When you offer a reason for something, you better be really, really sure it’s correct

It is with great sadness that we announce that the Founders Detroit Taproom will be permanently closing its doors today.

Unfortunately, our Detroit location has not been immune to the struggle to regain foot traffic after temporary Covid closures that have impacted restaurants and bars across the nation.

That was the message that Founders Brewing Company posted across its social media channels earlier this week.

There is no doubt that the bar and restaurant industry has struggled throughout the pandemic and, in pockets, continues to struggle. Consider, however, that less than three hours before Founders announced its Detroit taproom closure, it was sued by a Black employee claiming that the brewery promoted her "purely for optic reasons" and subjected her to "egregious racial harassment" that was "so objectively racially hostile that she had no choice but to resign" last week.

Intentional misgendering IS sexual harassment

Jane works as a cashier at a donut shop. She is a transgender female who identifies by a female name and female pronouns. Her supervisor, Lisa, however, refuses to use Jane's preferred gender. She uses Jane's male legal name, male pronouns, and "dude" when referring to her, despite Jane's frequent requests for her to use female pronouns and the preferred female name. Lisa would similarly encourage customers not to use Jane's preferred name or pronouns.

Did Lisa create a hostile work environment based on Jane's sex? 

You bet she did.

Your anti-harassment obligations are 24/7/365

"I did not know that a workplace policy could be enforced when you're not at work."

Those are the words of former Tennessee Representative Scotty Campbell, spoken to a reporter a mere six hours before he resigned his seat in State General Assembly after a bipartisan ethics subcommittee concluded that he had sexually harassed two female  interns. 

The craft beer industry has a sexual harassment problem

According to the EEOC, the industry that generates the most sexual harassment reports (at more than 14% of all such claims filed with the agency) is hospitality and food service, which includes craft breweries.

Indeed, according to a recent survey conducted by Women On Tap, 73% of women report experiencing sexual harassment while working in a pub/bar. 

Simply stated, the craft beer industry has a sexual harassment problem.

Sexual misconduct isn’t a “mistake”

Vince McMahon is the former CEO and current Executive Chairman of the WWE. It's former CEO because he was forced to step down after it came to light that he had allegedly authorized $19.6 million in hush money payments to female employees who had accused him of sexual misconduct. (It's what earned McMahon his nomination for 2022's Worst Employer.) It's current Executive Chairman because he returned to that position earlier this year after previous stepping down for the same reason.

John Cena is a full-time actor and former WWE star who recently returned to the company. 

Consider the following recent Q&A between Cena and the Associated Press:

AP: Is it tough to reconcile the feelings you have toward Vince McMahon with the sexual misconduct accusations made against him? 

CENA: No. I mean, everyone has the right to have their perspective. I have the right to have mine. When you love somebody, you take them as imperfectly perfect as they are. We all make mistakes, we all have poor decisions. Lord knows I've made my collection of poor choices. That doesn't mean I’m not going to love somebody. There's no way I can go on record and say I don't love Vince McMahon.

Sexual misconduct is not a mistake. 

Employee harassed after coming out at work loses harassment lawsuit

After an employee comes out at work as gay, he alleges that co-workers left him pink nail polish, a nail file, and bath bombs, that someone posted Bible verses on his desk, and that he was moved to an isolated corner of the office. 

Based on these facts, the 6th Circuit Court of Appeals affirmed the dismissal of the employee's sexual harassment claim.

A supersized harassment settlement highlights the extra care employers must take when employing minors

How bad must sexual harassment be for an employer to settle a harassment case for $2 million? This bad.

AMTCR—the owner of 18 McDonald's franchises across California, Nevada, and Arizona—will pay $1,997,500 to resolve a sexual harassment lawsuit filed by the EEOC.

A tale of two employee nondisclosure agreements

"It was the best of times, it was the worst of times…." This is perhaps the most famous opening line in the history of literature, A Tale of Two Cities, by Charles Dickens. It's also an apt description of how two tech giants—Apple and Twitter—recently handled the issue of employee nondisclosure agreements.

Paper plant settles case of egregious racial harassment with EEOC for $385,000

Packaging Corporation of America has agreed to pay the EEOC $385,000 to settle the racial harassment claims of two African American employees. 

The allegations are egregious (per the EEOC's news release).

There’s nothing wrong about wanting not to have fun at work

A French employee, fired for refusing to participate in after-work drinks and other "team building" activities, has won the legal right "not to be fun" at work.

The man, named in his lawsuit only as "Mr. T," was fired for "professional incompetence" — specifically his refusal to adhere to the company's "fun" values. According to the Court of Cassation (France's highest court), the company's "fun" values included regular obligatory social events that included "excessive alcoholism encouraged by colleagues who made very large quantities of alcohol available," plus "practices pushed by colleagues involving promiscuity, bullying, and incitement to various excesses."

A court was not having it when lawyers tried to victim-blame a sexual harassment plaintiff

One of our primary roles as attorneys is to protect our clients from their worse instincts. 

