Articles Posted in Sexual Harassment

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Sexual and other forms of unlawful harassment continue to be one of the biggest problems in the workplace. Responsible employers (i.e. employers who honestly want to prevent harassment in the workplace) take reasonable steps to prevent harassment, such as employee training, prompt investigations of complaints, and appropriate discipline of harassers. We could debate how many employers fall into the category of “responsible employers” but even responsible employers often fail to do everything that they can reasonably do to prevent harassment.

One reason that employers fail to prevent harassment is that employees fear retaliation, having their complaints trivialized, or being labeled as “disgruntled” if they complain. And these fears are justified. According to a report from the EEOC, one study found that 75% of employees who spoke about mistreatment in the workplace experienced retaliation.  For this reason, many employers do not know how prevalent harassment is in the workplace.

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The U.S. Seventh Circuit Court of Appeals has permitted a lawsuit against Home Depot to move forward where the plaintiff alleges that Home Depot’s negligence resulted in one of its supervisors raping and murdering her daughter. The plaintiff’s daughter, Alisha Bromfield, worked in the gardening section of a Home Depot store in Illinois. The supervisor, Brian Cooper, served as the regional manager responsible for the store where Bromfield worked. According to the court, Cooper’s escalating harassment “included verbally abusing [Bromfield] while throwing things, controlling and monitoring her both during and outside her work hours, and requiring her to come with him on business trips. After five years of that treatment, he used his supervisory authority to require Alisha to come on a personal trip with him—to an out-of-state family wedding—by threatening to fire her or cut her hours if she refused. She went. After the wedding, he killed and raped her.”

Bromfield’s mother has alleged that Home Depot and two other companies that jointly employed Cooper, negligently supervised him and are, thus, responsible for Cooper’s rape and murder of Bromfield. Cooper allegedly had a history of sexually harassing younger subordinates like Bromfield. For example, before he turned his attention to Bromfield, he allegedly fixated on a different younger subordinate named Jessica. He allegedly made comments to Jessica about his genitals, rubbed his genitals against her, and forced her to take a road trip alone with him while he talked about his genitals. Prior to Bromfield’s rape and murder, Bromfield and Jessica allegedly both complained to management but not enough was done to stop Cooper, basically just giving him slaps on the wrists.

There is little doubt that Home Depot could be liable for Cooper’s actions under civil rights statutes that prohibit sexual harassment. His actions constitute some of the most extreme sexual harassment anyone could commit. The issue before the Seventh Circuit, however, was whether Home Depot could also be held liable under Illinois common law for negligent supervision. Unlike civil rights statutes, common law claims do not have any caps on damages. If Bromfield’s mother could only sue under, for instance, the federal law that prohibits sexual harassment, Home Depot’s liability would be capped at $300,000. If it found Home Depot and Cooper’s other employers liable for Cooper’s rape and murder of Bromfield, a jury would likely award Bromfield’s mother far more than $300,000 for the loss of her daughter, who was a young woman in her 20’s.

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The U.S. Ninth Circuit Court of Appeals recently held that a jury could reasonably find that a Sheriff unlawfully sexually harassed one of his female corrections officers because he repeatedly hugged her and, on one occasion, kissed her. The female corrections officer complained to supervisors about the Sheriff’s harassment but they did not forward her complaint for investigation.  The court found that a jury could reasonably determine that this conduct created a hostile work environment.

The Ninth Circuit reversed the decision of a trial judge who had thrown the case out on summary judgment because he did not believe hugging could constitute sexual harassment. While hugging may not constitute unlawful sexual harassment in every case, the Ninth Circuit found that it did in this case where, among other things, (1) the Sheriff was the highest official in the department; (2) the hugging occurred over 100 times over twelve years; (3) the hugs were chest-to-chest; and (4) there was evidence that the female corrections officer who brought the case needed to get sleep medication because the Sheriff’s behavior upset her so much.

The court interestingly found that the alleged harasser’s prominent position made his conduct more likely to create a hostile work environment. The Sheriff won his position through an election and he was the highest official in the department. According to the court, the Sheriff’s high rank and authority over his employees gave his harassment a “threatening character” that would not have been the same had the Sheriff been a co-worker of the female corrections officer.

