Harassment has long been an Achilles’ heel of the workplace. Believe it or not, like the NCAA’s tournament TV ratings, the number of harassment-related lawsuits has held rather steady since the 1990s! And like most NCAA tournament games, the workplace can often be fast-paced and exhilarating, but it requires participants to play by the rules and when conduct goes out of bounds, participants must be benched or even ejected. In this regard, an employer must ensure that it has (1) the right players-personnel; and (2) systems in place not just for a successful season here and there, but for sustainable success over time that allows it to compete for the championship year after year. So what does this look like?
My colleague Alta Ray, was quoted in a Business Insurance article entitled, Injury Records Rule May Lead to More Citations in which she provides steps for employers to avoid retaliation against employees who report workplace injuries. The article examines the new anti-retaliation provisions to the U.S. Occupational Safety and Health Administration’s electronic record-keeping rule and the challenges the provisions pose to employers.
The Fifth Circuit recently held that a third party witness who was fired after providing information in response to her employer’s investigation of a coworker’s harassment allegations had to demonstrate she had a “reasonable belief” that the conduct she reported violated Title VII in order to prove her retaliation claim.
Just last month, two federal district courts reached different conclusions, further contributing to the confusion as to whether notes taken during a Human Resources department investigation of a discrimination or harassment complaint are protected from disclosure in subsequent litigation. Continue Reading Are Your HR Investigation Notes Protected Against Disclosure? Maybe, Maybe Not.
My colleague Tyrone Thomas, was quoted in the Bloomberg BNA article entitled Managing Bias Risks While Increasing Workplace Diversity in which he analyzes the threat of reverse racism claims arising from employer diversity efforts. Thomas notes that diversity strategies should be tailored to the workplace and provides steps for employers to develop well-crafted diversity plans. The article outlines examples of reverse bias claims, methods to avoid these risks, and employers’ options in implementing diversity strategies.
In Howard v. Hertz Global Holdings, Inc., a Hawaiian Federal Court found that Hertz Rent-a-Car could not be held responsible for its employee’s Facebook comments about one of its customers. While employers should welcome the outcome, it did turn on the facts, and could have produced a different result under different circumstances. Employers therefore, should consider installing safeguards to ensure proper social media use by their employees.
The so-called “manager rule” addresses a concern that employers may face a “litigation minefield” if a manager whose very job duties required them to report discrimination complaints could later sue for retaliation if they were adversely affected by the making of that report. Employers argue that the manager is not really “opposing” a discriminatory practice sufficient to invoke Title VII’s anti-retaliation protections, when they are in essence just doing the job the employer assigned them. Last month, the Second Circuit (in Littlejohn v. City of New York) and Fourth Circuit (in DeMasters v. Carilion Clinic) addressed the “manager rule,” and while both courts rejected its application, the Second Circuit did adopt a somewhat employer-friendly variation. A brief discussion of these cases and their implications for the manager rule follows below.
As a major national company learned recently, employers cannot shirk their obligations to investigate employee complaints of a hostile work environment simply because the identity of the harasser is unknown. Failure to investigate all good faith complaints of harassment can result in serious liability for the employer under the anti-discrimination statutes.
In a previous post we discussed the Northern District of Georgia’s decision in Lowe v. Atlas Logistics Group Retail Services, LLC, (N.D.Ga. May 5, 2015), holding that an employer violated the Genetic Information Nondiscrimination Act (“GINA”) by obtaining DNA samples from two employees it suspected of repeatedly defecating in a company warehouse. Last week, a jury awarded the plaintiffs in that case $2.23 million in damages, consisting of $475,000 in emotional distress damages and $1.75 million in punitive damages based on the employer’s reckless indifference to their federally protected rights. The case’s facts certainly offer a bizarre combination of the ludicrous and the revolting, but they also demonstrate the significant costs to employers of failing to comply with GINA.
If someone continually, yet anonymously, defecated on the floor of your workplace, you’d probably want to use any and all legal means at your disposal to identify and discipline the perpetrator. Your methods might include surveillance or perhaps some form of forensic or other testing to link the offensive conduct to a specific individual. You would probably not be overly concerned that your efforts to rid the workplace of this malefactor might give rise to a discrimination claim, but is that really a safe assumption?