What else I'm reading this week #19

Earlier this week, I gave my two-cents on Humphires v. CBOCS West, which will answer the question of whether 42 U.S.C. 1981 recognizes a cause of action for retaliation. The Workplace Prof Blog gives us some comprehensive analysis of this week's oral argument, and predicts a 5-4 victory for the employer. Meanwhile, Dan Schwartz at the Connecticut Employment Law Blog correctly and astutely points out that most federal retaliation claims are brought under Title VII, that Section 1981 is only used when a plaintiff misses a statute of limitations, and that we should "ignore the hype about these cases [because r]etaliation against employees for filing race ... discrimination claims would still violate state law." This point is especially true in Ohio, where an employee has 6 years to file a retaliation claim under state law, and there is no requirement that the employee first file a charge with the EEOC or OCRC.

The Workplace Prof Blog also has a very insightful post on the rising tide of employment discrimination claims being brought by Muslims.

Michael Moore from the Pennsylvania Employment Law Blog offers a different perspective on whether LaRue will open the floodgates to federal court.

Kris Dunn, The HR Capitalist, points out one of the thorny problems presented by intermittent leave under the FMLA, employees using blanket doctors' notes to work the system and take time off whenever they want even for the most trifling of ailments.

The Electronic Discovery Navigator asks the question, "Do You Know What's In Your Employee's Inbox?"

Finally, the Labor and Employment Law Blog reminds us of some the critical mistakes supervisors can make when dealing with employees.

Some lessons in remedying sexual harassment

Today, we finish our look at Hawkins v. Anheuser-Busch. We've already examined the opinion's recognition of a claim for coworker retaliation, and its ruling allowing the use of evidence of the serial harassment of non-plaintiffs. I want to finish by discussing what Anheuser-Busch did wrong and what it did right in responding to the various harassment complaints it received about Robinson, and draw some general conclusions on what is and is not an appropriate remedial response.

Before getting into the specifics of the case, it is helpful to review the standard for an employer's liability for coworker harassment. In a coworker harassment case, the employer is not vicariously liable for the acts of harassment, as it would be if the harasser is a manager or supervisor. Instead, an employer's liability for coworker harassment hinges on the reasonableness of the employer's own acts or omissions in responding to and remedying the harassment. An employer's response is unreasonable if it manifests indifference or unreasonableness in light of the facts that the employer knew or should have known. Conversely, an employer's response is adequate if it is reasonably calculated to end the harassment.

As the Court points out, merely having a harassment policy is not enough to shield an employer from liability:

The best anti-discrimination policy in the world will not help the employer who, rather than fulfill its duty to act on complaints about a serial harasser, lets the known harasser continue to injure new victims. Because Robinson was a known serial harasser, the brewery is liable its its response to Cunningham's or Hill's complaints demonstrates an attitude of permissiveness and was not reasonably calculated to end Robinson's pattern of harassment.

Armed with complaints of harassment by Cunningham and Hill against Robinson, coupled with the complaints by other employees, let's first look at what the brewery did wrong in responding to the harassment:

• It removed the complainants from their line without undertaking any additional, fundamental remedial action, such as training, warning, or monitoring Robinson. Merely separating the complaining party from the harasser is not enough; instead, the company has to proactively take additional steps reasonably calculated to prevent and end the pattern of harassment.
• It failed to counsel Robinson upon its first notice of a problem. Such counseling should have included the nature of the inappropriate behavior, a reminder of the company's prohibition against sexual harassment, and a warning that the company would not tolerate any future harassment or retaliation and that future harassment would result in discipline up to and including termination.
• It failed to implement any additional checks to prevent future harassment, such as monitoring the harasser for future non-compliance, checking in with the victims to ensure that they was no longer being bothered, and additional follow-up counseling with the harasser.
• It failed to reopen the investigation into Hill's complaint after it received information that witnesses were chilled from talking out of fear of Robinson.

The Court pointed out the "marked difference" in the brewery's handling of complaints against Robinson by 2 other employees 3 years after Cunningham's and Hill's complaints. In response to these later complaints, it promptly launched an investigation, suspended Robinson, and fired him. Given this prompt and effective remedial action, Anheuser-Busch was insulated from liability from the 2 later complaints.

