50 For 50: Five Decades Of The Most Important Employment Discrimination Decisions

Number 47: Same Sex Harassment Is Illegal

It seemed like a simple enough issue.  In 1984, the Supreme Court found that sexual harassment — when it is severe or pervasive — can alter an employee’s ability to work and thus can impact the victim’s “terms, conditions, or privileges of employment.”  Title VII doesn’t actually use the words “sexual harassment” and therefore there are no requirements in the law about the gender of the harasser and the victim.  Indeed, once Demi Moore sexually harassed Michael Douglas in the movie Disclosure, it was assumed that either a male or female could be harassed. Continue reading

50 for 50: Five Decades of the Most Important Discrimination Law Developments

Number 38:  The Supreme Court Defines “Supervisor” for Employer Liability

In hostile environment harassment cases under Title VII, an employer’s liability for the conduct of its employees depends on whether a supervisor or an individual contributor commits the wrongful acts.  If a supervisor engages in the wrongful conduct, then in most cases the employer is liable for that conduct.  However, if  a co-worker (non-supervisor) harasses the complainant, then the employer is only liable if it knew or reasonably should have known about the conduct and failed to stop it.  Consequently, the definition of “supervisor” is very important in determining who will potentially create liability for the employer.  Continue reading

What Can You Learn from San Diego’s Recent Sexual Harassment Problems: The DFEH is Serious about AB 1825 Sexual Harassment Prevention Training

If you thought the California Department of Fair Employment (“DFEH”) was not busy monitoring compliance with employers’ sexual harassment prevention training obligations, think again.  The DFEH recently entered into a settlement agreement with the City of San Diego concerning its failure to provide mandatory sexual harassment training to city supervisors, including elected and appointed officials.  The issue came to the fore when former Mayor, Bob Filner, who resigned during the scandal, claimed in defense of sexual harassment charges brought against him by former staffers that the City had failed to provide him with the necessary sexual harassment prevention training.  The DFEH jumped on this allegation, filed a Complaint, and, after investigating, entered into negotiations with San Diego to correct any problems.  While San Diego’s City Attorney, Jan Goldsmith, noted that it is the mayor’s office that is responsible for compliance with the Fair Employment and Housing Act’s training requirements, she explained that in approving the settlement, the San Diego City Council had shown its support for the training protocol. Continue reading

After Brief Confusion, Certainty Restored: Sexual Harassment Need Not Be Motivated By Sexual Desire

By signing Senate Bill (SB) 292 into law, California Governor Jerry Brown memorialized the seemingly non-controversial proposition that sexual harassment plaintiffs suing under the Fair Employment and Housing Act (FEHA) are not required to show that the harasser acted out of sexual desire.  The new amendment to FEHA, effective January 1, 2014, was singularly focused on overturning the 2011 California Appeals Court opinion in Kelley v. The Conco Companies, 196 Cal.App.4th (2011), which, despite favorably citing seminal decisions on same-sex harassment and the role of gender in sexual harassment cases, strayed far from established jurisprudence.

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Iowa Dentist Lawfully Fires Attractive Female Assistant Because She Was A Threat To His Marriage

In the salacious realm of sex discrimination law, the Iowa Supreme Court recently rendered an opinion that just might contend for the best blog fodder of 2013. Whether the decision in Nelson v. James H. Knight, DDS, P.C. will have any ripples in equal employment opportunity law outside Iowa remains to be seen, but it is surely thought provoking.

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Kitchen-Sink Guidance On Harassment, Retaliation and Joint Employment Issues

A recent case from the Court of Appeal for the Second Appellate District is a veritable  grab bag of issues for employers.  You name it – the court gave guidance on harassment, retaliation, and joint employer issues in McCoy v. Pacific Maritime Association.

McCoy worked for over a decade as clerk for terminal operator Yusen when she and several coworkers filed a federal discrimination lawsuit against their employer.  The lawsuit led to a confidential settlement between the parties.  Under the settlement, Yusen was required to train McCoy to be a vessel planner, a more prestigious position.

McCoy subsequently sued PMA, an organization that serves as a bargaining agent for Yusen, the employer, alleging that she was sexually harassed and suffered emotional distress during the vessel planner training, and that she was retaliated against due to the filing of the previous lawsuit.  Apparently, the harassment consisted of a co-worker’s comment about the buttocks of other female employees and his crude gestures toward a woman when her back was turned.  None of the sexual comments were directed at her.

The Court of Appeal affirmed the dismissal of McCoy’s sexual harassment claim, reasoning that although the comments were crude and offensive, the conduct, which occurred only five to nine times over a four-month period, did not create a work environment “permeated” with sexual harassment.  Moreover, the employee making the offensive remarks was not McCoy’s supervisor, and McCoy admitted she never mentioned the remarks or anything about sexual harassment to management.  Thus, there was no evidence that PMA knew or should have known of the alleged harassment and failed to take appropriate action.

On the retaliation claim, however, a jury awarded McCoy $1.2 million in damages, but the trial court granted PMA’s motion for judgment notwithstanding the verdict.  On appeal, the court ruled that the trial court had erred in excluding McCoy’s “me-too” evidence by other coworkers who complained they were retaliated against due to their participation in the same lawsuit as McCoy and who received the same training as McCoy as a result of the settlement.  Because the consideration of “me-too” evidence is fact intensive, the Court opined that the trial court should have at minimum conducted a hearing to ascertain the details of the evidence and similarity to McCoy’s claims before subjecting it to blanket exclusion.

The Court of Appeal also held that, aside from the “me too” evidence, there was substantial evidence from which a jury could find retaliation.  Yusen did four things that could support a retaliation verdict: (1) it exposed details of the confidential settlement agreement to McCoy’s supervisor; (2) it tolerated the offensive remarks by McCoy’s co-workers; (3) it denied her needed assistance; and (4)  it gave her substandard training compared to the other trainees.   

As for PMA, the court found it was not an employer under the FEHA.  Although PMA negotiated labor contracts on Yusen’s behalf, Yusen paid McCoy, supervised her and employed the co-workers who allegedly retaliated against her. 

This case is a reminder that even when an employer is not held liable for sexual harassment, employers can steal defeat from the jaws of victory by retaliating against employees.

Amy Durgan

“50 Shades Of Grey” Book Groups At Work?

We’ve all been there before.  It’s a normal day at work, you have a cup of coffee, sit down to the computer and then out of the blue someone asks you to join their 50 Shades of Grey book group (what ever happened to Jane Austen?).  HK partner Glen Kraemer was interviewed at length in Forbes magazine about the introduction of sexual content in the workplace, as with 50 Shades book groups at work.  Have a look – you will definitely find it interesting.