Tag Archives: harassment

Big Win for Employers in Supreme Court Harassment Case

supctDo you have more than one supervisor? If so, you’re not alone. Plenty of people work for companies in which the power to hire, fire, promote, and discipline employees is vested in only a few employees, but many more employees are authorized to direct the work of others and actually keep the trains running on time. Well, the Supreme Court has news for the many lower-level employees who schedule, oversee, train, and direct the work of other employees: You’re not supervisors under Title VII.

In a racial harassment case (Vance v. Ball State University), the Supreme Court decided that employees count as supervisors under Title VII only if they are authorized to take tangible employment actions against an employee. A tangible employment action is a significant change in employment status, such as hiring, firing, promotion, or reassignment to a job with substantially different duties. In making this decision, the Court rejected the Equal Employment Opportunity Commission’s interpretation that employees who don’t have this authority might also be supervisors if they have the authority to direct an employee’s daily work activities.

The distinction between supervisors and regular employees is hugely important in determining an employer’s liability for harassment. An employee who is harassed by a coworker can hold the employer legally liable for the harassment only if the employer was negligent. This means that the employee has to show that the employer knew, or should have known, about the harassment and failed to take appropriate corrective action.

An employee who is harassed by a supervisor has an easier burden. If the supervisor’s harassment results in a tangible employment action (as defined above), the employer is strictly liable, period. If the supervisor’s harassment doesn’t result in a tangible employment action, the employer is liable unless it can prove that (1) it exercised reasonable care to prevent and promptly correct harassment (by, for example, training employees, adopting a policy prohibiting harassment, creating an appropriate complaint procedure, and investigating harassment complaints quickly and fairly), and (2) the employee unreasonably failed to take advantage of opportunities the employer offered to prevent or correct harassment (for example, by failing to make a complaint).

The distinction between supervisor harassment and coworker harassment takes into account the power an employer gives its supervisors. The employer’s decision to delegate authority to the supervisor is what makes this type of harassment possible, so it’s only fair to hold the company responsible for the actions of those who have this responsibility.

The practical effect of the Court’s decision is that fewer employees will qualify as supervisors and, therefore, that more victims of harassment will have to meet the more difficult negligence standard to win their cases. In other words, this case is a clear win for employers, who will have an easier time avoiding liability for harassment.

Interestingly, it’s much easier for an employee to qualify as a supervisor when that result benefits employers. For example, an employee is an exempt “executive” employee under the Fair Labor Standards Act – and, therefore, not entitled to earn overtime – if the employee directs the work of at least two other employees (among other things). The employee need not have the authority to hire and fire, as long as the employee’s suggestions or recommendations about personnel decisions like these are given “particular weight.” Similarly, under the National Labor Relations Act, an employee is a supervisor if he or she has the authority to perform one of 12 responsibilities, including assigning work and responsibly directing employees. If you’re a supervisor under the NLRA, you are not protected by the law and may not join a union.

Irresistible Ladies: Hit the Unemployment Line

Here’s hoping your holidays are happier than Melissa Nelson’s. Nelson was working as a dental assistant when her boss, James Knight, fired her because she posed a threat to his marriage. Knight, whose wife also worked in the dental office, apparently found Nelson so irresistible that he just couldn’t work with her any longer. In other words, she was fired, Knight admitted, for being too darn hot. Nelson, who is married with children, had worked in the office for nine years before being sent packing.

Last week, the Iowa Supreme Court put a lump of coal in Nelson’s stocking when it found that she had no claim against Knight for sex discrimination. The court found that Nelson wasn’t fired because she was a woman, but because Knight found her so attractive. Even though that attraction presumably wouldn’t have existed had Nelson been male, the court found that this decision wasn’t ultimately based on gender, but on personal feelings. The court found it persuasive, for example, that Knight had hired another woman to take Nelson’s place.

Generally speaking, courts in employment cases have found that attraction isn’t about gender per se, but about chemistry. After all, the boss who favors his paramour isn’t treating all women the same; by definition, he is favoring one woman at the expense of others (and men, too). A male boss with an attraction problem discriminates, legally, only when he treats women similarly. In the case of favoritism, a boss who made sex the price of favorable treatment — and made the “product” available to anyone willing to pay — would cross the line. In this case, the court stated that it might have ruled differently if Knight fired a number of women because he was attracted to all of them.

