Category Archives: Hostile work environment

Congress against sexual harassment, part 1: Taxes

This arti­cle is the first of 3 parts to cov­er 3 Acts of Con­gress direct­ed at expand­ing the rights of sex­u­al harass­ment and abuse victims. 

The series of 3 federal laws on sexual harassment claims

  • Con­gress first in 2017, with the Tax Cuts and Jobs Act (“TCJA”), lim­it­ed employ­er tax deduc­tions for set­tle­ments of sex­u­al harass­ment and abuse cas­es where the set­tle­ment agree­ment includ­ed a nondis­clo­sure agree­ment. That’s what this arti­cle is about.
  • Con­gress next in March 2022 passed the  End­ing Forced Arbi­tra­tion of Sex­u­al Assault and Harass­ment Act of 2021 which inval­i­dates arbi­tra­tion agree­ments over sex­u­al harass­ment and abuse claims, where the agree­ment is signed before a dis­pute arose. That’s my sec­ond arti­cle in this series.
  • Con­gress then in Decem­ber 2022 passed the Speak Out Act which inval­i­dat­ed nondis­clo­sure and non-dis­par­age­ment agree­ments in sex­u­al harass­ment and abuse claims where the agree­ments were pro­cured before a dis­pute arose. That’s my third arti­cle in this series.
Con­tin­ue read­ing Con­gress against sex­u­al harass­ment, part 1: Tax­es

Fifth Circuit applies hostile work environment to age claims

Courts have some­times ques­tioned whether hos­tile work envi­ron­ment claims apply to all “fla­vors” of dis­crim­i­na­tion. Hos­tile work envi­ron­ment claims most fre­quent­ly arise in claims of sex dis­crim­i­na­tion  and race dis­crim­i­na­tion claims under Title VII of the Civ­il Rights Act of 1964, but age dis­crim­i­na­tion claims under fed­er­al law arise under a dif­fer­ent statute, the Age Dis­crim­i­na­tion in Employ­ment Act of 1967.

The Fifth Cir­cuit direct­ly held recent­ly that hos­tile work envi­ron­ment claims are encom­passed by age dis­crim­i­na­tion claims under the ADEA in Dedi­ol v. Best Chevro­let, Inc., — F.3d — (5th Cir. Sep­tem­ber 12, 2011).

Con­tin­ue read­ing Fifth Cir­cuit applies hos­tile work envi­ron­ment to age claims

Single act may create hostile work environment, according to Seventh Circuit in Berry v. Chicago Transit Authority

A few days ago, I post­ed my arti­cle on PAR Elec­tri­cal Con­trac­tors, Inc. v. Bev­elle , in which the West Vir­ginia Supreme Court ruled that a sin­gle episode involv­ing mul­ti­ple uses of the N‑word could cre­ate a racial­ly hos­tile work envi­ron­ment.

The US Court of Appeals for the Sev­enth Cir­cuit just released an opin­ion in Berry v. Chica­go Tran­sit Author­i­ty, 618 F.3d 688 (7th Cir. 2010), which rais­es the sim­i­lar issue: Can a sin­gle instance of sex­u­al harass­ment cre­ate a hos­tile work envi­ron­ment? And the answer was yes, depend­ing on the circumstances.

Ms. Berry is Sexually Harassed in a Single Incident

Cyn­thia Berry was an employ­ee at the Chica­go Tran­sit Author­i­ty. She was on her break and sat at a pic­nic style table with three male co-work­ers. A fourth male co-work­er, Philip Carmichael, had fol­lowed her to the pic­nic area and ordered Ms. Berry to get up from the table. Offend­ed by Mr. Carmichael’s “com­mand­ing tone”, Ms. Berry remained seat­ed. Mr. Carmichael then sat down and “strad­dled the bench” so he was fac­ing one of the male co-work­ers at the pic­nic table, and so that Mr. Carmichael’s back was close to Ms. Berry. The oth­er three male co-work­ers got up from where they were seat­ed at the pic­nic table and moved to the oth­er end of the table. Then:

Berry says Carmichael remained where he was seat­ed and began rub­bing his back against her shoul­der. She jumped up, told him not to rub him­self against her, and sat down next to Hardy at the oth­er end of the table. At this point,
Berry says, Mar­shall began telling her to get up from the table again. Not want­i­ng Mar­shall to think he could order her around, she remained seat­ed, but began rub­bing her tem­ples to com­pose her­self. Accord­ing to Berry, she next felt Carmichael grab­bing her breasts and lift­ing her up from the bench. Hold­ing her in the air, he rubbed her but­tocks against the front of his body—from his chest to his penis—three times before bring­ing her to the ground with force. Berry land­ed off-bal­ance, with only one leg on the ground, and says Carmichael then pushed her into a fence. Upset and want­i­ng to avoid any men, she lay down in a bus for the rest of her shift.

