Sexual Harassment Doesn’t Have to Be Overtly Sexual

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

An employer can be legally responsible for harassment against its employees by other employees—and third parties, such as customers. That means that an employer needs to take prompt, effective remedial action if it is aware that one of its employees is being sexually harassed by a customer. Costco recently learned this lesson in the form of a $250,000 jury verdict rendered in favor a former employee who claimed that she was sexually harassed and stalked by a Costco customer. That verdict was upheld by the 7th Circuit Court of Appeals this week. (EEOC v. Costco Wholesale Corp. , 7th Cir., Nos. 17-2432 & 17-2454, 9/10/18). The 7th Circuit’s written decision reminds us that conduct that is not overtly sexual may nevertheless meet the legal definition of sexual harassment and trigger a duty by the employer to address it.

Dawn Suppo, an employee of Costco, was stalked by Thad Thompson, a customer of Costco, for over a year. Things got so bad that Suppo secured a plenary no-contact order from an Illinois state court. Traumatized by the experience, she also took an unpaid medical leave, and when she didn’t come back, Costco terminated her employment. The Equal Employment Opportunity Commission (EEOC) sued Costco on Suppo’s behalf, alleging that Costco had subjected her to a hostile work environment by tolerating Thompson’s harassment. The case went to trial, resulting in the $250,000 verdict in the EEOC’s favor.

Costco challenged the verdict on the ground that the Thompson’s conduct was not severe or pervasive enough to rise to the level of hostile environment sexual harassment. Thompson’s comments were not overtly sexual; he asked (often repeatedly) where she was from, what her nationality was, where else she worked, where else she went, where she lived, what else she did, if she had a boyfriend, which male employees she spoke to, and the identity of a man she shopped with. On various occasions, he told her she was “pretty,” “beautiful,” and “exotic.” He asked how old she was. He tried to give her his business card on one occasion (pushing it into her hand “two, three, and four times”), asked her out on dates approximately six times, and “constantly” tried to give her his phone number. He also closely observed her appearance: For example, on a day that he saw her twice, he “noticed that she had obviously powdered her face” between the first and second times that he saw her. On another occasion, he noticed that her eye makeup had been applied unevenly.

There was also some physical contact, but it was not overtly sexually suggestive either. Thompson used his shopping cart to bump into Suppo or her cart four times. He touched her twice: On one occasion, Thompson touched her face under her eye, noting some darkness. On another, he touched her wrist, commenting on her veins and a sore on her hand that was healing slowly. Thompson also attempted unsuccessfully to hug Suppo twice.

The 7th Circuit acknowledged that Thompson’s conduct was not as egregious as the sexually harassing conduct described in some of its other decisions. However, the Court pointed out that conduct does not have to be overtly sexual in order to be actionable; the alleged harassment must occur because of the plaintiff’s sex. But it need not consist of pressure for sex, intimate touching, or a barrage of deeply offensive sexual comments. Actionable discrimination can take other forms, such as demeaning, ostracizing, or even terrorizing the victim because of her sex. Severity and pervasiveness must be judged by “the totality of the circumstances”.

Because Thompson’s talking and touching took place in the context of his stalking of Suppo, it rose to the level of actionable sexual harassment.

Pro tip: If an employee complains that someone—another employee, a manager, or a third party—is making her/him uncomfortable, the employer needs to look into the matter, even if the conduct complained of is not overtly sexual.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, 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.

New Batch of Opinion Letters from the Wage and Hour Division of the Department of Labor

 

by Kathleen Jennings (kjj@wimlaw.com)

Last week, the Wage and Hour Division (WHD) of the Department of Labor released six opinion letters—four involving the Fair Labor Standards Act (FLSA) and two involving the Family and Medical Leave Act (FMLA). An Opinion Letter is an official ruling or interpretation of federal wage and hour laws by the WHD, and as such, they provide valuable information to employers about whether certain policies or practices are in compliance with federal law.

This latest batch of Opinion letters provide guidance on the following topics:

  • the application of the “retail or service establishment” exemption,
  • how to compensate workers for time spent attending voluntary health-and-wellness activities,
  • how to apply overtime exemptions for workers in movie theaters,
  • whether short-term employees can be considered volunteers,
  • whether organ donors qualify for unpaid medical and family leave, and
  • if an employer’s no-fault attendance policy violates the Family and Medical Leave Act.

