A Not So Special Snowflake

By Kathleen J. Jennings (kjj@wimlaw.com)

With all this talk about sexual harassment in the news, it is nice to find out that there are some things that you can call someone at work without being liable for harassment. This week, we learned that the Seventh Circuit Court of Appeals does not consider calling a co-worker a “snowflake” to be actionable harassment. Actually, the white custodian in question was called a “dumb, stupid snowflake,” which is mean, but still not actionable harassment. (Fellers v. Brennan, 7th Cir., No. 17-1176, unpublished, summary judgment affirmed 10/24/17).

The Seventh Circuit further held that the plaintiff’s other allegations, which also included being called a “dumb, stupid f**king asshole white boy,” weren’t severe or pervasive enough to sustain a harassment claim under Title VII of the 1964 Civil Rights Act. In its decision, the Court noted that the plaintiff wasn’t physically threatened, and the alleged conduct wasn’t frequent.

While these types of comments, used infrequently, may not rise to the level of actionable harassment, that does not mean that an employer should just let them go. The first step in combatting harassment in the workplace and preventing lawsuits like this one is to encourage employees to respect one another. In fact, this month, the EEOC launched a new employer training program aimed at creating respectful workplaces. The EEOC claims that the training program focuses on respect, acceptable workplace conduct, and the types of behaviors that contribute to a respectful and inclusive, and therefore ultimately more profitable, workplace. The program is customizable for different types of workplaces and includes a section for reviewing employers’ own harassment prevention policies and procedures. There are two different training programs: Leading for Respect (for supervisors) and Respect in the Workplace (for all employees).

Pro tip: Some harassment prevention is just common sense: no supervisor or manager should tolerate an employee calling another employee disparaging names, or “dumb” or “stupid.” That’s the time to remind employees that “we don’t treat each other like that around here.”

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.

Me Too? Is This A Good Time for a Company To Conduct Workplace Harassment Training?

By Kathleen Jennings (kjj@wimlaw.com)

Unless you are living under a rock or in a digitally untethered cabin in the woods, you are aware of the publicity concerning sexually inappropriate (and worse) behavior by Harvey Weinstein and Amazon Studios’ Roy Price. These revelations have been followed by the hashtags and social media posts of “me too” which scores of women have used to share their experience of sexual harassment and sexual assault.

In the face of this firestorm, what is a company to do? There are two main options: (1) embrace the moment and demonstrate commitment to a policy that the company will not tolerate sexual harassment in the workplace, or (2) ignore it and hope this whole issue blows over. While option #2 may be cheaper in the short term, it is highly unlikely that the issue of sexual harassment in the workplace is going to just “go away” any time soon. From a legal and practical standpoint, companies should be looking at option #1. The EEOC thinks so, too. According to Acting EEOC Chair Victoria Lipnic, “This is an opportunity in terms of what you do in house for compliance and really do the things that need to be done to address this topic.”

What kinds of things can and should a company do now to address the issue of harassment in the workplace?

Actually, the question should be: what is your company already doing to prevent and address harassment in the workplace? Because if your company has more than 15 employees, your company has an affirmative duty to prevent and address harassment, thanks to two Supreme Court cases decided in 1998. In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998), the U.S. Supreme Court imposed an unprecedented affirmative burden on all employers to prevent and address the issue of sexual harassment in the workplace. From that point forward, it became more important than ever for all employers to review their policies and procedures regarding harassment in the workplace.

In the Faragher and Ellerth cases, the Court established a framework for determining an employer’s liability for harassment by its supervisory employees:

  • First, the Court criticized the division of sexual harassment into the categories of “quid pro quo” and “hostile environment.”
  • The law now focuses on whether supervisory harassment results in a tangible employment action against allegedly harassed employees. A tangible employment action involves a significant change in employment status, such as hiring, firing, failing to promote, or reassigning to a position with significantly different responsibilities.
  • If there is a tangible employment action, the employer will be held strictly liable for the conduct of the harassing supervisor.
  • If the harassment by the supervisor does not result in a tangible employment action, though the employer may not be strictly liable for the supervisor’s conduct, the employer may be liable if the harassing conduct is severe and pervasive (this is what was typically referred to as a hostile environment case). In situations such as these, the employer may avoid liability through the affirmative defense.

This defense requires the employer to prove that:

  1. it took reasonable preventive and remedial steps against harassment, and
  2. the complaining employee did not utilize these measures to avoid the harm underlying the complaint.

This rule currently only applies to supervisory harassment. If the alleged harassment is committed by a co-worker, or other non-supervisory employee, then the Faragher/Ellerth framework does not apply. In cases involving harassment by a non-supervisor, an employer may be liable for harassment if it knew or should have known about the harassment and failed to take prompt, effective remedial action.

The following is a list of basic strategies to meet the affirmative burden and avoid liability. [If you are interested in a more detailed discussion of these strategies or how to handle issues of sexual harassment in the workplace, Wimberly Lawson has a publication available entitled “Strategies for Successfully Handling Sexual Harassment Complaints.” Please email me at kjj@wimlaw.com if you would like to purchase a copy.]

