Harassment, Discrimination and Retaliation

While sexual and other unlawful harassment issues have been present in the workplace for decades, the current news cycle has made the term a household name.  One cannot turn on the television, open a newspaper or surf the web without being inundated with daily reports of sexual harassment.  Politicians, news reporters, entertainers, and others are accused of sexual harassment and sometimes sexual assault, on a daily basis.

Harassment (both sexual harassment and harassment based on national origin, religion, LGBTQ status, etc.) is toxic in the workplace and can lead to a loss of talent, poor morale, negative publicity and, in the case of legal action, monetary damages and legal fees.  Still, many employers overlook the importance of developing and communicating effective anti-harassment policies and procedures and conducting anti-harassment training, often relegating this “compliance” issue to the bottom of the corporate “to do” list.  The current environment presents an opportune time to remind employers of the importance of addressing these issues and ensuring that they are providing a workplace that is free of sexual and other unlawful harassment.  In addition to helping to prevent harassment incidents in the first place, comprehensive anti-harassment policies and training also provide employers with an affirmative defense to any legal claims of harassment under both state and federal law.

The message to employers is clear – ignore these issues at your own peril!  Although the law in this area has been clear for some time, many employers do not appreciate the importance of addressing these issues proactively.  Employers are well served to review their anti-harassment policies and practices in light of the current social climate.

New York City Mayor Bill de Blasio recently signed into law an amendment to the New York City Human Rights Law (the “NYCHRL”) prohibiting discrimination on the basis of uniformed service.  The amendment takes effect on November 19, 2017.

The term “uniformed service” is defined in the amendment to mean current or prior service in:

The United States Army, Navy, Air Force, Marine Corps, Coast Guard, the Commissioned Corps of the National Oceanic and Atmospheric Administration, the Commissioned Corps of the United States Public Health Services, Army National Guard, or the Air National Guard;

The organized militia of the State of New York;

Any other service designed as part of the “uniformed services” pursuant to the Uniformed Services Employment and Reemployment Rights Act;

Membership in any reserve component of the United States Army, Navy, Air Force, Marine Corps, or Coast Guard; or

Being listed on the state reserve list or the state retired list as described in certain military laws or the state equivalent.

The amendment gives both veterans and active military personnel all protections afforded under the NYCHRL, including safeguarding against employment discrimination.  Specifically, these protections include representing that a position is not available when it actually is, refusing to hire or employ, or to bar or discharge from employment, someone in the uniformed services, or to discriminate against uniformed service members in the compensation, terms, and conditions of their employment.  Likewise, the amendment prevents employers from discriminating against uniformed service members in matters of public accommodation, housing, real estate, and lending.  The Chair of the New York City Commission on Human Rights, Carmelyn P. Malalis, cogently stated that: “Veterans and active military and other uniformed personnel routinely put their lives on the line for people in this country.  The least we can do is guarantee them the same freedom, respect and opportunities as everyone else. This law will give veterans and active military and other uniformed personnel direct protection under the New York City Human Rights law.”  Please click here to view the full article.

New York based employers are encouraged to review their human resources and hiring policies to ensure compliance with the amendment to the NYCHRL prior to its November 19, 2017 effective date.

Thinking about tying one on this year to get into the holiday spirit, or about finally asking out that cute girl or guy from the office at the holiday party after the spirit moves you?  Think again!  With the holiday season upon us, employers and employees would be well-served to review their Employee Manuals’ harassment, discrimination and social media policies to avoid the embarrassment, and pricey lawsuits that pop up at this time of year following otherwise festive celebrations.

Remember, just because an event takes place off premises, or in the office after hours, does not mean that the employment relationship and policies that attach do not follow everyone to the party.  Employers are urged to be proactive to avoid claims of harassment and discrimination, reminding managers and employees to be on their best behavior.  The old adage, “If you would not say it to your mother, don’t say it,” is still a fair yardstick to apply to nearly anything employees and managers might say to one another, in the office or at the holiday party.  Remind all to be courteous and mindful of the company’s policies, including social media policies, at all times.  Videos or pictures of drunken or inappropriate behavior from the holiday party posted on social media can only lead to trouble and discomfiture.

The chief source of mischief at any holiday party – free flowing libations – should be monitored closely to ensure the party does not devolve into a bacchanal.  Company sponsored events place ultimate responsibility for employee behavior on the company.

