Posts Tagged ‘EEOC’

The Seventh Circuit Court of Appeals has rejected the EEOC’s position that Title VII prohibits discrimination on the basis of sexual orientation. The July 28th decision, Hively v. Ivy Tech Community College, is a blow to the EEOC’s recent efforts to stretch Title VII to encompass sexual orientation, a classification that the statute does not mention. The Seventh Circuit based its ruling on the twin columns of statutory interpretation and judicial precedent: the language of Title VII does not explicitly prohibit sexual orientation discrimination and the case law of the Seventh Circuit has repeatedly denied that Title VII implicitly prohibits it either.

But perhaps the better indicator of the future of Title VII is what the court chose to do after briefly explaining its ruling. Rather than criticizing the EEOC for overreaching, it spent the rest of its lengthy opinion performing an extensive, mostly positive analysis of the EEOC’s justification for its position.

This analysis places a large, unofficial asterisk next to the decision, as the court described the very precedent it relied on to reach its decision as, among other things, “inconsistent.” The main source of the court’s consternation is the difficult task of squaring the Supreme Court’s approval of prohibiting gender non-conformity discrimination with its silence in regard to prohibiting sexual orientation discrimination. Gender non-conformity discrimination is discrimination based on a person’s failure to conform to gender stereotypes about how men and women should act. Many, including the EEOC, have argued that failing to be romantically interested in the opposite gender should just be considered a failure to conform to the gender stereotype that men date women and women date men. But because of Title VII and the Supreme Court’s silence in regard to sexual orientation discrimination, federal courts have consistently refused to extend gender non-conformity discrimination to cover sexual orientation discrimination.

The result is, as the court called it, an “odd state of affairs,” in which heterosexual plaintiffs who suffer gender non-conformity discrimination can more easily bring a discrimination claim than homosexual plaintiffs alleging the exact same discrimination, because the homosexual plaintiffs have the extra burden of proving the discrimination is not based on their sexual orientation. The court also found inconsistency in how the law currently would protect a woman from discrimination on the basis of the superficial way she talks or dresses, but not from discrimination on the basis of her (now legal) marriage to a woman. “We are left,” in the Seventh Circuit’s opinion, “with a body of law that values the wearing of pants and earrings over marriage.”

Such a conclusion makes it clear that as much as the Seventh Circuit felt bound by law and precedent to find Title VII does not prohibit sexual orientation, it also felt that the law and precedent should change. It concluded its opinion with a not-so-subtle call for either a change in legislation or a Supreme Court decision on the issue. The Seventh Circuit may not have endorsed the EEOC’s stance, but it certainly urged an institution with more authority to do so. Employers should be aware that it is likely only a matter of time before such an institution does.

This article is intended to provide general information, not a specific legal opinion or advice. Any particular questions should be directed to your legal counsel. If you do not have legal counsel, please feel free to contact Harmon & Davies, P.C.

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Posted in Labor & Employment, Sexual orientation discrimination | No Comments »

SCOTUS Denies DOL Deference: Will it do the same for EEOC?

On June 20, 2016, in Encino Motorcars, LLC v. Navarro, the Supreme Court decided not to defer to a US Department of Labor (DOL) rule that declared car dealerships’ service advisors eligible for overtime pay under the Fair Labor Standards Act (FLSA). Instead, in a 6-2 opinion, the Court found that the DOL did not provide a sufficient explanation as to why it departed from its long standing position that service advisors were ineligible for overtime under FLSA. The Court found the DOL’s scant rationale for its rule change impermissibly “conclusory” and sent the case back to the Ninth Circuit, leaving it to that court to determine, without deferring to the DOL rule, whether the FLSA overtime exemption covers service advisors.

As Justice Ginsburg noted in her concurring opinion, this ruling does not change the state of the law. Federal agencies have long been required to provide an “adequate reason” to justify a change in policy. However, the Court’s enforcement of that requirement serves as a potent reminder that it will not rubber stamp every new rule or interpretation an agency passes down.

The Court’s willingness to defer to an agency may very well become the central issue in the continually escalating dispute over whether Title VII and Title IX’s bar on sex discrimination includes discrimination on the basis of gender identity and sexual orientation.

While Title VII protects employees from discrimination and Title IX protects students, the laws are so similar that courts often look to rulings on one to help interpret the other. For that reason, although the highest appellate court decision on the gender identity issue, G.G. v. Gloucester County School Board, is a Title IX case, its eventual resolution may provide guidance as to the validity of the EEOC’s recent positions that discrimination on the basis of sexual orientation, which it has alleged in two recent suits, and on the basis of gender identity, a position the EEOC first enforced back in 2012, amounts to impermissible sex discrimination under Title VII.

