Lawsuit Against Favre Not a "Text"book Case of Sexual Harassment

Posted on January 5, 2011 by Brian Hall

According to a complaint filed this week in New York, two licensed massage therapists, Christina Scavo and Shannon O'Toole, claim that the New York Jets never called them back to provide therapy for the Jets after Scavo's husband called Favre to complain during training camp in 2008 that he had propositioned her by text message. O'Toole claims that she was blacklisted by the Jets because she introduced Scavo to the Jets. Neither plaintiff apparently complained to the Jets following the alleged proposition or at anytime while Favre was still playing for the Jets and there is no indication that Favre continued to proposition Scavo after her husband's call. 

But in October 2010, Deadspin.com reported the incident without naming the two women.  Thereafter, the team's "massage coordinator" allegedly sent text messages to Ms. Scavo attacking her for going to the press and not contacting her directly to handle the situation. She also reportedly told O'Toole that she would never work for the Jets again. If the plaintiffs' complaint correctly quotes her text messages to Scavo, the "massage coordinator" appeared to be unfazed by the allegations against Favre and also appeared to acknowledge that prior similar incidents had been handled internally by the Jets.

Of course, the Jets and Favre have been no strangers to these types of allegations recently, which only serves to enhance the plaintiffs' allegations of a hostile work environment. Nevertheless, there are some interesting twists to this case from a defense perspective. It appears that neither Scavo nor O'Toole actually were employed by the Jets so it is questionable whether a cause of action exists under the state, city and county laws upon which they base their Complaint. If a cause of action does exist, Plaintiffs' biggest hurdle would be their failure to report anything to Jets management for more than two years. Regardless, the allegations raise an important issue for employers. 

 

Specifically, employers need to re-examine their willingness sometimes to overlook inappropriate conduct by their "superstar" employees. Now, I am aware of no evidence that the Jets knew of Favre's apparent texting habits while he was employed there, but that fact would call into question the effectiveness of the Jets' communication of their sexual harassment policies -- particularly in light of prior allegations against Favre made by Jets' sideline reporter Jenn Sterger. If the Jets were aware of Favre's text messages, this situation very clearly demonstrates that an employer cannot afford to permit any employee, no matter how valuable they may be, to consider themselves above the law. Brett Favre's tenure in New York was very short-lived, but the Jets are still paying the price. 

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Title VII's Anti-Retaliation Provisions Apply to Statements Made During Internal Investigations

Posted on January 30, 2009 by Rob Stalter

Earlier this week, the U.S. Supreme Court released an opinion in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee. In this case, the employer, a school district in Tennessee, conducted an internal investigation into allegations of sexual harassment against its employee relations director, Mr. Hughes. Employee interviews were conducted in connection with the investigation. When the plaintiff, Ms. Crawford, was interviewed, she informed the school district that Mr. Hughes had sexually harassed her. Following the investigation, the school district took no action against Mr. Hughes but fired Ms. Crawford, alleging embezzlement.

Ms. Crawford filed suit against the school district, claiming that she was retaliated against in violation of Title VII of the Civil Rights Act of 1964. Title VII, which prohibits sexual discrimination and harassment, also makes it unlawful for “an employer to discriminate against any employee who . . . has opposed any practice made an unlawful employment practice by this subchapter.” The school district’s motion for summary judgment was granted by the district court and upheld by the Sixth Circuit Court of Appeals on the grounds that Ms. Crawford did not “oppose” the sexual harassment because she did not proactively complain about it or file a charge with the EEOC, but merely responded to questions asked during an internal company investigation.

Reversing the Sixth Circuit’s decision, the Supreme Court held that an employee who speaks out about discrimination during an internal company investigation is protected under the anti-retaliation provision of Title VII. The Court stated that if “an employee’s reporting discrimination in answer to an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses.” The Court did not address the employer’s defenses, including its allegation of embezzlement, because they were not addressed by the lower courts.

