Bullying vs. Harassment in the Workplace—What’s Actionable?

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

Picture the workplace bully: that manager that publicly humiliates any employee who makes a mistake at work, belittles any employee that dares talk back to him, and then storms down the hall bellowing “I’m in the mood to fire someone today!” He’s bad for employee morale, but has he engaged in actionable harassment? If he focuses his bullying on a particular protected class of employees, such as women, people over 40, racial minorities, etc., then yes. But if he abuses everyone and anyone, regardless of gender, age, race, etc., then he is what we like to call an “equal opportunity harasser,” and his behavior is probably not actionable under federal anti-harassment laws. That doesn’t mean it should be tolerated, though. This kind of behavior is likely to contribute to high employee turnover and the loss of good employees. Moreover, such behavior is likely to upset employees so much that they may consult with an attorney and/or file a charge with the EEOC. While the charges and lawsuits that result from these actions may be legally defensible, they are still going to cost the company attorneys’ fees and time to defend. The company’s reputation may take a hit, too.

Similarly, if an employee abuses another employee simply out of personal spite or vindictiveness, it is not actionable harassment, at least in Texas. In Alamo Heights Indep. Sch. Dist. v. Clark (Tex. en banc, No. 16-0244, opinion issued April 6, 2018), the Texas Supreme Court ruled that the bullying and harassment of a female middle school coach by another female coach was not actionable harassment because it was not motivated by the plaintiff’s gender. Though the bully made comments about plaintiff’s body and sexuality and made the plaintiff’s life miserable, the court said the comments were a result of personal dislike and vindictiveness and therefore, were not unlawful harassment. The employer won this case—but it had to litigate all the way to the Texas Supreme Court to do so.

Although there can be a legal distinction between bullying and actionable harassment, it is a distinction without a difference at the time an employee makes a complaint to the company about the behavior of another employee. As we have advised in the past, a company should never ignore an employee complaint of “harassment.” A company should conduct some form of investigation in response to every complaint. If an employee has taken that step of using the company’s complaint procedure, the company needs to show that it takes matters of harassment—and bullying– of employees seriously. Otherwise, the company may be doomed to high employee turnover and expensive lawsuits.

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.

©2018 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.

 

 

 

Manager’s Sexually Explicit Ringtone Results in Lawsuit

By Kathleen Jennings (kjj@wimlaw.com)

Some cases just make me shake my head. Today I read about a lawsuit filed by a female supplier engineer against Trane U.S., Inc. for sexual harassment. (Arrindell v. Trane U.S., Inc., W.D. Tenn., No. 2:18-cv-02164, complaint filed 3/9/18). What did her manager do? He programmed his phone to play a ringtone that mimicked the sound of a woman having an orgasm. (I had no idea this was even a thing). The Plaintiff alleges that she told him she found it offensive, but the manager kept playing the ringtone and also tried to engage her in sex talk.

To make matters worse, according to the Complaint, the plaintiff complained to HR, but the HR representative kept putting her off. In the meantime, the plaintiff alleges that after she complained, the manager reduced her engineering role and responsibilities and ordered her to perform non-engineering work outside her job scope, including daily work in the warehouse.

Can a company be liable for a manager’s tasteless ringtone? Yes, it can. This case demonstrates the importance of promptly responding to an employee’s complaint of sexual harassment.

The takeaway: If a manager really thinks it is OK to play a ringtone that mimics the sound of a woman having an orgasm in the workplace, this is a sign that the company’s culture needs some serious work. Creating and reinforcing a company culture that emphasizes respect for all employees is the first step toward eliminating sexual harassment in the workplace.

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.

©2018 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.

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.

An Uber Example of How NOT to Handle a Complaint of Sexual Harassment

By Kathleen Jennings (kjj@wimlaw.com)

Last week, Susan Fowler, a former Uber software engineer, published a blog post alleging she had been sexually harassed during her year working at the company. One of her allegations was that when she contacted human resources, she was told that the offender was a “high performer” and they did not feel “comfortable punishing him for what was probably just an innocent mistake on his part,” Fowler said.