The two Opinion letters involving the FMLA clarified some interesting issues: no-fault attendance policies and organ donation.

Opinion letter FMLA2018-1-A addressed the application of an employer’s no-fault attendance policy to an employee on FMLA. The letter found that no-fault employer attendance policies that apply points to employee records for absences and tardiness do not violate the FMLA if the policy freezes the points during employees’ FMLA leave, provided it is applied in a nondiscriminatory manner.

Opinion letter FMLA2018-2-A addressed the question of whether an employee who donates an organ may qualify for FMLA leave, even if he/she was healthy before the donation. The answer is Yes–and he/she and may also use FMLA leave for his/her post-operative treatment. An organ donation qualifies as a serious medical condition under the FMLA when it results in an overnight hospital stay, the opinion letter said, noting that organ-donation surgery commonly requires overnight hospitalization.

Full text of the Opinion Letters can be found through this link.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, 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.

 

Department of Labor to Hold “Listening Sessions” on Overtime Rule

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

Remember the uproar about the increase in the salary threshold for certain overtime exemptions? Although implementation of the substantial salary threshold increase proposed by the Obama administration never came to fruition, the issue has not gone away entirely. Today, the Wage and Hour Division (WHD) of the U.S. Department of Labor announced that in the upcoming weeks it will hold “public listening sessions” to gather views on the Part 541 white collar exemption regulations, often referred to as the “Overtime Rule.” Issued under the Fair Labor Standards Act, these regulations implement exemptions from overtime pay requirements for executive, administrative, professional, and certain other employees. The Department plans to update the Overtime Rule and is interested in hearing the views and ideas of participants on possible revisions to the regulations.

According to its website, the WHD seeks public input on questions such as:

  • What is the appropriate salary level (or range of salary levels) above which the overtime exemptions for bona fide executive, administrative, or professional employees may apply?
    • Why?
  • What benefits and costs to employees and employers might accompany an increased salary level?
    • How would an increased salary level affect real wages (e.g., increasing overtime pay for employees whose current salaries are below a new level but above the current threshold)?
    • Could an increased salary level reduce litigation costs by reducing the number of employees whose exemption status is unclear?
    • Could this additional certainty produce other benefits for employees and employers?
  • What is the best methodology to determine an updated salary level?
    • Should the update derive from wage growth, cost-of-living increases, actual wages paid to employees, or some other measure?
  • Should the Department more regularly update the standard salary level and the total-annual-compensation level for highly compensated employees?
    • If so, how should these updates be made?
    • How frequently should updates occur?
    • What benefits, if any, could result from more frequent updates?

If you or your business want to share your thoughts with the WHD about these issues, you can attend the listening sessions in any of the following cities:

September 7, 2018, 10am-12pm

Intercontinental Buckhead Atlanta

3315 Peachtree Rd NE- Trippe Room

Atlanta, GA

September 11, 2018, 10am-12pm

Jackson Federal Building

912 2nd Ave., Ste. 566

Seattle, WA

September 13, 2018, 10am-12pm

Holiday Inn Country Club Plaza

One E 45th St, -Ballroom A/B

Kansas City, MO

September 14, 2018, 10am-12pm

Remington Arms Room

DFC- Building 41

Denver, CO

September 24, 2018, 10am-12pm

Rhode Island Convention Center

1 Sabin Street- Room 551A/B

Providence, RI

There is no fee to attend the listening sessions; however, registration is required.

We expect that there will be some increase in the salary threshold for the overtime pay requirements for executive, administrative, professional, and certain other employees, but it will not be as large as the one proposed by the Obama administration. We will continue to provide updates on this issue.

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.

EEOC Continues to Aggressively Pursue Litigation Against Employers

By Kathleen Jennings (kjj@wimlaw.com)

Despite being well over a year into the new Republican administration, the EEOC shows no signs of slowing down its aggressive litigation efforts. In just the last week, the EEOC announced three multi-million dollar settlements of lawsuits that it brought against private employers.

  • On July 30, 2018, the EEOC announced that the SLS Hotel, operated by hotel, restaurant and nightlife company called “sbe”, will pay $2.5 million and provide other relief to settle the discrimination lawsuit brought by the EEOC. According to the EEOC’s lawsuit, black Haitian dishwashers were wrongfully terminated on the basis of their race, color, and national origin and were replaced by a staffing agency workforce of mostly light-skinned Hispanics. The terminated dishwashers worked in the kitchens of The Bazaar by José Andrés, Katsuya, and the Hyde Beach-all restaurant venues located at SLS Hotel, in South Beach.

