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Gossip, sexual harassment and hostile work environments

A recent Fourth Circuit decision reminds employers to be vigilant in preventing sexually hostile work environments in the workplace. Even gossip can lead to such claims.

In this case, the plaintiff alleged that, when she received a series of promotions, her male co-worker started a rumor that she’d had an affair with a manager. She alleged that other co-workers, including males, continued to spread the rumor. She alleged that, as a result of the rumor, she was frozen out of future promotions and meetings.

The trial court dismissed her case saying she had failed to allege this rumor was due to her being a woman and further that she’d failed to allege it was so bad as to be “severe or pervasive” as required for a hostile work environment claim. The Fourth Circuit reversed on both grounds.

First, the Fourth Circuit held that the rumor was precisely due to her gender. It was sexual in nature and, by essentially asserting that she, as a woman, would not have been promoted otherwise, it was also unlawful sex stereotyping.

Thus, the dichotomy that RCSI, as well as the district court, purports to create between harassment “based on gender” and harassment based on “conduct” is not meaningful in this case because the conduct is also alleged to be gender-based. We conclude that, in overlooking this, the district court erred.

Next, the Fourth Circuit held the impact of the rumor was indeed “sever or pervasive” as required to prove a hostile work environment claim. It was more than “a few slights.” It wasn’t mere gossip in that, at points, it allegedly included “physical threatening.” It affected her work and, she claimed, even cost her the job.

Finally, the harassment interfered with Parker’s work. She was blamed for bringing the controversy to the workplace; she was excluded from an all-staff meeting; she was humiliated in front of coworkers; she was adversely affected in her ability to carry out management responsibility over her subordinates; she was restrained in where she could work, being told to stay away from the rumormonger; and she was told she had no future at RCSI because of the rumor. In addition, she alleges that her employment was terminated because of the rumor and, as stated by management, because of the rumormonger’s complaint. In short, RCSI’s management’s entire relationship with Parker, as well as Parker’s employment status, was changed substantially for the worse.

The case is a strong reminder to employers to prevent sexual harassment, even in the form of “mere” gossip. It should be noted though that as the court emphasized the case involved substantially more than what might be called simple gossip. Whether less substantial allegations would have warranted dismissal is for a later case to determine.

Source: Parker v. Reema Consulting Services, Inc., case no. 18-1206 (4th Cir. 2/8/19).

The EEOC and a mixed fallout from #MeToo

Recent developments at the EEOC reflect a mixed fallout from the #MeToo movement.

Despite massive social change seen at many levels from #MeToo, with celebrities, politicians and business leaders all being called to answer for allegations of sexual harassment — and despite many lawyers who anecdotally report seeing increased charges in their own practices — EEOC Acting Chair Victoria Lipnic reported June 11 that the EEOC has yet to see a significant increase in sexual harassment charges.

Notwithstanding a lack of increased charges, the EEOC is determined not to be left behind by the #MeToo movement. The agency itself has formed a task force to study sexual harassment and, immediately following the task force’s meeting, the EEOC filed seven lawsuits (on and and about June 11, 2018) involving allegations of sexual harassment. Additionally, the EEOC has identified sexual harassment as one of its 2017-21 strategic enforcement priorities.

Google memo litigation continues, on two fronts

As previously reported on this blog, the NLRB recently cleared Google of charges that it had allegedly violated Section 7 of the National Labor Relations Act by discharging the author of a controversial memo that attempted to explain his view that men are biologically more fit to be engineers than women. The NLRB held that, while some aspects of his memo might have been protected under Section 7 — a part of the NLRA that applies to both unionized and non-unionized workplaces — there were parts that stereotyped women and warranted Google’s decision to “nip in the bud” (quoting the NLRB General Counsel) his sexist communication.

The NLRB General Counsel’s decision, though, doesn’t end the litigation. There are now at least two separate lawsuits on-going: One by the memo’s author, James Damore, and another by a critic of Damore’s views, Tim Chevalier.

Both are former employees, terminated by Google for their speech involving Damore’s memo. In his memo, Damore advocated that Google had a culture of discrimination against white men and conservatatives, despite his view that men were in fact biologically better fit to be engineers at the highest level of the tech industry. In contrast Chevalier advocated verbally, through conduct, by email, on social media and on Google’s internal systems, that the Damore memo was “misogynistic,” that it was hostile to protected classes including gender, sex and race, and that it reflected, he alleged, a larger culture of hostility, including bullying, at Google on those same bases.

