Employment Case Law Update

--Hardy v PSI Family Servs, Inc, MDFla: female African-American employee who alleged that she suffered harassment and was wrongfully terminated by her employer was compelled to arbitrate her claims under the provisions of an employment agreement, despite the fact that she had received a right-to-sue letter from the EEOC. While the employment agreement provision’s language states that an aggrieved employee may seek “relief” from the EEOC, it also requires that all claims “under federal, state, or local civil rights law” be arbitrated. As a consequence, the court granted the employer’s motion that this action be stayed until completion of arbitration under the agreement.

--Hughes v The Home Depot, Inc, DNJ: After being subjected to threats of violence and verbal abuse, a Home Depot employee who described herself as “intersexed” or a “partial hermaphrodite” proffered sufficient evidence to defeat the home improvement store’s summary judgment motion on her hostile work environment sexual harassment claim. She was hired by Home Depot and soon began hearing “whispers and rumors” around the store that she was a man and that male customers were making threats toward her. The employee complained to a human resources manager, who investigated and prepared a report indicating that the store manager was not cooperative, that despite her direction, he was not taking the HR manager’s advice seriously—a particular concern because other employees would emulate the store manager’s actions. After several additional incidents, the HR manager recommended that the perpetrators be disciplined and the employee transferred, but her recommendations were not adopted. When the store manager departed, the employee told her new manager about the harassment. After another incident at the store, the employee again complained to human resources, but an HR manager suggested that the employee may have brought the problems on herself by telling people her “business.” When the employee was terminated, allegedly for violating Home Depot’s attendance policies, she brought suit under New Jersey’s Law Against Discrimination, alleging harassment and retaliation.

--EEOC v Genesco, Inc, DNM: A shoe retailer that was a defendant in an EEOC sexual harassment suit successfully defended itself against an employee-intervenor’s tort claims arising out of allegations that she was assaulted by her supervisor. Concluding that the supervisor’s alleged tortious conduct was not carried out as part of the employer’s business, a federal district court in New Mexico granted partial summary judgment to the employer, rejecting the employee’s contention that the employer was liable based on a respondeat superior theory. The court also granted summary judgment to the employer on the employee-intervenor’s claim for negligent infliction of emotional distress.

---Krause v Merrill Lynch, Pierce, Fenner, & Smith, Inc, SDNY: Merrill Lynch could not be held liable under Title VII after an employee was allegedly sexually assaulted by a coworker off premises at a nonwork-related off-duty event that she attended. Although the employee alleged additional hostile work environment incidents, those incidents were isolated, and none were sufficiently severe as to warrant liability against Merrill Lynch, the court ruled in granting summary judgment to the employer.