Home Posts tagged Discrimination
Opinion

Opinion

By Mark Adams

 

Employers have an obligation to maintain a workplace free from unlawful harassment and discrimination. When it comes to the pillars and strategies for achieving this outcome, many focus upon their efforts and resources on training their management and employees. Others focus on promoting and reinforcing positive behaviors and conduct in support of their values and culture to pull their workforce together, foster greater employee engagement, and thereby collectively root out such inappropriate and unlawful conduct. Most, if not all, enforce existing policies or practices for compliance and employee-relations purposes.

Yet despite the myriad paths to take (whether individually or concurrently), one tool that is critical towards supporting all of them is the need to conduct effective and thorough investigations.

Internal investigations are a powerful tool. Done effectively, they can help mitigate and control the risk that an organization may face when a dispute or complaint surfaces. Is termination warranted? Some other form of discipline? Or no discipline at all? A thorough and objective investigation can provide the foundation and backbone to justify whatever action management chooses to take in response to a situation, especially if challenged by others or by opposing legal counsel (if litigation later ensues).

Investigations can also serve as a deterrent against inappropriate conduct occurring in the workplace in the first place. While some perpetrators will succumb to the temptation of engaging in bad conduct when they are not being supervised or when they feel management will not be able to get to the bottom of it, they may think twice or not do something at all when management has a reputation of taking complaints seriously and conducting investigations thoroughly.

Then there is the engagement benefit that comes with investigations. Employees often feel disengaged if they feel they don’t have a voice in the workplace when their concerns are ignored or are not addressed. Such disengagement can have severe consequences for a company. It can lead to lost productivity and turnover, and when it involves questions of illegal conduct, it can also lead to employees going elsewhere to air their concerns (such as by filing a complaint with a state or federal anti-discrimination agency or going to court).

By contrast, employers who conduct investigations in a timely, thorough, and objective manner can engender trust and credibility among their employees, and with that gained trust, employees are more likely than not to utilize an employer’s internal complaint- and problem-resolution procedures rather than going outside the organization.

Employers who ignore conducting them altogether do so at their peril. In an opinion handed down by the U.S. Court of Appeals for the Second Circuit, the court described the failure to investigate a sexual harassment complaint as follows: “an employer’s investigation of a sexual-harassment complaint is not a gratuitous or optional undertaking; under federal law, an employer’s failure to investigate may allow a jury to impose liability on the employer” (Malik v. Carrier Corp.).

So, do you have a plan for how internal investigations are to be conducted? Will it be by someone from inside the organization? If so, are they trained on how to conduct workplace investigations? Will you use an outside resource to conduct them on your behalf? Or will you evaluate which path to take on a case-by-case basis? For employers, it is important to have answers to these questions and have either the internal or external resources in place to be able to respond promptly. Failing to do so can lead to delay or inaction altogether, which can create greater risk.

 

Mark Adams, director of Compliance for the Employers Assoc. of the NorthEast, leads EANE’s HR Services Team. This article first appeared on the EANE blog; eane.org

 

Employment

Case in Point

By Trevor R. Brice

 

All discrimination lawsuits strike fear into the hearts of employers, but perhaps none more so than complaints alleging sexual harassment.

In addition to damaging company image, these lawsuits also involve investigations into uncomfortable and hidden aspects of employees’ lives. These lawsuits can also lead to big damages. It is not uncommon for juries to award harassment victims with six or even seven figures in damages.

Businesses often ask: ‘How can we guard against this risk?’ First and foremost, it involves creating an inclusive workplace culture that stresses respect and dignity, for which effective training and appropriate employee discipline are the keys. However, when things go wrong, prompt and thorough investigations can put an employer back on track. They can also save a business from liability if the investigation is conducted in an adequate manner.

“Sexual harassment and assault claims in Massachusetts are particularly thorny for employers, as Massachusetts courts have shown a tendency to allow a lowered standard for Plaintiffs to win on sexual harassment or sexual assault complaints.”

In a recent ruling that highlights the importance of workplace investigations, the United States District Court for the District of Massachusetts considered the case of Sara Caruso v. Delta Airlines Inc. The Plaintiff Sara Caruso (“Caruso”) was a flight attendant for Delta based out of Boston. In August 2018, Caruso served as a flight attendant on a flight from Boston to Dallas on which James Lucas (“Lucas”) was working as first officer. The flight crew, including Caruso and Lucas, stayed overnight at a hotel in Dallas after going out for dinner and drinks. At some point after dinner, Caruso became intoxicated, and subsequently she and Lucas engaged in various sexual acts. Caruso had no recollection of the incident.

The next morning, when Caruso arrived for work late, she apparently was suspected of still being drunk. She was given a breathalyzer test at the airport, which she failed, and was subsequently suspended. The next day, during her suspension, Caruso notified her supervisor about what happened with Lucas. When Caruso reported this, Delta’s Human Resources department immediately started an investigation, which included obtaining statements from all of Caruso’s colleagues, including Lucas, that had socialized with her on the night in question.

