There isn’t a “magic number” of racial or ethnic insults an employee must prove to establish a hostile work environment

Jamie Ortiz (of Puerto Rican descent) worked for the Broward County, Florida, School Board in various capacities for nearly 20 years, including, from 2009 through 2017, as an auto mechanic in the district’s garage under the supervision of Michael Kriegel.

According to the testimony of both Ortiz and many of his co-workers, Kriegel had some issues with Puerto Ricans and other Hispanics, which he expressed to anyone who would listen, including Ortiz, on a daily basis.

The Customer isn’t always right: The Museum of Sex(ual harassment)

Just because an employee works at The Museum of Sex does not mean that she wants be sexually harassed. Or least that’s what Katherine McMahon alleges in her lawsuit against her former employer.

The New York Post offers the salacious details:

“Patrons and co-workers of the Museum grope its employees, use utterly inappropriate sexual language, and inquire into employees’ private sex lives,” the suit alleges. 

What’s a hostile work environment? You’ll know it when you see it.

“I know it when I see it.” These are the famous words of Justice Potter Stewart defining legal obscenity in his concurring opinion in Jacobellis v. Ohio (1964).

I feel the same way about a hostile work environment. For a hostile work environment to be actionable, it must (among other factors) be objectivity hostile. What does this mean? It’s hard to define, but I know it when I see it.

Does the attorney-client privilege protect harassment investigations conducted by a lawyer?

An employee complaints to HR that her supervisor has been sexually harassing her. The allegations aren’t pretty, and, if the investigation is mishandled (or even if it’s handled perfectly), you are reasonably confident that the employee will sue the company. Thus, you want to ensure that every “i” is dotted and “t” crossed in the investigation. So, you bring in the big guns to handle the investigation—the company’s attorney.

At the conclusion of the investigation, the lawyer recommends that the company suspend, and not fire the harasser. That decision leads to the victim filing suit.

During her lawsuit, the employee requests a copy of the investigatory report. You refuse, claiming it’s protected by the attorney-client privilege.

In harassment cases, the context of profanities matters (but only sometimes)

“Why is everyone suddenly using the C-word,” asks Stan Carey in The Guardian? He blames Game of Thrones (video very NSFW—you’ve been warned).

Assuming Stan’s correct, and more people are becoming more comfortable openly using this generally considered highly offensive and taboo word, how should you react if your employees start using it among each other? Swiftly and decisively, that’s how.

No, the feds should not ban noncompetes because of #MeToo

A recent op-ed in the USAToday argues that the federal government should outlaw noncompete agreements because they trap workers in abusive workplaces.

Since women who complain about harassment face retaliation and even termination, often the only way to escape it is to find a new job. Yet for many women, continuing their careers with a new employer turns out to be impossible. 

That is because of noncomplete clauses. After they have resigned or even been fired, workers bound by noncompetes cannot accept employment in the same line of work or industry as their former employer for a specified period in a certain city, state or even the entire country. Nearly 30 million working people, including more than 12 million women, are locked into their jobs because of noncompete clauses.…

By depriving them of outside employment opportunities, noncompetes lock victims of harassment into abusive environments. 

I could not disagree more. Noncompete clauses are not responsible for trapping sexual harassment victims in abusive workplaces.

Crasslighting — Oops, #NotYou is NEVER a defense to #MeToo

Gaslighting — the manipulation of someone by psychological means to question their own sanity. It’s a term you’ve likely heard of.

But, have you heard of crasslighting? Me neither, until I read Did he just harass you or are you imagining it? You might be a victim of ‘crasslighting.’ in The Washington Post.

Workplace civility shouldn’t be something we have to legislate

Workplace harassment isn’t illegal unless it is harassment because of some protected characteristic (sex, race, age, religion, national origin, disability, or any other class protected by law). Generalized workplace bullying or other mistreatment is not illegal unless it falls into one of those categories. Indeed, as the Supreme Court has repeatedly reminded us, workplace discrimination laws are not “a general civility code.”

A cautionary tale on why we background check employees

A cautionary tale on why employers should conduct thorough background checks on employers.