    The dishwashers testified that their supervising chefs referred to them as “slaves” and reprimanded them for speaking Creole, even amongst themselves, while Hispanic employees were allowed to speak Spanish. The testimony also revealed that the black Haitian dishwashers complained to human resources about discrimination and about having a “racist” supervisor but, instead of addressing these complaints, the SLS Hotel fired the entire dishwashing department made up primarily of black Haitians, without providing them an opportunity to apply to the staffing agency before their termination.

  • On August 1, 2018, the EEOC announced that a U.S. District Court approved a consent decree between Alorica, Inc. and the EEOC for $3.5 million and remedial measures to resolve a sexual harassment lawsuit. According to the EEOC, male and female customer service employees were subjected to harassment, including a sexually hostile work environment, by managers and coworkers. The EEOC further alleged that the onsite human resources staff failed to properly address the harassment despite repeated complaints by employees.

     

    In addition to the monetary relief, Alorica agreed to significant injunctive relief in the form of a three-year consent decree, which includes the hiring of a third-party monitor; the creation of an internal equal employment opportunity consultant and internal compliance officer; and, sexual harassment training, including incorporating civility and bystander intervention training, for its employees. The company also agreed to revise its anti-discrimination and retaliation policies and procedures as well as maintain records of any future sexual harassment and retaliation complaints, audits, and reporting.

     

  • Also on August 1, 2018, the EEOC announced that Koch Foods, one of the largest poultry suppliers in the world, will pay $3.75 million and furnish other relief to settle a class employment discrimination lawsuit filed by the EEOC. According to the EEOC’s lawsuit, Koch subjected Hispanic employees and female employees to a hostile work environment and disparate treatment based on their race/national origin (Hispanic), sex (female), and further retaliated against those who engaged in protected activity. EEOC alleged that supervisors touched and/or made sexually suggestive comments to female Hispanic employees, hit Hispanic employees and charged many of them money for normal everyday work activities. Further, a class of Hispanic employees was subject to retaliation in the form of discharge and other adverse actions after complaining.

    In addition to paying the money, Koch Foods will take specified actions designed to prevent future discrimination, including implementing new policies and practices designed to prevent discrimination based on race, sex or national origin; providing anti-discrimination training to employees; creating a 24-hour hotline for reporting discrimination complaints in English and Spanish; and posting policies and anti-discrimination notices in its workplace in English and Spanish.

Note that in all of these cases, the employers did not admit to liability.

The Takeaway: The EEOC continues to file enforcement actions against employers, primarily in the areas of harassment and disability discrimination, which are among its enforcement priorities. One of the major downsides of an EEOC-filed lawsuit is that the EEOC almost always insists on a press release publicizing the amount of any settlement. This is in contrast with the settlements of most privately filed employment lawsuits, where the parties can usually agree to keep the amount of the settlement confidential.

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.

 

Today is the 28th Anniversary of the Americans With Disabilities Act (ADA)

By Kathleen Jennings (kjj@wimlaw.com)

The EEOC sent out a tweet to remind us that today is the 28th Anniversary of the signing of the Americans with Disabilities Act (ADA) by President George H.W. Bush.

A case filed by a pro se plaintiff in Alabama reminds us that a person does not have to be disabled to be protected from discrimination by the ADA; the ADA also protects an employee whose employer erroneously perceives him/her to be disabled. In the case of Ruggieri v. The City of Hoover, AL, Case No.: 2:18-CV-0476-VEH (Motion to Dismiss denied July 24, 2018), the plaintiff alleged that his violated the ADA when it required him to attend psychiatric counseling. The plaintiff contended that he was the only one in his department required to do so, thereby showing it was inconsistent with job requirements and business necessity. The ADA provides that a covered employer cannot require a medical examination and cannot make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

The City moved to dismiss on a number of procedural grounds. Among the arguments made by the City was that the plaintiff’s EEOC Charge (which generally provides the factual basis of a subsequent lawsuit) was deficient because the plaintiff did not allege that he was disabled. The district court rejected this and other arguments by the City. While giving the Plaintiff some latitude because he was not represented by an attorney, the court noted that the ADA protects employees who are not disabled. Further, the section of the ADA that prohibits medical examinations unless they are job-related and consistent with business necessity is not limited only to persons who are actually disabled.

