Employment Law Bits

Third Circuit clarifies when liability for co-worker sexual harassment may be imputed to employers

Typically, if an employee sues his or her employer for sexual harassment, it is based on a claim of hostile environment sexual harassment under Title VII of the Civil Rights Act. The elements of a hostile environment sexual harassment claim are:

1. the employee suffered intentional discrimination based on their sex;
2. the discrimination was ‘pervasive & regular”; 
3. the discrimination adversely affected the claimant; 
4. the discrimination would adversely affect a reasonable person of the same sex; and (5) the employer was liable under respondeat superior.

Furthermore, the employee bears the burden of proving that the employer failed to provide a reasonable method for filing a complaint, or the employer knew or should have known that the harassment occurred, yet failed to remedy the situation.

Until now, the law has been unclear on what level of knowledge would be sufficient to hook the employer for sexual harassment. As such, the Court of Appeals for the Third Circuit took to task in Huston v. Proctor & Gamble Paper Products Corporation and fashioned a two-pronged test to decide when an employer has the requisite knowledge.

The Third Circuit held that an employee’s knowledge of sexual harassment may be imputed to the employer when the employee’s duties are such as to elevate him or her to the status of manager or supervisor. However, the court determined that “mere supervisory authority over the performance of work assignments by other co-workers” was not enough. The managerial position must also carry with it the ability to enforce work policies, such as sexual harassment in the workplace, in order to impute employer liability.

The court noted that its approach was consistent with the plain meaning of ‘management’ as set forth in various dictionaries. Thus, even though the Third Circuit’s decision is not binding in Massachusetts, it has far-reaching ramifications. It may be expected that other courts will follow suit and adopt the approach pioneered by the Third Circuit.

Female workplace bullying: dealing with school antics at work

Bullying is not a new phenomenon. It is almost expected among children and teenagers. However, many would be surprised to learn how widespread bullying is in the workforce. Of those who are not surprised, many would likely assume that the role of the bully is played by a male supervisor. However, a recent survey conducted by the Workplace Bullying Institute reveals that approximately forty percent of bullies are women. Moreover, women are the targets of bullies fifty-seven percent of the time.

A recent article in the New York Times, entitled “Backlash: Women Bullying Women at Work,” focused on the rise of women bullying other women at work. The article indicates that while male bullies often target men and women alike, women are more likely to bully female colleagues than their male counterparts. Moreover, the bully is often someone in a position of power. Furthermore, whereas men are more obvious with their bullying tactics, female bullies are more likely to be covert. The article also suggests that the increase in women bullies is correlated with their on-going struggle with the glass ceiling. Many women feel they must give off a “tough as nails” vibe to get, and stay, ahead.

Employers beware: if a supervisor, male or female, unleashes an unequal amount of aggression on female employees, the employer may be held liable for sex-based harassment or sex discrimination. Therefore, employers in general and supervisors in particular should refrain from questionable conduct that might be taken as harassing or discriminatory.

Employment-related defamation claims on the rise?

As a result of a recent court decision, employers could be facing increased numbers of defamation claims filed by discharged employees. Using a definition of “actual malice” from the case, the court held that even truthful statements may give rise to a libel claim if the plaintiff can prove malicious intent on the part of the speaker.

After an employee of a company was terminated, the executive vice president sent an email to all employees, approximately 1,500 people, informing them that the employee had been fired and giving the reasons for his termination, advising the recipients to consult human resources if they had questions about the tasks that he had previously performed.

The former employee filed suit against the company, alleging among other things, that the email sent by the executive vice president constituted libel. The court concluded that because the legislature had passed the libel statute in 1902, the definition of “actual malice” used during that time period should be the meaning applied to evaluate the libel claim in 2009. The court found that the proper definition to apply was “ill will” or “malevolent intent.”

Although a jury has yet to hear this issue, the ramifications of this decision could be significant for employers. With the current state of the economy and the resulting layoffs, employers may be susceptible to defamation suits, even if the statements made about former employees are true. This can be especially problematic in situations involving negative job references to prospective employers. Given the potential for liability, employers are urged to contact an employment attorney to ensure adequate compliance.

Youth employees are entitled to the same civil rights protections as adult workers

With the holiday season approaching, some retailers, resorts, and restaurants will temporarily increase their work forces. Many of these seasonal employees will be under the age of eighteen. As such, both employers and teenage employees need to be aware of the rights and legal protections afforded to youth employees.

