Is your business rethinking its holiday party this year?

During the #MeToo portion yesterday's Best-Ever Year-End Employment Law Review that Five Employment Law Bloggers Have Ever Presented, Robin Shea suggested that the #MeToo Movement has altered employers' holiday-party plans this year.

Indeed, according to the 2018 Holiday Party Survey (conducted by the appropriately named outplace firm of Challenger, Gray & Christmas), 35% of employers do not plan to throw a holiday party this year, the lowest number since 2009. Given the current strength of our economy, one would expect an opposite trend, suggesting that something else is causing this uptick in grinchy employers.

The likely culprit? #MeToo.

Forced hugs at work sound like a REALLY bad idea

Ray Kelvin, CEO of UK fashion retailer Ted Baker, is a hugger. According to an online petition seeking to end his practice, "he greets many people he meets with a hug, be it a shareholder, investor, supplier, partner, customer or colleague." And, it doesn't stop with hugs. He asks young female employees "to sit on his knee, cuddle him, or let him massage their ears." He strokes employees' ears. He takes off his shirt in the workplace and talks about his sex life. Even worse, when employees go to HR to complain, they are told, "That's just what Ray's like."

Well, they've had enough "of what Ray's like." More than 2,600 people, including over 300 current or former employees, have signed the online petition calling on Ted Baker to "scrap the forced 'hugs' and end harassment."

What can you learn from the law firm partner suspended for watching porn at work?

According to The American Lawyer (sub. req.), Hogan Lovells has suspended one of its partners in its London office for watching porn at work. How did it catch the offense?

In IT employee read his internet logs? No.

He forgot to close his browser when he went to the loo and his assistant walked into his office? No.

He visited an unsafe site that spammed his entire office with malware? No.

Sexual harassment prevention 101: NO STRIP CLUBS

Last month, the EEOC held a public meeting on preventing workplace harassment. Entitled, Revamping Workplace Culture to Prevent Harassment, it's the agency's second meeting since forming its Select Task Force on the Study of Harassment in the Workplace, and its first in the #MeToo era.

The EEOC discussed the need for employers to take a holistic approach to change workplace culture to prevent harassment.

Somehow, the EEOC missed "No strip clubs for employees" as one of its anti-harassment talking points.

When you employ a Satanist #HappyHalloween

Rosemary's Baby, the classic 1968 horror film, tells the story of a pregnant woman who (spoiler alert: correctly) assumes that a satanic cult wants her baby. What does Rosemary's Baby have to do with employment law?

In honor of Halloween, I bring you the story of Irving Cortez-Hernandez, a "Catholic-Satanist" who prayed to the Devil for his pregnant co-worker to miscarry, and as a result lost both his job and his religious discrimination lawsuit.

Anti-Semitism at work

The devastating events of this past weekend served as a sobering reminder that anti-Semitism not only still exists, but it's thriving.

The reality is that anti-Semitism never went away. It has always been there, bubbling under the surface. The current climate in our country, however, has given it permission to boil over.

How many n-bombs does it take to create a hostile work environment?

Smelter v. Southern Home Care Services (11th Cir. 9/24/18) answers the question, "How many n-bombs does it take to create an unlawful hostile work environment?"

So as not to bury the lede, the answer is one.

#HimToo is a BAD bandwagon on which to jump in your workplace

since she deleted it here’s a screenshot. one of the greatest posts of all time pic.twitter.com/Z6TUKOjH9T

— KT NELSON (@KrangTNelson) October 8, 2018

#HimToo

A hashtag started as a reaction to #MeToo, put forth by those who believe that false accusations of rape and sexual assault against men are common and happen way too often.

Employers, #HimToo is dangerous to your workplace.

How does one measure the impact of #MeToo at its first anniversary?

It's been one year since the the New York Times reported allegations of sexual misconduct against Harvey Weinstein that started the #MeToo movement. Since, at least 425 prominent people across industries have been publicly accused of sexual misconduct.

The story, however, goes beyond the rich, and the famous, and the powerful. #MeToo has permeated every corner of our culture.

The EEOC just released its preliminary data on its handling of sexual harassment charges for its 2018 fiscal year—October 1, 2017, through September 30, 2018—a year that syncs almost too perfectly with the first year of #MeToo.

Don't Lindsey Graham your company's harassment investigations

What am I supposed to do, go ahead and ruin this guy's life based on an accusation? I'm just being honest. Unless there's something more, no, I'm not going to ruin Judge Kavanaugh's life over this. But she should come forward. She should have her say. She will be respectfully treated.

 – Senator Lindsey Graham

He-said/she-said cases of sexual harassment are difficult. You are making a decision that will impact the lives of two (or more) people often based solely on your evaluation of the credibility of the complaining employee, the accused, and witnesses (if any).

Sexual harassment allegations unjustifiably ruin people's lives only if they are false

Peoples lives are being shattered and destroyed by a mere allegation. Some are true and some are false. Some are old and some are new. There is no recovery for someone falsely accused - life and career are gone. Is there no such thing any longer as Due Process?

— Donald J. Trump (@realDonaldTrump) February 10, 2018

Yesterday, The Washington Post published Christine Blasey Ford's decades old allegations of sexual abuse she claims to have suffered at the hand of Judge Brett Kavanaugh, Supreme Court nominee. You can read the full letter here.