"Can I fire the employee who just filed an EEOC complaint or who's trying to form a union?" That's a really bad idea. 

"How do I erase the server with the smoking gun emails?" You don't. 

"If I ignore the harassment it will go away, right?" Umm, wrong.

"Let's file a motion to require a sexual harassment plaintiff to submit to a psychosexual examination?" 

In Carbajal v. Hayes Management Services, a federal court recently decided the propriety of just such a motion (very much) in the employee's favor. 

Show this story to your employees who start clamoring for a union

When a labor union is engaged in organizing your employees, you are allowed to present facts to your employees to attempt to convince them to vote union "no." Here's a big ol' fact for you to file away if the need ever arises.

EEOC Sues Teamsters Local Union #455
for Sexual Harassment

What are you doing to address Bullying Prevention Month in your workplace?

October is Bullying Prevention Month.

Over 90% of employees say that they have been bullied by a co-worker or manager.

Yet, unless a bully is harassing someone because of a protected class (race, sex, age, disability, religion, national origin, age…) bullying is probably lawful.

As the Supreme Court has famously said, our workplace discrimination laws are not meant to be a "general civility code." In layman's terms, our laws allow people to be jerks to each other at work as long as it's not because of a protected reason.

The question, however, is not whether the law protects the bullied, but instead what you should be doing about it in your workplace.

Workplace romance vs. workplace harassment

The Boston Celtics have suspended their head coach, Ime Udoka, for the entire 2022-23 season.

His offense — it was initially reported that he had violated the team’s policies by engaging in a consensual intimate relationship with a female staff member. 

This punishment seemed … harsh. A year for a consensual relationship? If you don’t want your head coach dating staff, why not just direct him to end the affair with a stern warning not to let it happen again, instead of a year-long suspension? In fact, it seemed so harsh that I knew that there had to be more to this story. 

Pro athletes should never get a pass on harassment

Kenny Lofton is one of the most beloved players in history of the Cleveland Guardians, née Indians. He spent the best years of 17-year career anchoring center field for the Cleveland teams that won six AL Central titles and earned two World Series berths. 

Post-baseball, Lofton founded Centerblock Asset Management LLC, an investment firm and NFT workplace. In addition to his corporate gig, it also appears that Lofton allegedly spends his time messaging women pictures of his Li'l Kenny on Instagram and firing employees to take issue with it.

“Gaslighting” in the workplace

“That’s not how I told you to complete that project. Why did you do it that way? It’s all wrong.”

“Why didn’t you show up to the meeting? Of course I invited you.”

“Harassment complaint? You never made any harassment complaint.”

These are all examples of gaslighting in the workplace.

How do you respond when your employees are threatened?

Boston Children's Hospital has a scary situation on its hand. Its hospital staff has received aggressive phone calls, emails, and death threats. It's all in reaction to inaccurate information posted on conservative websites and shared across social media about its transgender surgery program.

The allegations are that its medical staff performs hysterectomies on girls under the age of 18. In reality, the hospital performs hysterectomies on patients age 18 and older, but not on children.

Boston Children's began treating transgender youth in 1998 and opened the first trans health program in the U.S. for adolescents in 2007.

Consistency matters when applying anti-harassment rules

Can an employer legally fire an employee who writes "whore board" on an overtime sign-up sheet? Let's explore.

Following unsuccessful negotiations for a new union contract, Constellium unilaterally implemented a new overtime policy that required employees to sign up for overtime on a sheet posted on a bulletin board outside the lunchroom.

Employees were not happy about the new policy. Those who opposed it began calling the overtime sign-up sheet a "whore board," as they believed that those who used it to sign up for overtime were selling out their union. "Whore board" quickly became common slang in the workplace (even among supervisors). There was no evidence that Constellium disciplined anyone for saying the vulgarity.

One employee, Jack Williams, went a step further. He wrote "whore board" on the sign-up sheet. Constellium then fired him for "willfully and deliberately engaging in insulting and harassing conduct."

Accountability starts at the top, even for the NFL

NFL disciplinary officer Sue L. Robinson has suspended Deshaun Watson for six games for his violation of the league's personal conduct policy based on allegations by four masseuses that he solicited prostitution by paying for sex acts.

Some see six games as a slap on the wrist. I don't, at least in the environment that bound Judge Robinson and her ruling.

While I don't in any way condone Watson's misconduct, the NFL would place itself in serious legal jeopardy by imposing a suspension that encourages Watson or his union to litigate.

Don’t be mad at Watson for getting off light; be mad at the NFL for its long history of giving white male owners a free pass for their own sexual misconduct. The league created the legal environment that let Watson (a Black player) off.

Cursing in the workplace

According to one survey, 57% of American employees admit to swearing at work. (Count me in the "yes" column.)

Where is the line between swearing as harmless workplace banter and swearing as harmful unlawful harassment? The seminal case is Reeves v. C.H. Robinson Worldwide, which involved the female plaintiff's offense to the salty language used by male co-workers in nearby cubicles.