Gloucester County School Board indirectly supports the EEOC’s positions. Applying the Auer doctrine, which instructs courts to give deference to an agency’s interpretation of its own ambiguous regulations unless the interpretation is unreasonable, the Fourth Circuit Court of Appeals determined that it owed the US Department of Education’s (DOE) interpretation of Title IX “controlling weight.” The DOE’s interpretation defined sex discrimination as inclusive of discrimination on the basis of gender identity, which contradicted the School Board’s policy of separating bathrooms by birth sex.

The School Board has announced its intention to appeal the Fourth Circuit’s decision to the Supreme Court. How the Court would rule is far from obvious: Though the Encino decision suggests the Supreme Court is not always amenable to deferring to an agency, the Court did recently pass up the opportunity to hear a case in which it could have overturned Auer. In the end, the Court may choose not to rule on an issue as decisive as the expansiveness of sex discrimination under Title VII and IX until it has regained a ninth justice. In the interim, expect the EEOC to continue enforcing its own interpretation.

For more information, contact an attorney at Harmon & Davies, P.C.

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Posted in FLSA, Labor & Employment, Sex discrimination, Sexual orientation discrimination | Comments Off on SCOTUS Denies DOL Deference: Will it do the same for EEOC?

On March 1, 2016, the Equal Employment Opportunity Commission (EEOC) took the long predicted, but unprecedented, step of filing complaints in federal courts against two private companies alleging that sexual orientation discrimination is a violation of the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964. For the last several years, the EEOC has been accepting and investigating such allegations involving private employers and last year ruled in a case involving a federal government employee that sexual orientation discrimination was “inherently” a form of sex discrimination under Title VII.  To date, no federal appeals court has reached this conclusion and five Courts of Appeal have flatly rejected extending Title VII in this fashion.

To put this issue in a broader context, on July 21, 2014, President Obama issued Executive Order 13672 which amended Executive Order 11246 (issued in 1965) to include prohibitions against discrimination based on sexual orientation or gender identity, but the Executive Order only governs certain federal contractors. From 1994 through 2014, a version of the Employment Non-Discrimination Act (ENDA) was introduced in every session of Congress except for the 109th Congress (2004-2005.)  Early forms of the legislation would have only prohibited discrimination by private employers of 15 or more employees based on sexual orientation, but beginning in 2007, the proposed legislation would have also prohibited discrimination based upon gender identity.  Each of these versions of the bill included a religious exemption provision.  It was thought that with the election of President Obama in 2008, together with Democrat control of the House and Senate that ENDA would become law in 2009 or 2010, but it seemingly got lost in a crowded legislative calendar.  ENDA was not introduced in the current session of Congress.  Rather, with broad backing from the LGBT community, a more comprehensive Equality Act was proposed which would prohibit discrimination based on sexual orientation and gender identity in employment, public accommodations, housing and a variety of other areas.  Given the current makeup of Congress, its prospects of passage are not favorable.

Critics of the EEOC’s recent action argue that it is another example of the Obama administration’s willingness to use the administrative process to revise existing law. Advocates for the LGBT community argue, however, that the new lawsuits are a natural extension of the EEOC’s efforts to provide broad protection under Title VII.  Persons on both sides of the issue will be carefully following the actions at the district court level.

The case against Scott Medical Center was filed in the Western District of Pennsylvania and alleges that a gay male telemarketing representative was subjected to a sexually hostile work environment based upon numerous offensive comments directed at him by his male supervisor pertaining to his sex life and other personal matters. The employee’s resignation in the face of this conduct is alleged to be a constructive discharge.  The case appears to have been assigned to Judge Cathy Bisson, who was nominated to the Court in 2010 by President Obama.  The other case, which was filed in Maryland, alleges that Pallet Companies d/b/a IFCO Systems violated Title VII by its treatment of a lesbian forklift operator which included comments directed to her by her male supervisor such as, “I want to turn you back into a woman” and “you would look good in a dress.”  She was terminated a few days after registering complaints about this behavior to management and on an employee hotline.  The EEOC alleges that this termination was unlawful.  This case appears to have been assigned to Judge Richard D. Bennett, who was nominated to the Court by President George W. Bush in 2003.  In both cases, in addition to the usual remedies, the EEOC is seeking that punitive damages be awarded to the complainants.  It will be very interesting to watch how the courts handle these cases.

