Category Archives: Sexual Harassment in the Workplace

Campus Sexual Harassment and Assault Guidelines Change Again

Federal guidelines for colleges and universities handling allegations of sexual misconduct on campus have changed again, with the Trump administration last week rescinding Title IX guidance issued under the Obama administration.

Notably, Education Secretary Betsy DeVos issued a seven-page set of questions and answers that allow schools to use a higher standard of proof in some cases, up from the “preponderance of the evidence” standard advocated by the Obama administration.  The guidance also encourages equal treatment, notice and access for the accused, which has not always occurred in the past.

This has been a hot area of dispute and litigation in recent years, and the roll-out of new guidelines is likely to stir the pot even further.  Colleges, universities and student affinity groups can be expected to each push for review and reform as a result.   Although this is not employment law, the issues involved – including the need for prompt and fair investigations – are similar in the workplace.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

Cheese Company Tolerates Exhibitionist — Not Gouda

cheeseWhen Cody Steward exposed himself to three different co-workers at the cheese plant, Southwest Cheese Company said it could not be held liable for sexual harassment, because it did not know of the harassing work environment beforehand.

But the limburger hit the fan in Macias v. Southwest Cheese Co., LLC (10th Cir. August 24, 2015), when discovery revealed that Mr. Steward, a few months before, had passed around a photo of his genitals to several managers, including the director of human resources, at an off-site work party, and the company apparently did nothing about it.

You may be thinking, “No way!”  Whey.

The distribution of the photo at the party did not contribute to the hostile work environment about which the plaintiff Yvonne Macias complained, because she wasn’t there to witness it and didn’t previously know about it.  However, it was relevant to show that the company might have been negligent in not taking action to stop the flasher from creating a hostile work environment for co-workers like Ms. Macias, the court held.  The incident “could have triggered” the company’s duty to respond “or at least put [the company] on notice that Mr. Steward posed a potential threat to the work environment,” the court wrote. “A reasonable jury could conclude that Mr. Stewart’s act of photographing his genitals to share with managers at an off-site co-worker function sponsored by [the employer] is serious and similar to his act of exposing himself to Ms. Macias at work.”

So what are the lessons of the case?

  1. It is not a good defense to ignore or cover up harassing acts against other employees, and then try to tell the plaintiff — “not your problem” (pronounced “nacho problem”).
  2. Don’t tolerate flashing of employees – by photo or live, at work or off-site, ever, period. While not quite a sexual assault, it is the next worst thing, the court noted.
  3. If your company is faced with defending a case in which an employee has exposed himself to three employees at work and to the HR director at an off-site party, and not been terminated, then get out your checkbook. A bad outcome is a feta-compli.

* Management apologizes for this post.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

The sexual harassment “smell test.”

When co-workers repeatedly sniffed a new hire in a “sexually suggestive” manner, the new hire could have suffered unlawful harassment, the U.S. Court of Appeals for the Fifth Circuit has ruled.

In Royal v. CCC&R Tres Arboles, LLC, Tonia Royal, a leasing manager, alleged that two male maintenance workers repeatedly hovered over her desk, “sniffed” her, and engaged in other conduct that was sexual and made her uncomfortable (such as sitting with legs spread open).

When she complained, her assistant manager allegedly told her to “let it slide” and stated something along the lines of “you know how men are like when they get out of prison.”  One of the accused said he sniffed her because he needed a “release.”

In a decision that might make Coco Chanel snort, the court ruled that unwelcome, sexual sniffing could amount to harassment, and, if the employee complained about it and was then fired, she could have a retaliation claim.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

‘Borgata Babes’ weight policy and skimpy costumes not sex bias.

A New Jersey trial court this summer rejected the claims of 22 female cocktail servers at Borgata Hotel Casino and Spa in Atlantic City who charged that the casino’s requirement for them to wear skimpy costumes and not gain more than 7 percent body weight after hire was sex discrimination.

In Schiavo v. Marina Dist. Dev. Co., LLC, Superior Court Judge Nelson C. Johnson acknowledged that the plaintiffs, known as “Borgata Babes,” may have felt that the policies subjected them to an atmosphere of sexual objectification, but that sex appeal is a common basis for marketing products and services in today’s society and the law does not regulate issues of “taste, philosophy or personal notions of morality.” He went on to explain that, under New Jersey law, Borgata could base its employment decisions and policies on notions of sexuality and attractive appearances, as long as it did not use gender stereotypes “to impose a professional disadvantage on one sex or the other.” The weight standards applied evenly to both males and females, the court found.

Borgata’s dress policy required the female “Babes” to wear tight skirts and bustier tops, while male servers wore slacks, a club-style T-shirt and black shoes.

Licentious details aside, it is difficult to find many useful takeaways for employers that do not use sexual objectification of employees’ bodies as part of their business model. Nevertheless, the case highlights that it is not sex discrimination for an employer to seek to hire attractive and fit employees for positions, or to require them to abide by a reasonable dress code, so long as the requirements do not disadvantage one gender, apply evenly to both males and females, and are not otherwise discriminatory.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

‘That’s too funny’ – employee defeats her own claim

A recent decision by a federal court in Illinois highlights the importance of employers conducting prompt and thorough searches of employee email and Internet usage when claims of discrimination and harassment are raised. Conversely, employees should consider and review their own conduct before raising claims that they are offended by the conduct of others.

In Jacober v. Dep’t of Agriculture, Betty Jacober claimed a sexually hostile work environment because, among other things, her male supervisor had a female intern take photographs of him wearing bib overalls with no shirt underneath, exposing his bare shoulders and part of his chest, and then inserted the photos into a PowerPoint presentation at work.

In dismissing the lawsuit, the court relied heavily on evidence that Ms. Jacober’s work email showed she had sent and received pictures of males wearing less clothing, including one email showing a man with a bare buttocks, about which Ms. Jacober emailed to the sender, “That’s too funny,” and then forwarded the image to others.

“Plaintiff’s own actions therefore make it unbelievable to this Court that she could find the photographs [of her boss] to be unwelcome sexual conduct that made her work environment intolerable,” Judge William Stiehl wrote. “She tolerated, and, in fact, generated further distribution of images that were more revealing, and therefore could be considered much more sexual in nature than the one of [her manager].”

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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