But on reading the court’s opinion, it’s hard to avoid feeling that they have missed much of the point. This case is so chock full of gender stereotyping, it feels like we’ve traveled back in time to the days when women were first entering the workforce. For example:

  • Knight’s argument is that Nelson’s very presence in his office was the problem — not his inability to control himself. Even in his own telling, Knight’s problem was that he feared he would be unable to stop himself from trying to have an affair with Nelson. This hearkens back to . . . well, to the Garden, really. Women are sexual, corrupting, the source of temptation. It’s not what women do or how they act; it’s just what they are. That’s how this case became about the hot employee and not about the boss with the active imagination. (Speaking of the Garden, Nelson had the pleasure of being fired by the tag team of Knight and his pastor, who sat silently while Knight read a prepared statement informing Nelson that their “relationship had become a detriment to Knight’s family.” )
  • Despite Knight’s efforts to paint himself as a family man trying to protect the sanctity of his marriage, the evidence tells a different story. In fact, this could easily have been a sexual harassment case. Knight admitted telling Nelson that if she saw a bulge in his pants, she could conclude that her clothing –scrubs, according to her! — was too tight. He also told her it was a good thing he only found her tops too tight, because if she also wore tight pants, he would “get it coming and going.” Knight said that Nelson told him she and her husband had infrequent sex; his response was that this would be like having a Lamborghini — her — in the garage and never driving it. He also texted her a question about her orgasms. Strangely, few of these facts have made it into news reports about the case, nor did they figure in the court’s analysis. Somehow, this case still seems to be about the old-fashioned family man, possibly misguided but trying to do the right thing. And not about the icky horn-dog boss.
  • Speaking of stereotypes, you have got to feel a bit sorry for Knight’s wife, who not only had to witness all of this at work but whose jealousy was blamed for the firing. In fact, the Iowa Supreme Court framed the central question of the case like this: “Can a male employer terminate a female employee because the employer’s wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee?” Oh the jealous wife, ruining everyone’s workplace fun, frowning on comments about bulging pants and orgasms. What a killjoy.
  • For me, the strangest fact of the case comes with even more stereotypes. After firing Nelson, Knight — again, with his pastor — had a meeting with Nelson’s husband. Knight reassured him that his wife had not done anything wrong or inappropriate, but had to be fired because Knight was afraid he would one day try to have an affair with her. In other words, I just fired your wife because I really want to have sex with her, but I want you to know it’s not her fault. And I’m so glad we could talk out your wife’s firing, man to man.

Cain Harassment Allegations Highlight Settlement Agreement Terms

In the past few days, the media has been buzzing about accusations of sexual harassment made against GOP presidential contender Herman Cain when he was chief executive of the National Restaurant Association. The New York Times reported today that there were two women who accused Cain of harassment and received paid settlements; one received $35,000, one year’s salary.

The exact allegations have not been discussed — except by Cain, who has said that he told one of the accusers that she was the same height as his wife. Cain also seems to be the only one speaking on the record about settlement amounts (he stated earlier that one of the accusers received a few months’ pay; the Times got its information from “three people with direct knowledge of the payment,” but no names named as yet). He has also said that an investigation revealed that the accusations had “no basis,” and that he has never sexually harassed anyone.

Now, the lawyer for one of the women has come forward and indicated that his client would like to join the conversation — but she can’t because of a confidentiality clause in her settlement agreement. This is quite common, especially when the settlement agreement is intended to resolve known disputes (as opposed to a standard release of claims, which employees are often asked to sign as a condition of receiving severance pay, for example). Sometimes, a confidentiality agreement requires that only the amount of the settlement be kept secret; sometimes, the agreement covers much more, including the fact that it exists in the first place. An employee who breaches confidentiality might have to pay liquidated damages, return the money paid under the agreement, or agree to some other penalty.

So do Cain’s comments violate the confidentiality agreement? Full disclosure: I have no idea. But one possibility is that he isn’t a party to the agreement at all. If the agreement is between the National Restaurant Association and the accuser, Cain may not be bound by it, personally. Also, confidentiality agreements aren’t always mutual — that is, they don’t always bind the employer as well as the employee. Typically, it’s the employer who wants confidentiality, because it doesn’t want other employees (who may also have claims) to know that it’s willing to settle or for how much.

We may soon find out the details, of both the allegations and the settlement agreement terms: The accuser’s lawyer says he has asked the NRA to release his client from her confidentiality obligations.