 

Like adult employees, youth workers are entitled to a work environment free of discrimination and harassment. The Equal Employment Opportunity Commission (EEOC) enforces federal civil rights and discrimination laws against state employers and most private employers with more than fifteen employees. These laws protect employees from discrimination on the basis of race, color, religion, sex, national origin and discrimination. The EEOC, through its Youth@Work initiative, strives to educate teens about their workplace rights. This program provides a website specifically for young employees, http://www.youth.eeoc.gov.

 

A teenage employee, who feels he has been discriminated against or harassed in violation of these laws, may file a complaint with EEOC. The EEOC will investigate, and if necessary, file a law suit. For example, the EEOC recently filed suit against WorldMark by Wyndham (a subsidiary of Wyndham Worldwide, a hospitality business operating hotels and time share resorts in over 100 countries) charging that a forty-something male manager at one of its resorts repeatedly sexually harassed young male employees between the ages of 17 and 25. As a result of this suit, Wyndham agreed to pay $370,000 to four teenage employees who had been sexually harassed by the manager.

 

Employers should be aware of that youth workers have the same rights to be free of harassment and discrimination at work as adult workers do. Employers should also be sure to educate their adult employees regarding the teenage employees’ rights before hiring additional youth employees during this busy season. More information is available at http:www.eeoc.gov/initiatives/youth/index.html.

Re-thinking traditional notions of sexual harassment: what if the target is the same gender?

Both employers and employees alike need to be aware that sexual harassment goes beyond the traditional notions of a male supervisor confronting a female worker. Under Massachusetts law, any physical or verbal conduct of a sexual nature can constitute sexual harassment. The statute contains no reference to gender or sexual orientation.

Because of this, Massachusetts recognizes that an employee may prevail in a sexual harassment claim against an employer regardless of the employer’s gender or sexual orientation. Furthermore, there is no requirement that the employer’s actions be motivated by romantic feelings or a desire for a sexual relationship.

Ultimately, this means that employers have to be cautious about conduct that could be reasonably interpreted as sexual in nature despite the gender of the target. This warning applies even to conduct that may be intended as a joke, prank, or hoax.

The Supreme Judicial Court of Massachusetts has held that a male employer engaged in sexual harassment where the employer regularly groped the male employee and told other employees that he and the employee were involved in a sexual relationship even though the employer was a heterosexual and intended his actions to constitute mere “horseplay.”

With this in mind, as a general rule, employers should refrain from questionable conduct that could be viewed as sexual harassment if carried out by a man against a woman.

Recent court decision makes it easier for employees to plead claim of hostile work environment

Pleading a claim of hostile work environment may now prove easier for employees thanks to a recent decision by the Appeals Court of Massachusetts. On June 3rd, the court ruled that an employee could bring a hostile work environment claim against his former employer even though the claim did not appear in the original complaint.

Massachusetts laws require employees to first file their grievances with the Massachusetts Commission Against Discrimination (MCAD) before bringing an action in the Superior Court. The purpose of the MCAD prerequisite is to provide MCAD with a chance to investigate and mediate the discrimination claim while providing notice to the defendant of the possible claim. An employee is limited to pleading matters alleged in the MCAD complaint at trial.

In the recent decision, the plaintiff had filed the MCAD complaint alleging discrimination based on race, color, and national origin without specifically alleging a claim of hostile work environment. A claim for discrimination is different from a claim for hostile work environment because, in addition to the requirements necessary to prove discrimination, a plaintiff seeking to prove a hostile work environment must show that the abusive conduct was sufficiently severe and recurring to interfere with a reasonable person’s job performance.

Nevertheless, the court held that the plaintiff had stated sufficient facts on the MCAD complaint to sustain his claim in Superior Court by describing a work environment in which he was persistently subjected to racially abusive comments that were severe and pervasive enough to interfere with the performance of his work. In fact, the court noted that MCAD regulations did not require the complaint to state any specific legal theory and only required a concise statement of alleged discriminatory acts.

Because of this decision, it appears that an employee claiming discrimination also sufficiently states a claim for hostile work environment so long as the facts establish the discrimination was recurring. Employers facing litigation should assume that discrimination claims also state a claim for hostile work environment so long as the conduct was over a continued period of time.

