Category: Sexual Harassment
A recent Federal Court case State of Arizona v. ASARCO (9th Cir. 11-17484 10/24/13) points out just how bad supervisors can get and what can happen to an employer who looks the other way. Apparently the Plaintiff, Ms. Aguilar, got hit on by her bosses a lot. For example, in her lawsuit she claimed that on June 18, 2006, Aguilar became a rod and ball mill person, which took her from the filter plant to the main mill building. In Aguilar’s crew was Julio Esquivel, a “distributed control systems operator.” Although he was not her direct supervisor, Aguilar reported to him and he maintained some authority over her day-to-day work.
Before Aguilar even had started in her new position, Esquivel warned, “your ass is mine” and told her that he would be spending more time with her than his “lady.” According to Aguilar, Esquivel was often giving her conflicting orders, snapping his fingers at her, telling her to “watch herself,” yelling at her, and threatening her with termination. ASARCO responded to this testimony at trial by attempting to show that, as awful as Esquivel was toward Aguilar, it was not motivated by her sex but instead by his general boorishness.
As a result of Esquivel’s reputation as a “rude bully” who “yelled at everybody,” at least one manager at ASARCO did not feel the need to act in response to Aguilar’s complaints. In July, Aguilar asked for a leave of absence to deal with personal problems relating to the custody of her children. She took that leave in September of 2006 and did not return until November 1st. When she returned, she was placed on a different crew. Aguilar worked four more days and then quit ASARCO for good.
The jury found ASARCO liable on the sexual harassment claims but not on the constructive discharge or retaliation claims. Critically, the jury did not find any compensatory damages for Aguilar, instead awarding her one dollar in nominal damages for the sexual harassment claim. The jury then awarded her $868,750 in punitive damages!
Fortunately for the company, that verdict was reduced on appeal. Unfortunately, ASARCO and/or their EPLI carrier (if they had one) will have to dish out at least $125,000 plus in damages and easily over $150,000 in legal fees, if not twice that amount.
Moral to the story: Don’t let jerks, bullies, and other miscreants work for you!
Are your policies (and employees) ready?
It should hopefully come as no surprise to employers that federal law prohibits sexual harassment – including when the harasser and victim are the same sex. But, what if an employee is harassed for not being masculine or feminine enough? A recent Fifth Circuit case suggests that harassment based on gender stereotyping, if severe or pervasive, can be same-sex sexual harassment, and the failure to avoid such conduct can be costly.
In EEOC v. Boh Brothers Construction Company, LLC, a male ironworker claimed that he was harassed by his male supervisor because he was perceived to be insufficiently manly. No. 11-30770, 2013 U.S. App. LEXIS 19867 (5th Cir. Sept. 27, 2013). A jury found that the supervisor made graphic sexual gestures and crude and derogatory comments about the ironworker, implying that he was feminine. The jury awarded the ironworker over $450,000, which was subsequently lowered to $300,000 to comply with federal limitations on such damages.
On appeal, the Fifth Circuit held that the supervisor’s gender stereotyping was evidence of same-sex sexual harassment and the persistence and severity of the conduct violated federal law. But, as the Fifth Circuit Court noted, the judgment could have been avoided if the company had simply instituted suitable policies and training programs regarding sexual harassment.
Article written by attorney Sean Libby of Worklaw® Network firm Elarbee Thompson (www.elarbeethompson.com)
Editors comment: The workplace gets ever more politically correct. I wonder if calling somebody a guy Metro-Sexual counts? Bottom line is frat house antics don’t work in today’s workplace.
In the case of Beaumont-Jacques v. Farmers Group (CA2/3 B239855, filed 6/12/13, pub. ord. 7/11/13) an independent contractor brought sexual harassment and other employee based claims. The court agreed with the trial court that the plaintiff was an independent contractor so it dismissed the sex harassment and related claims.
The case of McGrory v. Applied Signal Technology should give any old school manager a shiver up their spine. In this case Mr. McGrory, a four-year employee had worked his way up to the point where he was managing twelve employees. One of those employees, Dana Thomas, was given a verbal warning for poor performance and, subsequently, a written performance improvement plan. Instead of signing the PIP, she launched a complaint accusing McGrory of creating a hostile work environment because of her gender and sexual orientation (she is a lesbian). She did not claim sexual harassment. As a result of her complaint, the company brought in a female investigator who interviewed McGrory, Thomas, and other employees. In the course of the interview, she asked McGrory to rank his employees as well as to identify any employees who had complained about Ms. Thomas’ performance. In an effort to protect his employees, he chose not to respond to those questions. In the course of the investigation, McGrory readily told the investigator a couple of the jokes that he had told in the workplace which made fun of the accents of English-speaking abilities of an East Indian man, one that made vulgar reference to women’s breasts and a man’s penis. Apparently he continued to make such jokes even though a female subordinate had expressed discomfort with them. He admitted that other men in his department went into an office during and after work hours to tell jokes. He thought this was OK as females were not present. The scene makes me think of a Mad Men episode.