So, at the end the day, what do we take away from the various pieces and parts of the Hawkins case. Perhaps it's best just to use the Court's own words:

The remedies of Title VII would be rendered impotent if employers dealing with serial harrassers were allowed to throw up their hands after their first effort to deal with the harrasser proved unsuccessful. A company faced with a pattern of harassment must both respond appropriately and take increasingly effective steps designed to end the harassment. The failure to do so suggests indifference and permissiveness on the part of management.

The existence of a serial harasser suggests a problem that goes deeper and is more systemic than merely one harasser and the specific victims. It suggests that something simply is not working in how a business is addressing workplace harassment and retaliation. An employee like Robinson should serve as a signal to a company that it needs to scrap its entire harassment protocols and rebuild them from the ground up. That rebuilding should start with the harassment policy and comprehensive re-training. The goal, however, must be to change the way a company, its manager and supervisors, and its employees think about harassment, both in their attitudes towards it and the collective effort to eliminate it from the workplace.

Supreme Court permits ERISA claim based on 401(k) losses

In a significant decision, the Supreme Court has decided that ERISA permits an employee to sue the plan fiduciary (often the employer) because of a fiduciary breach that resulted in individual losses to a 401(k) plan. In our unstable economy, this decision is bad news for employers and a boon for the plaintiffs' bar, as employees have the green light to sue for losses to their retirement accounts, even if they directed the accounts.

As for analysis, I'll leave the heavy lifting to others:

• SCOTUS Wiki, which has a summary of the case.
• SCOTUS Blog, which has a copy of the opinion.
• Workplace Prof Blog, for some analsysis.
• John Phillips' Word on Employment Law, for some more analysis.

A couple of carnivals for everyone

Blawg Review #147 is available at Rush on Business, a friend of this blog that focuses on Iowa employment and business law. Blawg Reivew, for the unfamiliar, is a weekly review of the best law blog posts, hosted by a rotating cast of legal bloggers. Mark your calendars, as I'll be hosting Blawg Review #172 on August 11.

Meanwhile, HR Thoughts has this week's Carnival OF HR, highlighting various employment law and HR-related blog posts from the past 2 weeks.

Evidence of "serial harassment" permitted in sex harassment claim

Yesterday we looked at Hawkins v. Anheuser-Busch's ruling on coworker retaliation. (See 6th Circuit recognizes claim for coworker retaliation). Today, we'll examine another aspect of this opinion, the issue of whether a harassment plaintiff can rely on evidence of the earlier harassment of others by the same coworker. Before we examine the specific issue, it's helpful to look at some additional facts specific to the harassment claims.
Anheuser-Busch first received a complaint of harassment concerning Bill Robinson in 1993. At that time, Diana Chiandet (not a plaintiff in the lawsuit), who worked on the same line as Robinson, complained that she had received 3 harassing and threatening anonymous notes. The notes included gems such as, "If you want something Hot and Hard call me.... They call me Mr. Big Daddy," and "I think it's about time we got together so we can have a good time all nite [sic] long. I no [sic] you like it long and Hard. And I have tools to do that all nite [sic] thing. P.S. Don't worry I will make real good to you. I no [sic] what you like PAIN." Shortly after Chiandet complained her car was sideswiped at work. A handwriting expert confirmed that Robinson was the author of the notes, a fact he also admitted. The brewery terminated his employment, but he was reinstated following a union grievance.
Jackie Cunningham, one of the plaintiffs, first complained about Robinson in 1999. Her allegations included:

1. During a training session in 1999, Robinson sang a rap song to her with the lyrics: "Baby, won’t you back that thing up," and then held money in his hand and said: "Is that what it's gonna take?"
2. Robinson tried to put his hand on her shoulder, but she moved away.
3. Robinson said: "I will suck your p***y but you got to suck my d**k."
4. Robinson caressed her back and she responded by screaming at him: "Don't touch me."
5. Robinson told her to come over to his vehicle at work and, when she refused, he chased her around and tried to grab her as she ran away.
6. Robinson asked her: "Why don't you just suck my d**k?"
7. Robinson told Cunningham that he was getting rid of his girlfriend, and asked her: "Why don't you just make up your mind?" while trying "to feel on her."
8. Robinson would harass her "on and off" and would "push on and on."

