Can the Use of One Racial Epithet Be Enough to Create a Hostile Work Environment? Yes, It Can.

By Kathleen Jennings (kjj@wimlaw.com)


If employers did not already have enough incentives to train supervisors in the avoidance of workplace harassment claims, an additional incentive comes from a decision by the U.S. Court of Appeals for the Second Circuit. In Daniel v. T&M Prot. Res., LLC, 2d Cir., No. 15-560-cv, (unpublished 4/25/17), the Second Circuit held that a single incident or comment, if severe enough, can give rise to employer liability under Title VII of the 1964 Civil Rights Act. In that case, a building security supervisor referred to Otis Daniel as “you f****** n*****,” according to court records. That comment was severe enough, said the Second Circuit. This comment was one about 20 separate incidents of harassment alleged by Daniel during his 15 months with T&M.

One can imagine other epithets directed at people based on their gender, race, national origin, or other protected categories, that may be classified as “severe” enough to rise to the level of actionable harassment. Supervisors need to be trained regularly on the types of conduct—verbal and non-verbal—that could give rise to complaints of harassment. Even one ugly epithet has the potential to cost a company a lot of money, just in the costs and legal expenses of defending a lawsuit.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Is an Employer Required to Terminate an Employee Who Has Been Accused of Sexual Harassment? Not Necessarily.

By Kathleen Jennings (kjj@wimlaw.com)

By now, most everyone is aware of the termination of employment of a television personality who has been accused of sexual harassment. According to news reports, his former employer has reached settlements with five women who had complained about sexual harassment or other inappropriate behavior by him. The agreements totaled about $13 million. The termination followed an investigation by an outside firm into additional allegations of harassment.

This same company also saw the dismissal of its CEO due to sexual harassment allegations.

So does this mean that a company should always terminate an employee who is accused of sexual harassment? It depends on the circumstances.

When an employer becomes aware of a complaint of harassment, it has a duty to investigate. If the investigation reveals that the complaint has merit, the company should take prompt, effective remedial action. The goal of any remedial action is to make sure that the harasser does not commit further harassment in the workplace. The most effective way of achieving this goal is to terminate the harasser. Whether the employer uses this ultimate punishment should depend on some of the following factors:

  • How serious was the harassment? As a general rule, incidents of unwanted touching of another, especially private parts, need to be dealt with most severely. If the harassment was verbal, there is a difference between one or two off-color jokes and profane, obscene or distasteful comments directed at another employee or his/her anatomy.
  • What is the harasser’s employment history? Is this a long-term employee who has never been in trouble? Or a fairly new employee?
  • Has this employee been accused of harassment before? If there is already one verified complaint of harassment against the employee, then any future verified complaints mean that he/she has not gotten the employer’s message that harassment in the workplace is unacceptable, and termination may be the most logical option.
  • What is the harasser’s response to the accusations? Is he/she defensive? or remorseful? If he/she refuses to admit that he/she did anything wrong, even when there is solid evidence to the contrary, there is a risk that the behavior may occur again.
  • Is there another punishment, such as demotion, suspension without pay, disqualification from bonuses or profit-sharing, or the like, that will get the harasser’s attention enough that the behavior will not happen again?

If an employer decides to give an employee one more chance, any punishment should be supplemented with harassment prevention training. That training may be extended to others in the same office, department, or facility if the employer determines that there is a systemic problem. In addition, if possible, the harasser and the recipient of the harassment should be physically separated.

Finally, regardless of what action the company takes against the harasser, everyone must be reminded that the company will not tolerate any retaliation against any employee who makes a good faith complaint of harassment.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Suspension Without Pay for Hitting Supervisor With A Vehicle Is Not Retaliation. No Kidding.

By Kathleen Jennings (kjj@wimlaw.com)

Some employees will litigate any employment decision they don’t like, even if there appears to be little or no basis for a claim. A recent example comes to us in a decision from the U.S. Court of Appeals for the 5th Circuit, Cabral v. Brennan, (5th Cir., No. 16-50661, 4/10/17). In this case, Mr. Cabral, a postal worker, was suspended for two days without pay after he hit one of his supervisors with a postal vehicle and was unable to produce a valid driver’s license or occupational license after the incident. Cabral, who is a Mexican-American over the age of 40, alleged that the suspension was actually in retaliation for his complaints about race, national origin and age discrimination.

That’s right–he hit a supervisor with a vehicle. And was suspended. Did Mr. Cabral really think he would not be disciplined for that?

The 5th Circuit ruled that the employer was entitled to summary judgment, reversing the district court below. The basis for the 5th Circuit’s decision was that the two-day suspension without pay was not a “materially adverse” action that would support a claim for retaliation under Title VII. A materially adverse action is one that would dissuade a reasonable employee from making or supporting discrimination charges. The 5th Circuit noted that whether a suspension is considered a “materially adverse” action will depend on the specific facts of each case. Mr. Cabral was unable to present any evidence other than his own stated conclusions that he experienced emotional or psychological harm because of the suspension, and therefore, could not, as a matter of law, show that the suspension was a “materially adverse” action.

The Takeaway: Some employees think that if they make a complaint about discrimination, they are suddenly made of Teflon and protected by the anti-retaliation provision of Title VII from any and all discipline. That is not the case. However, employers do need to exercise extra care in disciplining employees who have engaged in protected activity such as complaining about discrimination in the workplace. As we have noted in a previous blog post, retaliation is the most frequent claim in EEOC Charges. This court decision gives attorneys another tool for successfully fighting retaliation actions.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

Does Title VII cover discrimination based on sexual orientation? The Seventh Circuit says yes, moving the issue one step closer to the U.S. Supreme Court.

By Kathleen Jennings (kjj@wimlaw.com)

This week, the full U.S. Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) ruled that Title VII’s ban on sex discrimination precludes employers from discriminating against lesbian and gay workers based on their sexual orientation. (Hively v. Ivy Tech Community, Coll. of Ind., 7th Cir., No. 15-1720, en banc decision, 4/4/17). With the 8-3 ruling, the Seventh Circuit becomes the only federal appeals court to hold Title VII covers sexual orientation bias.

Writing for the Seventh Circuit, Chief Judge Diane P. Wood said the court’s ruling “must be understood against the backdrop” of Supreme Court decisions addressing sexual orientation more broadly, as well as its employment discrimination cases. Those rulings, including the 2015 decision recognizing a constitutional right to same-sex marriage, reflect societal changes about the meaning of sex that can’t be ignored, the Court said. To that end, the Court stated that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”

Three-judge panels in the Eleventh and Second Circuits both recently held Title VII does not prohibit sexual orientation bias. The Seventh Circuit case holding otherwise creates a split in the Circuits, which makes it more likely that the U.S. Supreme Court will be called upon to resolve the conflict. However, the employer in the Seventh Circuit Hively case has said that it will not appeal that decision, so that decision will not be the one that the Supreme Court considers.

In the Eleventh Circuit case, which we discussed in a previous post, the plaintiff, Tameka Evans, has requested reconsideration by the entire Eleventh Circuit. If the entire Eleventh Circuit decides to reconsider the decision of the 3-judge panel, it is likely that Ms. Evans’ attorneys will use the Seventh Circuit opinion in the Hively case to try to persuade the Eleventh Circuit to rule in their favor. It is interesting to note that the Seventh Circuit utilized the gender non-conformity theory that Judge Rosenbaum also noted in her dissent in the Evans case. Under that theory, discrimination based on a person’s failure to conform to traditional gender stereotypes is a form of sex discrimination.

We will continue to monitor the developments in this area.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.