That was the wrong response. Whether an employee accused of sexual harassment is a “high performer” is irrelevant to the employer’s duty to investigate the complaint and take remedial action. While an employer’s past work history and performance can be considered during the investigation, they cannot be used as an excuse for the company to refrain from punishing him or her for harassing conduct.

And that was not the only mistake that Uber made in responding to Ms. Fowler’s complaint. While trying to decide whether to stay on the project with the manager she had reported, Fowler wrote that one HR representative told her “it wouldn’t be retaliation if I received a negative review later [from the manager she reported] because I had been ‘given an option'” of leaving her team.

Wrong again. A company cannot retaliate against an employee who complains about harassment. That means the manager who is the subject of the complaint cannot give the complainant a bad review because she complained, regardless of whether the complainant was given the option of working elsewhere. If a complainant continues to work under the supervision of a manager or supervisor who was the subject of a complaint of sexual harassment, the best practice is to have a neutral third person—a higher level manager or human resource official—review any performance reviews or discipline issued by that manager or supervisor to ensure that it is not motivated by retaliation.

In response to these allegations by Ms. Fowler, Uber has been roundly criticized for its culture and apparent failure to take workplace harassment seriously. Uber CEO Travis Kalanick held a meeting with employees on February 21 and apologized for a lack of diversity in the company’s workforce and for not properly responding to employee complaints. Kalanick also announced in an email to employees February 20 that former U.S. Attorney General Eric Holder will be working with Uber to lead an investigation into Fowler’s allegations.

Practice Tip: While implementing a Policy Against Harassment is one important tool in preventing harassment in the workplace, that policy is meaningless if the company fails to hold employees accountable for violations of the policy.

Wimberly Lawson can review your company’s policy against harassment and conduct supervisory and employee training on harassment in the workplace. Please call us at (404) 365-0900 to discuss your needs.

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 Company Have a Social Media Policy? A Cautionary Tale.

By Kathleen Jennings (kjj@wimlaw.com)

Harriet the Human Resources Manager is sitting at her desk at Acme Corporation on Monday morning enjoying a cup of coffee when the email arrives from Will E. Kyote. Harriet is aware that Will is a frequent purchaser of Acme’s products. Harriet figures his latest order was forwarded to her by mistake.

This email, however, is not an order. In it, Will states as follows: “I have attached a screenshot of a comment by your employee, Rhoda Runner, on a social media page of a local news station. I clicked on her picture, and the link showed her to be a supervisor at your company. I am disgusted and I will no longer do business with Acme.”

The screenshot shows a news story about immigration, and shows several comments, including one by Rhoda that states: “I am so tired of hearing the Mexicans speak Spanish at work all day. If they can’t speak English, they need to go back to where they came from!” Will has also sent a screenshot of Rhoda’s Facebook page which shows that she identifies herself as a supervisor at Acme.

To make Harriet’s morning worse, she sees that Acme’s President was copied on the email. Sure enough, the President calls Harriet and tells her, “We cannot allow our employees to represent our company with these kinds of statements. It is disrespectful to our employees. It is disrespectful to our customers. We have lost one customer already. Make sure it does not happen again.”

Harriet calls Rhoda to her office. Rhoda also invites Rhoda’s supervisor to the meeting as a witness. Harriet asks Rhoda if she posted the statement on a social media page. Rhoda admits that she did, adding, “I just got caught up in things. I probably should not have said it.” Harriett asks Rhoda if the difference in language prevents the Spanish-speaking workers from doing their jobs. Rhoda admits that it does not because there are several bilingual line leaders and supervisors available to translate.

Harriet shows Rhoda Acme’s Social Media policy, as well as a copy of Rhoda’s signed acknowledgement of receipt of the policy. “I’m sorry, Rhoda, but your statement is a clear violation of this policy. As a supervisor, you represent the company. Acme does not tolerate these kinds of statements. You are suspended without pay for 1 week, you are being demoted to a non-supervisory position and your pay will be reduced accordingly, and you will be required to attend diversity training. Any further incidents of this type will result in your immediate termination.”

