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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.

 

What to do about sexual harassment at work

SexharContact legal counsel immediately.  Call us at 412-258-2250 or email us at cal@lambertonlaw.com.

Check to see if your employer has an anti-harassment policy. This may be on the employer’s website. If it’s not, check your employee handbook. Finally, you can ask any supervisor (it does not have to be your supervisor) or someone in Human Resources (if your employer has an HR department) whether there is an anti-harassment policy and if so, to give you a copy.

If there is a policy, follow the steps in the policy. The policy should give you various options for reporting the harassment, including the option of filing a complaint.

If there is no policy, talk with a supervisor. You can talk with your own supervisor, the supervisor of the person who is harassing you, or any supervisor in the organization. Explain what has happened and ask for that person’s help in getting the behavior to stop.

The law protects you from retaliation (punishment) for complaining about harassment. You have a right to report harassment, participate in a harassment investigation or lawsuit, or oppose harassment, without being retaliated against for doing so.

You always have an option of filing a charge of discrimination with the EEOC to complain about the harassment. There are specific time limits for filing a charge (180 or 300 days, depending on where you work), so contact EEOC promptly. See EEOC’s How to File a Charge of Employment Discrimination. You can also meet with EEOC to discuss your situation and your options. This conversation is confidential. Note: federal employees and job applicants have a different complaint process and different time limits.

Crediting non-discriminatory reasons

older workers are at risk for workplace discrimination.The judicial function at the summary judgment stage is to decide whether a jury could reasonably find in the employee’s favor on the claim at issue. In making its decision, a court follows certain rules. One such rule is that the record must be examined as a whole. Another is that inferences must be drawn in the employee’s favor. And another is that the court may not make credibility determinations. Too often, however, courts focus on select pieces of the record to the exclusion of others, draw inferences in the employer’s favor, and make credibility determinations that favor the employer. The result can be dismissal even where the employee has produced powerful evidence of discrimination. These dismissals frequently occur under the cover of “but-for” causation, the causation standard applicable in federal age cases and non-age cases involving retaliation (other than SOX cases).

Consider an example involving a 62 year-old employee who was terminated without warning after 30 years of good performance. The employee testifies that his relatively new 44 year-old supervisor, the decisionmaker, consistently called him an “old fart” and said he should “retire because he is old” and because he needed to “make room for new, young talent.” The employee further testifies that the decisionmaker made frequent comments such as “old people are low energy, tired and forgetful.” The decisionmaker even sent an email telling the employee to “dress younger” at work. The employer denies that these comments were made and says that it fired the employee because of insubordination, citing an incident where the employee refused to follow one of his supervisor’s instructions. The employee admits he did not follow the instruction in question, but contends that the real reason he was fired was his age.

The employer moves for summary judgment. Pointing to the undisputed evidence of “insubordination,” the employer argues that the employee cannot prove that but-for his age, he would still be employed. The court agrees and dismisses the case.

In dismissing the case, the court has violated all three rules governing summary judgment. First, it has not considered the record as a whole, but only a portion of the record favoring the employer. Second, the court has failed to draw reasonable inferences in the employee’s favor, one certainly being that age discrimination tainted the termination decision. Third, the court has made a credibility determination. It has credited the employer’s stated reason for terminating the employee – insubordination. A jury, however, would not be required to credit that reason. A jury could find it unworthy of credence for any number of reasons, including intangible ones like witness demeanor at trial. A jury could also simultaneously believe that the employee was insubordinate, but that age discrimination was the but-for cause of the termination.

When courts stray from the three rules governing summary judgment, cases that should proceed to trial instead get dismissed. Employee rights lawyers must be vigilant in protecting their clients against unjust dismissals at the summary judgment stage.

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.

When protected activity and insubordination collide

Sixth-CircuitIn Yazdian v. ConMed Endoscopic Tech., Inc., No. 14-3745 (6th Cir. July 14, 2015), the Sixth Circuit reversed summary judgment for the employer, finding that the employee’s complaints could reasonably be understood as complaints of race discrimination, and that there was both circumstantial and direct evidence of causation. The Court’s opinion includes an excellent discussion of what constitutes protected activity, the kinds of evidence that supports a good faith and reasonable belief, whether a district court may credit an employer’s subjective reason at the summary judgment stage that the employee was fired for being insubordinate and overly aggressive with his complaints, proving causation with circumstantial and direct evidence, and the honest belief doctrine.

