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
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 While this law repealed Initiative 77 (discussed in NEW LAW – Washington DC Elimination of Tip Credit Repealed) and imposed new posting requirements on all DC employers (discussed in COMING SOON: New Posting Requirements for All DC Employers), the new law also imposes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
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
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.
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
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.
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
On August 29, 2018, Delaware Governor John Carney signed House Bill 360 into law. This new law, which goes into effect on January 1, 2019, amends the Delaware Discrimination in Employment Act by prohibiting sexual harassment in the workplace and imposing new requirements regarding sexual harassment training on most Delaware employers.
The new law makes it clear that both sexual harassment and retaliation are prohibited in employment in Delaware. Sexual harassment is defined as “conduct that includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Such conduct is unlawful where:
- submission to such conduct is made either explicitly or implicitly a term or condition of an employee’s employment;
- submission to or rejection of such conduct is used as the basis for employment decisions affecting an employee; or
- such conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or creating an intimidating, hostile, or offensive working environment.
Continue reading NEW LAW: Sexual Harassment Training Now Required For Delaware Employees
Earlier this year, New York City enacted new laws requiring NYC employers to educate their employees about workplace harassment and sexual harassment.
Under the new law, the NYC Commission on Human Rights is required to provide employers with certain tools to help NYC employers comply with the new law. These tools include:
- Creating a workplace poster addressing the new law (in both English and Spanish)
- Develop a model anti-harassment policy
- Develop a model standard complaint form
- Develop a model anti-harassment training program.
The NYC Commission on Human Rights recently published the English version of the new workplace poster (the Spanish version is still forthcoming). Starting September 6, 2018, all NYC employers are required to display this poster (and the Spanish version) in a prominent location in the workplace.
We recommend that employers post this poster as soon as possible.
In addition to the poster, the NYC Commission on Human Rights has also released a “Stop Sexual Harassment Act Factsheet”. This factsheet is intended to help employers meet the requirement of providing all employees (and new hires) with notice of the anti-harassment law. Employers may either distribute this factsheet to all existing employees and new hires and/or they can incorporate the information in the factsheet into an anti-harassment policy in the employee handbook or a free-standing policy.
We recommend that employers provide this factsheet to all current employees and new hires. Continue reading NEW POSTER: NYC Publishes New Sexual Harassment Poster
On July 9, California Governor Jerry Brown signed Assembly Bill 2770 into law. This new law, which goes into effect on January 1, 2019, extends protections for employers when faced with a defamation claim brought by a former employee — at least in a situation where an employer shares information about a sexual harassment investigation with a potential employer as a part of a reference check.
Many employers dread the “reference check” call because they fear that speaking candidly about the employee could lead to a defamation claim being brought against the company. To avoid this risk, most employers respond to this type of call by only giving the most basic information — (1) confirming that the individual actually worked for the company, (2) confirming the duration of employment, and (3) confirming the position(s) the individual held with the company (remember — providing salary history information is now illegal in California!) The end result — the potential employer does not learn about the problems that existed with this employee and, even worse, a serial harasser could be unleased on another company’s employees.
This new law is intended to combat this problem and will give California employers some leeway in speaking truthfully about sexual harassment investigations. The new law protects former employers who, in responding to an inquiry, tell a prospective employers that they would not rehire the former employee because the former employee engaged in conduct that violated the employer’s policy prohibiting sexual harassment — provided that the communication is made based on credible evidence and “without malice.” In California, a “malicious statement” is one motivated by hatred or ill will, or that is recklessly made without reasonable grounds for believing that the claim is true. Continue reading NEW LAW: California Includes Sexual Harassment Claims in Privileged Communication Law