The 10th Circuit issued its opinion this week on a sexual harassment case coming out of Utah that provides the perfect example for businesses wanting to wind up in federal court defending a sexual harassment case.
In Harsco Corporation v. Renner, the employer-defendant did just about everything wrong. Renner had been working at Harsco for about two years as a final inspector for the metal products Harsco produces and everything seemed fine. In 2001, her co-workers began making far from kind remarks about her and making oinking and barking noises at her. In an attempt to avoid her harassers, she confined herself to her workstation. Unfortunately, the bold harassers followed her. Her harassers even made disparaging remarks to a male co-worker, insinuating that he was having a relationship of a sexual nature with her.
After suffering the insults for about three months, Ms. Renner approached the office manager to tell her about the harassment. Next she met with the office manager and the plant manager. Neither one ever told Renner the results of any investigation. Renner then talked to her direct supervisor about the harassment.
Despite her supervisor’s assurance that the perpetrator had been told not to enter Renner’s workspace and that the harassment was “taken care of,” the harassment continued within a week. On occassion, the harasser would walk directly past Renner’s supervisor as he entered her workspace. Even after her supervisor convened a meeting of Harsco’s employees to tell them that Harsco would not tolerate sexual harassment, the perpetrators continued.
The harassment escalated. Her supervisor counseled her to avoid her perpetrators, suggesting she take the “long way around” to the bathroom, which required her to go outside and enter through another part of the building. The harassers vandalized her car and stood in front of her car when she tried to leave after work.
The court’s decision includes pages of facts detailing all of the harassment Renner suffered. Despite that, there was no testimony that an investigation ever happened. There was no testimony that any discipline was ever imposed. After two years of this treatment, Renner quit her job and filed suit.
A jury awarded her $30,000 for pain and suffering, $30,000 for emotional distress, and $20,000 in punitive damages. The trial court vacated the punitive damages award, and the appeals court affirmed, remanding the case to determine reasonable attorney fees for Renner.
The appeals court set forth the elements of a Title VII discrimination suit a plaintiff must prove to establish that a sexually hostile work environment existed: (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on sex; and (4) due to the harassment’s severity or pervasiveness, the harassment altered a term, condition, or privilege of the plaintiff’s employment and created an abusive working environment.
Renner had to further show that in proving that Harsco was negligent or reckless that Harsco had actual or constructive knowledge of the hostile work environment but did not adequately respond to the notice of the harassment.
The court reminds us that Title VII is “not a general civility code for the American workplace,” but that the harassment must be because of the plaintiff’s sex.
Despite Harsco’s argument that the harassing comments were gender-neutral and that Renner’s male co-workers were subjected to the same kinds of comments, the court found that Renner satisfied all five elements.
Bottom Line: Once again, apathy and complacency gets an employer into trouble. I think that sometimes employers let certain behavior slide. “Well, that’s just how Buford is. Heh heh heh. Just ignore him.” People hate confrontation. Despite my chosen profession, I’ll even admit to that. Employers should respond to each and every complaint seriously. They should develop policies and procedures for handling such a complaint and stick to them. Make sure complaint procedures are included in an employee handbook. Make sure a zero tolerance policy regarding harassment is in the handbook. Have an open door policy.
Monday, October 31, 2011
Wednesday, August 17, 2011
Religious Discrimination in the Workplace on the Rise
The Columbian is reporting that the Washington state office of the Equal Employment Opportunity Commission is seeing a rise in the number of charges alleging religious discrimination. The charges arise over disagreements relating to when and where people pray, how they dress, and what hours they work.
The story attributes some of the increase to the war in Iraq and an increase in diversity in the workplace. Many complaints come from Muslims, but the number of Christians filing charges is increasing.
Employers should remember that under the Title VII of the Civil Rights Act of 1964, it is against the law to discriminate against employees on the basis of their religion in decisions relating to hiring, firing, or promotion. The law applies to employers with 15 or more employees, including state and local governments, as well as employment agencies, labor organizations, and the federal government.
The story attributes some of the increase to the war in Iraq and an increase in diversity in the workplace. Many complaints come from Muslims, but the number of Christians filing charges is increasing.
Employers should remember that under the Title VII of the Civil Rights Act of 1964, it is against the law to discriminate against employees on the basis of their religion in decisions relating to hiring, firing, or promotion. The law applies to employers with 15 or more employees, including state and local governments, as well as employment agencies, labor organizations, and the federal government.
Tuesday, August 2, 2011
Sexual Orientation Discrimination
The Lawrence World-Journal is reporting that the Kansas legislature is contemplating a bill to ban discrimination on the basis of sexual orientation. The story reports that 27 states have provided some sort of protection from this kind of discrimination. Colorado isn’t one of them.
But Denver does. Denver Municipal Code Section 28-92 states:
It is the intent of the council in enacting this article to eliminate within the city discrimination by reason of race, color, religion, national origin, gender, age, sexual orientation, gender variance, marital status, military status or physical or mental disability. Discriminatory practices as defined in this article may be subject to investigation, conciliation, administrative hearings and orders or other enforcement procedures.
