Have Harvey Weinstein and Kevin Spacey Taken All the Fun Out of Company Holiday Parties This Year?

By Kathleen Jennings (kjj@wimlaw.com)

I saw an article recently wherein the author was lamenting how company holiday parties are not going to be any fun this year due to the heightened scrutiny toward sexual harassment caused by the accusations against Weinstein, Spacey, and other high-profile figures. As an employment attorney, my first thought was that this may be a good thing. I suppose not everyone may agree.

Let’s make one thing clear: like it or not, the company holiday party is an extension of the workplace, and therefore, the company could be liable for any actionable harassment that occurs at the holiday party or any other company function, even when it does not take place on company premises. The company wants its employees to have fun—but not so much fun that complaints of sexual harassment become a huge hangover for the company.

Keep in mind also that the issue of sexual harassment is on a lot of people’s minds and folks are talking about what kind of behavior is and is not appropriate. The best advice for all employees, but especially supervisors and managers: Don’t do anything that would make you a target of a sexual harassment claim.

Some banned behavior should be obvious:

  • Don’t grab, grope, or proposition other employees.
  • Don’t start telling a lot of dirty jokes. It’s a party, not a comedy show.
  • Don’t make comments on employees’ body parts. Yes, you can tell your co-worker that she looks lovely in her party dress, but you don’t need to tell her that she has sublimely sexy legs.

The ingestion of alcohol tends to decrease inhibitions. Excessive ingestion of alcohol can eliminate those inhibitions altogether and lead to all sorts of problems. Because of this and the desire to minimize employee drinking and driving, some companies have stopped serving alcohol at company functions, or they limit the number of adult beverages employees may imbibe at company functions.

So what does this mean for the party atmosphere? Should everyone be afraid to say or do anything for fear of a sexual harassment complaint? Of course not. Respect one another and have fun—but not too much fun!

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.

 

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.

 

Do You Want to Give the EEOC Input on its Proposed Enforcement Guidance on Workplace Harassment? You Have 40 More Days to Comment.


The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has extended for 40 days the public input period on its proposed enforcement guidance on unlawful workplace harassment. The proposed guidance is now open for public input until March 21, 2017.
This extension of time is an opportunity for businesses to try to shape the EEOC’s enforcement policy under the new administration, which many consider more “employer-friendly” than the previous administration.

The proposed guidance, which is the product of extensive research, analysis and deliberation, explains the legal standards applicable to claims of unlawful harassment under federal employment discrimination laws. The laws enforced by the EEOC protect individuals from harassment based on race, color, religion, sex, national origin, disability, age or genetic information. While EEOC guidance does not carry the force of law, it serves as a reference for agency staff, including during the investigation of discrimination charges.

Some of the provisions that are of concern to employers include a provision that states that using a pronoun inconsistent with a worker’s gender identity in an offensive or persistent manner can amount to sexual harassment, and a call for “civility” training, which may conflict with some mandates on employee free speech issued by the National Labor Relations Board.

Public input may be submitted online at this location on www.regulations.gov until midnight on March 21, 2017. Alternatively, members of the public may send written feedback to: Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507. All input will be posted publicly on www.regulations.gov, so please do not include personal information that you do not want made public, such as your home address or telephone number.

©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.


 

“Locker Room Talk” in the Workplace

By Kathleen Jennings (kjj@wimlaw.com)

At a recent training session, a male employee asked me the following question: “If a bunch of guys are working together and we want to tell dirty jokes, what is the harm if no females are around?” My response was that this type of talk is not appropriate for the workplace, regardless of who is around to hear it. Employees are free to tell all the jokes they want to when they are outside of work, but when they are at work, they need to follow company policies, including the policy against harassment in the workplace. Harsh? Maybe; but my job is to protect this company from sexual harassment claims.

The reality is that a company that is subject to Title VII of the Civil Rights Act of 1964, as amended (generally, a company with 15 or more employees) has a duty to prevent and address sexual harassment in the workplace. That means a company should have a clear, well-disseminated written policy against harassment in the workplace and a user-friendly procedure that employees can utilize to report possible harassment. When a company receives a complaint of possible harassment, it has a duty to investigate that complaint and take prompt, effective remedial action, if necessary. The worst response to a complaint of possible harassment is to ignore it or simply dismiss it as “just locker room talk.”

Workplace harassment may take many forms. It may be, but is not limited to, words, signs, offensive jokes, cartoons, slurs, pictures, posters, email jokes or statements, pranks, intimidation, physical assaults, physical contact or violence. Harassment refers to any action or conduct that creates an intimidating, offensive, or hostile environment or that interferes with work performance. Conversations that include vulgar descriptions of sexual organs could be considered harassment, if they are severe (extremely offensive) or pervasive. The repetition of those types of comments in the workplace means that they are more likely to rise to the level of harassment because they are pervasive. If these comments are made by members of management, the consequences to the company can be even more severe.

Practice Tip: A company should train its managers and supervisors–at least annually–on how to recognize, avoid, and address possible sexual harassment in the workplace. The best way for a company to avoid costly sexual harassment litigation (or minimize its liability should litigation be filed) is maintain a strong culture that harassment in the workplace will not be tolerated.

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

©2016 Wimberly Lawson

Dirty Deeds Done Dirt Cheap—Another Example of a Bad Harassment Investigation

By Kathleen Jennings (kjj@wimlaw.com)

A recent case out of the Second Circuit Court of Appeals demonstrates the importance of following up on all evidence produced by parties and witnesses in an investigation into a sexual harassment complaint. In Vasquez v. Empress Ambulance Service, Inc., Docket No. 15-3239-cv, August 29, 2016), Ms. Vasquez complained to her employer that a co-worker had subjected her to unwanted sexual overtures, including a texted picture of his erect penis. The employer commenced an immediate investigation. In anticipation of the complaint against him, the accused co-worker manipulated text messages, took screen shots, and printed them out. The final product purported to show that Ms. Vasquez’s consent to and solicitation of a sexual relationship. In reliance on those documents, Vasquez’s employer immediately fired her on the ground that she had engaged in sexual harassment. The employer refused to allow Ms. Vasquez to look at the documents produced by the accused and also refused to accept evidence in the form of text messages from Ms. Vasquez. Ms. Vasquez subsequently filed an action against her employer alleging that she was terminated in retaliation for complaining about sexual harassment.

The Second Circuit Court of Appeals held that the employer could be held liable for terminating Ms. Vasquez in reliance on the false information that it deemed retaliatory under the “cat’s paw” liability theory. The Court explained that the “cat’s paw” metaphor now “refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action.” The Second Circuit extended the “cat’s paw” liability to manipulative retaliatory actions by non-supervisors when the employer is negligent in allowing the non-supervisory employee’s false allegations, and the retaliatory intent behind them, to achieve their desired end.

The Court found that Vasquez’s employer was negligent in crediting the accused’s accusations to the exclusion of all other evidence, and specifically declining to examine contrary evidence tendered by Vasquez.

Practice Pointer: In conducting an investigation into any complaint of harassment, it is important that the employer gather and examine all evidence from both the complainant and the accused and interview all witnesses identified by them. While documentary evidence can be very persuasive, it can also be falsified, so it is also important to make an effort to check the facts and authenticity of any documents. For example, in the Vasquez case, the Court noted in its final footnote that the employer should have questioned the text messages submitted by the accused because the exchange indicated that the accused’s texting partner was asleep at a time when Vasquez was actually on shift working for the employer. A quick check of Vasquez’s time records would have revealed the inconsistency. And it might have saved this employer a lot of time and money.

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