From a practice perspective, however, it is highly recommended that employers get ahead of this issue and modify, if necessary, their existing Discrimination and Harassment policies to include broad prohibitions against discrimination that include sexual orientation and gender identity as protected categories. The attorneys at Harmon & Davies, P.C. are available to discuss these matters with you in further detail.

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Posted in Labor & Employment | Comments Off on EEOC Sues 2 Private Employers in Unprecedented Sexual Orientation Discrimination Lawsuits

Proposed Rule Would Require Employers to Submit Pay Data

On January 29, 2016, the seventh anniversary of the Lilly Ledbetter Fair Pay Act, President Obama and the U.S. Equal Employment Opportunity Commission (EEOC) announced proposed changes to the EEO-1 Report which all employers with 100 or more employees and federal contractors with 50 or more employees are currently required to file. The current EEO-1 Report requires employers to submit data on the race/ethnicity and sex of their employees within 10 separate job categories such as senior-level officials and managers, professionals, technicians, office and clerical, and craft workers.

As part of its efforts to eliminate the so-called gender pay gap, the EEOC issued a proposed rule that would expand the reporting requirement to include the numbers of employees, broken down by race and sex, in 12 pay bands within each of the 10 job categories. On a separate form, employers would also have to report the number of hours worked by employees by race and sex within each pay band in each job category.  The EEOC believes that the collection of this data will assist EEOC (and employers) to identify areas of potential pay discrimination.  The regulations leave open, for now, the question as to how to collect the information regarding hours worked.  This part of the report could also present some issues regarding the hours worked by salaried employees.

The proposed regulations state that employers would first be required to report this new information by September 30, 2017. Although the proposed regulations call for use of W-2 forms to report earnings, employers would be required to report actual earnings as of the time of filing of the EEO-1 Report in September.  EEOC assumes that because pay information is cumulative, employers (or their payroll vendors) should be able to efficiently generate pay data at that time.

Whenever a federal agency proposes new regulations, the Paperwork Reduction Act requires it to provide an estimate of the burden imposed by the new regulations on the public. As they frequently do, the EEOC provided what appears to be an unreasonably low estimate that the new report will only require an additional 6.6 hours per year for employers to complete.  The regulations are open for comment until April 1, 2016 but this deadline could get pushed back depending upon the volume of comments received.  It can be expected that virtually every group representing employers will submit comments opposing the new reporting requirement and making it clear that the submission of such detailed information will put an onerous burden on employers.

This article is intended to provide general information, not a specific legal opinion or advice. Any particular questions should be directed to your legal counsel. If you do not have legal counsel, please feel free to contact Harmon & Davies attorneys Tom Davies, Esq. or Laura Gallagher, Esq. at 291-2236.

 

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Posted in Labor & Employment | Comments Off on Proposed Rule Would Require Employers to Submit Pay Data

Upon my arrival at the office this morning, after getting my coffee, I sat down at my computer and went to read BNA’s Daily Labor Report, as I do first thing almost every morning. After reading about the most recent actions in Congress seeking to block the NLRB’s Ambush Election Rules, I was attracted to an article that was entitled “English-Only Policy for Hospital Workers Violated Rights . . .” Since this is an issue that pops up regularly, I wanted to read the most recent case on the subject, so I opened the article and was surprised to find that this was an NLRB case, not an EEOC case. On March 18, 2015, Administrative Law Judge Lisa D. Thompson found that a Nevada health systems policy that required employees to speak English at all times when on duty violated Section 8(a)(1) of the National Labor Relations Act since it could restrict employees from engaging in discussions regarding terms and conditions of employment. The employer argued that its English only rule was based on guidance from the Equal Employment Opportunity Commission that allowed such rules for reasons of business necessity.

Not surprisingly, ALJ Thompson noted that this was an issue of first impression for the National Labor Relations Board, since no prior Decision of the NLRB had ever addressed the issue. Quoting from the Decision, the rule specifically “requires all employees to speak and communicate only in English ‘when conducting business with each other,’ ‘when patients or customers are present or in close proximity,’ and ‘while on duty between staff, patients, visitors [and/or] customers . . . unless interpretation or translation is requested or required.’” In seeking the finding that the rule was a violation of the National Labor Relations Act, Counsel for the General Counsel (in layman’s parlance – the prosecutor) argued that the rule was overbroad and that it inhibited employees, particularly non-native English speaking employees, from being able to freely communicate (in their native language) about working conditions and/or other terms or conditions of employment. As noted, the employer’s defense was based, at least in part, on current EEOC guidance. Although the Administrative Law Judge gave the appearance of analyzing the potential tension between Section 7 of the National Labor Relations Act and the EEOC Guidance, she dealt with this by quickly concluding that the employer’s rule was not justified by business necessity. With respect to the employer’s arguments that nothing in the rule prohibited employees from speaking in their own language on their own time, the Administrative Law Judge launched into a comparison of this rule with the Board’s traditional no-solicitation rule analysis.

