Others’ Sex On Your Desk Is Not Discriminatory

By Bill Wright

Members of the night crew were using an employee’s desk for sex. The desk was selected because it was in an office equipped with a curtain and a locking door. The employee who used the desk during the days eventually learned of the night crew use. When she complained, she was told to simply clean her desk each morning. The complaining employee was later discharged for having a sexual relationship with a senior co-worker (which allegedly included sex in his office).

The Seventh Circuit recently ruled that, on these facts, the employee’s discharge could not have been retaliation in violation of Title VII. In fact, the sex on her desk did not even count as sex harassment. Others having sex on her desk was “because of sex,” but not because of the employee’s being female.

Nevertheless, the court strongly disapproved of the general sexually-charged atmosphere at the workplace and allowed the employee to proceed with hostile work environment and discrimination claims, without regard to the sex on her desk. The court seemed to think that more decorum would be appropriate at a maximum security prison. Orton-Bell v. Indiana, No. 13-1235 (7th Cir. July 21, 2014).

“Me Too” Evidence Doesn’t Cut It

By Lori Phillips

In a case of first impression, Adams v. Austal, USA, LLC, No. 12-11507 (11th Cir. June 17, 2014), the Eleventh Circuit addressed whether an employee may rely on evidence of racial harassment of which he is not personally aware to prove that his work environment was objectively hostile.  There, 24 African Americans sued their employer for racial discrimination claims, including hostile work environment.  The district court granted summary judgment against 13 of them, concluding that though they met the subjective element of the severe-or-pervasive prong of a hostile work environment, they did not meet the objective prong.  The employees appealed, arguing the district court erred by failing to consider evidence of racial harassment of which the individual employees were unaware—but of which other employees were aware.  In affirming the district court, the 11th Circuit reasoned that the objective totality of a plaintiff’s workplace circumstances does not include other employees’ experiences of which the plaintiff is unaware until after his employment ended or what discovery later revealed.

The 11th Circuit’s decision is in line with those of the 6th, 7th, 8th, 9th, and 10th Circuits.  This case prevents employees from alleging a hostile work environment on “me too” evidence alone.

HR as Caesar’s Wife

By Bill Wright

An employee rejects a co-worker’s proposal of a physical relationship. The co-worker gets him fired. Is the employer liable for sex discrimination? This is different from earlier cat’s paw cases because the person who caused the discharge was a co-worker, not a supervisor, but according to one court, the standard for employer liability is negligence – just like other co-worker harassment cases. If the employer knew or should have known that the co-worker was motivated by discriminatory animus, the employer may be liable for the co-worker’s causing the termination. Velazquez-Perez v. Developers Diversified Realty Corp., No. 12-2226 (1st Cir. May 23, 2014).

What’s more, here, the co-worker was the human resources representative. Apparently employers have to scrutinize the circumstances of every HR recommendation to see whether the employer has any reason to investigate the HR rep.’s motives.

New Math. Old Math. Any Old Math Will Do.

By John Alan Doran

The Ninth Circuit Court of Appeals just struck down a trial court’s award of $300,000 in punitive damages in a sexual harassment case yesterday. State of Arizona and Angela Aguilar v. ASARCO. This was a sexual harassment lawsuit brought on behalf of former ASARCO employee, Angela Aguilar. The case went to trial and the jury found ASARCO liable for sexual harassment. However, the jury did not find that Aguilar suffered any compensatory damages, so it awarded Aguilar $1 in nominal damages. But, the jury then awarded Aguilar $868,750 in punitive damages. The trial court reduced this award to $300,000 because of the applicable Title VII damages cap. The real problem here remained—how can a punitive damages award be 300,000 times more than the actual award? That would seem to be a violation of the employer’s constitutional right to due process. This is so because the United Supreme Court has previously advised that punitive damages awards generally should not exceed a ration of 10 to 1 in comparison to the actual damages awarded.