The Court’s opinion does not suggest whether an employee’s statements must be truthful in order to be protected under the opposition clause of Title VII’s anti-retaliation provision. However, in other cases interpreting the opposition clause, courts have generally held that plaintiffs can establish a prima facie case of retaliation if they show that they had a reasonable belief that the employer engaged in an unlawful employment practice.
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Equal Opportunity Spanking Nets New Trial

Posted on January 18, 2008 by Brian Hall

This case exemplifies our reason for creating the Employment Outtakes category. 

A California (where else?)appellate court (see Orlando v. Alarm One) has overturned a jury award of $500,000 in compensatory and $1 million in punitive damages to a 52 year old female on sexual battery and sex harassment claims that  arose out of spankings that she received during the course of "motivational meetings" to encourage the sale of security systems. Apparently, the spankings, among other rather unique motivational techniques, were administered to both male and female employees who performed poorly (for instance, by arriving at work late or not selling enough product) in front of their peers to motivate them  -- and all other employees --  to perform better. According to testimony, the spankings of females typically were accompanied by sexual comments, while male spankings were not. 

Therefore, with respect to the sex harassment claim, the appellate court, noting that males and females were both spankers and spankees, so to speak, held that the trial court's jury instructions were misguided because the jury was not instructed that one of the elements of sexual harassment was that plaintiff was harassed "because she was female." As a result, the court stated that the jury, in reaching its verdict, may have considered all offensive conduct, including conduct that was not gender-related. According to the court, if the jury had considered only conduct that occurred because the plaintiff was female, it might have concluded that that conduct was not “sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.” So, this case heads back to the trial court, hopefully to provide us with additional amusement.

Now you know where "The Office" gets its inspiration.

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Secretary May Pursue Sexual Harassment Suit for Hostile Work Environment Based on Boss's Video Habit

Posted on December 19, 2007 by Jamie LaPlante

The importance of leaving your personal life at home–particularly if it involves a penchant for pornography–is amply highlighted by the Second Circuit’s decision in Patane v. Clark, No. 06-3446 (2nd Cir. Nov. 28, 2007).  In Patane, the court upheld a female college secretary’s right to pursue a hostile work environment claim under Title VII and state discrimination laws based on her male supervisor’s pornographic video and website viewing habits.  Apparently oblivious to the development of sexual harassment law over the last 40 years or so, the supervisor–who happened to be the chair of the college’s Classics Department–allegedly viewed sexually-explicit videotapes for one to two hours every day on his office television, which was visible to his secretary through a glass partition.  He also left pornographic videos scattered across his office floor, viewed pornographic websites on his secretary’s work computer, and required her, as a part of her secretarial duties, to open his mail, which–you guessed it–included pornographic videotapes that the supervisor had delivered to his office.

Despite these lurid allegations, the trial court initially ruled that the secretary’s claim could not survive a motion to dismiss because the harassment was not aimed specifically at her, was not based on her sex, and did not create a sufficiently hostile work environment.  The Second Circuit, however, disagreed on all counts on appeal. In particular, the appellate court held that the conduct was aimed at the secretary since the supervisor viewed the sexually-explicit websites on her work computer and required her to open pornographic video tapes delivered in his mail as part of her secretarial duties.  The court also held that, based on the facts alleged, a jury could legitimately decide that the conduct was offensive to women and intended to provoke the secretary’s reaction as a woman.  Taken together, these findings allowed the Second Circuit to rule that the conduct could be found by a jury to be severe enough to interfere with the secretary’s ability to perform her job functions.  As a result, the Second Circuit reinstated the secretary’s claim.

As for preventive steps, Internet monitoring or filtering that screens out pornographic material likely would have helped to uncover some of the supervisor’s alleged conduct before it became a major problem.  Even without these tools, though, it is hard to believe that this kind of behavior could have gone unnoticed (and uncorrected), particularly since the secretary claims to have complained about the conduct to the college’s EEO director and an associate vice president over a three-year period.  Indeed, she even showed them a collection of 36 tapes that the supervisor kept in his office.  Obviously, discovery may show that the facts regarding the supervisor’s conduct and the university’s knowledge are not as clear cut as alleged in the complaint.  Nevertheless, if even a small portion of the supervisor’s alleged conduct actually happened, it merited strong preventive measures at the earliest possible moment.  The lesson here is simple: keeping the pornography out of the office will help keep you out of court.
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