Less surprisingly, the ALJ also found Employer rules prohibiting conduct that interferes with the Employer’s operations or brings “discredit” on the Employer, or making negative comments about co-workers or the hospital to be violative of the Act. Even though most Employers would consider these rules to be very reasonable, the Obama NLRB has been striking them down at a rapid rate.  Valley Health System 28-CA-123611

This case appears to represent yet another example of the NLRB’s willingness to expand the scope of its enforcement authority, even if it potentially conflicts with other administrative agencies. Accordingly, employers are advised yet again of the need to thoroughly review all of their existing rules and policies to avoid being found guilty of an unfair labor practice by the National Labor Relations Board.

This article is authored by attorney Thomas R. Davies and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in NLRB, NLRB | Comments Off on Hospital’s English-Only Rule Declared Unlawful by NLRB – Y Porque ellos? (Who?)

EEOC Compliance in Pennsylvania

Harmon & Davies is presenting a seminar through Lorman on August 19, 2014, on EEOC Compliance in Pennsylvania.  Attorneys Tom Davies, Laura Gallagher and Kimberly Overbaugh will provide a federal and state overview of employment and labor laws, including new initiatives of President Obama’s administration, and then discuss handling investigations, responding to EEOC/PHRC Charges, social media and the hiring process, and common mistakes and how to avoid them.  Please join us and bring your questions for a panel discussion.  For more information, go to  http://www.lorman.com/training/384528?discount_code=M9763581&p=13389&s=direct or contact us at 291-2236.

 

 

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Spankasauras and the Land of the Hostile Work Environment

 

The Eastern District Court of Pennsylvania recently held that a white female detective with the Philadelphia Police Department plausibly alleged that the city subjected her to a hostile work environment based upon the cumulative effect of alleged harassing conduct that included, among other things, a lieutenant calling her a “spankasauras” and “gabbygail.” 

Alone, such isolated or sporadic incidents would not support a claim of hostile work environment harassment, but the court found that such events viewed in conjunction could be deemed to create a humiliating and hostile work environment.  In the matter of Salvato v. Smith, the plaintiff alleged that in addition to being called names, she was treated differently than her male and black female coworkers in that the plaintiff was constantly questioned about her whereabouts, denied training opportunities, was not allowed to take personal calls from her child’s school, had her log-in times scrutinized, was denied requests for a steady shift, had her sick-leave scrutinized, received a warning letter in her personnel file, and was denied a transfer.   Moreover, much of the activity occurred after the plaintiff filed a grievance with the Fraternal Order of Police and a complaint with the EEO unit for discrimination. 

Although it remains to be seen how this case will play out, this case serves as a reminder to employers to be mindful of how supervisors treat employees after a grievance is filed.

This article is authored by attorney Kimberly J. Overbaugh and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Anti-Harassment Policy, Harassment, Labor & Employment | No Comments »

EEOC Tests its Guidance on Use of Criminal Records

On June 11, the EEOC filed its first test cases under its guidance on the use of criminal records in making hiring decisions.  The defendants are Dollar General Corp. and a BMW manufacturing plant in South Carolina.  The claims, filed in federal courts, allege that the defendants’ use of criminal background checks disproportionately excluded Black candidates on the premise that Blacks have a higher rate of criminal convictions than Whites.

As background, you may recall that in 2012, the EEOC issued Guidance on the use of criminal records in employment decisions which states that the EEOC will find any policy that automatically excludes applicants due to criminal records constitutes evidence of discrimination. According to the Guidance, arrest and incarceration rates for Blacks and Hispanics are 2 to 3 times greater than for Whites; therefore, using criminal records as a bar to employment disproportionately excludes minorities and results in disparate impact discrimination.

The EEOC requires that when an employer asks whether an applicant has criminal convictions, an employer must state that conviction is not an automatic bar to employment. When a criminal conviction is disclosed either on the application or in a background check or both, the employer must conduct a “targeted screen” to consider the nature of the job, the nature of the offense, and the time passed since the conviction and/or completion of the sentence.  The employer must also conduct an individualized assessment by informing the job candidate that s/he may be excluded from employment due to the conviction and provide an opportunity to describe or explain circumstances including age at time of conviction, rehabilitation, mistaken identity, employment history after conviction or other factors.

