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Huge court win for #MeToo

In Minarsky v. Susquehanna County, 2018 WL 3234243 (3d Cir. July 3, 2018), the Third Circuit reversed summary judgment for the employer because a jury could find that the sexual harassment victim was reasonable in not reporting the harassment for four years.  In a footnote that will be cited for years to come, the Court said:

This appeal comes to us in the midst of national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims. It has come to light, years later, that people in positions of power and celebrity have exploited their authority to make unwanted sexual advances. In many such instances, the harasser wielded control over the harassed individual’s employment or work environment. In nearly all of the instances, the victims asserted a plausible fear of serious adverse consequences had they spoken up at the time that the conduct occurred. While the policy underlying Faragher-Ellerth places the onus on the harassed employee to report her harasser, and would fault her for not calling out this conduct so as to prevent it, a jury could conclude that the employee’s non-reporting was understandable, perhaps even reasonable. That is, there may be a certain fallacy that underlies the notion that reporting sexual misconduct will end it. Victims do not always view it in this way. Instead, they anticipate negative consequences or fear that the harassers will face no reprimand; thus, more often than not, victims choose not to report the harassment.

Recent news articles report that studies have shown that not only is sex-based harassment in the workplace pervasive, but also the failure to report is widespread. Nearly one-third of American women have experienced unwanted sexual advances from male coworkers, and nearly a quarter of American women have experienced such advances from men who had influence over the conditions of their employment, according to an ABC News/Washington Post poll from October of 2017. Most all of the women who experienced harassment report that the male harassers faced no consequences. ABC News/Washington Post, Unwanted Sexual Advances: Not Just a Hollywood Story (Oct. 17, 2017), www.langerresearch.com/wp-content/uploads/…

Additionally, three out of four women who have been harassed fail to report it. A 2016 Equal Employment Opportunity Commission (EEOC) Select Task Force study found that approximately 75 percent of those who experienced harassment never reported it or filed a complaint, but instead would “avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior.” EEOC Select Task Force, Harassment in the Workplace, at v (June 2016), www.eeoc.gov/eeoc/task_force/harassment/upload/… Those employees who faced harassing behavior did not report this experience “because they fear[ed] disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.” Id.; see also Stefanie Johnson, et al., Why We Fail to Report Sexual Harassment, Harvard Business Review (Oct. 4, 2016), hbr.org/2016/10/why-we-fail-to-report-sexual-harassment (women do not report harassment because of retaliation fears, the bystander effect, and male-dominated work environments).

We litigate sexual harassment and assault cases

Women now make up about half the U.S. workforce, yet remain underrepresented in management and in the C-suite. With smartphones, text messages, social media, there are more ways than ever for supervisors and co-workers to sexually harass women at work (and even outside of work). If you or someone you know has been sexually harassed or sexually assaulted by anyone connected with your work, we want to know about it. Call 412-258-2250 for a free, confidential consultation, text us at 412-498-4120 or email us at cal@lambertonlaw.com. Don’t delay. There are deadlines for taking action and after which you could lose your legal rights.

 

Sexual harassment ABC’s

Researchers identify at least three different forms of sexual harassment.  “Gender hostility” refers to derogatory comments or actions that invoke sex or gender, rather than explicit requests for sex.  Sexist hostility is specific to gender (for example, someone makes a joke about women in a meeting.  Sexual hostility has a sexual component (for example, someone asks about a co-worker’s sexual activities.  “Unwanted sexual attention” includes unwelcome attempts to initiate sexual or romantic relations (for example, someone repeatedly asks a co-worker out on dates, sends them sexual texts, or touches them in sexually inappropriate ways.  “Sexual coercion” involves many of the same behaviors as the unwanted sexual attention, but comes with a threat of consequences — such as being fired or refused a promotion — for not cooperating.