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Newsweek recently ran a story about a survey it conducted about sexual harassment in the news business.  The Newsweek reporters heard from numerous women about experiences they had with sexual harassment.  The trends were disturbing.  Many of the women who responded to the survey said that they were forced to endure sexual advances and sometimes assaults when they were young journalists first starting out in the in the business.

In 2013, the International Women’s Media Foundation issued a study which found that two-thirds of women in journalism have experienced threats, intimidation, and abuse—a majority of which occurred at the hands of male bosses, supervisors, and co-workers.

The trend of male supervisors and senior colleagues sexually harassing women who are just starting out in the journalism industry illustrates the mentality of many sexual harassers.  Men who sexually harass women often choose women with less power than them so that the women will be less likely to complain.  Furthermore, sexual harassment is often motivated just as much by a desire to exert power over these less powerful women as it is by sexual desire.

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Yesterday, the U.S. First Circuit Court of Appeals in Boston breathed new life into a worker’s sexual harassment and retaliation case.  The worker, Xiaoyan Tang, represented herself before the trial court.  She claimed that the defendants, which included Citizens Bank and related entities, subjected her to unlawful sexual harassment and then fired her because she complained about it.  The trial court dismissed Ms. Tang’s claims.  After that, she retained counsel who successfully persuaded the First Circuit to reverse the trial court’s decision.

Ms. Tang claims that her supervisor at Citizens Bank, David Nackley, sexually harassed her.  The trial court held that no reasonable jury could determine that she experienced sexual harassment because, among other reasons, the alleged harassment was not sexual in nature.  The First Circuit found that the trial court committed one of the Cardinal sins in assessing the merits of a sexual harassment claim:  it failed to consider context.  For example, Mr. Nackley allegedly made an odd comment about Tang’s “ass” and his “ass” getting together.  The trial court found that this comment, while perhaps boorish and unprofessional, would have been just as offensive to a man as to a woman.  The First Circuit rejected this reasoning because the trial court ignored the context of the case which included Mr. Nackley making sexual innuendos and doing other things indicating that he was coming on to Ms. Tang sexually.

The trial court also failed to address Ms. Tang’s retaliation claim.  Ms. Tang claimed that Citizens Bank fired her in retaliation for a complaint that she made about Mr. Nackley’s discriminatory behavior.  Perhaps because she represented herself before the trial court, Ms. Tang’s court complaint did not contain a specifically enumerated retaliation claim and that may be why the trial court did not discern a retaliation claim from the court complaint.  However, the First Circuit held that Ms. Tang’s court complaint contained the allegation that Citizens Bank retaliated against her because of the discrimination complaint that she submitted to Citizens Bank.

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Last month, a sex discrimination trial began in which Ellen Pao, a former junior partner at venture capital firm Kleiner, Perkins, Caufield & Byers, has alleged that Kleiner Perkins refused to promote her and forced her out because of her sex.  The trial will include evidence of lurid sexism but, perhaps more interestingly, will also include evidence of subtle forms of sex discrimination.

During the trial, Pao’s lawyers plan to present evidence that male partners of the firm sometimes treated women in overtly sexist ways.  For example, a male partner, Ajit Nazre, once allegedly knocked on the hotel room of a female employee while he was wearing nothing but a bathrobe.  Nazre also allegedly sexually harassed a female employee at a meeting when he rubbed her with his leg under the table.  Another male partner gave Pao a book of erotic poetry and nude sketches.  Still another male partner allegedly told Pao that women “kill the buzz.”

While this is certainly powerful evidence of a sexist firm culture, Pao’s lawyers also plan to introduce more subtle evidence of sex discrimination that is actually more common in the workplace.  For instance, Pao claims that she was criticized for being too passive and not speaking up enough.  But she was also criticized for being pushy and speaking up too much.  These contradictory critiques of Pao’s performance are a commonly cited problem for women who are trying to climb the promotional ladders in workplaces like this.

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Every year around this time many employers organize holiday parties for their employees and, as many employment lawyers will tell you (see here and here), it is not uncommon for sexual harassment to occur at them.  This seems to be particularly true when employers serve alcohol at the parties.  Some people tend to lose their inhibitions and use poor judgment when they drink, which can lead them to engage in sexually harassing behavior.