Dollar General and the BMW plant have been accused of having policies that automatically bar employment without following the targeting screening and individualized assessment process.  Both deny the allegations.

The claims against Dollar General allege that its policy that automatically bans candidates who have been convicted of possession of drug paraphernalia or flagrant failure to pay child support within the last 10 years, or illegal dumping or improper supervision of a child within the last 3 years is unlawful because it fails to consider other factors such as the age of the applicant when the crime was committed and whether the crime is related to the job.  The lawsuit alleges that Dollar General’s policy has unlawfully excluded candidates nationwide for almost 10 years.

The BMW manufacturer is charged with discriminating against Blacks when it required its new warehouse staffing contractor to conduct criminal background checks on all current and new employees and terminate or exclude anyone who had a criminal record from any year.  The previous contractor excluded candidates with a criminal record within 7 years.  The new contractor was hiring the old contractors, and as a result of BMW’s new policy, 88 workers were discharged, 70 of them Black, including some who had worked at the warehouse for more than 10 years.

While these cases may take years to conclude, depending on how they are resolved, they may test EEOC’s interpretation of what constitutes evidence of disparate impact under Title VII.  Meanwhile, employers should refrain from implementing policies that automatically exclude job candidates based on specific parameters of their criminal convictions, such as time of conviction or type of crime.  Instead, employers should examine whether the crime for which the candidate was convicted is related to the nature of the job; for example, a conviction of forging checks may be related to a cashier or bookkeeping position and may therefore be a bar to employment.  Employers should also consider the individual’s circumstances, such as the candidate’s age at the time of the conviction, how much time has passed, and whether the candidate has been able to hold any jobs or complete education after the conviction.  In the event employment is denied on the basis of a criminal record, the employer should have a justifiable basis for the denial.

This article is authored by attorney Laura Bailey Gallagher and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Sexual Harassment in the Deboning Department

Mistakes happen to the best of us, for example, occasionally things slip through the cracks at companies when someone goes on vacation or HR gets swamped with new hires.  Yet when it comes to dealing with sexual harassment complaints employers need to be ever vigilant.  If they aren’t, the consequences of their mistakes may haunt them.

For instance, in the case of EEOC v. Farmer’s Pride, Inc., a Pennsylvania poultry processing plant came under the investigation of the EEOC after one of its male workers alleged that he was sexually harassed by his female supervisor while working in the deboning (no pun intended) department at the company’s Fredericksburg facility and his supervisor reached down his pants and touched his genitals while he was working.  The worker alleged that the female supervisor subjected several other male and female co-workers to similar harassment and that two male supervisors also acted inappropriately toward female employees.

As part of its investigation, the EEOC asked for the company to produce facility-wide information regarding whether other workers had complained of sexual harassment.  Although the company produced some information in response to an EEOC subpoena, it failed to fully comply.  The company contended that the EEOC’s investigation of the worker’s charge should be limited to the supervisors he named and the breast deboning department.  The EEOC then sued the company in the Eastern District of Pennsylvania, seeking an order to show cause why its subpoena should not be enforced.

Thereafter, the court agreed ordered the company to comply with the subpoena finding that the EEOC has broad investigative authority and that the EEOC had established: (1) a legitimate purpose; (2) relevancy; (3) that the information was not already in its possession; and (4) the subpoena was not “unreasonably broad or burdensome.”  Indeed, the court found that sexual harassment complaints from elsewhere in the facility would provide context in determining whether the company’s response to sexual harassment complaints by its employees was adequate.  In other words, harassment complaints by employees elsewhere in the company’s facility would be relevant to whether the company allowed a sexually hostile environment to exist in its workplace.

Although whether the company engaged in any wrongdoing remains to be determined, the ruling on the EEOC’s right to subpoena documents regarding sexual harassment complaints on a facility-wide basis should serve as a stark reminder to employers that they need to take sexual harassment complaints seriously and have the proper policies in place for addressing such complaints.