Sexual harassment takes toll on health

Epidemiologist Rebecca Thurston has spent years studying women who have suffered sexual abuse and harassment. She finds that over time, sexual harassment works  like a poison, stiffening women’s blood vessels, worsening blood flow and harming the inner lining of their hearts. More than a dozen other studies show that sexual harassment causes physical symptoms such as headaches, gastrointestinal problems and disrupted sleep. Sexual harassment lasts for longer than six months in more than a quarter of cases, according to surveys of harassment in the military, which are required by law and therefore among the most comprehensive. During that period, a woman’s body reacts strongly: the immune system suffers, inflammation increases, and the body begins secreting higher levels of cortisol, which contributes to high blood pressure, high cholesterol, weight gain, impaired memory function and depression. The negative effects can linger for years.

One of the most comprehensive studies tracked 1,654 employees at an unnamed Midwestern university over the course of six years. The 2005 study, published in the Journal of Business and Psychology, found that those who experienced sexual harassment were more prone to sickness, illness and accident, and not just around the time they experienced the harassment. When researchers surveyed the group again years later, the harassment continued to have an enduring effect on their rates of illness, injury and accident.

The mental strain of harassment also often leads to depression, anxiety and other disorders. In recent years, studies have shown sexual harassment makes women more likely to drink as a way of coping. Harassed women are also more likely to develop eating disorders. Researchers have shown the harmful effects even trickle down to co-workers who witness or hear of the harassment, a phenomenon analogous to secondhand smoke.

Among the most debilitating effects is post-traumatic stress disorder. A 2015 study found that 20 percent of female veterans of the Vietnam War suffered from PTSD – not because of the war itself but largely due to sexual harassment they suffered from their male counterparts.

Sexual harassment at work – how to take back your power

Sexual harassment can make a woman feel powerless. But you can take back your power and we can help. Call, email or text us if you have been sexually harassed at work. And in the meantime, remember these tips:

Speak up. Tell the harasser his conduct is not professional and not welcome. Do it in a text or an email. And tell him if he doesn’t stop, the next person you contact will be HR or his boss.

Consult your employer’s sexual harassment policy and do what it tells you to do. Your employer wants to know if sexual harassment is occurring. If you don’t tell it, it might never find out. Worse, if you wait and say nothing, it might later say you made your story up. So don’t fear reporting the harasser to HR or to upper management. And be specific about what the harasser said and did. If your supervisor is the harasser, take your complaint to his boss.

Keep a record of any harassment episodes, your complaints, and any incidents related to the harassment — including dates, times, persons involved, and what was said.

You have a right to work without being sexually harassed. Don’t be afraid to reach out for help. Contact us today.

Sexual harassment at work – what you need to know

What is workplace sexual harassment?  Sexual harassment in the workplace is an umbrella term that encompasses a range of unwanted behaviors. This includes nonphysical harassment, including suggestive remarks and gestures, or requests for sexual favors. Physical harassment includes touches, hugs, kisses and coerced sex acts. It can be perpetrated by anyone — a manager, a colleague, a client. The perpetrator or the recipient may be male or female. It does not need to occur inside the office. Your employer could still be responsible for failing to prevent the sexual harassment, or for failing to handle it appropriately.

If you have experienced or witnessed sexual harassment and you want to take action, you have a number of choices. But first:
Whatever you plan to do, keep notes and evidence. After an incident of sexual harassment it important to write down what
happened, what was said or touched, who did it, whether anyone was around to witness what happened, where you were, what the time was. Take screenshots of texts, print emails, do what you need to do. Keep notes in a bound notebook do not store information on any of your devices. If there is any physical evidence — for example, a dress with fluids on it or pornographic images — save it. When investigating or reporting on a complaint of sexual harassment, accusers will often be asked if they had confided in a friend, family member or colleague at the time of the event or events. Even if you never plan on taking action, confiding in someone at the time can be helpful if you change your mind about taking action
later.