Damore’s lawsuit includes allegations, under California’s anti-discrimination laws, that Google discriminates against conservatives, Caucasians and men. Damore seeks to represent a class of such individuals against Google.

Chevalier’s lawsuit, also filed under California state law, asserts that he too was terminated for his political speech, including his activities to oppose not only Damore’s memo but also the Trump Administration’s politics and to protect the rights of minorities and women and rights associated with gender preference and sexual orientation. Also, Chevalier, a transgendered man, alleges his termination was linked to his efforts to protect related to sexual orientation and gender preference.

Both complaints are lengthy and warrant additional review by interested readers. Those are just some of their allegations. The merits of Mr. Damore and Mr. Chevalier’s complaints will be litigated, but the filing of their lawsuits illustrates how labor laws like the NLRA interact with employment laws like those at-issue in these lawsuits. An employer can comply with one set of laws and run afoul of another.

Sources: Duvalier complaint; Chevalier complaint.

NLRB clears Google, signals more employer-respectful approach to discipline of workplace misconduct

In a shift from recent NLRB decisions holding employers liable under the National Labor Relations Act’s Section 7 for disciplining employee misconduct that is offensive, disrespectful and harassing, the NLRB General Counsel recently cleared Google of charges that, by disciplining an employee for having written an offensive memo, it had somehow violated the Act.

Section 7 is a part of the National Labor Relations Act that applies to both unionized and non-unionized workforces, so this decision is of equal interest to companies without unions as to companies with unions representing their workforces.

In this case, Google’s employee famously wrote a memo that sought to explain why men received more favorable treatment than women in Google’s high tech workplace. The memo was considered by many to be highly offensive and received substantial national press. Included in his memo were stereotyping comments about women, such that women are more prone to “neuroticism” and therefore less able to work in a stressful environment and that more men score in the “top of the curve” than women.

Although the employee “cloaked” his memo in “science,” especially biology, quoting the NLRB, the Board’s General Counsel refused to engage on the so-called science, instead finding that the stereotyping comments were offensive and specifically offensive in a gender-specific manner, implicating the nation’s laws against sex discrimination. The Board’s General Counsel noted that the memo triggered internal complaints of sexual harassment and multiple female engineering candidates withdrew their applications.

The Board’s General Counsel also refused to condone the parts of the memo that may have been protected under Section 7, which protects an employee’s efforts to further his workplace’s wages, hours and working conditions.

(W)hile much of the Charging Party’s memorandum was likely protected, the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected.

In reaching that conclusion, the Board’s General Counsel noted that Google had drafted the employee’s termination notice to expressly say he was not being let go for any lawful aspects of his memo, but rather specifically and only for “(a)dvancing gender stereotypes.”

Finally the Board rejected the argument that the memo was merely speech and that, as such, it alone may not have been a violation of the anti-discrimination laws.

(E)mployers must be able to “nip in the bud” the kinds of employee conduct that could lead to a “hostile workplace,” rather than waiting until an actionable hostile workplace has been created before taking action.

It is this “nip in the bud” comment that is mostly likely to be cited by future employers. Recognizing that an employer has the right to “nip in the bud” misconduct seems to be a reversal of recent Obama- era Board decisions.

Source: NLRB Advice Memorandum, case no. 32-CA-205351 (1/16/18).

Tenth Circuit confirms employees may “double file” EEOC charges

An employee filed an EEOC charge in 2009 for sexual harassment, but did not sue when he received his administrative right to sue. Instead, he continued to work, then filed another charge in 2011. When he sued for sexual harassment after the second charge, the employer challenged his claim as timely. The trial court held that he could not include in his claim any events preceding 300 days (the applicable statute of limitations) prior to the 2011 charge, in other words, all of the 2009 charge’s allegations (and potentially a period thereafter into 2010). The Tenth Circuit reversed. The Tenth Circuit said that, under the Supreme Court’s 2001 decision, Nat’l R.R. Passenger Corp. v. Morgan, any events constituting the “the same actionable hostile work environment practice” are admissible in the lawsuit, irrespective of whether they occurred before the 2011 charge’s time period. In other words, a plaintiff is allowed to “double file” EEOC charges for the same conduct.

In so ruling, the court noted its 2005 precedent in Duncan v. City and County of Denver, outlining the relevant factors to determine if events do or do not constitute part of “the same actionable hostile work environment practice” under Morgan: They must be “related by type, frequency, and perpetrator” without any “intervening action by the employer” that might break the relationship.

The case is Hansen v. SkyWest Airlines, 844 F.3d 914 (10th Cir. 2016).