Con­tin­ue read­ing Sin­gle act may cre­ate hos­tile work envi­ron­ment, accord­ing to Sev­enth Cir­cuit in Berry v. Chica­go Tran­sit Author­i­ty

The disastrous consequences of the N‑word in the workplace. Just ask Dr. Laura!

Okay, this arti­cle has noth­ing to do with Dr. Lau­ra Sch­lessinger and her “rant” in which she used the N‑word repeat­ed­ly on her radio pro­gram when respond­ing to an African-Amer­i­can caller. But the ensu­ing con­tro­ver­sy (see arti­cles for and against Dr. Lau­ra), and her deci­sion to end her long-run­ning radio pro­gram, high­light the extra­or­di­nary sig­nif­i­cance of the N‑word term in Amer­i­can society.

The West Vir­ginia Supreme Court recent­ly dealt with the N‑word in a case that high­lights the great risks for employ­ers when that word enters the workplace.

In PAR Elec­tri­cal Con­trac­tors, Inc. v. Bev­elle , 225 W. Va. 624, 695 S.E.2d 854, 2010 WL 2244096 (June 3, 2010) (per curi­am), the West Vir­ginia Supreme Court dealt with a claim of a racial­ly based hos­tile work envi­ron­ment under the West Vir­ginia Human Rights Act, and con­clud­ed that the West Vir­ginia Human Rights Com­mis­sion was jus­ti­fied in find­ing for the employ­ee. The deci­sion was unan­i­mous. Click here for the WV Human Rights Com­mis­sion’s deci­sion which was affirmed by the WV Supreme Court.

A Single Day, With the N‑Word Again and Again

PAR Elec­tri­cal was build­ing “giant tow­ers” for a high volt­age elec­tri­cal trans­mis­sion line. Richard Wayne Bev­elle was hired by PAR Elec­tri­cal on March 22, 2005, and, after work­ing as a “ground­man” assem­bling the tow­er bases, was assigned to load heli­copters with parts to con­struct the tow­ers (this heli­copter job was described as a “gravy job” by the Human Rights Com­mis­sion). Mr. Bev­elle is African-American.

Con­tin­ue read­ing The dis­as­trous con­se­quences of the N‑word in the work­place. Just ask Dr. Lau­ra!

Drew Capuder will be speaking on disability and sexual harassment issues in Morgantown Oct. 20, 2010

I will be speak­ing (and pre­sent­ing arti­cles)  at a sem­i­nar spon­sored by Ster­ling Edu­ca­tion Ser­vices on Octo­ber 20, 2010 in Mor­gan­town, West Vir­ginia, enti­tled “Fun­da­men­tals of Employ­ment Law”.

I will be speak­ing (and pre­sent­ing arti­cles) on “Sex­u­al, Racial, and Oth­er Harass­ment in the Work­place” and “ADA and FMLA Update”.

Here is the full agen­da, and here is the fac­ul­ty infor­ma­tion. The sem­i­nar will pro­vide around 6–8 hours of con­tin­u­ing edu­ca­tion cred­it for lawyers (I don’t know the exact num­ber, but the sem­i­nar is a full day).

You can reg­is­ter for the the sem­i­nar online. For fur­ther infor­ma­tion, you can con­tact Ster­ling, and their num­ber is 715–855-0498.

Sorry boss, I didn’t know you were having sex in the office!!

The West Vir­ginia Supreme Court recent­ly issued an opin­ion deal­ing with one of those stereo­typ­i­cal­ly awk­ward sit­u­a­tions, where an employ­ee alleged­ly stum­bles into a room where the boss is hav­ing sex with a co-work­er. The deci­sion was  Roth v. DeFe­lice­Care, Inc., 226 W. Va. 214, 700 S.E.2d 183 (June 8, 2010) (per curi­am). It was a 3–2 deci­sion, in which the 3‑vote major­i­ty con­sist­ed of Jus­tices Robin Davis, Mar­garet Work­man, and  Thomas McHugh. Jus­tices Menis Ketchum and Brent Ben­jamin dis­sent­ed, and Jus­tice Ketchum wrote a dis­sent­ing opinion.