Now, for your options:

  1. Contact an experienced sexual harassment lawyer immediately. Typically, you only have 180 days from the last act of sexual harassment to file a complaint with the appropriate federal or state agency. Don’t delay on this. Sexual harassment lawyers typically work on a contingent fee basis so that you are not paying by the hour.
  2. File a criminal complaint. But do this in consultation with your sexual harassment attorney. Generally, in cases where the harassment included physical touching, coerced physical confinement or coerced sex acts, it could be considered a crime.
  3. Notify your employer verbally and then in writing. Consult your employee handbook for your employer’s sexual harassment policy and follow the steps it sets forth. If the harasser was your boss, report to someone up the chain or to Human Resources. Reporting to your employer is critical because if you think you may want to file a lawsuit against the employer in the future, you have to report the harassment to your employer first. Otherwise, the employer has a defense. Make sure all of your attempts at reporting the sexual harassment are documented. Write down everything and put everything in writing.
  4. You can go to a federal, state or local agency. At the federal level, you can go through the Equal Employment Opportunity Commission. In Pennsylvania, the state agency is the Pennsylvania Human Relations Commission. Filing a Charge or Complaint with these agencies is required before you can file a lawsuit in court. Your sexual harassment lawyer will help you with this process. 

Why Trump is wrong about transgenders serving in the military

nbc-fires-donald-trump-after-he-calls-mexicans-rapists-and-drug-runnersIf their heart calls them to service, if they are prepared to fight, bleed and die for the Country, their Country should welcome their service and praise their patriotism. It’s that simple. Donald Trump is the last person on Earth to judge those prepared to lay down their lives in military service. He is an abominable, cruel sadist who never had the courage or patriotism to serve himself.

Sexual harassment by senior executives

CSuiteWe have seen a significant increase in sexual harassment cases involving senior corporate executives. For those unfamiliar with the legal rules that apply in sexual harassment cases, employers are liable for sexual harassment by co-workers only if the employer was negligent in discovering or stopping the harassment. Liability rules change somewhat when the sexual harassment is perpetrated by a supervisor with hiring and firing authority. If the sexual harassment results in a termination, demotion, pay cut of other tangible employment action, the employer is strictly liable. If not, then the employer is allowed to raise a defense that it exercised reasonable care in preventing sexual harassment from occurring, and that the employee failed to make use of the procedures the employer made available to investigate and remedy sexual harassment. However, when sexual harassment is perpetrated by a member of the C-Suite (for example, the CEO, COO, President, Owner or another senior corporate executive), liability is always automatic and strict. This is because the law draws no distinction between the corporate entity and the executive officers who control it for purposes of sexual harassment liability. Such officers are considered the corporation’s proxy or alter-ego. If you have been sexually harassed or assaulted by a senior corporate officer at work, you may have important rights under the law. Call us today at 412-258-2250 for a consultation.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

Top Female Players Accuse U.S. Soccer of Wage Discrimination (New York Times)

A compelling piece from Andrew Das of the New York Times.

 Female athlete wage discrimination

U.S. Soccer, the governing body for the sport in America, pays the members of the men’s and women’s national team who represent the United States in international competitions. The men’s team has historically been mediocre. The women’s team has been a quadrennial phenomenon, winning world and Olympic championships and bringing much of the country to a standstill in the process.

Citing this disparity, as well as rising revenue numbers, five players on the women’s team filed a federal complaint Wednesday, accusing U.S. Soccer of wage discrimination because, they said, they earned as little as 40 percent of what players on the United States men’s national team earned even as they marched to the team’s third world championship last year. The five players, some of the most prominent women’s athletes in sports, said they were shortchanged on everything from bonuses to appearance fees to per diems.

The case, submitted to the Equal Employment Opportunity Commission, the federal agency that enforces civil rights laws against workplace discrimination, is the latest front in the spreading debate over equal treatment of female athletes. A tennis tournament director was forced to resign recently after saying that female players “ride on the coattails of the men,” and the N.C.A.A. has drawn scrutiny for the financial disparities between the men’s and women’s basketball tournaments.

