Home Posts tagged Sexual Harassment
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]

Women in Businesss

Hidden Costs

A recent report from the Institute for Women’s Policy Research (IWPR) and the TIME’S UP Foundation shows that workplace sexual harassment has large financial costs and economic consequences.

The report, “Paying Today and Tomorrow: Charting the Financial Costs of Workplace Sexual Harassment, is the first-ever attempt to monetize the lifetime financial costs of sexual harassment to individual women. Among those interviewed, workplace sexual harassment cost individuals anywhere from $600 to $1.3 million or more over a lifetime, depending on the wages of the worker.

The report shows how sexual harassment contributes to the gender wage gap and limits women’s earning potential. These costs can be seen through job loss and unemployment, lower earnings, missed opportunities for advancement, forced job changes, and loss of critical employer-sponsored benefits like health insurance and pension contributions. The financial impact of workplace sexual harassment can be detrimental and long-lasting to those who experience it.

“As employers rethink their post-COVID workplaces, we need to ensure that work — whether it’s remote or in the office — is safe, dignified, and equitable.”

The short-term and long-term impact on the economic security of those working in low-wage jobs can be particularly severe. Workers in lower-income occupations and those impacted by historical racial and ethnic discrimination were more likely to be in economically precarious situations without significant savings. A $600 wage loss can quickly translate into increased debts and credit card fees, eviction, homelessness, and food insecurity.

“As employers rethink their post-COVID workplaces, we need to ensure that work — whether it’s remote or in the office — is safe, dignified, and equitable,” said C. Nicole Mason, president and CEO of IWPR. “This report shows the different ways sexual harassment imposes financial and economic costs to women workers.”

Added Jessica Forden of the TIME’S UP Foundation, “no person should ever choose between reporting sexual harassment or speaking up for themselves while considering whether they might lose their ability to feed their families or take their children to the doctor. When we think about the true cost of sexual harassment, we have to think about what’s at stake when women come forward and how this impacts not just them, but everyone around them: their families, communities, and more.”

For every individual interviewed, the experiences of harassment were compounded, and the costs magnified, because those who could have addressed the harassment (including supervisors, human resources staff, and colleagues) failed to act, and, even worse, often retaliated against the employees who were harassed. Few were able to seek legal advice, being kept away by uncertain immigration status, lack of funds, or lack of information on their rights.

Based on in-depth interviews with survivors of workplace sexual harassment, as well as with experts, the report charts the detailed pathways that lead to financial costs to individual workers as a result of workplace sexual harassment and retaliation. Key findings from the report include:

• The costs to economic security are particularly profound for workers in low-paid jobs. While lower earnings and lower job quality in many women-dominated service-sector jobs mean that the monetary costs of harassment are lower for those in these positions, for one fast-food worker forced out of her job, lifetime costs still totaled more than $125,600.

• The lifetime costs of workplace sexual harassment and retaliation were particularly high for those pushed out of well-paid, male-dominated occupations, reaching $1.3 million for an apprentice in the construction trades. The cost of a single year out of work for another apprentice in a construction occupation translates into a lifetime loss of $230,864 due to lost wage progression and foregone benefits.

• Forced career change may necessitate paying for new degrees or credentials. These costs came to almost $70,000 for one woman, reflecting direct tuition costs for a two-year community-college degree plus lost earnings over two years as she pursued her new degree.

The report suggests that culture change, company change, and governmental change are all needed for prevention and accountability.

“It’s clear from our interviews that a lack of enforcement is a part of what’s missing,” said report co-author Ariane Hegewisch of IWPR. “Sexual-harassment policies alone will not work unless there are consequences when they are broken.”

Law

The #MeToo Movement Has Vast Implications in This Sector

The #MeToo movement has brought about change and challenge — from a liability standpoint — in workplaces of all kinds. And this includes the broad spectrum of education. Indeed, recent cases indicate that courts may soon hold schools, colleges, and universities strictly liable for any sexual misconduct by their staff toward their students.

By Justice John Greaney, Jeffrey Poindexter, and Elizabeth Zuckerman

By now, we’ve all seen the #MeToo movement change how Massachusetts and the nation are talking about sexual harassment and other misconduct in the workplace, in schools, in social settings, on sports teams, in public places, and in our private lives.

Justice John Greaney

Jeffrey Poindexter

Elizabeth Zuckerman

The movement has ended careers, felled prominent figures, and made many newly aware of the great number of people — men and women — who face sexual harassment at some point in their lives. It has also reminded students, teachers, professors, administrators, and parents that schools and institutions of higher education are far from immune to this type of misconduct, and that students are sometimes victims of the very staff, faculty, and coaches expected to educate, guide, coach, and protect them.