The Facts–Sex at Work

These are the facts accord­ing to the com­plaint in the law­suit: Tri­cia Roth was a res­pi­ra­to­ry ther­a­pist work­ing at DeFe­lice­Care, Inc. in Ohio Coun­ty, West Vir­ginia, and she was about to go on vaca­tion. She was direct­ed by Leslie DeFe­lice (the male boss/owner) to come to work some­time dur­ing the week­end pre­ced­ing her vaca­tion in June 2006. She was not told a spe­cif­ic time to come to work dur­ing that week­end. When she came to work as ordered, she “observed Defen­dant [Leslie] DeFe­lice and/or Michelle Kel­ly par­tial­ly clothed and in a com­pro­mis­ing posi­tion”. Mr. DeFe­lice instruct­ed Ms. Roth to go into a con­fer­ence room and wait–meanwhile Mr. DeFe­lice and the oth­er employ­ee got all their clothes back on. Mr. DeFe­lice then talked to Ms. Roth and told her to for­get about what she had just seen, and threat­ened Ms. Ross with the loss of her res­pi­ra­to­ry ther­a­py license and the loss of her employment.

Ms. Roth then went on vaca­tion. When she got back from vaca­tion and returned to work, she had a meet­ing with Mr. DeFe­lice that did­n’t go well. Ms. Roth told Mr. DeFe­lice that she had­n’t told any­one about his sex­u­al encounter at work. Mr. DeFe­lice pro­ceed­ed to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dismissed

Ms. Roth then filed suit on legal the­o­ries cen­ter­ing around sex dis­crim­i­na­tion and sex­u­al harass­ment, and–bada bing!–the case prompt­ly got dismissed.

Ms. Roth’s com­plaint (the doc­u­ment which starts the law­suit and describes the plain­tiff’s alle­ga­tions) focused on the sex­u­al inci­dent I have described above, but also made alle­ga­tions about oth­er sex­u­al harassment–I will dis­cuss those details below.

Con­tin­ue read­ing Sor­ry boss, I didn’t know you were hav­ing sex in the office!!

Can you be sexually harassed behind your back?

It might be obvi­ous, but it seems a bit dif­fi­cult to win on a claim for sex­u­al harass­ment where all of the harass­ment occurs behind your back (and by “behind your back”, I mean sit­u­a­tions where the harass­ing behav­ior occurs when the com­plain­ing employ­ee is not phys­i­cal­ly present to expe­ri­ence or hear what is happening).

The Fourth Cir­cuit Court of Appeals addressed this issue in Pueschel v. Peters, 577 F.3d 558 (4th Cir. 2009), in a unan­i­mous deci­sion writ­ten by Judge Roger Gre­go­ry in which Judges M. Blane Michael and Robert Bruce King joined.

The Fourth Cir­cuit did­n’t have much dif­fi­cul­ty reach­ing the con­clu­sion that, for any claim alleg­ing a hos­tile work envi­ron­ment (includ­ing sex­u­al harass­ment), you can’t suc­ceed if all of the mis­con­duct about which you com­plain occurred at work when you were not at work.

Twenty-Eight Years of Litigation!!!

This case grows out of an incred­i­bly long his­to­ry of lit­i­ga­tion (includ­ing sev­er­al dif­fer­ent law­suits and appeals (some of which were suc­cess­ful)) filed by Ms. Pueschel against her employ­er, the Fed­er­al Avi­a­tion Admin­is­tra­tion (“FAA”). The lit­i­ga­tion start­ed in 1981 and end­ed with this Fourth Cir­cuit deci­sion in 2009 (I am not kid­ding, and I am not sure this deci­sion marks the end of all of her litigation).

Con­tin­ue read­ing Can you be sex­u­al­ly harassed behind your back?

WV Supreme Court rules that employer’s policy and prompt action protected it against liability; Colgan Air v. WV HRC; 10/25/07

West Virginia Capitol Building at Night Octo­ber 25, 2007: In Col­gan Air, Inc. v. West Vir­ginia Human Rights Com­mis­sion, 221 W. Va. 588, 656 S.E.2d 33 (1977) the West Vir­ginia Supreme Court addressed claims of harass­ment (based on reli­gion and nation­al ori­gin) and retal­i­a­tion under the WV Human Rights Act, W. Va. Code § 5–11‑1 et seq.

The plain­tiff was a pilot, Rao Zahid Khan, who alleged that his co-work­ers sub­ject­ed him to fre­quent deroga­to­ry and insult­ing com­ments about his nation­al ori­gin and reli­gion (he was Ara­bic). The West Vir­ginia Supreme Court ruled that Col­gan Air (a) was not liable for harass­ment because it had poli­cies and pro­ce­dures pro­hibit­ing harass­ment and took swift and deci­sive action after learn­ing about the harass­ment, and (b) was not liable for retal­i­a­tion because Col­gan Air ter­mi­nat­ed the employ­ee (Mr. Khan) for a legit­i­mate and non-dis­crim­i­na­to­ry reason–he failed to pass a manda­to­ry FAA pro­fi­cien­cy test for pilots.

Con­tin­ue read­ing WV Supreme Court rules that employer’s pol­i­cy and prompt action pro­tect­ed it against lia­bil­i­ty; Col­gan Air v. WV HRC; 10/25/07