Monday, June 20, 2011

LensCrafters Settles "Reverse" Sexual Harassment Case for $192,500

In a case highlighting the emerging trend of female-on-male sexual harassment in the workplace ("reverse" sexual harassment), the largest optical chain in the country, LensCrafters, has settled a case filed by one of its former employees, William Sheard, for $192, 500. The suit was filed on behalf of Sheard by the Equal Employment Opportunity Commission (EEOC) and claimed Sheard fended off repeated come-ons from colleague Melissa Brandt in a LensCrafters store in Saginaw, Mich., and alleged that management ignored Sheard's complaints because he was a man being harassed by a woman.

From The Huffington Post article on the settlement:

According to the suit, Sheard started working at LensCrafters in 1998. In 2006, Brandt told him she wanted to have a relationship with him that was "more than platonic." Sheard declined. From then on, Brandt would reference sex acts in front of Sheard, talk openly about his body, touch and grab his chest and backside and tell him she loved him and wanted to have sex with him, the suit claimed.

At a holiday party in 2008, Brandt allegedly tried to grab Sheard's crotch several times, to the point where Sheard had to leave. After repeated rejections, Brandt eventually made a sexual harassment claim against Sheard, a charge she later admitted was false, according to the lawsuit. The lawsuit alleged that LensCrafters management immediately investigated Brandt's charge while ignoring Sheard's.

"People witnessed things," Sheard said. "Nobody wanted to do anything about it."

Sheard repeatedly brought his issues to management -- at first the lab manager, and then up the company ladder -- all to no avail, he said. All told, the alleged harassment lasted for more than a year.

"I just kept taking it to higher authorities," Sheard said. "I'd take it to a supervisor, then to their supervisor, and it just kept getting overlooked. It blew up to a point that they had no choice but to try to do something about it. But at that point it was way too late."

Sheard left LensCrafters in 2008, after Brandt's father threatened him at the store due to his repeated complaints, according to court records. The EEOC took up Sheard's case and filed its suit the following year.

This suit, once again, highlights the importance of properly lodging complaints with management and HR when you feel sexually harassed as we have seen a plethora of cases dismissed when the plaintiff only first complaint through a lawsuit. Always remember that the employer has to receive a chance to remedy the harassment before a suit may be filed and stand a chance.

Union Salting Bill Reintroduced into the House

A union "salt" is an undercover union organizer and legislation, the Truth in Employment Act of 2011 (H.R. 2153), has been reintroduced into the House of Representatives by Rep. Steve King (R-IA). The legislation seeks to amend the National Labor Relations Act (NLRA) to allow employers to refuse to hire salts. Specifically, the legislation would amend Section 8(a) of the NLRA to read:

“Nothing in this subsection shall be construed as requiring an employer to employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.”

Currently, an employer cannot discriminate against a “salt” simply because of an alleged conflict of interest or due to “potential” violation of company policies. The employer does have the right to expect the salt to perform work in the normally expected manner. The extent of “salting” in use by unions is uncertain, as some salts identify their union affiliation and others do not.

Employment Case Law Update

--Rahlf v Mo-Tech Corp, Inc, 8thCir: The Court of Appeals for the Eighth Circuit upheld a district court's ruling that three employees laid off in a reduction-in-force (RIF) who were the oldest in their job group were unable to proceed with their Age Discrimination in Employment Act (ADEA) and state law claims of age discrimination because they failed to sufficiently refute as pretextual the employer's claim that the RIF was necessary due to shifting and reduced customer needs and concerns about continued profitability.
The court rejected their assertion that that the RIF was unnecessary. Although the plaintiffs pointed out that within a year after they were fired, the company hired new employees and its sales increased, the Court found that none of the employees who were subsequently hired were Class A mold-makers and the fact that the remaining mold-makers were busy and that the employer's sales increased after the employees were terminated did not support an inference that the RIF itself was pretextual. The Eight Circuit also rejected the employees’ attempt to attack the methods (objective data and subjective observations) that the employer used to determine which employees to terminate. Given the relatively small number of Class A mold-makers and management’s close involvement with daily operations, subjective knowledge of each employee’s work and skills was relevant to the ultimate termination decision, held the court, and the employer was not required to base its RIF decision on positive performance reviews. The court also rejected the employees' assertion that the employer provided inconsistent rationales for its termination decision, finding no inconsistencies in the employer's proffered reasons for their termination.

