbooks Compliant With The New Sexual Harassment Notice Requirements?

Attention Illinois employers … The 2018 Amendments to the Illinois Human Rights Act (IHRA) (found in Public Acts 100-0588 and 100-1066) imposed new requirements on employers relating to notifying their employees about sexual harassment.

Under these amendments, employers are required to provide employees with specific information about employee rights to be free from sexual harassment.   In particular, employers must include the text contained in the new anti-harassment/discrimination notice (titled “You Have the Right to Be Free From Job Discrimination and Sexual Harassment”) in the employee handbook.

It is recommended that all Illinois employers review their handbooks and verify that the required language is included.

NEW LAW: DC To Require Sexual Harassment Training for Tipped Employees

Attention DC Employers, on October 23, 2018, the District of Columbia Mayor signed the “Tipped Wage Workers Fairness Amendment Act of 2018.”  While this law repealed Initiative 77 (discussed in NEW LAW – Washington DC Elimination of Tip Credit Repealed) and imposed new posting requirements on all DC employers (discussed in COMING SOON: New Posting Requirements for All DC Employers), the new law also imposes the following new requirements on employers of tipped employees:

Mandatory Sexual Harassment Training For Tipped Employees

Employers will be required to provide sexual harassment training to their tipped employees and managers.  This training must be either through a course developed by the Office of Human Rights (OHR) or from an OHR-certified provider. Continue reading NEW LAW: DC To Require Sexual Harassment Training for Tipped Employees

NEW CASE: Harassment Policies Should be Provided In Multiple Languages

In a recently decided federal case (Tinoco v. Thesis Painting, Inc.), the United States District Court, for the Southern District of Maryland held that a company’s  anti-discrimination policy, was “defective or dysfunctional” because it was provided to employees only in English.

In this case, a female employee claimed that she had been sexually harassed by her male coworker.  The company attempted to avoid liability using the Faragher/Ellerth affirmative defense.  Under this defense, an employer may avoid liability for co-worker harassment if the employer exercises reasonable care to prevent and correct promptly any harassing behavior, among other things.  “Exercising care” can be demonstrated by implementing and distributing an effective harassment policy.

Here, the Court found that the company’s anti-discrimination policy was ineffective because it was only distributed to employees in English.  The alleged harasser only spoke Spanish and did not understand any English.  Therefore, he was unable to read or understand the policy. Continue reading NEW CASE: Harassment Policies Should be Provided In Multiple Languages

NEW GUIDANCE: New York Publishes Sexual Harassment Materials In Several Languages

As all New York employers are aware, earlier this year, New York enacted an expansive set of laws relating to sexual harassment, which went into effect earlier this month.

Earlier this month, the New York State Department of Labor released English versions of a Model Sexual Harassment Policy, Model Complaint Form, Training Requirements, and FAQs, which are available here.

On October 17, 2018, the New York State Department of Labor released translated versions of these documents in the following languages: Chinese, Haitian-Creole, Korean, Italian, Polish, Russian, and Spanish, which are available here.

One of the requirements under these new laws is the requirement that employers provide sexual harassment training materials and policies to their employees in the employee’s primary language.   If the New York State Department of Labor has not translated a document into the language spoken by an employee, an employer is considered in compliance by providing the employee English language documents.

EEOC Reports Uptick In Sexual Harassment Claims for 2018

On October 4, 2018, the EEOC announced preliminary sexual harassment data for FY 2018 (which ended September 30, 2018).  The end result — sexual harassment claims are on the rise.

According to the preliminary report,

  • The number of EEOC charges filed alleging sexual increased over 12% in 2018
  • The  EEOC filed 66 harassment lawsuits (41 of which included allegations of sexual harassment), this is a 50% increase from 2017.
  • The EEOC recovered nearly $70 million for victims of sexual harassment through litigation and administrative enforcement (an increase from $47.5 million recovered in 2017).

Continue reading EEOC Reports Uptick In Sexual Harassment Claims for 2018

Good News For New York Employers – The Deadline To Provide Employees With Sexual Harassment Training Has Been Extended

On October 1, 2018, the New York State Division of Human Rights and Department of Labor published the final versions of the model anti-harassment training program and a model sexual harassment policy.  See our previous article (NEW GUIDANCE:  New York State Final Sexual Harassment Model Policy & Sexual Harassment Training Programs Released) for information about the final materials.

Employers are required to adopt and provide a copy of their sexual harassment prevention policy to all employees by October 9, 2018.  In addition, employers are required to display the new sexual harassment prevention policy poster in a prominent location in the workplace no later than October 9, 2018.

It is recommended that New York employers take immediate steps to comply with these new requirements.

The good news for employers, the deadlines to provide sexual harassment training have changed.

With respect to providing sexual harassment training to new hires, the final guidance materials remove the proposed  30-day deadline by which newly-hired employees must complete their first mandatory anti-harassment training.  Instead, there is not any set deadline and the State “encourages training of of new hires as soon as possible.”  (NOTE:  New York City employers will be required to train new hires in New York City within the first 90 days of employment).

With respect to providing sexual harassment training to existing employees, the final guidance materials postpone the deadline by which all employees in New York State must complete their first annual mandatory anti-harassment training to October 9, 2019.

NEW GUIDANCE: New York State Final Sexual Harassment Model Policy & Sexual Harassment Training Programs Released

As reported earlier (NEW GUIDANCE: New York State Publishes DRAFT Model Sexual Harassment Policy and Training), in late August, the New York State Division of Human Rights and Department of Labor published draft versions of model anti-harassment training program and a model sexual harassment policy.   The publication of these materials was in compliance with these agencies’ obligations under New York State’s new anti-harassment law. As a reminder, this law:

  • Prohibits employers from using a mandatory arbitration provision in an employment contract in relation to sexual harassment;
  • Requires that nondisclosure agreements can only be used when the condition of confidentiality is the explicit preference of the victim; and
  • Amends the Human Rights Law to protect contractors, subcontractors, vendors, consultants, or others providing services in the workplace from sexual harassment in the workplace.
  • Establishes minimum standards for sexual harassment prevention policies and sexual harassment training. All employers operating in New York State must either adopt and use the State’s model policy and training as-is or use the models as a basis to establish their own policy and training.

Continue reading NEW GUIDANCE: New York State Final Sexual Harassment Model Policy & Sexual Harassment Training Programs Released