Against this backdrop, administrators of Massachusetts schools, colleges, and universities have a special reason to take note of the rising tide of complaints about sexual harassment and other gender-based discrimination. The sea change in how sexual harassment is viewed, along with the development of Massachusetts law surrounding sexual harassment in schools, colleges, and universities, suggest that Massachusetts courts may soon hold these institutions strictly liable for any sexual misconduct by their staff toward their students.

That means, whether or not the school, college, or university knew about the conduct, whether or not the institution was negligent in any way, it could be on the hook for substantial damages if a staff member commits sexual harassment. In other words, even without doing anything wrong, or knowing anything wrong was happening, an educational institution could be liable for the entirety of the harm that befalls a student.

As a result, schools, colleges, and universities need to act now to implement policies which provide the best defense if a claim of sexual harassment is made.

In Massachusetts, Chapter 151C of the General Laws, the Massachusetts Fair Educational Practices Act (MFEPA), provides students who have been subjected to sexual harassment by a teacher, coach, guidance counselor, or other school personnel with a cause of action against the educational institution. MFEPA declares that “it shall be an unfair educational practice for an educational institution … to sexually harass students in any program or course of study in any educational institution.” In conjunction with General Laws c. 214, § 1C, the right for students to be free of harassment can be enforced through the Massachusetts Commission Against Discrimination (MCAD) or through the Superior Court.

“Administrators of Massachusetts schools, colleges, and universities have a special reason to take note of the rising tide of complaints about sexual harassment and other gender-based discrimination.”

The statutes also define sexual harassment broadly, including “any sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: (i) submission to or rejection of such advances, requests, or conduct is made either explicitly or implicitly a term or condition of the provision of the benefits, privileges, or placement services or as a basis for the evaluation of academic achievement; or (ii) such advances, requests, or conduct have the purpose or effect of unreasonably interfering with an individual’s education by creating an intimidating, hostile, humiliating, or sexually offensive educational environment.”

Chapter 151C has been interpreted several times in the courts in Massachusetts, including when:

• A male athletic director of a Massachusetts community college was reported to have provided alcohol to female students in exchange for sexual favors. Several years later, more complaints about his behavior led the college to implement a policy to prevent sexual harassment.

Reports of further inappropriate conduct led to an investigation and agreement that he would no longer coach female athletic teams. However, he continued to work at the school and, eventually, resumed coaching a women’s basketball team. Students who had been coached by the athletic director brought claims against both him and the school.

• During the investigation into a rape of a student by a teacher at a Massachusetts high school, it was disclosed that a male guidance counselor had been involved in sexual misconduct with students. The superintendent of the school district acknowledged that he was aware of continuing reports about the guidance counselor’s inappropriate relationships with students after a female student alleged that the counselor had brought her to his home on two occasions and attempted to coerce her into having sex.

• Parents reported the inappropriate conduct of a male middle-school science teacher to the vice principal and a guidance counselor. The teacher had made inappropriate comments and touched female students, and had been told by school officials to stop on three occasions. The teacher was fired after an internal investigation, but not before he allegedly molested an 11-year-old student.

Despite occasions to consider the applications of Chapter 151C, Massachusetts courts have not yet decided whether schools, colleges, and universities will be held strictly vicariously liable for sexual harassment. In the cases referenced above, it appears the schools or colleges knew about the misconduct and, at least passively, allowed it to continue.

That means that the schools or colleges could be considered negligent, because they knew, or should have known, an employee’s behavior was problematic, but they failed to act, or failed to take adequate measures to remedy the situation. However, if Massachusetts courts rule for strict liability under Chapter 151C, it will mean that it is no defense that the institution did not know what its employee was doing, or even that it took reasonable measures to screen that employee before hiring.

Instead, the mere occurrence of sexual harassment by an employee will be enough to make the institution liable to the victim.

There are indications this may be the direction in which the courts go, because a closely related statute, Chapter 151B, which governs sexual harassment in the workplace, does impose strict liability. It seems entirely possible that the courts will conclude that liability under Chapter 151C should be no different, given that the two statutes relate to the same subject matter and share a common purpose.

Furthermore, because the operative statute is clearly intended to protect vulnerable students from abuses of power by those entrusted with their well-being, it seems likely that the courts may conclude that a strict standard of liability is consistent with the underlying purposes of the statute.

“The rising awareness of the problem of sexual harassment and assault appears to make it more likely that courts will conclude that the only way to stem the tide of abuse is to put the burden on those in the best position to protect vulnerable students — the schools they attend.”

This argument seems strengthened by the popular mood regarding sexual harassment. The rising awareness of the problem of sexual harassment and assault appears to make it more likely that courts will conclude that the only way to stem the tide of abuse is to put the burden on those in the best position to protect vulnerable students — the schools they attend.

