Most employers are equipped to respond to employee allegations of harassment by co-workers or managers. However, there are added levels of difficulty when employees complain of harassment by a customer, contractor or other visitor to the business. In Sansone v. Jazz Casino Company, LLC (Sept. 1, 2021), a federal court of appeals recently ruled that an employee of Harrah’s Casino can go to trial on her claims that she was sexually harassed by a customer and that Harrah’s did not take sufficient steps to address her concerns.
Continue Reading ‘But they don’t work for us!’ Best practices for handling employee claims of harassment by a customer
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Prompt investigation can be critical to avoiding liability for harassment
By John Stephen on
The United States Court of Appeals for the Sixth Circuit recently provided employers a useful reminder of how important it is to promptly investigate allegations of harassment, or other types of discrimination, even when it appears that such investigation may be fruitless.
In Jane Doe v City of Detroit, the court upheld summary judgment for Detroit on a transgender employee’s complaint of harassment. Specifically, the employee complained that an unknown person had defaced her nameplate by scratching the word “Mr.” on it, and she had received anonymous notes citing Bible verses, commenting on her transgender identity and stating that people like her should be put to death.
Continue Reading Prompt investigation can be critical to avoiding liability for harassment
When can an employer be found liable for ‘supervisor’ harassment?
By Charlie Warner on
In an opinion issued this week, the Sixth Circuit Court of Appeals (which covers Ohio, Michigan, Kentucky and Tennessee) affirmed dismissal of a case alleging same-sex sexual harassment primarily based on the prompt and effective action taken by the employer in response to the plaintiff employee’s complaint.
Plaintiff (Hylko) and the alleged harasser (Hemphill) worked closely together at U.S. Steel. Hemphill trained Hylko and assigned his duties. Both reported to an area manager.
Hylko claimed that Hemphill harassed him as soon as they started working together, that Hemphill regularly asked Hylko about his sex life and that Hemphill grabbed his buttocks and private parts.
Hylko complained to management, who offered him a transfer to a different area of the plant, which he accepted. Management then met with Hemphill, who admitted some of the harassment. They then gave him a verbal warning, one week suspension and demotion to shift manager and made him take a leadership class. No harassment occurred again after that.
The standard for employer liability for hostile work environment harassment that does not result in a tangible adverse employment action depends typically on whether or not the harasser is the victim’s supervisor. An employer is vicariously liable for a hostile work environment created by a supervisor unless it can prove that (a) the employer exercised reasonable care to prevent and correct promptly any harassment; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. By contrast, an employer is liable for hostile work environment harassment by employees who are not supervisors only if the alleged victim can prove the employer was “negligent in failing to prevent harassment from taking place.” In assessing such negligence, the court will look to such factors as the nature and degree of authority wielded by the harasser and evidence the employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints or effectively discouraged complaints from being filed. In essence, the supervisory status of the alleged results in a shifting of the burden of proof with respect to whether the employer has taken necessary steps to prevent and respond to allegations of harassment.Continue Reading When can an employer be found liable for ‘supervisor’ harassment?
EEOC issues proposed guidance on harassment
By Charlie Warner on
Following the report of a 16-member task force led by Equal Employment Opportunity Commission (EEOC) Commissioners Chai Feldblum (D) and Victoria Lipnic (R) in 2016, last week the EEOC issued proposed guidance for public comment on or before Feb. 9.
In fiscal 2015, the EEOC received 27, 893 private-sector charges alleging harassment, representing more than 31 percent of all charges filed with the EEOC. As Commissioner Lipnic commented, harassment charges “remain a far too dominant part” of the agency’s workload.
The guidance is intended to assist not only EEOC employees, but employers and employees generally to understand the extent of the problem and ways in which harassment can be prevented and addressed. And it pulls that together in one document, superseding five existing EEOC enforcement documents.
Continue Reading EEOC issues proposed guidance on harassment
Title VII’s Anti-Retaliation Provisions Apply to Statements Made During Internal Investigations
By Porter Wright on
As a result of a recent ruling by the U.S. Supreme Court, employers should now be aware that it is unlawful to take any negative employment action against an employee who responds to questions during an internal investigation.
Continue Reading Title VII’s Anti-Retaliation Provisions Apply to Statements Made During Internal Investigations
Equal Opportunity Spanking Nets New Trial
By Brian Hall on
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 …