Cunningham repeatedly complained to her supervisor and was ultimately transferred to a different line.
Cherri Hill starting working on the same line as Robinson in January 2000, and alleged that Robinson began harassing her that November. Her allegations included:

1. Robinson touched her arms, rubbed her shoulders, and walked up close behind her, all while making "lewd and explicit" comments.
2. When Hill asked Robinson to stop, he said that he knew she "liked it" and that he "wanted to have sex" with her.
3. Robinson would walk close to her, touch her behind, and that on one occasion he rubbed against her with "his private area" and grabbed her around the waist.
4. On three or four occasions Robinson told her "she had big breasts" and a "big butt."
5. On another occasion, Robinson told her "he wanted to f**k" her and said, "I bet you have some good p***y and I know that you would like this. You should let me take you away from your boyfriend."
6. Robinson generally made lewd and sexual comments "all the time."

Recall that Hill complained to management and her car was set on fire. The brewery conducted an investigation and concluded that "Robinson did behave in a sexually inappropriate manner with both Cherri Hill and Jackie Cunningham." Remarkably, however, the brewery did not discipline Robinson. Instead, it sent Hill and Cunningham each a letter stating that their allegations were unsubstantiated, that corporate policy prohibited retaliation, and that each could contact management with any questions.
In support of their harassment claims, Cunningham and Hill each sought to rely on evidence of Robinson's earlier harassment of Diana Chiandet. Despite its remoteness in time (6 or 7 years), the Court permitted reliance on the earlier harassment as evidence of Cunningham's and Hill's hostile environment:

When determining the relative weight to assign similar past acts of harassment, the factfinder may consider factors such as the severity and prevalence of the similar acts of harassment, whether the similar acts have been clearly established or are mere conjecture, and the proximity in time of the similar acts to the harassment alleged by the plaintiff.
The degree to which a past act of harassment is relevant to the determination of whether a plaintiff's work environment is hostile is a fact-specific inquiry that requires courts to determine the relevancy of past acts on a case-by-case basis. In general, however, the appropriate weight to be given a prior act will be directly proportional to the act's proximity in time to the harassment at issue in the plaintiff's case. The further back in time the prior act occurred, in other words, the weaker the inference that the act bears a relationship to the current working environment. On the other hand, more weight should be given to acts committed by a serial harrasser if the plaintiff knows that the same individual committed offending acts in the past. This is because a serial harrasser left free to harass again leaves the impression that acts of harassment are tolerated at the workplace and supports a plaintiff's claim that the workplace is both objectively and subjectively hostile.

Both Cunningham and Hill testified at deposition that they had heard about Robinson's prior harassment of Chiandet. The Court permitted the evidence because it gave credence to the plaintiffs' claim that Robinson was a serial harasser who regularly intimidated women at work. While Chiandet's incidents were remote in time, they were entitled to some proportional consideration because of their similarity.
I have serious reservations about the relevance of harassment suffered by a different employee 7 years prior to the at-issue harassment. For one thing, even under Ohio's generous 6-year statute of limitations, Chiandet's ability to file a lawsuit had run out. More to the point though, neither Cunningham nor Hill were even employed at the brewery when the harassment of Chiandet occurred. Nevertheless, the Court permitted the evidence to be considered because the plaintiffs had heard about the harassment, and could process that second-hand information to reach subjective conclusions about the hostility of the work environment. Employers, however, are entitled to some degree of certainty, and it is unreasonable to dredge up 7-year-old allegations that were already investigated, and for which the harasser had already been terminated and reinstated per his labor union. That unreasonableness is magnified by the fact that neither plaintiff was even employed while Chiandet was being harassed.
This case exemplifies the expression "bad facts make bad law." The allegations of harassment were so outrageous, and Anheuser-Busch's lack of response so negligent, that the Court was looking for anything to support its decision. Now, however, companies are faced with the prospect of never being to close the book on old allegations of harassment, as plaintiffs will be able to reach back in time to recycle stale claims into
Tomorrow, we'll finish up our look at Hawkins v. Anheuser-Busch and glean some lessons from the brewery's response and lack of response to the various harassment complaints.