Rhoda is stunned. “How can you do this; I didn’t say this at work?! I have a right to express my opinions on social media.”

Harriet responds: “Rhoda, the Company’s Social Media Policy clearly states that

All of Company’s policies, as well as the terms of any agreement between you and Company, apply to communications (“posts”) made on social media. This includes for example, policies regarding discrimination, sexual harassment, non-violence, confidentiality, use of Company’s electronic systems and use of company time, as well as contractual provisions regarding disclosure of confidential information and restricting competitive activities. Sexual harassment, confidential information and other terms defined by other policies and agreements between you and Company have the same meaning as in those policies and agreements. ”

“Rhoda, while you may have the ability to express your opinion publicly, when those opinions violate our discrimination or harassment policies, we have to take action. We do not tolerate those kinds of statements by any employee, and especially not by a supervisor. That kind of statement also can undermine your effectiveness as a supervisor of a diverse workforce.”

Thereafter, Rhoda sent an email to all company employees reminding them of Acme’s Social Media Policy as well as its EEO Policy and its Policy Against Harassment. She also sent an email to Will thanking him for his email and assuring him that Rhoda’s words did not reflect the views of Acme. Will responded shortly thereafter, thanking her for a prompt response to his concern.

The moral of the story: Can a private company like Acme really take action against an employee for making a statement on social media? Yes—a private company has a right—and a duty– to manage how its employees represent themselves and communicate on social media. The dissemination of a written social media policy puts employees on notice of the company’s expectations. A private employer can take action against an employee for making statements on social media that are contrary to the Company’s policies and values. The statements of supervisors and/or managers can be imputed to the Company and can be used against the Company in legal proceedings, so it is especially important for those persons to understand the parameters of the Company’s social media policy and the consequences of speech the Company deems improper or harmful.

If your company needs a Social Media policy, or wishes to update an existing policy, please contact one of the attorneys at Wimberly, Lawson, Steckel, Schneider & Stine, P.C. for assistance.

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.

No Happy Ending for Employee Who Took Photos of Co-worker’s Crotch

By Kathleen Jennings (kjj@wimlaw.com)

It is generally not a good thing when an employee takes a sexual harassment investigation into her own hands. When that investigation involves an employee taking photographs of a disabled co-worker’s crotch area, and the employee shows those photographs to not only management but other employees, it should come as no surprise that the photographer is discharged.

In Furcron v. Mail Ctrs. Plus, LLC (11th Cir., No. 15-14595, 12/16/16), a case out of Atlanta, the plaintiff complained that a co-worker with Asperger’s syndrome was sexually harassing her. The plaintiff, Furcron, alleged that during the six days she and the disabled co-worker, Seligman, worked together in late 2012, he frequently invaded her personal space while his penis was erect. He also stared at her, tried to look down her shirt and at her underwear when she bent over and rubbed up against her while in a state of arousal. Furcron took photographs of Seligman’s crotch to document what she perceived as asexual harassment. She alleged that when she showed the photographs to management employees, they either laughed or told her Seligman meant no harm and ultimately failed to remedy the situation. Furcron also showed the photographs to at least three non-management employees before showing them to a manager. As a result, Furcron was terminated for violating the company’s policy against harassment.

Furcron filed a lawsuit and alleged that she was terminated in retaliation for complaining about sexual harassment. She also brought a claim of sexual harassment based upon Seligman’s behavior and the company’s failure to address it. The Eleventh Circuit Court of Appeals held that summary judgment was proper on Furcron’s retaliation claim because Furcron failed to rebut the employer’s explanation that her discharge was based on her violation of a company policy prohibiting harassment in the form of “graphic material” based on sex or disability.

However, the Eleventh Circuit also held that summary judgment was not proper on Furcron’s claim of sexual harassment, and the Court also held that the district court improperly excluded another female worker’s affidavit stating that Seligman also harassed her and that she witnessed him rubbing up against Furcron.