Delta also attempted to obtain the key card swipe record and video footage from that night, which the hotel would not release. Delta also interviewed Lucas twice. Lucas stated he and Caruso engaged in consensual touching but did not have intercourse. Lucas was found to be credible and was not disciplined. Caruso later filed a lawsuit claiming sexual harassment.

The court eventually dismissed Caruso’s lawsuit. This was largely due to the fact that Delta went above and beyond to investigate Caruso’s claims, including interviewing Lucas twice, interviewing all Delta employees that socialized with Caruso on the night in question, and attempting to secure the key card swipe record and video footage from the hotel within days of Caruso’s allegations.

Delta followed all investigatory steps that they could, even exhausting its investigation at the hotel when it could not get the video footage and card swipe record. It was these remedial actions that saved Delta from liability, as no negligence could be found in Delta’s investigation. This led the court to grant summary judgment for Delta on Caruso’s sex discrimination claims.

 

Takeaways

The Caruso case shows that Massachusetts employers can shield themselves even against the most serious of co-worker sexual assault allegations by conducting thorough investigations once a complaint is made. Sexual harassment and assault claims in Massachusetts are particularly thorny for employers, as Massachusetts courts have shown a tendency to allow a lowered standard for Plaintiffs to win on sexual harassment or sexual assault complaints. Indeed, liability for supervisory sexual harassment is almost automatic. The ruling stresses the importance of interviewing all possible witnesses to an assault, as well as gathering all evidence to the complained of sexual conduct if possible. This type of prompt response to an employee’s complaint of co-worker sexual harassment or assault can reduce an employer’s amount of exposure to these types of claims.

 

Trevor Brice, Esq. is an associate with Springfield-based Skoler, Abbott, P.C. He has regularly advised and represented clients in state and federal courts, as well as at the Equal Employment Opportunity Commission (EEOC), the Massachusetts Commission Against Discrimination (MCAD), the Connecticut Commission on Human Rights and Opportunities (CHRO), and other state agencies; [email protected]

Law

A Landmark Ruling

By Amelia J. Holstrom, Esq. and Erica E. Flores, Esq.

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

Erica E. Flores

Erica E. Flores

Businesses in Massachusetts have to comply with both state and federal anti-discrimination laws that prohibit discrimination in employment based on what are referred to as protected characteristics. Some examples that people commonly think of are sex, age, and religion, but there are many more.

Massachusetts’ anti-discrimination laws have prohibited employment discrimination on the basis of sexual orientation since 1990 and gender identity and expression since 2012. However, many other states either don’t have employment-discrimination laws at all or don’t include sexual orientation or gender identity as protected characteristics under the laws they do have. So what about the federal law?

Title VII of the Civil Rights Acts of 1964 prohibits discrimination in employment based on specified protected classes. That statute, however, does not list sexual orientation or gender identity in its list of protected characteristics. Although Title VII prohibits discrimination on the basis of ‘sex,’ because it did not expressly list sexual orientation and gender identity as protected classes, federal courts had been left to grapple with whether discrimination on the basis of either of those characteristics is prohibited as a form of sex discrimination under Title VII. That is, until the Supreme Court of the U.S. issued its ruling in Bostock v. Clayton County, Georgia on June 15, 2020.

In a landmark ruling, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity. The court’s decision resolved three separate but similar cases pending before the Supreme Court: Bostock v. Clayton County, Georgia; Altitude Express Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC.

Each of the three cases began the same way: Gerald Bostock worked for Clayton County, Ga. and was terminated for conduct “unbecoming” of a county employee when he began to participate in a gay softball league. Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After mentioning that he was gay, he was terminated just days later after several years of successful employment. Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Garden City, Mich. When hired, Stephens presented as a male. After five years of employment, she informed her employer that, after she returned from an upcoming vacation, she planned to “live and work full-time as a woman.” She was fired before she even left.

Bostock, Zarda, and Stephens each filed a lawsuit against their employer alleging that they were discriminated against on the basis of their sex in violation of Title VII. Bostock’s case was dismissed by the Eleventh Circuit Court of Appeals, which held that sexual-orientation discrimination is not a form of sex discrimination under Title VII. Zarda and Stephens’ cases had a different outcome. The Second and Sixth Circuit Courts of Appeals found that discrimination based on sexual orientation and gender identity, respectively, are prohibited under Title VII as forms of discrimination based on sex.

“An employer has two employees — one female and one male — both of whom are attracted to men. If the employer fires the male employee because he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

The Supreme Court of the U.S. agreed to review all three decisions to resolve the issue that had divided the lower courts: whether discrimination on the basis of sexual orientation and/or gender identity is prohibited under Title VII as a form of discrimination based on sex. The Supreme Court answered in the affirmative.

In the 6-3 majority opinion, which was authored by Justice Neil Gorsuch, the court focused on the ordinary meaning of the language used by Congress in Title VII at the time the law was passed back in 1964. Specifically, Title VII states that it is “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.” The court noted that, in 1964, ‘sex’ was defined as one’s “status as either male or female [as] determined by reproductive biology; that the statute uses the term ‘because of’ that status to define when an action is discriminatory; and that it focuses on discrimination against an individual, not a group.