“To come within the protection of Title VII, Yazdian must establish that he challenged an employment practice that he reasonably believed was unlawful. Title VII does not restrict the manner or means by which an employee may oppose an unlawful employment practice.  Of critical import here is the fact that there is no qualification on the party to whom the complaint is made known. Indeed, a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII.”

“Yazdian complained about allegedly unlawful discrimination multiple times during his employment at ConMed. He made the following six statements to Sweatt, which individually and together qualify as Title–VII protected activity:

• “I’m going to respond with counsel.”
• “I’m going to bring you up on charges before …”
• “Bring a lawsuit against [Sweatt]”
• “Hostile work environment.”
• “I will have an attorney respond.”
• “I will be responding with charges.”

These statements—particularly the hostile-work-environment charge—put ConMed on notice that Yazdian believed that Sweatt’s conduct was illegal. “Hostile work environment” is a term of art, which refers to an unlawful employment practice under Title VII that arises because of “discriminatory intimidation, ridicule, and insult[s]” repeatedly directed at an employee on the basis of a protected characteristic. Thus, an employee who complains that an employer is creating a “hostile work environment” engages in Title–VII–protected activity when the context objectively reveals that the employee is using the expression to complain about repeated abusive discriminatory comments or treatment.”

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.

Legislators to Supreme Court: Pregnancy Discrimination Act means what it says

heavylift-pregnantworkers-report-250More than 100 members of Congress filed an amicus curiae brief urging the U.S. Supreme Court to overturn the decision rendered by the U.S. Court of Appeals for the Fourth Circuit rejecting a former United Parcel Service worker’s pregnancy and disability bias suit, arguing that the Pregnancy Discrimination Act (PDA) demands pregnant workers receive the same accommodations available to non-pregnant workers. The amicus brief in Peggy Young v. United Parcel Service Inc. (No. 12-1226) asserts that an employee’s inability to work is irrelevant under the PDA and that the Fourth Circuit’s decision misinterprets the PDA and the Supreme Court’s own precedent by improperly narrowing the protections that lawmakers intended to guarantee to pregnant workers.

The Fourth’s Circuit’s ruling held that UPS did not violate the PDA when it refused to allow Young to continue working with the company instead of offering her the light work the company grants to disabled workers and those injured on the job. The ruling affirmed the district court’s dismissal of Young’s 2008 suit, which alleged UPS violated the Americans with Disabilities Act and the PDA by not allowing her to work while under a doctor’s order not to lift 70-pound packages, an ability company policy defines as an “essential function” of the job.

On the offense with the employer’s sexual harassment investigation

i-sexualharassmentMost sexual harassment and racial harassment cases have a front-end and back-end. The front-end consists of the underlying acts of sexual harassment (or racial harassment) against the employee, for which the employee complained. The back-end consists of the employer’s investigation of and response to the employee’s complaint. It can be tempting to conceptualize the liability-creating acts as occurring only on the front-end of the case, and to use the back-end solely to undermine the employer’s affirmative defenses or as support for punitive damages. Undoubtedly, a halfhearted, botched or otherwise perfunctory back-end response to a sexual harassment complaint will serve these purposes. But can the employer’s investigation of and response to a sexual harassment complaint also be used together with the front-end acts of harassment to create an entire case theme – one that weaves together both the front and back ends into a single story about the employer’s self-serving anti-discrimination policies, its lack of interest in enforcing those policies, the sexual harassment that the employer could have prevented, and the employer’s lazy, uncritical and incomplete investigation of the employee’s complaint? We think it can.

Sexual harassment cases are often – though not always – comprised of many acts of harassment that, together, meld into what courts call a hostile working environment. That is, a work environment where the terms, conditions or privileges of employment have changed sufficiently because of sex to create a claim for discrimination. Yet, it is worth thinking through this question – just what are the “terms, conditions and privileges” of employment? One could write a book in response, but for our purposes, it is enough to say that the “terms, conditions and privileges” of employment are what the employer says they are and what the employer allows them to be in practice. We will focus here on what the employer says they are.