The attorneys are Harmon & Davies are here to assist employers with all their Labor and Employment Law needs, including the handling of sexual harassment complaints and the crafting of sexual harassment policies, and protocol for dealing with sexual harassment complaints and investigations.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Labor & Employment, Sexual Harassment | No Comments »

Employers, Check the Language of Your Anti-Harassment Policies

In a recent Equal Employment Opportunity Commission (“EEOC”) suit brought against a construction contractor, the EEOC established that a construction site where three black employees worked constituted an objectively hostile work environment under Title VII of the 1964 Civil Rights Act (“Title VII”) based upon evidence that: (1)  the employer was aware that a white supervisor regularly used racial slurs at the construction site; (2) the portable toilets at the site were covered with racist graffiti; and (3) the human resources manager also used a racial slur during a safety meeting.

In EEOC v. Holmes & Holmes Indus. Inc., a federal court found that no reasonable jury could conclude that a reasonable African-American would not be offended, even in a blue collar setting, by the type of conduct at issue in the case.  Nonetheless, even though the court found the at-issue conduct sufficient enough to establish an objectively hostile work environment, the court held that the case still has to be submitted to a jury to determine if the three black employees found the workplace subjectively, or in other words, personally offensive.  Indeed, in order to recover, the employees will have to prove that they personally viewed the conduct as offensive.

It appears likely that a jury will find that the employees found the conduct subjectively offensive because a significant amount of evidence shows that the employees were offended.  The employees complained to management about the alleged offensive speech and on at least one occasion, one of the employees stormed out of the room after such language was used.  However, there is a possibility that a jury might find otherwise because there is some evidence to suggest that the employees did not seem bothered by the conduct.  For example, two of the employees socialized with the allegedly offending supervisor outside of work, which evidence the employer might use to show that the employees were not subjectively offended by the supervisor’s conduct.

However, when the employer tried to use such evidence to argue that the employees could not prove an objectively hostile work environment because the employees were “friends” with the offending supervisor, the court rejected the argument stating that the test for determining whether an environment is objectively hostile is whether a reasonable person would have found the environment objectively hostile.  The court noted that there is no case law supporting the position that a supervisor’s belief that he was friends with his subordinates allows him or the employer to avoid liability for creating a hostile environment.

In finding that the employer created an objectively hostile work environment, the court pointed out flaws in the company’s anti-harassment policy and the lack of evidence showing that the employer had appropriately disciplined the offending supervisor after receiving complaints from the employees.  Although the company had a written anti-harassment policy, it did not specifically mention racial harassment or include an alternative avenue for complaint if a supervisor is the alleged harasser.  Additionally, the court noted that the company did not provide employee training on its anti-harassment policy during the relevant time period.

The court also noted that if a jury finds a racially hostile work environment, the employer will be vicariously liable for its supervisor’s actions because it cannot prove the affirmative defense set out in Faragher v. BocaRaton and Burlington Industries Inc. v. Ellerth.  Under those cases, an employer proves the Faragher/Ellerth defense to avoid vicarious liability under Title VII if the employer can show that it: (1) exercised reasonable care to prevent and correct promptly any racially harassing behavior; and (2) the employees unreasonably failed to take advantage of any preventative or corrective opportunities.  In the Holmes case, the court found that because the employees repeatedly complained to the employer’s management about the alleged harassment, the employer could not meet the second element of the Faragher/Ellerth defense.  Moreover, even if the employer could meet the second element, the court said that there was no way that the employer could meet the first element because it is well established that the mere institution of a policy alone is not sufficient to satisfy the first prong of the affirmative defense.  Because the employers’ policy in Holmes did not mention race or racial harassment and did not provide an avenue to bypass a harassing supervisor when making complaints, the court found the employer’s policy to be unreasonable as a matter of law on the grounds that it directed victims to report discrimination to their harassing supervisor and provided no alternative means to bypass the supervisor.

As a side, the Court also held that the employee’s use of allegedly offensive words outside of work, particularly in the form of rap music that two of the employees sang, is irrelevant and inadmissible at jury trial.

Lessons for Employers:  Employers should double check their anti-harassment policy to ensure that their policy makes reference to race or racial harassment and that the policy has an avenue to bypass a harassing supervisor when making complaints.  Employers who substantiate harassment complaints need to take disciplinary action and keep written documentation of what discipline was taken.  Employers who are aware of employees using racially offensive language at work should not turn a blind eye.   Employers must show that they are committed to enforcing their anti-harassment policies.  In addition to disciplining employees who violate anti-harassment policies, employers can show their commitment to their policies by routinely having employees participate in anti-harassment training.

The attorneys at Harmon & Davies, P.C. are here to assist employers with drafting and enforcing their anti-harassment policies and we also offer anti-harassment training for your employees.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Anti-Harassment Policy, Construction, Labor & Employment | No Comments »