Given how common it is for sexual harassment to occur at these holiday parties, it is a good idea for every worker to refresh their memories this time of year about what sexual harassment is and what to do if it occurs.  Your employer likely has a sexual harassment policy which will contain useful information and you can also find information about sexual harassment at the EEOC’s website.

You should certainly understand that just because you’re not working while you’re at your employer’s holiday party does not mean that your employer has no obligation to protect you from sexual harassment at the party.  If your boss, for example, gets drunk and sexually harasses you at the party, his harassment is unlawful.  Even if you’re not the one who gets sexually harassed, you may witness sexual harassment of a co-worker at the party, too.

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Yesterday, the U.S. District Court for the District of Massachusetts held that a reasonable jury could find that Palmer Fire District Number One, Palmer Water District Number One, and two public officials (collectively “Palmer Fire and Water”) subjected former employee Lisa Koss to a sexually hostile work environment and then retaliated against her when she complained about the sexual harassment she experienced.

Koss alleges that her former supervisor, William Cole, sexually harassed her.  Among other things, he allegedly leered and stared at her in a sexual manner while making comments such as “I wish I had somebody like you at home…baby I could make your head spin.”  He allegedly made other crude sexual comments to her as well, such as when Koss was eating a banana Cole said, with a smirk on his face, “I’ve never seen anybody eat a banana like you before.”  On another occasion, Cole allegedly grabbed Koss’s shirt and tried to look down it to see if she was wearing a bra.  Other instances of sexual harassment occurred in the workplace as well between 2008 and August 2012, when Koss stopped working for Palmer Fire and Water.

Koss complained to Palmer Fire and Water management about Cole’s sexual harassment and she alleges that management retaliated against her because of her complaint.  After Koss filed her sexual harassment complaint, her hours were cut by more than half and she was later fired.

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This year, “Anita: Speaking Truth to Power,” a documentary about the life of Anita Hill, will be showing in theaters around the country.  In October 1991, Hill famously testified before Congress about how Clarence Thomas sexually harassed her while she worked for him at the U.S. Equal Employment Opportunity Commission (EEOC).  Hill testified, in graphic detail, that Thomas often spoke of his sexual prowess, discussed pornographic films that he watched, and pressured her to have sex with him.  Despite Hill’s testimony, the U.S. Senate confirmed Thomas as a Justice to the U.S. Supreme Court.

Many decried the decision of the Senate to confirm Thomas.  One criticism of the Senate Judiciary Committee, which conducted the confirmation hearings, was that it refused to call other witnesses who it knew would have testified that Thomas sexually harassed them, too.  Hill continues to think that was a mistake because it “cast this as a ‘he said, she said’ situation, even though these women had been subpoenaed and sat waiting for three days to testify.”  “That was a clear disservice to the process and to the American public,” said Hill. 

In another recent interview, Hill commented on current sexual harassment problems in the workplace.  She said “I think people are well aware that they have a right to come forward.  But many people have a fear that the processes will not give them a fair hearing.  Even for those who complain, I think we’ve fallen down in terms of the investigative process.  We still have a lot of challenges in terms of making sure that the people who are found guilty of harassment suffer the consequences of their behavior.”

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Yesterday, the Maine Human Rights Commission (MHRC) found reasonable grounds to believe that the City of Portland subjected David Tanguay, of Falmouth, to sexual harassment in violation of the Maine Human Rights Act (MHRA). Mr. Tanguay, a former trash collector with the City, alleged that his female supervisor sexually harassed him by, among other things, drawing a penis on his evaluation. After he complained about his supervisor’s harassment, he found that someone had put pornographic DVDs in his locker with notes taped to them, one of which called him a “fag” and another threatened him if he didn’t stop complaining about his supervisor.

The Commissioners on the MHRC sided with MHRC investigator, Barbara Lelli, and the findings in her report. Ms. Lelli concluded that the City of Portland did not do enough to stop the harassment or remedy the hostile work environment when it became aware of what was happening.

As anyone who has gone through it can tell you, working in a hostile work environment where you are subjected to sexual harassment can be incredibly stressful. Even a “big guy,” as Mr. Tanguay describes himself, can suffer extreme emotional distress when his supervisor or co-workers harass him. Sexual harassment violates both Maine and federal law. If you have experienced sexual harassment in the workplace, you should contact an experienced employment lawyer to learn more about your rights.