Temporary employees have permanent legal rights

Temporary employees do not leave their legal rights at your door. In fact, they enjoy the same rights as your permanent employees.

Consider, for example, EEOC v. Massimo Zanetti Beverage USA, in which an employer recently agreed to pay $65,000 to settle claims brought by a temporary employee that she was subjected to a sexually hostile work environment and fired after repeatedly complaining about it.

The allegations are not pretty.

LaToya Young began working as a temp at Massimo Zanetti in late January 2015. Within 10 days of starting her placement, a male co-worker began making sexually harassing comments to her:

• Telling Young that he had "blue balls" and asking her "Why don’t you help me out with that?"
• Telling Young that he wanted to "suck [her] bottom lip."
• Telling Young that he wanted to have sex with her, often using lewd language.
• Telling Young that he imagined himself engaging in sexual relations with her.
• Telling Young that he would "ball [her] up like a pretzel" and would "have [her] screaming."
• Grabbing his groin area while looking directly at her.
• Blowing kisses at her.
• Licking his lips and biting his bottom lip while looking at her.

Young complained three times to her supervisor. The harassment continued unabated after the first complaint. After the second complaint, Young alleges that her supervisor warned her that going to HR "would jeopardize her employment." After the third complaint, she was fired. 

According to EEOC Regional Attorney Kara Haden, "Employers must take appropriate action to stop harassment of all employees, including temporary workers." She adds, "We hope that this case sends a clear message that the EEOC will hold accountable employers who fail to protect all employees from workplace harassment."

Take heed of this lesson. Your temporary employees have the same civil rights as your permanent employees.

* Photo by Sunyu on Unsplash

An expensive lesson on disability harassment

With of all of the attention the #MeToo Movement has provided sexual harassment, employers must not forget that all forms of unlawful workplace discrimination include unlawful harassment.

This includes disability harassment.

For example, consider Caldera v. Department of Corrections & Rehabilitation (Cal. Ct. App. 7/9/18).

EEOC sues on behalf of harassed Catholic employee

Religion a funny thing. Throughout the history of mankind it's fueled so much hate, war, and death. And yet, it brings so much peace, comfort, and love to so many people.

My philosophy is live and let live. You believe what you want, and I'll believe what I want. Your religion is none of my business, just as mine is none of yours.

The world we be a better place is everyone lived this message. But not everyone does.

Despite what one court held, workplace discrimination laws DO protect employees from non-employees

Pop quiz: Can an employer ignore harassment or other discriminatory behavior directed at employees by non-employees?

If your answer is "yes," you'd be in agreement with the court in Shaw v. Access Ohio (Ohio Ct. App. 7/27/18).

You'd also be dead wrong.

John Oliver and Anita Hill on fixing our workplace sexual harassment problem

When Anita Hill testified during Justice Clarence Thomas's confirmation hearing almost 27 years ago, the thought was that her story might be the beginning of the end of sexual harassment as a workplace problem. That clearly did not happen.

The #MeToo movement has now, once again, brought sexual harassment to forefront.

Last night, John Oliver tackled the issue on his HBO show.

EEOC sees no #MeToo uptick in harassment filings, but…

Earlier this month, the EEOC reconvened its Select Task Force on the Study of Harassment in the Workplace. One fact that came out of the agency’s meeting is that, according to Acting EEOC Chair Victoria Lipnic, the EEOC has yet to see an increase in sexual harassment charges in response to the #MeToo movement.

I do want to mention one other point that we have been frequently asked here at the EEOC - and that is - “have you seen an uptick in charges filed alleging harassment?” - sometimes, people ask, specifically about sexual harassment charges being filed with the agency?

Who is Otis Burke?

By now you’ve almost certainly heard about ABC’s cancellation of Roseanne, after Roseanne Barr posted a racist tweet about Valerie Jarrett, President Obama’s former senior advisor.

Today, a lot of internet ink will be spilled about ABC’s swift and decisive reaction to cut the head off any potential controversy, how private-sector employees lack free speech rights at work, and why Roseanne’s after-the-fact excuse that she was Ambien-tweeting is irrelevant.

I’d like to come at this from a different angle—all of the individuals who are now unemployed because Roseanne Barr said something racist and offensive and stupid.

Including Otis Burke.

Court says that discretionary bonus cannot be the “quo” for the sexual harassment “quid”

Quid pro quo is Latin for “something for something.” In employment law, it’s a specific theory of sexual harassment—“If you do this ‘thing’ for me, I’ll do something for your job.”

In Davenport v. Edward Jones & Co., the 5th Circuit held that a allegation of an unpaid bonus might not be enough to support an ex-employee’s sexual harassment claim under a quid pro pro theory.

Harassment prevention MUST start at the top

If you did not watch 60 Minutes last night, you should. The last segment detailed pervasive and rampant sexual harassment by famed chef and tv personality Mario Batali.

And it laid much of the blame at the feet of the CEO of one of the restaurants in which Batali invested, The Spotted Pig, and its owners, Ken Friedman and April Bloomfield. The segment argues that Friedman and Bloomfield turned a blind eye to years of Batali’s sexual harassment of the female employees of their restaurant, and knowingly allowed it to continue.