This case also illustrates the delicate situation where the employer must deal with behavior that some workers may find offensive, but the behavior may be caused by another worker’s disability. However, as we have advised on numerous occasions, it is never in a company’s best interest to ignore or laugh at any employee’s 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.

 

©2016 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.

 

 

The Company Holiday Party: Make It Memorable for The Right Reasons

By Kathleen Jennings (kjj@wimlaw.com)

The company holiday party. It is a time for the company to show its appreciation for its employees and give them an opportunity to celebrate the holidays and socialize together outside of work. Because the economy is stronger, more companies are planning to have holiday parties this year. According to a recent survey by HR consulting firm Challenger, Gray & Christmas Inc. of 100 HR executives, 76 percent indicated they would hold a holiday party, up from 69 percent in 2015.

The challenge for company management is to make the party memorable for the right reasons: good food, great location, festive decorations, maybe even some enjoyable entertainment. Ideally, employees will not be talking about the party for the wrong reasons: violations of company policies, such as the policy against harassment, or even violations of the law (such as driving under the influence). Some advance precautions can minimize the possible negative outcomes.

  • Company policies still apply. Remind employees that all company policies apply to party behavior, even though the party may take place offsite. It is especially important to remind supervisors and managers that their behavior, which reflects directly on the company, should not violate those policies. Employees need to understand that bad behavior will not be excused because it happened at a party.

     

  • Alcohol. If something bad is going to happen, it is probably going to happen under the influence of alcohol. Alcohol loosens lips and inhibitions, and it is more likely that a drunk employee will say or do something inappropriate that could violate company policies , like make sexual remarks, tell dirty jokes, grope, pinch, become combative, or even make racist statements.
    • Some companies limit the number of drinks that employees may have by issuing alcohol tickets. Some companies serve no alcohol at all. If the company offers an open bar or unlimited alcohol, the company needs to be alert for any situations where the drinking has gotten out of hand.
    • If a supervisor or manager sees or hears an employee engaging in inappropriate conduct, he or she may take that employee aside and suggest that it is time to leave, or if he or she is not comfortable doing that, he or she can get a human resource manager or upper manager involved. The situation should be handled discreetly but firmly. If there is a threat of physical violence, it is best to call law enforcement to handle the situation.
    • The company also has an interest in ensuring that employees do not drive after imbibing too many adult beverages at the company party. It is a good idea to make taxis or ridesharing services available for employees who should not drive and have no designated driver. Some companies even put employees up in hotel rooms in the same facility as the party.

       

  • Food. The company should make an effort to accommodate dietary needs and preferences, especially religious dietary needs. Our firm handled a case several years ago in which an employee alleged that his employer (a poultry processor) discriminated against him on the basis of his religion (Muslim), and as evidence, he cited the fact that it only served pork at company functions. This allegation was false, and we succeeded in having the case thrown out. Nevertheless, the company should be conscious that some employees may not eat pork or even meat for religious reasons and it should offer alternatives. Some employees may also abstain from eating certain foods for health reasons. The company can ask for any dietary needs or preferences, but it should not make further inquiries into employee health conditions.

     

  • Attire. The company should make its expectations regarding proper attire known in advance of the party. If any employee shows up to the party in something that reveals more skin than necessary, someone should discreetly suggest covering up or changing. But remember, revealing attire does not excuse inappropriate behavior or remarks by others.

     

  • Spouses, partners, significant others, dates. Some companies invite only employees to the annual holiday party. This may save money, but keep in mind that an employee’s spouse or partner can be the company’s ally at those times when an employee is asked to work extra hours or shifts. Sometimes, however, allowing employees to bring dates can make things truly interesting: picture a holiday party where an employee brought not one, but two strippers as guests (true story).

     

  • Be inclusive. Not all people celebrate Christmas, so in official company communications, it is best to refer to the party as a “holiday” celebration.

     

So, have fun, be safe, and enjoy the holiday season!

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.

 

©2016 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.