“The numbers speak for themselves,” said goalkeeper Hope Solo, one of the players to sign the complaint. “We are the best in the world, have three World Cup championships, four Olympic championships.” Solo said the men’s players “get paid more to just show up than we get paid to win major championships.”

Solo was joined in the complaint by the co-captains Carli Lloyd and Becky Sauerbrunn, forward Alex Morgan and midfielder Megan Rapinoe.

U.S. Soccer officials pushed back forcefully on the players’ claims in a conference call Thursday night, citing figures that the federation said showed the men’s national team produced revenue and attendance about double that of the women’s team, and television ratings that were “a multiple” of what the women attract, according to Sunil Gulati, the U.S. Soccer president. A federation spokesman, Neil Buethe, called some of the revenue figures in the players’ complaint “inaccurate, misleading or both.”

In a statement released earlier Thursday, U.S. Soccer recounted the role the federation has played in the growth of women’s soccer, including its introduction to the Olympic Games and in providing full-time salaries for top players. It said it was willing to discuss compensation as part of continuing talks over a new collective bargaining agreement.

But in linking their compensation to the men’s pay, the women’s players put U.S. Soccer in a difficult position. The federation has collective bargaining agreements with both teams, but the financial terms differ widely.

A men’s player, for example, receives $5,000 for a loss in a friendly match but as much as $17,625 for a win against a top opponent. A women’s player receives $1,350 for a similar match, but only if the United States wins; women’s players receive no bonuses for losses or ties.

Opportunities for women to participate in sports have increased greatly in the more than 40 years since the passage of the gender-equity legislation known as Title IX. But sports officials continue to struggle with matters of compensation.

It has been argued that men’s sports, and their players, deserve a financial edge because they draw bigger crowds and generate far more money in ticket sales and corporate sponsorships. That is the case for U.S. Soccer’s national teams, the federation said Thursday. But that is not true for every sport. Women’s figure skating, for instance, has often drawn higher TV ratings and bigger crowds than men’s figure skating.

In their complaint, the five players cited recent U.S. Soccer financial reports as proof that they have become the federation’s main economic engine even as, they said, they often earned only half as much — or less — than their male counterparts.

At the same time, the players said, they exceeded revenue projections by as much as $16 million in 2015, when their World Cup triumph set television viewership records and a nine-game victory tour in packed stadiums produced record gate receipts and attendance figures.

U.S. Soccer officials disputed those figures, arguing that the women and their lawyer, Jeffrey Kessler, cherry-picked an extraordinarily successful year to draw broad conclusions.

Michael LeRoy, who teaches collective bargaining and sports at the University of Illinois, said that market conditions between the men’s and women’s sports are vastly different. LeRoy pointed to a high-profile case brought by Marianne Stanley, the women’s basketball coach at the University of Southern California in the early 1990s, who argued she should be paid at a level equal to the men’s coach. Her legal effort was unsuccessful.

“They have to prove equality of work and market conditions, and it’s such a rigid legal requirement,” LeRoy said of the women’s soccer players.

While women have often been dismissed in international soccer — the men’s World Cup began in 1930 and the women’s not until 1991 — they have become the sport’s standard-bearers in the United States. The women’s team has provided the type of repeated success that has remained elusive for the American men. Not so long ago, a woman, Mia Hamm, may have been the best-known soccer player in the country.

When Hamm and her teammates won the 1999 World Cup in the United States, they also set records for attendance and television viewing. Last summer, when the United States defeated Japan to win another Women’s World Cup, the final was seen by 25.4 million viewers on Fox — a record for a men’s or women’s soccer game on English-language television in this country.

“We have been quite patient over the years with the belief that the federation would do the right thing and compensate us fairly,” said Lloyd, the most valuable player of the Women’s World Cup.

Although only five players signed the complaint, they said they were acting on behalf of the entire women’s team, saying they are all employees of U.S. Soccer through their national team contracts. That is significant, according to Peter Romer-Friedman, the deputy director of litigation for the Washington Lawyers’ Committee for Civil Rights.

