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 (Fellers v. Brennan, 7th Cir., No. 17-1176, unpublished, summary judgment affirmed 10/24/17).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.

 

 

When Personal Opinions Become Actionable Harassment

By Kathleen Jennings (kjj@wimlaw.com)

It’s an election year, so most employees will be talking about politics at some point. In addition, recent world events have placed a focus on deadly attacks by terror groups. Sometimes, however, an employee’s expression of his or her “views” on the news and certain groups of people can cross over into actionable harassment. A recent example comes to us from the Fourth Circuit Court of Appeals, Guessous v. Fairview Property Investments, LLC, — F.3d —- (4th Cir. 2016), 129 Fair Empl.Prac.Cas. (BNA) 475. In that case, the Fourth Circuit Court of Appeals reversed the District Court and found, among other things, that a supervisor’s treatment of a female employee could be considered harassment based on race, allowing the case to proceed to a jury trial. Among the comments by the supervisor to the plaintiff, who was an Arab-American Muslim woman from Morocco, were the following:

  • “Yeah, sure. Like my buddy says … not all Muslims are terrorists, but most are.”
  • “Middle Easterners are a bunch of crooks, who will stop at nothing to screw you.”
  • Muslims and Christians do not worship “the same God.”
  • The supervisor consistently conflated the plaintiff’s identity as a Moroccan Muslim with other Middle Eastern identities, blurring the lines between race, ethnicity, national origin, and religion. For example, the plaintiff was called to act as a translator for a person who was a Farsi-speaking Persian Iranian. When the plaintiff told her supervisor that she did not speak Farsi, he replied, ” ‘So you don’t speak Iranian? Shouldn’t there be some secret [ ] language that you all understand?’ “
  • The plaintiff wished her supervisor a happy birthday, which happens to fall on September 11th. The supervisor responded to his sole Muslim Arab employee’s well wishes by saying that each year on his birthday he was “reminded of the terrorist attacks by the Muslims” and then walking out of his office.

Practice Tip:

Although employees may hear anti-Muslim or anti-Middle Eastern rhetoric voiced by politicians or media figures, that does not make those types of statements acceptable in the workplace. To the contrary, as a general rule, any comments that unfairly stereotype races, genders, or ethnicities or other protected groups should not be tolerated in the workplace, especially when they are made by supervisors. Such comments can be used as evidence of discriminatory animus against the company. Unfortunately, employees may hear or see these types of comments in the media or on social media and repeat what they have heard. Therefore, especially during this contentious election season, employers need to be especially vigilant about comments that may violate their policy against harassment in the workplace and take action when necessary.

Kathleen Jennings, Principal is a partner in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She can be contacted at kjj@wimlaw.com.

©2016 Wimberly Lawson

The Eleventh Circuit wants employers to take transgender discrimination seriously.

By Kathleen Jennings  (kjj@wimlaw.com)

A recent decision out of the Eleventh Circuit Court of Appeals, the federal appeals court that covers the states of Georgia, Alabama, and Florida, is a wake-up call to employers about the issue of discrimination of a transgender employee. The case, Chavez v. Credit Nation Auto Sales, LLC, — Fed.Appx. —- (2016), involves a transgender auto mechanic who was terminated for sleeping on the job, in violation of the company’s rules. The mechanic admitted sleeping on the job.   That set of facts would appear to present a good case for summary judgment in favor of the employer because it looks like the employer had a legitimate, nondiscriminatory reason for the discharge decision. The lower court seemed to think so, because it did grant summary judgment in favor of the employer.

On appeal, however, the Eleventh Circuit looked beyond the stated reason for discharge and took into consideration the facts and circumstances that occurred before the discharge decision. Thus, the Eleventh Circuit noted that the employee had never been disciplined until after she announced her gender transition to her employer. After that announcement, the Court noted that the employee presented evidence that she was subjected to heightened scrutiny at work and that the company did not follow its own progressive discipline policy in terminating her employment. The Court noted that the employee also offered evidence that the company’s upper management had made comments about other employees being uncomfortable with her transition, and that the employee might negatively impact the business. The company also told the mechanic that she could not wear a dress to and from work after the transition was complete. Based on all the evidence presented by the plaintiff, the Eleventh Circuit held that there were triable issues of facts as to whether the employer was motivated by a discriminatory intent and whether gender was a ”motivating factor” in the employee’s termination. Now this case can proceed to a jury trial.

What are the lessons to be learned from this decision? First: an employer must be consistent in the application of disciplinary rules, both among all employees, and toward a single employee throughout his or her employment. Second: Title VII’s prohibition of discrimination “on the basis of sex” encompasses a prohibition of discrimination—and harassment—against transgendered persons. Whether company management is comfortable with the idea of a transgendered employee or not, the reality is that an employer covered by Title VII (which means it has 15 or more employees) cannot discriminate against an employee because he or she is transgendered, nor may the company tolerate harassment of such an employee.

©2016 Wimberly & Lawson