Most employers have adopted strongly worded EEO (Equal Employment Opportunity) policies and strongly worded anti-discrimination policies. Those policies will be in writing and are usually found in an Employee Handbook, on the employer’s intranet or posted on a bulletin board. The policies usually say something like this:

It is the policy of the XYZ Corp. to provide a work environment for all employees free from discrimination and harassment because of sex, sexual orientation, race, religion, color, disability, age, pregnancy, child-birth, national origin, veteran status, genetic information, or any other unlawful basis. XYZ will comply with and strictly enforce all federal, state, and local laws that prohibit discrimination or harassment based on sex, sexual orientation, race, religion, color, disability, age, pregnancy, child-birth, national origin, veteran status, genetic information, or any other unlawful basis. XYZ absolutely will not tolerate discrimination or harassment. If an employee feels that he/she is being harassed, the Company expects the employee to bring his/her complaint to its attention. An employee who brings a complaint to the XYZ’s attention is assured that the matter will be fully and fairly investigated, and dealt with promptly and in confidence to the extent possible. Only those persons who need to know will be involved or informed. XYZ will take immediate and appropriate corrective action, including disciplinary measures as warranted.

In this policy, the employer promises to “strictly enforce” the anti-discrimination laws, to “fully and fairly investigate” employee complaints, and so on. These promises create “terms, conditions and privileges” of employment. An adroit employee-side sexual harassment lawyer should use the employer’s promises to develop the back-end of the liability case. Spend at least one full deposition exploring whether the employer “strictly enforced” the law, whether its intolerance of discrimination or harassment was truly “absolute,” and critically, whether the employer conducted a “full, fair and prompt” investigation,” that it followed with “immediate and appropriate corrective action.” In most cases, there will be a wide gulf between the employer’s promises and assurances on paper and how it actually acted. A very adroit sexual harassment lawyer will make this the front-end of the liability case, a story of paying lip-service to the law, of broken promises and of preventable harm. The back-end will now be the harm that the employer could have prevented (or at the very least mitigated) had it taken its own policies and promises seriously. The focus of the case remains at all times on the employer, where it should be.

Gender pay gap persits

When the Equal Pay Act became law in 1963, women were earning 59 cents on the dollar compared to men. Today, while women hold nearly half of all jobs, and generate a significant portion of the income that sustains their families, they still face a gap in pay compared to men’s wages for similar work. Even now, women earn about 81 cents on the dollar compared to men — a gap that results in hundreds of thousands of dollars in lost wages. For African-American women and Latinas, the pay gap is even greater.

For more on Equal Pay, including tools, resources and recently announced Apps, see below:

 

 

Discrimination getting cheaper by the year

I have always thought it contradictory that we proclaim strong national policies against intentional discrimination in the workplace but then cap the damages available to victims of discrimination. If we are serious about our commitment to preventing discrimination at work, we must abolish existing statutory caps on compensatory and punitive damages.

Under the maximum statutory cap now in place, a victim of employment discrimination cannot recover more than $300,000 in compensatory and punitive damages. Only employers with 500 or more employees are subject to this maximum cap. Smaller employers enjoy caps substantially lower.

A jury is never told of the damages cap. A jury may find that $1 Million is the appropriate amount of compensatory and punitive damages, only to see a judge slash its award down to the statutory cap. Worse, the caps were set in 1991 and were not indexed to inflation. $300,000 awarded in 1991 is only about $177,000 in today’s dollars. For an award in 2013 to have the same value as a $300,000 award in 1991, it would need to be about $500,000. Congress, by failing to index caps to inflation, has been steadily lowering the price of discrimination in the United States, and has been handing out coupons making it cheaper and cheaper for employers to discriminate with each passing year.

The cap on punitive damages makes the least sense of all. Punitive damages exist to deter employers from discriminating and to punish them when they do. The amount of punitive damages that can serve these goals varies directly with an employer’s size and wealth. In 2012 alone, Exxon Mobil made $45 Billion in profit. That’s $45 Million multiplied by a million. Will a company that wealthy care about a $300,000 punitive damages award?

If we truly care about ending discrimination in the workplace, Congress must stop coddling U.S. employers and allow juries to penalize discrimination when it has been proven in a court of law.

CONTACT US

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CAL@LAMBERTONLAW.COM


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