1.    A Written Policy Prohibiting Harassment.

2.    Dissemination of The Policy.

3.    A User-friendly Reporting Procedure.

4.    Promptly investigate.

5.    Take prompt and effective remedial action (and follow up) when necessary.

6.    Recordkeeping.

7.    Training. Supervisor and employee training continue to be of vital importance to employers seeking to avoid sexual harassment liability under Title VII.

Do not succumb to the mistaken belief that training and discussion of sexual harassment will only serve to stir up complaints. Employees are already inundated with news stories of sexual harassment on an almost daily basis. Additionally, savvy plaintiffs’ lawyers are using the media to stir up claims and generate business of their own. If your company does not make sufficient efforts to address the issue of sexual harassment in the workplace, your company will be an easy target for these lawyers.

Things a company can do right now:

  • Remind all employees that the company does not tolerate harassment in the workplace and that it has a procedure for them to use if they have any complaints about harassment in the workplace.
  • Talk to supervisors and managers about the issue of harassment in the workplace. Make sure they know what to do if they become aware of a complaint of harassment. Also make sure that they understand the company’s policy against harassment and complaint procedure so that they can answer any employee questions (or know where to send employees if they can’t answer a question.)
  • If you already have harassment prevention training scheduled at regular intervals, remind employees of that training and the dates it will be given.
  • If the company has not conducted any harassment training in over one year, it is a good time to think about scheduling some training in the near future.
  • If you have any questions about how to go about implementing any of these strategies, talk to qualified employment counsel.

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.

When the Big Boss is Accused of Sexual Harassment

By Kathleen J. Jennings (kjj@wimlaw.com)

One of the big stories in the news this week concerns accusations of sexual harassment (and worse) against the head of a Hollywood production company. Various sources claim that the allegations against this man have been an open secret for years. There is even a memo written by a company employee to company executives about the sexual harassment and the “toxic environment” it created. From what we can tell, the company did nothing until the allegations were made public in the media.

What should a company do if it receives a complaint of sexual harassment against a high-level executive? As in the case of any other complaint of sexual harassment in the workplace, it should not ignore it. Instead, it needs to conduct an investigation to determine if the complaint has any merit.

When the complaint concerns a high-level executive or the head of the company, it is best to retain a neutral person outside the company to conduct the investigation, preferably someone who is trained in doing this kind of investigation. An investigation by a company employee may be influenced by the concern about the impact of the investigation on his or her career at the company. The investigator should be able to conduct the investigation without pressure or limitations imposed by the accused executive or any other management employees on the investigator or potential witnesses. There should be a full and complete investigation of all of the facts. Based on that investigation, the company’s Board of Directors can make an informed decision whether discipline or other action against the executive is necessary. Ideally, the decision about whether to take action against the accused, and if so, what action to take, should be made with the assistance of counsel.

However the investigation comes out, the company also has a duty to protect the complainant and any participants in the investigation from retaliation by the accused executive and/or people acting directly on his/her behalf (we call this the “cat’s paw” theory of liability). One way to ensure this is to add an extra layer of review of any employment decisions made by the accused executive that affects the complainant and any participants in the investigation.

Alternatively, the company can do as the Hollywood production company appeared to do: pay off complainants and sweep the matter under the rug. We see how that turned out.

Pro tip: When conducting harassment prevention training, make sure that the company’s management and high-level executives participate in the training just like all other company supervisors and managers. Their presence at the training sessions demonstrates the company’s commitment to a workplace free 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.

 

Does Your Workplace Need Active Shooter Training?

By Kathleen Jennings (kjj@wimlaw.com)

Most workplaces practice fire drills once or twice a year, even though they have never experienced a fire (and hope they never will). But how many workplaces practice a response to other crises, such as an active shooter?

If you run a search of the terms “active shooter training,” you will find that there are a number of companies that provide active shooter training to companies and individuals. It is also interesting to see how active shooter training has evolved. In the past, employees generally were taught to duck and hide from an active shooter. Now, some programs train employees to be more active; they should run from the scene, actively disrupt and confuse a shooter, or even try to physically take down a shooter. For example, the Department of Department of Homeland Security has recommended that federal workplaces adopt the training program “Run, Hide, Fight,” which it helped develop.

Demand for active shooter training generally increases after a highly publicized mass shooting. Realistically, does your workplace need this training? What is the risk that any of you will encounter an active shooter? Like the fire drill analogy above, you may never need the training, but is it better to make sure that all employees know what to do in the event of an active shooter?

It is also important to take steps to prevent an active shooter from putting your employees at risk. In fact, OSHA requires it. Although there are no specific OSHA standards for workplace violence, under OSHA’s General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.” The courts have interpreted OSHA’s general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard. An employer that has experienced acts of workplace violence, or becomes aware of threats, intimidation, or other indicators showing that the potential for violence in the workplace exists, would be on notice of the risk of workplace violence and should implement a workplace violence prevention program combined with engineering controls, administrative controls, and training.

Do your employees know what to do in the event of an active shooter? Even if you do not believe that active shooter training is necessary, at a minimum, you should have a written plan in place to deal with that type of crisis, and you should review the plan with employees periodically.

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.