As a result of the investigation, the attorney concluded there was in fact no discrimination against Ms. Thomas and that she in fact had performance problems. She claimed McGrory attempted to impede her investigation. She also concluded that because of this other hostile environment based conduct that termination of McGrory would be justified; as would the imposition of lesser discipline such as a suspension without pay for one month, denial of a bonus, monitoring his performance review meetings, and requiring participation in a management skills class. Viewing McGrory as a liability, the management team decided to terminate him.
As a result, McGrory filed a lawsuit claiming he was the one discriminated against. He also claimed that he had immunity for any statements he made during the investigation, and therefore any allegation he was not cooperative could not be used against him. Bottom line is the court dismissed his case stating that he was an at-will employee and that he was not fired for discriminatory reasons.
Interestingly, the problems with Ms. Thomas continued even after Mr. McGrory’s departure. As a result, she resigned her employment with the company and eventually agreed to a release of all claims and a payment of about $90,000—for alleged poor performance!
Moral of the story: As I indicate in our sexual harassment training programs, this is not your daddy’s workplace. The Mad Men approach does not work in today’s workplace. With anyone. Anytime. No mas. Sorry. Otherwise good managers and decent people can find themselves out of work and out of luck simply because they make stupid remarks and jokes in the workplace. Better to leave those in the home front.
Apparently France now thinks so, as reported in the Huffington Post. In fact, sexual harassment can be a crime in the U.S. if it involves a battery, assault or false imprisonment. Times have certainly changed. I can remember the French scoffing at U.S. sexual harassment laws claiming that flirting was the French national pastime. Now that pastime can land them some jail time!
The EEOC is proud of its lawsuits. I used to be proud of mine too…until I realized thy cause more damage than good…even where there was bad conduct. According to the EEOC’s press release page these are the claims from just one week:
As you can see from the titles, disability and pregnancy leave have been major targets. Employers must do two things to better manage these claims: First, take disability requests and harassment complaints seriously. If you don’t know what to do, then get help. Secondly, get Employment Practices Liability Insurance. See the checklist on HR That Works. I bet every one of the companies sued that didn’t purchase it wishes it had. Also understand this – these settlements and verdicts are LESS than they would be if brought by private attorneys in state courts.
A review of the EEOC’s press release from the 30-day period between December 13 and January 13 reveals the following:
Bottom line: The EEOC is cranking it up. Make sure you have your disability, discrimination, and sexual harassment training and tools up to date…or you could be the next press release!
ELK GROVE, CA — The California Department of Fair Employment and Housing (DFEH) today announced the $70,000 settlement of a workplace sexual orientation harassment case against Limited Brands Store Operations, Inc., and Bath & Body Works, LLC. A manager of a Bath & Body Works was accused of harassing her co-manager because of his sexual orientation.
The DFEH filed an accusation with the Fair Employment and Housing Commission after investigating a complaint from the co-manager, who began working at Bath & Body Works in August 2007. The complainant claimed that from his first day on the job, his female supervisor referred to him multiple times a day using slurs based on his sexual orientation, drew pictures of male genitals, which she hung in the store’s back room, told his co-workers that he liked kissing boys, and falsely claimed that his attitude was affecting the work environment. The Department’s accusation further alleged that, although another store manager witnessed the harassment and the employee complained to the district manager, Bath & Body Works failed to stop the harassment, ultimately forcing the complainant to quit.
“The Department of Fair Employment and Housing takes great pride in leading the enforcement of California’s civil rights laws,” said DFEH Director Phyllis Cheng. “This compelling case should remind employers that they must have policies in place to prohibit discrimination and harassment against employees—and employ managers who can enforce those policies.”
As part of the $70,000 settlement, Bath & Body Works, LLC agreed to provide discrimination and harassment prevention training to its supervisors and managers, provide training to all new hires within 60 business days of hire, display posters informing employees of their right to report discrimination to the DFEH, and retain copies of all complaints of discrimination and harassment made by employees alleging a violation of the Fair Employment and Housing Act. Bath & Body Works did not admit to any liability in the agreement to settle.