“By speaking up publicly, the players are saying, ‘It’s important for the public to know that we’ve filed this suit,’ ” Romer-Friedman said. “Frankly, as a civil rights lawyer, it is important for them to speak out because it has an educational effect.”

The filing of the complaint was the latest move in an increasingly contentious legal fight between U.S. Soccer and the women’s national team, which is favored to repeat as Olympic champion at the Rio Games in August but has long grumbled about its pay, working conditions and travel and hotel arrangements.

The long-simmering feud boiled over after last summer’s Women’s World Cup triumph. A match in Hawaii that was part of the team’s victory tour was canceled when the players refused to play on an artificial-turf field they deemed unsafe. Gulati later apologized for the situation.

Two months later, the disagreement veered into federal court when U.S. Soccer took the unusual step of filing a lawsuit against the national team’s players’ union as part of a dispute about the validity of the players’ collective bargaining agreement. The federation contends the agreement, which expired in 2012, lives on in a memorandum of understanding the sides signed in early 2013. The union contends it does not.

In response to the complaint filed Wednesday, U.S. Soccer argued that not only was the players’ pay collectively bargained, but that the players had insisted more than once on a salary-based system as a means of economic security over the bonus-centric plan the men work under. Russell Sauer, the outside counsel for the federation during labor talks, also said the women’s labor contract included provisions — severance and injury pay, health benefits and maternity leave, for example — not available to the men’s team.

“The truth is,” Sauer said, “the players are claiming discrimination based on a more conservative structure, based on guaranteed compensation rather than pay to play, which they themselves requested, negotiated and approved of not once, but twice.”

Furthermore, U.S. Soccer noted, a major source of revenue and contention — World Cup prize money — is determined by FIFA, world soccer’s governing body, not the federation. But the women’s complaint seems to take aim at a bigger share of domestic revenue, like sponsorships and television contracts, and U.S. Soccer financial reports hint at a richer future involving the team: The federation’s budget projections for 2016 include $2.3 million for a 10-game victory tour after this summer’s Olympics.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

 

 

Supreme Court speaks on Pregnancy Discrimination Act

Supreme Court Pregnancy Discrimination

Today the Supreme Court issued a fractured opinion announcing new law on the Pregnancy Discrimination Act. The Act provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work . . . .” Five members of the Court held that “a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing … that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.” The employer may then seek to justify its refusal to accommodate the plaintiff by relying on legitimate, nondiscriminatory reasons for denying her accommodation. But … that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accommodates. *** If the employer offers an apparently legitimate, non-discriminatory reason for its actions, the plaintiff may in turn show that the employer’s proffered reasons are in fact pretextual. We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s legitimate, nondiscriminatory reasons are not sufficiently strong to justify the burden, but rather – when considered along with the burden imposed – give rise to an inference of intentional discrimination. The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most non-pregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations. Young might also add that the fact that UPS has multiple policies that accommodate non-pregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate pregnant employees give rise to an inference of intentional discrimination.”

“Viewing the record in the light most favorable to Young, there is a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s. In other words, Young created a genuine dispute of material fact as to the fourth prong of the McDonnell Douglas analysis. Young also introduced evidence that UPS had three separate accommodation policies (on-the-job, ADA, DOT). Taken together, Young argued, these policies significantly burdened pregnant women. See App. 504 (shop steward’s testimony that “the only light duty requested [due to physical] restrictions that became an issue” at UPS “were with women who were pregnant”). The Fourth Circuit did not consider the combined effects of these policies, nor did it consider the strength of UPS’ justifications for each when combined. That is, why, when the employer accommodated so many, could it not accommodate pregnant women as well? We do not determine whether Young created a genuine issue of material fact as to whether UPS’ reasons for having treated Young less favorably than it treated these other nonpregnant employees were pretextual. We leave a final determination of that question for the Fourth Circuit to make on remand, in light of the interpretation of the Pregnancy Discrimination Act that we have set out above.”

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