--Marin v Bloom Roofing Sys, Inc, EDMich: In a case with an unusual twist, although two Hispanic construction workers failed to set forth a winning pretext argument that their employer prevented them from developing the necessary job skills because of their race, a federal district court in Michigan, on its own accord, unearthed a prima facie case of race discrimination from the evidence they presented.
Noting that it can consider evidence from the employees’ prima facie case for pretext purposes, the court concluded a fact finder could find that the employer’s articulated reason for termination could be rebutted by the disparate treatment with respect to use of the heat welding gun. The court also considered evidence that the employees were required to do tear-downs while white workers performed more desirable installation work. Specifically, the court ruled, a fact finder could conclude that the inequality in the types of jobs given to Hispanic employees demonstrated that the company disfavored them or placed less value on their work. Accordingly, the decision to terminate the two employees may have been based on discrimination, the court concluded.

--Fields v Rainbow Rehab Ctr, Inc, EDMich: Employer's motion for summary judgment GRANTED. A Jehovah’s Witness whose employer had already accommodated his request not to work on four particular days of the week could not proceed with his Title VII claims that his employer refused to accommodate his religious beliefs when it discharged him after he failed to schedule a one-on-one training, offered to him as an accommodation for missing a staff meeting on his day off.
The employee was unable to demonstrate that the employer discharged or disciplined him for failing to comply with employment requirements that conflicted with his religious beliefs. Moreover, he did not claim that he failed to attend that training due to a conflict with his religious beliefs, but rather indicated that he was not there because he had been stuck at school with his son. Further, the court noted that the employee was not discharged simply because he failed to attend a staff meeting scheduled on one of his accommodation days. Rather, he was terminated because he did not contact his supervisor to arrange alternative one-on-one training.

--Smith v Koch Foods of Mississippi,SDMiss: Employer's motion for summary judgement DENIED. A female employee who asserted that her plant supervisor made inappropriate remarks and showed her a sexually explicit video of himself, and who was discharged after complaining to management about the supervisor's harassment as well as alleged race bias in the workplace, presented sufficient evidence to proceed with her Title VII sexual harassment and reprisal claims, a federal district court in Mississippi ruled. The record demonstrated that a triable fact issue existed as to whether the harassment affected a term, condition or privilege of her employment as well as whether the sexual harassment was sufficiently severe or pervasive. The court also ruled that, although a close question, the employee presented sufficient evidence to proceed with her claim that she was discharged in retaliation for complaining about sexual harassment and alleged race bias.

Monday, June 13, 2011

Missouri Jury Awards Woman $95 Million in Sexual Harassment Case

In perhaps a case of the worst facts I have ever read, a Missouri jury awarded a woman, Ashley Alford, $15 million in compensatory damages and $80 million in punitive damages for a grand total of $95 million--a potential record. However, a cap on damages in federal sexual harassment cases will reduce that to about $41.6 million. The facts of the incidents of sexual harassment are pretty, pretty horrific:


  • The store's then-general manager, Richard Moore, began by making inappropriate comments, nicknamed her "Trixie" and "Trix," and pinched her

  • The manager gave her clothes and chocolates, progressed to groping, and sneaked up behind her as she was sitting on the floor of the stockroom and hit her on the head with his penis in the fall of 2006.

  • On Oct. 12, 2006, the suit alleges, Moore threw Alford to the ground, lifted her shirt and masturbated over her as he held her down. He was arrested later that day and awaits trial in St. Clair County Circuit Court on a charge related to the accusation.

Not that this could get any worse, the employer also ignored Alford's sexual harassment complaints until the police intervened! STLtoday.com has the rest of the story here.

Electronic Paycard Protection Act Introduced in House

Earlier this month Rep. Joe Baca (D-CA) introduced the Electronic Paycard Protection Act (H.R. 2125) which would mandate certain disclosures to and options for employees who receive their pay electronically through payroll cards. The bill, if passed, would add a section to the Fair Labor Standards Act (FLSA) that outlines the new conditions imposed on employers that use electronic payroll cards. The bill would also seek to:

  • Allow employees to access the full amount of their wages at least once per pay period;
  • Provide employees with a mechanism to check their balance free of charge;
  • Provide employees with a written explanation of all the terms and conditions associated with the use of an electronic payroll card, including any fees associated with such a card. Employers would also be required to make these disclosures in any other manner typically used by the employer to communicate to employees;
  • Give employees the option to receive either a paper paycheck or electronic paycheck deposit instead of a paycard;
  • Disallow an electronic paycard payment of an employee’s final payment or any severance payment to an employee whose employment has been discontinued;
  • Prevent an employer from firing or failing to hire employees or applicants for refusing to use electronic paycards as their primary means of receiving wages; and
  • Ensure that any funds made available by the paycard may not expire.
  • Senator DeMint Files FOIA Request Against NLRB for Information on Boeing Complaint

    Sen. Jim DeMint (R-S.C.) last week sent a Freedom of Information Act (FOIA) request to the National Labor Relations Board (NLRB) in an effort to "bring transparency" to what DeMint says was a partisan decision by the board to sue Boeing. From "The Hill" on the FOIA request:

    DeMint is looking for evidence that the suit was a result of coordination between the NLRB and the International Association of Machinists (IAM), and believes he has found it.

    Specifically, he cited the April 2011 edition of Aero Mechanic, the newsletter of the IAM Local 751, the same local union that would benefit from the NLRB's suit against Boeing. In that edition, the group said monetary contributions "gains your Union access to officials, which is critical to get our issues addressed and ensure our input is heard."

    "Local 751 would appear to be openly engaged in a pay-to-play system of political influence," DeMint said in his letter to the NLRB. "The question is unavoidable: did Local 751’s political activities or campaign contributions 'gain [it] access to officials' at the NLRB?"

    The FOIA request can be read here.

    Sunday, June 12, 2011

    Establishing a Hostile Work Environment Claim

    One of the most common inquiries I receive and words used by potential clients involves "hostile work environments." This common inquiry always brings to surface the common misconception that "crappy" work places are actionable under a hostile work environment claim with nothing else--that is, not based upon Title VII protections, OHSA violations or labor law violations. I generally attempt to probe for any sort of protected activity and generally ask whether the potential client believes the "hostile work environment" may be based upon their belonging to a protected class and then explain what is an actionable hostile work environment.

    The Supreme Court of the United States held that in seeking to establish the existence of a hostile work environment, plaintiffs must show that their work environment was both objectively and subjec- tively offensivethat is, “one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” See Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). In determining whether an environment is sufficiently hostile to support a claim, the Supreme Court has instructed courts to cast a wide net and consider the totality of the circumstances. The circumstances include “the frequency of the discrim- inatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive ut- terance; and whether it unreasonably interferes with an employee’s work performance.” Faragher, 524 U.S. at 787- 88.

    To qualify as a hostile work environment, the conduct at issue must be severe or pervasive enough to cause psychological injury, al- though Title VII “comes into play before the harassing conduct leads to a nervous breakdown.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). In addition to showing that the environment was sufficiently serious, the plain- tiff must show that the harassment was based on mem- bership in a protected class, Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1045 (7th Cir. 2002), and also that there is a basis for imputing liability to the plaintiff’s employer. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998).


    Showing a hostile work environment is not easy and there have been many, many cases where a plaintiff is able to show deplorable conduct on the part of the employer but under the totality of the circumstances standard, the facts do not pass muster. Every case is different and it is conceivable that a single, isolated incident in the workplace may amount to a hostile work environment, but employees are always encouraged to take their concerns and complaints up with the employer first as resolving workplace issues short of litigation is always ideal.

    Wednesday, June 8, 2011

    Gov. Walker Names New Dept. of Workforce Development Secretary

    Wisconsin Governor Scott Walker announced a new Secretary of the Department of Workforce Development after his initial appointee, Manny Perez, abruptly resigned after only about five months on the job. The new secretary, Scott Baumbach, was initially named deputy secretary of the department by Walker in January. From the Journal Sentinel article on the new appointment:

    “Scott Baumbach has done a tremendous job in the Department of Workforce Development since day one, both as a deputy and interim secretary, and I know that he will continue to succeed in his new role,” Walker said in a statement.

    Baumbach, was an associate and partner at Michael Best & Friedrich LLP law firm in Milwaukee from 2001-2010, and a law clerk for Wisconsin Supreme Court Justice Diane Sykes from 2000-2001.