Employers and employees alike need to remember that there are federal rules, state rules, and local rules that may affect their rights and responsibilities. And this is a big one. Denver employers and employees have more rights and responsibilities regarding discrimination than, say, someone in Ft. Collins. I won’t get into the doctrine of preemption, but you can take a look at this article for more.
But Denver does. Denver Municipal Code Section 28-92 states:
It is the intent of the council in enacting this article to eliminate within the city discrimination by reason of race, color, religion, national origin, gender, age, sexual orientation, gender variance, marital status, military status or physical or mental disability. Discriminatory practices as defined in this article may be subject to investigation, conciliation, administrative hearings and orders or other enforcement procedures.
Employers and employees alike need to remember that there are federal rules, state rules, and local rules that may affect their rights and responsibilities. And this is a big one. Denver employers and employees have more rights and responsibilities regarding discrimination than, say, someone in Ft. Collins. I won’t get into the doctrine of preemption, but you can take a look at this article for more.
Saturday, July 2, 2011
Do I Need an Employee Handbook?
Yesterday, I spoke to a group of small business owners at the Denver Metro Chamber of Commerce on the pros and cons of having an employee handbook. I thought I’d share some of the highlights. Highlights is probably a stretch. It was, after all, a talk about employee handbooks.
The first question employers need to ask themselves is whether or not they need a handbook. One of the primary purposes of a handbook is to standardize policies and procedures with which employees are expected to comply. The smaller an employer is, say under 15-20, the less likely the risk of disparate treatment of its employees. If an employer can consistently apply its policies, then a handbook probably isn’t needed.
But once the number of employees reaches a certain level and more managers are adminstering policies and procedures, the more likely people are going to be treated differently. Unless, of course, you have a written handbook that sets out what those policies are and they are consistently applied.
One of the biggest reasons employers shy away from using a handbook is because they’ve heard that employees can use it against them, enforcing it as a contract. In fact, that has happened. With poorly written handbooks. Here are some of the things that can keep employers out of trouble:
Disclaimer - at the outset, make sure the employees know that their employment is at-will and that both you and she can terminate their relationship at any time. Include that the handbook does not constitute a contract.
Termination procedure - establishing a procedure which has to be followed to terminate someone is a bad idea and counter to the employment at-will doctrine. Instead, reiterate that the employer may terminate the employee for any reason, without notice. (Remembering of course that you can’t fire someone for a discriminatory purpose, for anything against public policy, or if you have a contract which sets forth the terms of employment.)
Grievance procedure - let the employees know what to do if they are having a problem with someone, such as harassment. Establishing such a procedure - and then following it - will go a long way from fending off claims that an employer stood by after they knew, or should have known, that something wrong was happening.
Acknowledgment - the last page of the handbook should have a statement the employee signs showing that they have received and read the handbook. Reiterate that the handbook is not a contract and that their employment is at-will.
Of course, these are only some of the things to consider when putting together a handbook. Many free or cheap resources abound for helping an employer write a handbook. Having looked at some of these, my observation is that this is not an area where someone wants to take a one-size-fits-all approach. Differences in state law, statutory and case, will impact what should and should not go into the handbook.
Not surprisingly, I’m sure, my recommendation is that you hire an attorney to help you with this task. Yes, it will be more expensive. Consider it an investment. The more you spend now, the less you spend later. Attorneys will usually offer this service for a fixed fee, freeing you from the worry that he will rack up hours and hours of billable time.
The first question employers need to ask themselves is whether or not they need a handbook. One of the primary purposes of a handbook is to standardize policies and procedures with which employees are expected to comply. The smaller an employer is, say under 15-20, the less likely the risk of disparate treatment of its employees. If an employer can consistently apply its policies, then a handbook probably isn’t needed.
But once the number of employees reaches a certain level and more managers are adminstering policies and procedures, the more likely people are going to be treated differently. Unless, of course, you have a written handbook that sets out what those policies are and they are consistently applied.
One of the biggest reasons employers shy away from using a handbook is because they’ve heard that employees can use it against them, enforcing it as a contract. In fact, that has happened. With poorly written handbooks. Here are some of the things that can keep employers out of trouble:
Disclaimer - at the outset, make sure the employees know that their employment is at-will and that both you and she can terminate their relationship at any time. Include that the handbook does not constitute a contract.
Termination procedure - establishing a procedure which has to be followed to terminate someone is a bad idea and counter to the employment at-will doctrine. Instead, reiterate that the employer may terminate the employee for any reason, without notice. (Remembering of course that you can’t fire someone for a discriminatory purpose, for anything against public policy, or if you have a contract which sets forth the terms of employment.)
