Repeatedly “Suggesting” That an Employee Date a Client: That Can Be Sexual Harassment

By Kathleen Jennings (kjj@wimlaw.com)

A recent unpublished decision out of the Fifth Circuit Court of Appeals addresses the issue of whether a manager’s conditioning of employment benefits on a subordinate employee’s giving sexual favors to a third party, such as a client, constitutes quid pro quo sexual harassment. (Davenport v. Edward D. Jones & Co., 5th Cir., No. 17-30388, unpublished 5/16/18). The Fifth Circuit said that it does.

Quid pro quo sexual harassment occurs when a supervisor or manager conditions a job benefit or detriment on a worker performing sexual favors. At issue in the Davenport case was whether the requesting supervisor or manager must be the intended recipient of those favors. The plaintiff, Davenport, alleged that her supervisor interfered with her receipt of a bonus and made her work environment so intolerable she was forced to quit after she refused his attempts to get her to date a wealthy prospective customer.

The court rejected the company’s argument that a worker must show that a supervisor was the intended recipient of the proposed sexual favors to establish quid pro quo harassment. The Court stated that because the supervisor made the requests, he engaged in the sexual harassment, and it is of no consequence that a third-party was to be the beneficiary.

I will note that the plaintiff may have won the battle on the appropriate standard for quid pro sexual harassment, but she ultimately lost the war; her case was dismissed for various reasons, including her failure to exhaust her administrative remedies because she did not include some of her allegations in her EEOC Charge.

Pro tip: It is never a good idea for a supervisor or manager to discuss a subordinate employee’s dating life, and that includes making “suggestions” about who they should date. It is an even worse idea to “suggest” that the subordinate employee would benefit from dating the superior or a customer or client. An employer can be held strictly liable for this kind of sexual 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.

©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.

Workplace Romance is not Dead

By Kathleen Jennings (kjj@wimlaw.com)

With Valentine’s Day coming up in less than a week, it is a natural time for companies to review their workplace dating/relationship/fraternization policies. If your company does not have one, it is time to implement one in light of the #MeToo movement and increased awareness of all things harassment. If your company does have one, take the time to review it. Is it clear? Logical? How is it working?

Some employers have taken the step of banning all workplace dating as a way to prevent potential sexual harassment complaints. That seems a bit harsh, especially considering that a lot of people spend most of their time at work, and therefore, are likely to meet potential dates there. As a practical proposition, managing workplace romance does not necessarily mean prohibiting workplace romance. Employers may risk losing valuable workers if they do so. Furthermore, the stronger the prohibition, the more likely people will keep these relationships secret. And the employer who doesn’t know about these relationships runs a greater risk of sexual harassment complaints if the romance turns sour. If romances are prohibited, the employer does not really know what’s going on: a year after a consensual relationship breaks up, some employee walks into the office and says, “I’m being sexually harassed by my supervisor.” Employers should try to manage these relationships in a way that maintains a productive, happy workforce on the one hand, and doesn’t overly intrude into the employees’ private lives, on the other hand.

Facebook and Google have taken an interesting approach. Their policies allow an employee to ask a co-worker out one time. If they are turned down, they don’t get to ask again. Ambiguous answers such as “I’m busy” or “I can’t that night,” count as a “no.”

The relationships that do need to be banned or very carefully managed are those between supervisors and subordinates. Those are the relationships that are most likely to result in claims of harassment or favoritism. Even if both parties willingly enter into the relationship, if things end badly, the subordinate may later claim that he or she was coerced into the relationship by the person who had more power. Ugly.

Pro tip: Workplace romance happens. Therefore, a company should have a written policy in place that clearly spells out what types of behaviors and relationships are allowed and prohibited in the workplace. An effective policy can minimize the danger and damages of discrimination, harassment, and wrongful discharge lawsuits, as well as suits alleging an invasion of privacy.

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.

Confidentiality Provisions in Settlement Agreements Under Fire

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

One of the issues that has come to light in discussions of the recent allegations of harassment against high-profile corporate and entertainment figures is that of confidential settlement agreements. We have learned that in the past, women who have complained about harassment by these men have reached confidential settlements with the companies. In other words, the women received money and agreed to keep the amount and other terms of the settlement confidential. Now some are concerned that this enables serial harassers to continue their unacceptable conduct without warning to other employees or potential victims. Legislators in the states of Pennsylvania, New Jersey, and New York have introduced or are discussing the possibility of introducing legislation that would prevent the enforcement of such confidentiality provisions.

Confidentiality provisions in agreements that settle employment matters are very common. Employers generally insist on them if they are paying any significant amount of money to settle a claim or case. Companies prefer to keep significant monetary payments confidential to avoid encouraging other claimants to come forward also looking for money, and to avoid possible negative publicity. Companies often settle cases after analyzing the costs and risks of litigation, and not necessarily as an admission of guilt. Nevertheless, the payment of a large settlement may be perceived as an acknowledgement by the company that it did something wrong. This perception may not necessarily be true, but it will be bad for business.

The claimant also avoids public disclosure of her identity as a possible victim of bad behavior. And unlike a lottery winner, she may avoid hearing from “long lost relatives” who are eager to “reconnect” when they hear she has come into money.

On the flip side, however, the confidentiality provision effectively prevents the claimant from warning her co-workers to avoid, for example, going into the office of a company executive alone with the door locked.

How does the company balance its desire for confidentiality of a settlement with the prevention of future incidents of harassment by the harasser? Ideally, this is where the duty to take prompt, effective remedial action comes into play. An employer has a duty to take prompt, effective remedial action when it learns of harassment in the workplace. An effective remedial action is one that prevents the harassment from happening again, which is often judged in hindsight. The most effective way a company can prevent a harasser from harassing company employees again is to terminate the harasser’s employment. There are also less harsh but still effective ways for a company to make the point to the harasser that workplace harassment will not be tolerated: suspension, demotion, transfer, withholding of bonuses, sensitivity training, etc. [We could do an entire blog post just on this issue.] In this environment of heightened awareness about workplace harassment, however, the worst thing a company can do is to take no action when it has evidence that harassment has occurred.

We will continue to use confidentiality provisions when appropriate to the client and circumstances. We will also continue to monitor any new developments in this area.

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

©2017 Wimberly Lawson

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

 

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.