Based on this language, the court found that, under the plain meaning of Title VII, “an individual’s homosexuality or transgender status is not relevant to employment decisions … because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The court went on to explain its reasoning using two examples:

• An employer has two employees — one female and one male — both of whom are attracted to men. If the employer fires the male employee because he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Accordingly, he was singled out based on his sex, and his sex is the reason for the discharge.

• An employer employs a transgender employee who was identified as a male at birth but who now identifies as a female. If the employer continued to employ someone who identified as female at birth but terminated the individual who identified as male at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.

The court agreed that sexual orientation and gender identity are, in fact, distinct concepts from sex. However, the court determined that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

With this landmark decision, every employer that is covered by Title VII anywhere in the country will now be subject to the same prohibitions that have protected LGBTQ+ employees in Massachusetts for the last eight years, and will be subject to civil penalties and civil liability under Title VII for discriminating against employees on the basis of their sexual orientation or gender identity. This includes every private employer and every state or local government agency that has 15 or more employees.

Amelia J. Holstrom and Erica E. Flores are attorneys at the firm Skoler, Abbott & Presser, P.C., in Springfield; (413) 737-4753; [email protected]; [email protected]

Law

A Disturbing Trend

By Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

The #MeToo movement exploded back in 2017. With #MeToo in the news almost a daily, women everywhere became more comfortable coming forward and reporting harassment and telling their stories.

As a result, women felt empowered, but has sharing their stories hurt them in other ways? According to a recent survey conducted by LeanIn.org, the answer to that question might be yes.

Over the past two years, LeanIn.org — an organization dedicated to helping women come together and achieve their goals — conducted surveys to gain an understanding of what individuals are experiencing at work. One of the surveys revealed that, in the post-#MeToo world, women may be receiving less support at work from male managers and may be hindered in their ability to seek career advancement.

The survey, titled “Working Relationships in the #MeToo Era,” suggested that 60% of male managers reported they were not comfortable participating in common work activities — mentoring, working alone, or socializing — with women.

To put that into perspective, according to LeanIn.org, that percentage was only 32% just a year ago. The survey also noted that senior-level men were 12 times “more likely to hesitate to have one-on-one meetings” with junior female employees, nine times “more likely to hesitate to travel [with junior female employees] for work,” and six times “more likely to hesitate to have work dinners” with junior female employees. According to the survey results, 36% of men said they avoided mentoring or socializing with women because they were concerned about how it might look.

Worrisome Results for Employers

The results suggest that #MeToo may actually lead to more gender discrimination in the workplace. If male members of management distance themselves from mentoring, working alone with, and socializing with women, they might be creating legal liability for their employer because they are giving women less opportunity to advance and succeed with the organization.

For example, while work performance is always a factor in decisions regarding promotions, skills learned through mentoring and workplace connections and relationships also play an important role. If a female employee is denied a promotion due her lack of mentorship and/or workplace connections and relationships, and she did not have access to those things like her male colleagues did simply because of her gender, the employer could be subject to a gender-discrimination lawsuit.

The survey did contain some good news for employers: 70% of employees, compared to 46% in 2018, reported that their company was doing more to address sexual harassment. The increase in this statistic is likely because more employers are conducting annual sexual-harassment training in the post-#MeToo world. Unfortunately, the remainder of the survey results suggest that training alone is not enough.

Proactive Steps

Employers should continue to address harassment in the workplace through their anti-harassment policies and by conducting annual anti-harassment training, but they also need to do more to educate employees regarding other forms of discrimination.

First, employers should have an equal-employment-opportunity policy that clearly outlines that discrimination based on gender or any other characteristic protected by law is expressly prohibited. The policy should also outline how an employee may file an internal complaint of discrimination at the workplace.

Second, employers should add annual anti-discrimination training to their training agenda. Implementing effective training will demonstrate that you care about the issue and are taking it seriously, which could help you defend against a lawsuit if an employee decides to bring one.

Finally, employers should remember that gender discrimination doesn’t just arise in this context. Businesses should take a close look at compensation practices to be sure there are no pay-inequity issues. Studies show that women in America earn about 80 cents for every dollar paid to men. Not only is this wage gap a fundamental problem, but it can also lead to serious legal trouble for an employer. Case in point: the World Cup-champion U.S. women’s soccer team’s lawsuit alleging pay inequity and “institutionalized gender discrimination.”

Bottom Line

It is clear that #MeToo has led to important changes in the workplace, but LeanIn.org’s recent study suggests that employers need to continue to be proactive and take steps to create a culture free from harassment, but also address other forms of discrimination.

The full survey results can be found at leanin.org/sexual-harassment-backlash-survey-results.

Amelia J. Holstrom is an attorney with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Holstrom specializes in employment litigation, including defending employers against claims of discrimination, retaliation, harassment, and wrongful termination, as well as wage-and-hour lawsuits. She also frequently provides counsel to management on taking proactive steps to reduce the risk of legal liability; (413) 737-4753; [email protected]

buy ivermectin for humans buy ivermectin online
buy generic cialis buy cialis
payday loans online same day deposit 1 hour payday loans no credit check