    Employment Case Law Update

    --Hart v Family Dental Group, 2ndCir: In affirming a district court’s grant of judgment as a matter of law on the plaintiff's Sec. 4312(A) of the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Court of Appeals for the Second Circuit held there was no reasonable basis to find a violation because the plaintiff was reinstated with the same title, pay, and employment terms upon his return from active duty in Iraq. The twist in this case takes place when the plaintiff was informed that he was being terminated 60 days after he returned to work for the defendant. The plaintiff questioned the legality of his termination so the defendant shortened the termination from 60 to 30 days, which prompted suit under USERRA. The Dept. of Labor informed the defendant that it had to employ the plaintiff for at least 180 days upon his return from active service, which it did, and once the 180 days were up it re-terminated the plaintiff. In ruling in favor of the defendant-employer the 2nd Circuit noted that USERRA only requires an employer to re-employ a member of the armed services for 180 days (unless they can terminate for cause) and that is what was done here. Nothing more is required of the employer.

    --Khufu v Jones Retail Corp, DHaw: Defendants' motion for summary judgment DENIED in part, GRANTED in part on plaintiff's race, color, age, hostile work environment, intentional infliction of emotional distress and state law claims. As is common with a lot of employment cases, this case presents an employment history marred with disciplinary actions and questionable employer conduct. This case also highlights the blunder commonly made by plaintiffs when they fail to properly check all the relevant "boxes" in EEOC complaints in order to properly exhaust administrative remedies in order to file suit in federal court.

    In claiming race discrimination under Title VII the plaintiff relied upon the Supreme Court's recent cat's paw decision in Staub v. Proctor Hosp.. While the court acknowledged that the plaintiff was terminated for violating certain policies, the court held it could not ignore the other evidence presented on behalf of the plaintiff pertaining to the alleged discriminatory conduct of his immediate supervisor which also factored into the decision to terminate in denying the employer's motion for summary judgment on the Title VII claim.

    --Magnussen v Casey’s Mktg Co dba Casey’s Gen Store, NDIowa: Employer's motion for summary judgment GRANTED. Plaintiff has a temporary and sporadic back problem that left her unable to stand for long periods of time was held not disabled under the ADA (prior to ADAAA amendment) or state law, nor was she qualified for her position, held the Iowa district court. The court also held that even had the plaintiff been a qualified individual with a disability, it was she and not the employer who was responsible for the breakdown of the interactive process, and therefore, her failure to accommodate claim could not proceed.

    --Winterhalter v Dykhuis Farms, Inc, WDMich: Employer's motion for summary judgment GRANTED on employee's Family and Medical Leave Act (FMLA) claims. The court held that the termination of the plaintiff on the day he returned from FMLA leave occurred during a broader reduction in force (RIF) and was based on objective criteria of poor work performance and a high salary not because of the FMLA leave.

    Tuesday, June 7, 2011

    Expert Economic Study Reveals Raising Minimum Wage Would Help Economy

    A group of economists for the Center for American Progress (CAP) revealed the results of 15 years' worth of research and concluded that raising the federal and state minimum wages across the country would boost the stagnant economy and improve the standard of living among low-wage earners. From The Huffington Post article on the study:

    Michael Reich, an economics professor and director of the Institute for Research on Labor and Employment at the University of California, Berkeley, said his research has shown that businesses don't suffer from having to dish out slightly higher wages to their lowest-paid employees. In fact, he argued there are benefits to employers.

    "The labor market absorbs the minimum wage," said Reich. "Turnover goes way down when there's a minimum-wage increase. Employees -- when they stay longer, they'll be more experienced and more productive. And the employers will have lower turnover costs."

    The economists made their argument at a time when the American economy remains stubbornly sluggish. On Friday, the federal government released a disappointing report showing that the economy hasn't been adding jobs at the pace it needs to for a robust recovery. The unemployment rate has risen to 9.1 percent, and many experts believe it will be several years before it drops to pre-recession levels. Many of the jobs being added also happen to be lower-wage positions.

    The current federal minimum wage is $7.25, or about $15,000 a year for a full-time worker. The minimum wage had been stuck at $5.15 for over 10 years until 2007, when a series of increases were put into effect. Seventeen states currently have a minimum wage set higher than the federal standard, and a number of states are considering giving their lowest-paid workers another raise.

    The economists arguing for a minimum-wage boost compared it to stimulus action, saying that it pumps money into local economies and can even lead to job growth. Such an increase is like food stamps or unemployment benefits in that the recipients, who tend to be low-wage workers and their family members, usually have to spend the money rather than sock it away.