Two recent decisions suggest this result may be coming. In a 2016 federal court case, Doe v. Brashaw, Judge Douglas Woodlock gave the first indication that the courts may come down on the side of strict liability under Chapter 151C. He noted there was no clear guidance in the text of the law on whether negligence was required to hold the school, college, or university liable.

Weighing the arguments on each side, he concluded it made sense, at least at the early stage in the case at which he was reviewing the matter, to apply a strict vicarious liability standard.

More recently, in 2017, another federal judge again noted that the standard was unsettled and deferred considering the argument, made by the Massachusetts Institute of Technology as defendant, that it was entitled to a more favorable standard than strict liability.

Given the significant risk that Massachusetts schools, colleges, and universities will be considered liable for their employees’ misconduct, regardless of what they knew, or didn’t know, about it, how can these institutions respond? The answer is that schools, colleges, and universities need to ensure their sexual-harassment, disciplinary, and hiring policies are up to date.

This will allow these institutions to avoid hiring or retaining employees who show any indication that they will engage in sexually harassing behavior, and also allow the institutions to respond rapidly and effectively if any employee does. In addition, schools, colleges, and universities need to appropriately train and supervise all employees.

For many institutions, this will mean implementing new requirements for training and new policies for ensuring sexual harassment cannot go on in a school, college, or university without rapid detection. In addition to in-house training, the institutions should consider learning sessions taught by outside consultants, particularly law firms, with experience in handling sexual misconduct in the educational environment.

Outside investigations by impartial law firms will, when appropriate, removed the inference of bias on the part of the educational institution when considering possible misconduct by a teacher, administrator, or staff member. In sum, educational institutions need to be prepared to act quickly and decisively when faced with a complaint of sexual harassment in order to remediate any misconduct.

Justice John Greaney is a former justice of the Supreme Judicial Court and senior counsel at Bulkley Richardson. Jeffrey Poindexter is a partner and co-chair of the Litigation Department at Bulkley Richardson. Elizabeth Zuckerman is an associate in the Litigation Department at Bulkley Richardson.

Law

A Sometimes Fine Line

By Marylou Fabbo, Esq.

There’s no doubt the #MeToo movement has brought positive change to the business world by creating a safer environment for women (and men) to come forward with accounts of sexual harassment. But what if the claims aren’t true, either because they don’t rise to the legal definition of harassment or they’re completely fabricated? The damage, to both individual and company reputations, can be significant.

Make no mistake. Subjecting an employee to sexual harassment in the workplace, at a company-sponsored event, or on a business trip is unacceptable and should be punished.

#MeToo has had a strong, positive impact on encouraging victims to come forward with valid claims that had been unreported or overlooked. Everyone who complains of sexual harassment should be heard, but should everyone be believed? Most people — men and women — are not sexual abusers, and yet most individuals would say they have experienced some form of sexual misconduct. Most also would agree that some sexual behavior, such as grabbing a co-worker’s breast, exposing oneself to another employee, or telling an employee that he or she will get a promotion if he or she sleeps with the boss are clear-cut cases of sexual harassment.

Marylou Fabbo, Esq

Still, even if sexual comments or behaviors are inappropriate for the workplace, not everything of a sexual nature rises to the level of illegal sexual harassment under the law. This leaves the door open to unfounded and/or, in some cases, intentionally false claims, which can have a damaging impact on company image and the accused person’s professional and personal life.

Sexual Harassment Defined

Title VII and Massachusetts law prohibit sex discrimination in the workplace, and sexual harassment is a form of sex discrimination. The harasser and the victim of sexual harassment can be the same or opposite gender and have the same or different sexual orientations.

Although this article addresses sexual harassment in the workplace, sexual harassment is also prohibited in places of public accommodation, educational facilities, and housing.

“Even if sexual comments or behaviors are inappropriate for the workplace, not everything of a sexual nature rises to the level of illegal sexual harassment under the law.”

There are two types of sexual harassment: ‘quid pro quo’ harassment and ‘hostile work environment’ harassment. Quid pro quo harassment includes sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when a term of employment or employment decision depends on whether an employee accepts or rejects those advances.

Many of the accusations asserted against producer Harvey Weinstein fall into the quid pro quo category. Actors have come forward stating that Weinstein promised them career advances in exchange for a positive response to his sexual advances; they also have stated that Weinstein failed to help them out if they chose not to meet his sexual demands. That’s unambiguous quid pro quo harassment.

In Massachusetts, employers are strictly liable for quid pro quo harassment, which means the business is on the hook for damages even if it did not know about the harassment.

The other type of sexual harassment is hostile work environment sexual harassment. Under Massachusetts law, illegal sexual harassment occurs when “requests for sexual favors and other verbal or physical conduct of a sexual nature unreasonably interferes with an individual’s work performance by creating an intimidating, hostile, humiliating, or sexually offensive work environment.”