Grievance procedure - let the employees know what to do if they are having a problem with someone, such as harassment. Establishing such a procedure - and then following it - will go a long way from fending off claims that an employer stood by after they knew, or should have known, that something wrong was happening.
Acknowledgment - the last page of the handbook should have a statement the employee signs showing that they have received and read the handbook. Reiterate that the handbook is not a contract and that their employment is at-will.
Of course, these are only some of the things to consider when putting together a handbook. Many free or cheap resources abound for helping an employer write a handbook. Having looked at some of these, my observation is that this is not an area where someone wants to take a one-size-fits-all approach. Differences in state law, statutory and case, will impact what should and should not go into the handbook.
Not surprisingly, I’m sure, my recommendation is that you hire an attorney to help you with this task. Yes, it will be more expensive. Consider it an investment. The more you spend now, the less you spend later. Attorneys will usually offer this service for a fixed fee, freeing you from the worry that he will rack up hours and hours of billable time.
Tuesday, June 28, 2011
McGowan v. City of Eufala
The 10th Circuit Court of Appeals issued a couple of employment law rulings last week. Colorado is part of the 10th Circuit, so their rulings have a direct effect on Colorado employment laws in the federal context.
In McGowan v. City of Eufala, plaintiff Jean McGowan accused the defendant, the city of Eufala, Oklahoma of retaliating against her for her support the race discrimination allegations of a co-worker. As we’ll see, however, Ms. McGowan unfortunately failed to recognize her part in the suicide of a prisoner while on her watch as jailer.
Title VII is a federal law that, in part, makes it unlawful to retaliate against an employee for engaging in protected opposition to discrimination. In order to establish an argument in her favor, McGowan needed to prove that: (1) she engaged in protected opposition to discrimination; (2) a reasonable employee would have found the challenged action materially adverse; and (3) a causal connection exists between the protected activity and the materially adverse action.
McGowan established that she engaged in protected opposition to discrimination by supporting her co-workers discrimination claim. Where her own claim of retaliation falls apart is in parts 2 and 3 of her requirements. McGowan claimed that the defendants retaliated against her by: not fulfilling her request to move to the day shift; suspending her after a prisoner died while in her custody as jailer; and that the defendant sanctioned harassment by members of the police department.
The court found that the defendant’s refusal to move her to the day shift was not materially adverse action, given that the defendant presented evidence that McGowan did not have the administrative skills required to perform the job during the day and that McGowan’s reason for wanting to move to the day shift was for mere convenience. The court also found that McGowan did not meet her burden of showing that any harassment by defendant amounted to materially adverse action. Members of the defendant’s police force were harassing her son and his girlfriend, the court (rather hollowly) found.
Finally, the court agreed with the lower court that there was no causal link between the city’s suspension of McGowan and her supporting her co-worker’s discrimination claim, especially given that there were more than two years between the two events.
Bottom Line: Adverse employment action isn’t always discrimination. Nevertheless, employers have to be careful about these things. Suspending someone the day after they testify in a discrimination claim just sets up the employer for a suit like this. Think through employment decisions. Ask yourself what it would look like to someone outside the organization.
In McGowan v. City of Eufala, plaintiff Jean McGowan accused the defendant, the city of Eufala, Oklahoma of retaliating against her for her support the race discrimination allegations of a co-worker. As we’ll see, however, Ms. McGowan unfortunately failed to recognize her part in the suicide of a prisoner while on her watch as jailer.
Title VII is a federal law that, in part, makes it unlawful to retaliate against an employee for engaging in protected opposition to discrimination. In order to establish an argument in her favor, McGowan needed to prove that: (1) she engaged in protected opposition to discrimination; (2) a reasonable employee would have found the challenged action materially adverse; and (3) a causal connection exists between the protected activity and the materially adverse action.
McGowan established that she engaged in protected opposition to discrimination by supporting her co-workers discrimination claim. Where her own claim of retaliation falls apart is in parts 2 and 3 of her requirements. McGowan claimed that the defendants retaliated against her by: not fulfilling her request to move to the day shift; suspending her after a prisoner died while in her custody as jailer; and that the defendant sanctioned harassment by members of the police department.
The court found that the defendant’s refusal to move her to the day shift was not materially adverse action, given that the defendant presented evidence that McGowan did not have the administrative skills required to perform the job during the day and that McGowan’s reason for wanting to move to the day shift was for mere convenience. The court also found that McGowan did not meet her burden of showing that any harassment by defendant amounted to materially adverse action. Members of the defendant’s police force were harassing her son and his girlfriend, the court (rather hollowly) found.
Finally, the court agreed with the lower court that there was no causal link between the city’s suspension of McGowan and her supporting her co-worker’s discrimination claim, especially given that there were more than two years between the two events.
Bottom Line: Adverse employment action isn’t always discrimination. Nevertheless, employers have to be careful about these things. Suspending someone the day after they testify in a discrimination claim just sets up the employer for a suit like this. Think through employment decisions. Ask yourself what it would look like to someone outside the organization.
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