The Ninth Circuit agreed that the $300,000 damages award was constitutionally excessive. But the court instead concluded that a ratio of 125,000 to 1 would be constitutionally acceptable. So, the trial court was instructed to reduce the damages award to $125,000 and if the plaintiff did not accept the reduced amount, the case will have to be retried. When one considers the Supreme Court’s admonition for ratios smaller than 10 to 1 in comparison to this court’s approval of a ratio of 125,000 to 1, one must wonder who’s using the “new math” and who’s using the “old math.”

“Because of Sex” Need Not Rely on Stereotypes

By Bill Wright

For a supervisor to engage in same sex harassment, his (or her) conduct does not need a basis in sex stereotypes. EEOC v. Boh Bros. Constr. Co., No. 11-30770 (5th Cir. September 27, 2013). In this case, a supervisor picked on an iron worker because the worker used Wet Ones to clean himself after going to the restroom. In an earlier ruling, a panel of the same court ruled that using Wet Ones was not “overtly feminine” and therefore picking on the worker because of it was not sex stereotyping. Now, the court has opined, en banc, that sex harassment is to be assessed from the point of view of the harasser. The harasser thought using Wet Ones was a feminine thing to do, so the harassment was based on that view of feminine conduct. If you’re concerned that this weakens the standard that harassing conduct must be objectively offensive, the rest of the conduct described at trial would have been objectively offensive – it included sexual orientation epithets, simulating anal sex and threatening nonconsensual oral sex. Nonetheless, shock-jock Howard Stern, a staunch proponent of Wet Ones, should find solace in this opinion.

Unpaid Volunteers Not Title VII Employees

By Elizabeth Chilcoat

Title VII defines “employee” as “an individual employed by an employer,” leaving the courts to square the circular definition. Some U.S. courts of appeals have adopted the common law/ economic realities test to determine whether a volunteer is really an “employee.” This test focuses on who controls the work and who has financial risk as a result of the arrangement. Because the putative employer “controls” the work of volunteers as well as employees, this test seems like the wrong one to use. Other courts of appeals require a volunteer to show that the employer paid the volunteer a salary or wage or provided the volunteer with significant indirect benefits before the court will consider the common law/ economic realities test. Indirect benefits might include pensions, life insurance policies, disability benefits, health insurance, and other employment-like benefits.

In a recent decision, the Fifth Circuit concluded that a volunteer firefighter was not an “employee” because the fire district neither paid her a salary or wages nor provided her with significant employment-like benefits. Juino v. Livingston Parish Fire District No. 5, No. 12-30274 (5th Cir. May 30, 2013).  As a result, the court affirmed summary judgment for the fire district on the plaintiff’s sexual harassment claims.

When are volunteers not really volunteers? When they are in it for the money.

Report of “Horrific” Conduct, without More, Was Unreasonable Failure to Complain

By Bill Wright

In the absence of a tangible employment action, employers may raise a Faragher-Ellerth defense to a claim of sex harassment. In a recent case, the employer obtained summary judgment on the defense because the alleged victim of harassment refused to tell the employer’s investigators any details about the harassment. The victim told Human Resources that her supervisor had done something “horrific” and when asked directly whether the harassment included a sexual advance, she nodded. Other than that, she refused to provide any details. The employer investigated anyway, interviewing the alleged harasser and other possible witnesses, without discovering any facts about the alleged harassment.

When the lawsuit came, the court granted the employer summary judgment because of the plaintiff’s unreasonable failure to use the employer’s complaint procedure. Stephanie Crockett v. Mission Hospital, Inc., No. 12-1910, (4th Cir. May 30, 2013). Even the best investigators need something more to go on than “horrific”, and apparently a wink and a nod isn’t that “something more”, at least in the Fourth Circuit Court of Appeals.