In late 2013, Kristl Thompson, Ashley Raby, and Corbie Leslie filed a lawsuit against The Scott Fetzer Company (doing business as “The Kirby Company”), Crantz Development, and John Fields. The women claimed Fields had sexually assaulted them (including verbal abuse and harassment, inappropriate touching, forced sexual acts, and rape) on numerous occasions between May 2012 and January 2013. A number of these allegations resulted in felony and misdemeanor convictions against Fields.

Handshakes, children’s poems, and the loss of responsibility

Handshakes could be BANNED under new workplace rules to avoid expensive sexual harassment claims

So reads a headline in The Sun. No one is actually considering banning handshakes. Instead, it’s a cautionary “what if” from an “employment expert,” saying what could happen if employers take sexual harassment precautions to far.

I thought of that story as I read a different story yesterday, one about book of children’s poems banned from Costco because a “concerned mom” did not like the content of one of the poems.

The three things you need to know from the EEOC's 2018 charge data

Yesterday, the EEOC released its charge statistics for 2018. There are three big things you need to know.

To help end sexual harassment, men MUST be better in reporting it when they witness it

"Dad, something bad happened at recess today!"

It's a refrain I sometimes hear at the dinner table.

"Donovan, what happened?"

"Joe pushed Billy off the swing, and Billy cut his knee when he fell."

"Did anyone let a teacher know what happened?"

"No."

"Why not?"

"I didn't because I didn't want to be a tattletale."

I've had this conversation with both of my kids — the difference between being a tattletale and reporting an unsafe situation.

I fart in your general direction: flatulence as harassment?

An Australian court has rejected an employee's claim that his supervisor unlawfully harassed him by farting on him.

David Hingst sought 1.8 million Australian dollars ($1.3 million) in damages based on a claim his supervisor would enter his small, windowless office several times a day and "break wind on him or at him … thinking this to be funny."

Harassment need not be "hellish" to be actionable

Gates v. Board of Education of the City of Chicago (7th Cir. 2/20/19) asks a question that we see time and again in harassment cases—how bad does does the conduct have to be to support a harassment claim. The answer is bad enough, but not so bad so as to be classified as "hellish."

You're never too small to have an HR department

43 percent of American employees work for companies with 50 or fewer employees. I raise this statistic because it is almost a guarantee that many of these small businesses operate without a dedicated HR department or HR personnel.

Earlier this month, the EEOC settled a sexual harassment and retaliation lawsuit it had brought against several IHOP franchises operating in New York and Nevada. The allegations were truly awful, including misbehavior such as unwanted touching of female employees' buttocks and genitalia, graphic comments about sexual genitalia, invitations to engage in intercourse, and vulgar name calling, perpetrated by both managers and co-workers.

If you want to stop workplace harassment, start by educating our children

How soon is too soon to start talking about harassment?

If we're talking about your workplace, the correct answer is that it's never too soon. You should start talking to your employees about your anti-harassment / anti-bullying / respectful workplace policies, expectations, and culture on Day One. A discussion should be part of each new hire's on-boarding and orientation.

What about outside of your workplace?

When the rumor mill creates a sexually hostile work environment

Just in time for Valentine's Day, I bring you the story of a employee rumored to be sleeping with her boss to get a promotion. She wasn't, but the workplace rumor mill sure thought she was.

Emojis are starting to pop up in discrmination and harassment cases 🤔🤷‍♂️

Law.com recently pronounced, "The Emojis are Coming!" That article got me thinking, are they coming to workplace litigation, too? After all, emojis are a form of communication, and work is all about communication. Which would suggest that we would start seeing them in harassment and discrimination cases.

According to Bloomberg Law, mentions of emojis in federal discrimination lawsuits doubled from 2016 to 2017. Let's not get crazy. The doubling went from six cases to 12 cases. But, a trend is a trend.

Gillette's toxic masculinity ad isn't the problem; toxic masculinity is the problem

Gillette is facing a lot of praise, and a lot of backlash, over its recent ad slamming toxic masculinity culture.

CBS denies Les Moonves every penny of his claimed $120 million severance

Today is your last day to vote for the Worst Employer of 2018. The polls close at 11:00 pm tonight. I'll announce this year's big winner tomorrow.

Cast your vote here.

Before we crown this year's worst employer, I thought I'd mention an employer who did something right.

CBS.