If It Walks Like A Duck and Quacks Like a Duck…..

On March 10, 2010, a Manhattan jury awarded baker Moises Mendez, a 46 year old immigrant from Ecuador,  $3,000,000.00, for his retaliation suit against his employer, Starwood Hotels.     Mendez had repeatedly filed complaints with his human resources department alleging discrimination against him based upon his national origin (Ecuadorian) and race (Hispanic).   Following his complaints, his employer secretly installed a hidden camera in a smoke detector near his work station, presumably in an effort to catch Mendez violating work rules to justify a termination.  The jury awarded Mendez $1,000,000.00 for emotional pain and suffering and $2,000,000.00 in punitive damages.

We are all used to the classic “complaint of discrimination followed by termination” scenario. Employees are protected from this type of retaliation under Title VII, The Age Discrimination In Employment Act, The American with Disabilities Act and a host of other federal and state laws designed to protect employee rights.  But retaliation can take many more subtle forms.   If an employer can provide a justification for a termination (smoking in a non smoking area in violation of company policy), it can distance itself from the causal connection between the complaint of discrimination and the retaliation.    But, even if the action taken by an employer in response to a complaint of discrimination is not disciplinary, it may still be retaliatory.   When an employee complains of discrimination or harassment in the workplace, the employer is obligated by law to investigate the complaint.      If the employee suddenly finds himself the target of unfair treatment or increased disciplinary action, the employer may be liable for unlawful retaliation.  Starwood tried to catch Mr. Mendez in the act of violating a company rules.  But the secret camera was installed only after he made repeated complaints of unlawful discrimination.  If it walks like a duck…

“But I Wasn’t Talking About Her”: Eleventh Circuit Broadens Definition of Sexual Harassment

January 20, 2010–In Reeves v. C.H. Robinson Worldwide, Inc., the Eleventh Circuit Court of Appeals ruled en banc that sex-specific derogatory comments can constitute a hostile work environment, even if they are part of a generally accepted vulgar and offensive workplace atmosphere, and even if they are not directed at a specific female employee.

Before Reeves, courts in the Eleventh Circuit (which includes Georgia) generally rejected sexual harassment claims that were based upon a generally vulgar or offensive  workplace enviroment.  Title VII, as courts would often point out, is not a civility code.  Vulgar and offensive langauge or behavior–even if of a sexual nature–were not considered sexual harassment unless  directed at a specific employee .   Title VII requires proof of intent to discriminate based upon an employee’s sex, and where vulgar or offensive language or behavior was prevalent in the workplace, but not directed at any employee in particular, evidence of intent to discriminate was absent.

Reeves altered this general rule.  In Reeves, the Eleventh Circuit held that “a plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out in the offensive conduct.” In other words, the court held that generally vulgar or offensive language can give rise to an actionable sexual harassment claim if the language is directed at the plaintiff’s protected group (in this case, females)–even if  not directed at the plaintiff herself.  “It is enough to hear co-workers on a daily basis refer to female colleagues as ‘b*tches,’ ‘wh*res,’ and ‘cunts,’ to understand that they view women negatively, and in a humiliating or degrading way,” the court wrote  “The harasser need not close the circle with reference to the plaintiff specifically.”

The decision is probably best understood as a response to the shockingly toxic work environment that spawned it.  Ingrid Reeves worked  at shipping company C.H. Robinson for almost four years.  During that time, her male co-workers subjected her on a daily basis to extremely offensive gender-specific profanity–using terms like “b*tch,” “sl*t,” “wh*re,”  and “c*nt” in ordinary conversation.  Although the language was not directed specifically at Reeves, it was directed specifically at her gender.  Reeves complained first to her supervisor and then to  upper management but her complaints were ignored.  That, the Eleventh Circuit decided, was enough.

The decision arguably dispenses with “but I wasn’t talking about her” defense in Title VII harassment claims.  The facts in Reeves were so egregious, however, that it remains to be seen how broadly its holding is applied.  Nevertheless, the decision undeniably broadens Title VII–in the Eleventh Circuit at least–and should be considered a victory for victims of hostile work environment sexual harassment.

Outback Pays $19 Million to Settle Sex Bias Suit

On December 30, 2009, Outback Steakhouse announced that it would pay $19 million dollars to settle a class action sexual discrimination lawsuit brought by the United States Equal Employment Opportunity Commission (EEOC).  The EEOC filed the suit in September 2006 in Denver, Colorado. 

The EEOC claimed that Outback’s policies created a “glass ceiling,” which prevented women from advancing within the company.  The EEOC claimed that Outback denied women favorable job assignments–particularly kitchen management positions–which were required in order to obtain restaurant management positions. 

 Outback admitted no liability in the settlement, and claimed that it resolved the case because it “ultimately determined that settling . . . with funds provided entirely by insurance was preferable to the cost and distraction of further litigation.”  In addition to paying the $19 million dollars, the settlement agreement also requires Outback to implement various remedial measures, including an online application system for employees interested in managerial and other supervisory positions.

“Sexting,” “Textual” Harassment On the Rise

Claims of “virtual” sexual harassment—-sexual harassment by email, text message, instant messaging, Facebook, smartphones and other technologies—-are surging.  For example:

• In April 2009, Central Michigan University paid $450,000 to settle a lawsuit brought by two female soccer players who accused their coach of sexually harassing them via text message and manipulating them into secret sexual relationships;
• In July 2009, a 22-year old Oregon woman sued LA Fitness after three of her managers texted her from a bar asking her for sex and identifying X-rated acts they would like to perform on her;
• In August 2009, a Hooters waitress in Fort Lauderdale, Florida sued the restaurant over explicit text messages and photos she received from her manager;
• A former World Wrestling Entertainment employee has filed a lawsuit in Connecticut alleging that she was sexually harassed by a married senior director who pursued her via late night text messages and phone calls; and
• In West Virginia, four Famous Dave’s waitresses sued the company after they received text messages from their supervisor asking for sexual favors.

Experts say the surge in virtual sexual harassment claims is largely a by-product of the informality that modern technology invites.  An employee might think twice before making an inappropriate sexual remark at, say, a corporate meeting.  But emails, texts and instant messages give employees a false sense of intimacy that can invite trouble.

Virtual sexual harassment also presents multiple challenges for employers.  First, many employers have outdated sexual harassment policies that do not specifically address this type of harassment.  The failure to adopt specific measures prohibiting this form of harassment could become problematic when an employer attempts to invoke its sexual harassment policy to defend against a harassment charge–particularly if the employer supplied the technology that enabled the sexual harassment to occur.  Second, virtual sexual harassment, in the form of texts, emails and the like, leaves an evidentiary footprint that other forms of harassment do not.  When it comes to virtual sexual harassment, forget “he said, she said”–the texts, emails and instant messages don’t lie.  And the deletion of pertinent electronic data—-whether voluntarily, involuntarily or pursuant to a document retention policy—-gives rise to concerns over spoliation of evidence.

To minimize concerns, employers should remind employees of their sexual harassment policies, making specific mention all forms of communications, including emails, texts, instant messages and so on.  Employers should also consider amending their sexual harassment policies to specifically prohibit “virtual” sexual harassment.