Sexual harassment – insulating your company against liability

Generally, two forms of sexual harassment exist: “quid pro quo” sexual harassment and “hostile work environment sexual harassment.”

Quid pro quo sexual harassment occurs when an employer conditions employment opportunities on entering into a sexual or social relationship. Hostile work environment sexual harassment arises when an employer makes unwarranted and unwanted sexual advances to an employee that adversely effect the employee’s psychological well being.

An employer does not have to actually perform the sexual harassment to be liable. The employer may be vicariously liable for an employee’s conduct. Vicarious liability will almost always exist for a supervisor’s quid pro quo sexual harassment.

An employer may insulate itself from liability stemming from sexual harassment claims based on the existence of a hostile work environment by implementing an expressed policy prohibiting sexual harassment. This program must clearly establish that sexual harassment is prohibited and provide employees with an effective means of enforcing the policy. These requirements are satisfied by a policy that:

• Encourages the potential victims of sexual harassment to come forward
• Adequately investigates the allegations
• Takes effective remedial measures to address violations of the policy

Contact an employment law attorney to develop a meaningful safeguard today.

Investigating claims of improper conduct

Occasionally an employee will accuse a coworker or supervisor of improper conduct such as sexual harassment. These situations are difficult to deal with on several levels. To start, an employer must conduct a proper investigation of the allegations before deciding to terminate the accused employee. If the company fails to do this, it may be liable to the employee for damages.

While Massachusetts is an “at-will” state, some employees have employment contracts with their employers. If there is an employment contract, the company should carefully read it prior to conducting the investigation to ensure compliance with the terms of the contract. This will help avoid any breach of contract claims. Even if there is not an express contract, an employer may be bound to follow procedures set forth in an employee manual.

In addition to contract claims, a company may face potential liability for interference with a contractual or advantageous relationship. If a company fails to properly and objectively investigate allegations of misconduct, but goes ahead and terminates the accused employee, this may make the company liable to the discharged employee.

If you are an employee that has been fired due to allegations of misconduct, consult an attorney today to know your rights. If you are an employer investigating an employee’s allegations of harassment, you should consult an attorney to know your obligations and to develop a proper investigation technique.

How to avoid retaliation claims and what to do if you are involved in one

If an employee complains about the actions of his supervisor or the company he works for, and is soon after terminated or demoted, he may have a claim against the employer for retaliation. Retaliation is a prohibited employment practice whereby employers punish employees for complaining about unlawful practices.

To succeed in a claim against an employer for retaliation, the employee must show several things.

1. The employee must show that he engaged in a protected activity defined nder Massachusetts law, such as informing on an employer's unlawful activity
2. The employee must show that an adverse employment decision was taken against him
3. The emoloyee must show a causal connection between the activity and the adverse employment decision

If the adverse employment decision occurs fairly quickly, that is good evidence of a causal connection. Of course, this showing is not conclusive and must be justified on legitimate grounds. The important thing is that employees should not fear reporting or brining to light unlawful activity.

If you believe you have been retaliated against by your employer, or if you are an employee who wants to terminate an employee, but you fear a subsequent law suit, contact an attorney who specializes in employment law today.

Worker’s Compensation and intentional infliction of emotional distress

Employees seeking to bring claims against employers for intentional infliction of emotional distress may be barred by the workers compensation act. This act provides that employees effectively waive their rights to bring claims based upon common law such as intentional infliction of emotional distress or other personal injury actions for injuries that are covered by the Workers Compensation Act.

Essentially, workers compensation provides an exclusive remedy for employees’ injuries, and employees can not seek other remedies. The act covers only work-related physical injuries but not emotional ones. Consequently, courts have repeatedly held that claims for emotional injuries resulting from termination and the like fall within the workers compensation act and are barred by this exclusive remedy provision.

This applies not only to injuries sustained by the employee at the hands of their employer, but also to injuries sustained at the hands of their co-employees. Courts have concluded that if the co-employees, while committing the injurious act, are in the course of their employment and furthering the employer’s interest, then the injury is covered exclusively by workers compensation.

Nonetheless, employees are only barred from bringing intentional infliction claims when they meet the statutory requisites of the act. Thus, employees who are not considered employees under the act, or whose injury is not covered under the act, still may be able to bring intentional infliction claims against their employers.