Complaints about Matt Lauer and Charlie Rose’s actions fall into the sexually hostile work environment category. Lauer is accused of exposing himself to staff, and the accusations against Rose included making lewd phone calls and groping women’s breasts. In both cases, the individuals’ employers have been accused of knowing about the harassment and doing little to stop it.

Subjective and Objectively Offensive

An employee who is offended by sexual behavior may file a claim of harassment with the Mass. Commission Against Discrimination (MCAD), believing that the actions were illegal simply because they were of a sexual nature.

However, to constitute illegal sexual harassment in the workplace, the behavior must be offensive both to the recipient and the general public. Ask yourself this question: if an employee shows co-workers vacation pictures on his phone that include friends in bikinis, is that sexual harassment? What about the long-term manager who refers to women as ‘girls,’ gives hugs occasionally, and makes jokes about the lack of sex in his long-term marriage?

Some may find those comments and actions offensive, and others may not. Is the manager just ‘old school’? If an employee subjectively perceives the behavior as hostile, intimidating, humiliating, or offensive, then the conduct may constitute sexual harassment. But that’s not enough — the question becomes whether a reasonable person in the employee’s position would find the conduct offensive.

“To constitute illegal sexual harassment in the workplace, the behavior must be offensive both to the recipient and the general public.”

Conduct of a sexual nature also must be unwelcome in order to constitute illegal sexual harassment, but it is almost impossible to be absolutely sure whether the conduct is welcome or unwelcome. The fact that an employee appears to be a willing participant in sexual discussions about weekend conquests may suggest that the employee was not opposed to the sexual discussions by the water cooler on Monday mornings. Yet, the employee may have actually been cringing on the inside.

Under the law, even if an employee makes sexual comments or jokes, or engages in sexual conduct, those actions do not automatically mean that all behavior is welcome. A disgruntled employee who appeared to be a willing participant may later claim that behavior that was welcome was in fact unwelcome.

Nimrod Reitman, a former NYU graduate student, accused his school adviser, Avita Ronell, of sexually harassing him over a three-year period. He claimed that she referred to him in e-mails by names such as “my most adored one” and “sweet cuddly baby,” and kissed and touched him repeatedly and required him to lie in her bed, among other things. Ronell did not deny the behavior but denied the harassment and claimed that the behavior had been welcomed.

While that case doesn’t arise in the employment context, it provides an example of one reason employers should implement zero-tolerance policies when it comes to sexual banter in the workplace. What may have been considered welcome sexual commentary or behavior may have actually have been unwelcome and could subject them to a lawsuit.

False Accusations of Sexual Harassment

Why would one make a false accusation of having been sexually harassed at work? It cannot be disputed that some people fabricate claims of sexual harassment in the workplace because alleged victims have admitted to making up allegations against co-workers or management for many different reasons.

In some cases, sexual-harassment claims may be made to ward off terminations because employers are fearful of being accused of illegal retaliation if they take (warranted) disciplinary action after an employee has come forward with a sexual-harassment complaint. Disgruntled employees have been found to have made false accusations against someone they believe is responsible for an adverse personnel action the employee received, such as a demotion or termination from employment.

Employees have admitted that they have intentionally made sexual-harassment complaints against co-workers for vindictive reasons or for attention.

Unfortunately, it is often difficult to determine whether specific allegations are true or false, as there usually are no witnesses or hard evidence. Because of this, businesses may overreact or react harshly without having all of the facts.

Nev Shulman, star of MTV’s Catfish, was accused of sexual assault. He denied the claims, but the show was suspended anyway. Upon a later investigation, the claims were deemed not credible, and the show was reinstated. A Sacred Heart University student falsely reported having been raped by two school football players and has since faced criminal charges. The leader of the New York City Ballet was accused of sexual harassment and retired. He was later cleared of any wrongdoing.

Collateral damage follows baseless accusations of sexual harassment. Valid harassment claims are devalued and may be looked upon skeptically. When it becomes known that an accusation was false, it raises the possibility in individual’s minds that the next allegation of a similar nature may also not be credible.

Being falsely accused of sexual harassment is also a downfall to the accused’s career. Prior to having their names cleared, alleged harassers may quit or be required to resign, and they sometimes remain under suspicion even after the complaint is found to have been fabricated. The fact that a sexual harassment lawsuit has been filed against a company may be covered in the media, but when, years later, it is dismissed by the court before it gets to the jury stage because the case is without factual support, that information often is not made available to the public — perhaps forever leaving a bad mark on the employer in the eyes of its customers as well as employees. u

Marylou Fabbo is an attorney with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. She specializes in employment litigation, immigration, wage-and-hour compliance, and leaves of absence. Fabbo devotes much of her practice to defending employers in state and federal courts and administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, and compliance; (413) 737-4753; [email protected]

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