Hiring an outside vendor to tend bar – with its own liability insurance and procedure to monitor guests’ alcohol intake – is an excellent suggestion.  Avoid at all costs the serve it yourself bar, or employees pouring drinks for each other – both recipes for excess.  If the party takes place at an outside venue, consider providing drink vouchers for a maximum of number of drinks to employees, closing the bar an hour before the party ends and providing coffee and dessert to stay or to go.  Offering taxis, buses or designated drivers to get people home safely are also excellent recommendations.

Importantly, do not discriminate.  Make the party secular, nondenominational and welcoming to all, but not mandatory.

Holiday celebrations can be great opportunities for employees and employers to connect on a social level, talk about things other than work and boost morale.  Don’t let the opportunity slip away.  Happy Holidays!

The Second Circuit recently invoked a 17th century fable in reviving an employee’s retaliation claim against her employer even where the employer had no retaliatory intent.  In Vasquez v. Empress Ambulance Service, SDNY, 15-CV-3239, the Plaintiff, Andrea Vasquez, an Emergency Medical Technician, alleged that she was subjected to sexual advances by her dispatcher in part by sexually explicit text messages.  Vasquez complained to her employer, who immediately launched an investigation.  Unbeknownst to Vasquez or her employer, the dispatcher manufactured false text messages which showed that Vasquez was the aggressor.  Indeed, one of the messages displayed a “racy photo” that Vasquez allegedly sent the dispatcher, though the photo did not contain Vasquez’s face.  The employer credited the dispatcher’s story, and Vasquez was fired.  She subsequently commenced a lawsuit.

Southern District Judge Naomi Reice Buchwald dismissed Vasquez’s retaliation claims, finding that the employer could not have retaliatory intent because the employer was unaware that the text messages were manufactured.  On August 29, 2016, the Second Circuit reversed, citing a 1679 fable authored by Jean de La Fontaine, entitled the “Monkey and the Cat”.  According to the fable, a mischievous monkey lured an unsuspecting cat to fetch chestnuts from a burning hearth under the auspices that they will share the chestnuts.  The monkey, however, stole the chestnuts, leaving the cat with nothing but burnt paws.  In citing the fable, the Second Circuit held, “The employer plays the credulous cat to the malevolent monkey and, in doing so, allows itself to get burned – i.e., successfully sued”.  The Second Circuit held that an employer exposes itself to liability where it automatically credits one employee’s accusations over another, and refuses to consider contrary evidence easily ascertained.  This case serves as a lesson to employers in New York to conduct careful investigations of any claims of employee misconduct, lest they be left with burnt paws.

 

On Wednesday, March 30, five players for the U.S. women’s soccer team officially joined the national fight for equal pay by submitting a wage discrimination complaint to the Equal Employment Opportunity Commission (“EEOC”).

The players filing the complaint include the most well-known female soccer players in the world — Carli Lloyd, Becky Sauerbrunn, Alex Morgan, Megan Rapinoe, and Hope Solo.  With such noteworthy names attached to the EEOC filing, it has already garnered significant media attention, bringing the equal pay issues confronted by women across the country to the forefront.  As goalkeeper Hope Solo explained:

“In this day and age, it’s about equality. It’s about equal rights. It’s about equal pay. We’re pushing for that. We believe now the time is right because we believe it’s our responsibility for women’s sports and specifically for women’s soccer to do whatever it takes to push for equal pay and equal rights. And to be treated with respect.”

The decorated U.S. women’s soccer team has plenty of accomplishments to brag about, including three World Cup championships, four Olympic gold medals, and generating nearly $20 million more in revenue than the men’s U.S. Soccer team in 2015.  However, the EEOC complaint alleges the women earn significantly less than their male counterparts for identical work.  For example, the EEOC filing cites that while the men would likely earn $263,320 each for winning twenty exhibition games in a season (the minimum required to be played in one year), the women would earn only $99,000 for the same triumph.  In addition, the men each earn between $5,000 and $17,625 for every additional game played beyond the minimum of twenty exhibition games, while the women earn nothing if they play more than twenty games in a season.

The EEOC complaint represents the first step in the litigation process to pursue the women’s discrimination claim.  From there, the EEOC will commence an investigation to determine whether there is probable cause to believe discrimination has occurred.  Both sides are required to cooperate with the EEOC in good faith in its investigation.  If the EEOC finds such cause, it may file a complaint for discrimination in an appropriate court on behalf of the women, or it can issue a “Notice-of-Right-to-Sue” letter, which would allow the women to file a formal court action for discrimination within ninety days.

The complaint filed by these high profile women only serves to highlight the need for further dialogue and discussion concerning equal pay for equal work.  We will post on future developments in this EEOC case as they occur.