$3.5M in Punitive Damages Vacated

By Rose McCaffrey

An employer avoided $3.5M in punitive damages by proving it took sufficient steps to stop and prevent harassment. Otto May Jr. v. Chrysler Group, LLC, Nos. 11-3000 & 11-3109 (7th Cir. May 14, 2013). In this case, the plaintiff was subjected to dozens of threats and derogatory graffiti messages, from 2002 until 2005, based on his race, religion, and national origin. He complained to his employer about the co-worker harassment. He specifically asked the employer to install cameras near his work station; the employer did not. He provided a list of nineteen employees that he suspected of involvement in the harassment, but the employer never formally interviewed the employees. Still, the employer did take multiple steps to ameliorate the harassment, including hiring a forensic document investigator to help identify the source of the harassment, and the harassing conduct did eventually cease. The court reasoned that, “while far from perfect, [the employer’s] actions did have a positive effect on the harassment” and held there was no evidence in the record to support the jury’s finding that the employer acted with the requisite “malice” or “reckless indifference” to uphold an award for punitive damages.

This employer’s “far from perfect” response to a harassment claim may have been enough to avoid punitive damages, but it takes something close to perfection to avoid a verdict in the first place.

Sexual Assault Was Not Sexual Harassment

By Andy Volin

A security guard and her husband thought she had claims for harassment and retaliation after she was sexually assaulted (unwanted kissing and groping) at work by an employee of a customer, but the First Circuit recently upheld the dismissal of her claims on summary judgment. The harassment claim failed because the employer had a strong anti-harassment policy in place, and the alleged victim never reported that the customer’s employee was sexually harassing her before the assault occurred. Instead, she had only complained about a couple of phone calls that bothered her. That was not enough to put her employer on notice that the customer’s employee was sexually harassing her. After she reported the assault, the customer’s employee was immediately moved to a different city, ending any potential for further harassment.

Her retaliation claim failed as well. She claimed her employer reduced her hours after she reported the assault, but work records showed that wasn’t the case. She also complained that a person conducting sexual harassment training singled her out for humiliating questions at a training session, but that person did not know about her sexual assault, and so the questions could not be considered retaliation for reporting it. Medina-Rivera v. MVM, Inc., No. 11-2419 (1st Cir. Apr. 10, 2013).

The case is a good reminder that employers must have robust anti-harassment policies in place, and those policies must address harassment both by co-workers and by outsiders who have access to employees as a result of their jobs.

Anti-Harassment Policy Covers Anti-Union Harassment

By Rose McCaffrey

Employees who engage in pro-union campaigning are protected from retaliation by the National Labor Relations Act, but not when campaigning activity reaches the level of harassment or intimidation. But where is that dividng line? A recent case gives an example. NLRB v. Arkema, Inc., No. 11-60877 (5th Cir. Feb. 28, 2013). In this case, a “chief operator” told a female co-worker that, if she did not support the union in a de-certification vote, relationships would change at the plant. “Fearing for her safety and job,” the woman complained. She said the chief operator had told her that male employees would not come to her aid in an emergency if she did not support the union. During the resulting investigation, the chief operator confirmed that he had said he wouldn’t help her “carry her load,” but maintained that he would still help her if she were in danger. He denied mentioning the woman’s sex when he spoke to her. The employer disciplined the chief operator under its anti-harassment policies and also sent out a notice to employees advising them that the union could not harass them for anti-union views.

For its part, the NLRB concluded that the employer had no basis to believe that the employee had violated company policy, because the employee “did nothing that could conceivably be considered to have created an offensive environment.” On the other hand, the court concluded the employee’s threat to the female co-worker was “eminently credible” because the chief operator’s conduct was designed to threaten or intimidate, rather than to persuade; the chief operator admitted that he intended to communicate to his co-worker that he would withdraw the help on which she depended to do her job; and the chief operator was in a position to actually enforce his threat because of his rank and position at the plant.

Harassment and intimidation are not protected concerted activities, but, despite this case, there’s still a large tract of gray between pro-union campaigning and harassment. Employers should always consult labor counsel before disciplining in the gray zone.