This case is in the early stages, so we don’t know all of the facts. Nevertheless, it appears that the City could have handled the situation a lot better. If an employer wants an employee to undergo a physical or mental examination, it needs to have a good job-related reason, with supporting documentation, and it should share that reason with the employee so there are no misunderstandings.

This case also reminds us that an employer cannot blithely refer an employee to “anger management counseling.” Ideally, if the employer believes that an employee has demonstrated behaviors in the workplace that warrant a referral to anger management counseling, the employer should attempt to persuade the employee to attend such counseling voluntarily. However, if the employer requires an employee to attend anger management counseling as a condition of employment, this requirement may be construed as a “medical examination” under the ADA, and the employer must have a job-related reason consistent with business necessity to support it. Consult with experienced employment counsel to make sure that your company is not violating the ADA.

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.

 

You’d Better Believe That Atheists Are Protected From Religious Discrimination

By Kathleen Jennings (kjj@wimlaw.com)

A case out of Kentucky reminds us that religious discrimination claims can be asserted by atheists who are subjected to harassment on the basis of their beliefs. In Queen v. City of Bowling Green , W.D. Ky., No. 1:16-CV-00131, (7/20/18), a firefighter sued the City of Bowling Green, Kentucky for religious discrimination. The firefighter, who is an atheist, alleged that supervisors and co-workers made hostile and demeaning remarks concerning his atheism and about non-Christians generally, and that the harassment was so severe that he was eventually forced to resign his employment. Among the remarks he alleged were a fire captain’s statement that theists “deserved to burn,” and two chiefs told him that he should join a church and “get right with Jesus.” In addition, he was forced to participate in Bible study during meals at his fire station.

The district court denied the City’s motion for summary judgment, sending the case to a jury trial. In his decision, the District Judge wrote that “[a]lthough atheism is the absence of religious beliefs, it is still a protected class for purpose of Title VII.” Other federal courts, including the U.S. Courts of Appeals for the Fifth and Seventh Circuits, have held that Title VII protects atheist employees against religious discrimination. For example, the Fifth Circuit ruled that an employer unlawfully required an atheist to attend staff meetings that including religious talk and prayer.

The takeaway: Employers should respect the religious beliefs of their employees, and in some cases, make reasonable accommodations for those beliefs.

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.

 

 

Supreme Court Nominee Kavanaugh Has Record of Pro-Business Decisions

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

On Monday, Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals was nominated to the U.S. Supreme Court. Kavanaugh is a graduate of Yale Law School who clerked for retiring Justice Kennedy (at the same time as Justice Gorsuch). He was appointed to the D.C. Circuit in 2003 by George W. Bush and was confirmed after 3 years.

If confirmed (which is probable), Kavanaugh would bring a pro-business approach to the highest court. Some of the labor and employment issues where his vote could influence the direction of the law are the following:

  • Harassment of the basis of sexual orientation. As discussed in previous blog posts, there is currently a conflict in the Circuits regarding whether Title VII covers harassment on the basis of sexual orientation. I predict that with Kavanaugh in the majority, the Supreme Court will narrowly interpret Title VII and find that it does not cover harassment on the basis of sexual orientation.
  • Joint employer test. The legal issue of whether one business is the joint employer of another business’s employees is an important one for businesses that subcontract out some work to other businesses. Under the Obama administration, the parameters of the joint employer relationship were expanded. In his writings for the D. C. Circuit, Kavanaugh has taken a narrow view of joint employer issues. Should the issue of what constitutes a joint employment relationship come to the Supreme Court, it is probable that Kavanaugh will continue to use that narrow approach.
  • Mandatory arbitration of employment disputes. In the most recent session, the Supreme Court upheld the validity of class action waivers. It is likely that the issue of mandatory arbitration agreements for individual employment disputes could come before the Supreme Court next term. If so, it is probable that the Court, including Kavanaugh, will uphold the use of mandatory arbitration agreement for individual disputes.
  • Deference to administrative agency interpretations and rulemaking. In his writings, Kavanaugh does not appear to be a big fan of administrative agencies, and he appears to be disinclined to show deference to their interpretations of their regulations.

The takeaway: The addition of Kavanaugh to the Supreme Court will result in more favorable decisions for employers and businesses.

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.