6th Circuit recognizes claim for coworker retaliation

Employment discrimination laws prohibit retaliation against an employee who engages in protected activity. What happens, though, when it is not a manager or supervisor who is retaliating against an employee, but a coworker? For example, can an employer be held liable when a non-supervisory or non-managerial employee against whom a complaint of harassment or discrimination been lodged undertakes a plan to take revenge on the complaining party?

In Hawkins v. Anheuser-Busch, Inc., the 6th Circuit determined that "in appropriate circumstances, Title VII permits claims against an employer for coworker retaliation." To determine whether such "appropriate circumstances" exist to hold a company is liable for an employee's retaliation against a coworker, courts must determine if:

1. the coworker's retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination;
2. supervisors or members of management have actual or constructive knowledge of the coworkers' retaliatory behavior; and
3. supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation, or have responded to the plaintiff's complaints so inadequately that the response manifests indifference or unreasonableness under the circumstances.

The facts that pertain to Cherri Hill's retaliation claim are pretty outrageous. Bill Robinson frequently harassed many of his female coworkers with lewd, graphic, and often threatening language. After Hill reported that Robinson had harassed her, her car was set on fire. Following the close of its investigation into Hill's allegations, Anheuser-Busch corporate headquarters received an anonymous letter criticizing the investigation. The letter stated that "fellow employees on the line are intimidated from telling the truth because they are well aware of what [Robinson] is capable," and that employees were "afraid to get involved" because "bad things" happened to women who made accusations against Robinson. The letter recounted specific allegations of violence against women at the brewery, including Hill's car fire, that Robinson had threatened to "kill that Bitch" (meaning Hill) if he lost his job, and that the tires of another employee's car were slashed after she threatened to report Robinson for harassment. The letter also stated that Robinson had bragged that he had slashed the tires to "repay the woman for telling on him," and that it was "this type of retribution" that "keeps people from speaking out" against him.

In response, the brewery did nothing. It took no action against Robinson, did not reopen the investigation to interview additional employees, did not warn Hill, and did not set up a confidential way for employees to report harassment by Robinson. In fact, Robinson remained employed for another 3 years, until he was terminated for harassing another employee.

The 6th Circuit held that Hill's case presented appropriate circumstances for permitting her coworker retaliation claim to proceed. Anheuser-Busch management knew of the allegation that Robinson had set fire to Hill's car in retaliation for her complaint and that he had threatened to kill Hill if he lost his job. The Court found that "Robinson's threatening behavior and violent acts of retaliation were common knowledge to both coworkers and supervisors at the brewery," and that "Hill's allegations might ... have been substantiated by a more complete investigation."

The Court detailed Anheuser-Busch's failure in responding to Hill's complaint of retaliation:

Anheuser-Busch ... failed to show that it responded to Hill's complaint of retaliation in any meaningful way. The two members of management to whom Hill reported the fire ... allegedly not only failed to investigate Hill's allegation that Robinson had retaliated against her, but chided her for attempting to make a report. The brewery never bothered to investigate the incident, monitor Robinson, or create a safe environment for harassment complaints. A jury could find that, given what management knew about the fire, the brewery had an obligation to investigate the incident.... [T]he brewery never bothered to investigate Hill's allegation that Robinson was continuing to harass her in retaliation for her report. The serious nature of Hill's allegation could lead a jury to find that failing to investigate the incident and issuing a letter solely to Hill, as opposed to Robinson, was an insufficient response.

There are, therefore, sufficient facts in the record upon which a jury could find that Anheuser-Busch's failure to investigate the complaint of Robinson’s violent act of retaliation was both indifferent and unreasonable.

The lesson for businesses is an important one. A company cannot turn a blind eye to employee complaints, whether of harassment or retaliation, and expect to get a pass from a court. Burlington Northern made clear that any act that would "dissuade a reasonable worker from making or supporting a charge of discrimination" is considered adverse and therefore actionable as retaliation. Employers must be mindful not only of harassment complaints, but also retaliation complaints. One would be hard-pressed to argue that arson would not "dissuade a reasonable worker from making or supporting a charge of discrimination." Armed with information of Robinson's culpability for the fire, among other things, the brewery simply could not sit on its hands and do nothing. As long as courts make an honest assessment of whether a particular case presents the "appropriate circumstances" to hold an employer liable for retaliation by a coworker, this rule makes sense.

Later this week, I'll take a look at the other aspects of the Hawkins decision -- whether other acts of harassment unrelated to the plaintiff are relevant to a harassment claim, and the appropriateness of an employer's response to an internal harassment complaint.

Postal worker illustrates problem of employee jury duty fraud

Because it's illegal to fire an employee who misses work for jury duty, companies may be more lax in their examination of jury summonses as excuses for employee absences. As this article from February 14th's Washington Post illustrates, companies should not necessarily accept employees at their word, and when circumstances suggest, dig a little deeper to determine whether that employee is legitimately excused from work.

Neither wind nor rain nor even ice storms kept Joseph S. Winstead from doing his job as a mail processor for the U.S. Postal Service in Washington. But pretending that he was serving on a jury sure did.

Winstead spent 144 days goofing off from his work at the Brentwood mail processing plant -- by telling his boss that the rigors of jury service prevented him from sorting the mail. Over the course of Winstead's hoax, from fall 2003 to fall 2004, court papers show, the Southeast Washington resident collected $31,000 in pay from the U.S. government that he didn't earn.

He listened to months of evidence in a trial of an alleged drug gang. But there were days when the court was in recess, and the jury did not meet -- and Winstead never reported to the Postal Service, which was picking up his salary.

Winstead didn't stay on the jury long enough to render a verdict, getting excused just before deliberations started in April 2004. Even though he no longer was going to court, Winstead continued for months to pretend that he was still serving on that jury, drawing his federal salary, prosecutors said.

And he might have gotten away with it, court papers show -- if he hadn't decided to repeat the scam.

In April 2006, Winstead got another summons and once again he wound up on a federal jury at the courthouse in Washington. This time, he submitted paperwork to his bosses showing he had been serving for 40 days when he really worked a fraction of that time.... Winstead confessed that he fabricated courthouse paperwork and sent it to his supervisor....

But the record ... shows that fooling his employer with fabricated paperwork wasn't that hard.

Jurors who are government employees are entitled to be paid their full salary when they are summoned to court and selected to serve on a jury. Clerks in the federal courthouse provide each juror with signed attendance sheets showing the days they have reported for duty in the courthouse. On some forms, the dates are printed out, on others they are handwritten.

For his troubles, Winstead pleaded guilty to a federal fraud indictment, will serve 8 to 14 months in a federal prison, and must repay $38,923.95 in ill-gotten wages. I'm guessing the Postal Service will not be holding his job for him while he's in prison.

What's troubling from Winstead's tale is just how easy it was for him to fabricate his paperwork. I've had the pleasure of serving jury duty in Cuyahoga County, and the documentation of your service consists of the original summons, and a (not so) fancy certificate you are given at the end of your service to document your time served. There is nothing, however, that documents what specific days or hours one was actually in attendance. It's a pretty scary prospect, especially for the 76% of employers (according to the Bureau of Labor Statistics) who provide paid jury duty leave for their full-time employees. Is it really a big problem that employees are stealing time from their employers when they are supposed to be serving jury duty? My sense is probably not. At the same time, however, there is often real workplace tension caused by an employee's right to serve jury duty without fear of termination or retaliation. Winstead took advantage of that tension, and it is incumbent on employers to ferret out those employees who are trying to game the system to ensure fairness for everyone else.

[Hat tip: ABA Journal]