ROB'S BLOG

What do you do if you become a victim of sexual harassment?  Keep a record of the events surrounding the sexual harassment including the date, time, place, and who was present.  These notes may become very important in litigating the case but the notes may be required to be turned over to the employer during the discovery phase of litigation. Check the company’s employee handbook, if one exists, to determine if the company has a procedure for handling sexual harassment complaints. If there is a procedure for filing a sexual harassment complaint, it must be complied with.  If you do not complain to the employer, the employer can successfully defend itself from liability by arguing that it was not aware of the problem and therefore was unable to remedy the harassment.  However, if the problem is not remedied, the employee may wish to speak to an attorney for advice on how to file a formal complaint with the appropriate federal or state or city agency, or the employee may contact the Equal Employment Opportunity Commission for information.

Once the employer is informed about the sexual harassment, what must the employer do?  Once the employer knows or should have known about the harassment, it has a duty to take immediate and appropriate corrective action to end the harassment.  The employer’s response must be reasonably calculated to end the harassment and if earlier discipline did not end the harassment, more severe discipline is required.

Is my employer still responsible if the harasser is a co-worker?  If the demand for sexual favors is made by a co-worker with no power to affect employment opportunities, a quid pro quo harassment cannot be claimed.  However, it may be claimed that the co-workers actions create a hostile work environment and an employer may be held liable for the conduct of the employee if the employer knew or should have known of the employee’s conduct and failed to take prompt remedial action to stop the harassment.

What is “hostile work environment” sexual harassment?  An employee has the right to work in an environment that is free of discrimination, intimidation, insult and ridicule.  The employee as a potential claim for hostile work environment if the sexual harassment unreasonably interferes with work performance or creates an offensive or intimidating work environment.  In order to have a claim for hostile work environment, it must be proven that there was more than a single incident of harassment. It must also be shown that the sexual conduct was unwelcome.

What are examples of a hostile or offensive work environment? Sexually-charged jokes or pranks, being grabbed or whistled at, sexual advances, requests for sexual favors or other verbal, visual, or physical conduct of a sexual nature can create a hostile work environment and can qualify as sexual harassment.  Conduct that makes the workplace sexually charged does not need to be directly aimed at an individual. For example, being subject to offensive company-wide emails may create a hostile or offensive work environment.

What must be shown in order to recover damages for a hostile work environment?  It must be shown that the unwelcome sexual conduct was so severe and pervasive that it “altered the conditions of employment by creating a psychologically abusive work environment.”  The employer may be held liable if the employer knew or should have known of the harassment and failed to take prompt remedial steps to stop the harassment.

How can it be proven that the harassing conduct was severe or pervasive enough to alter the working conditions and create an abusive environment?  Both an objective and a subjective standard must be met.  The objective standard is met if a Court determines that a “reasonable person in the position” would have considered the conduct severe or pervasive.  Under the subjective standard, it must be found that the conduct was sufficiently severe or pervasive to interfere with the work environment. In other words, a Court looks at what the reaction to the conduct was, and whether the reaction was reasonable, according to how a “reasonable person in the position” would have reacted.

What types of damages can be recovered if successful in demonstrating sexual harassment? A Court may order the company to: stop the harassment; pay lost wages and other job-related losses (e.g. promotions, or favorable work status lost because of the sexual harassment); pay compensation for physical, mental and emotional injuries; pay punitive damages; pay attorneys’ fees and expenses associated with litigating the case.  Not all employment disputes require a lawsuit, and sometimes negotiation is the best course of action.

In a 2010 study conducted by the University of Michigan, it was found that 90% or 9 out of ten women have suffered from sexually harassment in their workplace at some point in their lives. This fact indicates that despite the prevailing laws on sexual harassment, modern women are still currently confronting these kinds of treatment in their work environment.  According to the Equal Rights Advocates, sexual harassment in the workplace can be defined as the “severe or pervasive act within a sexual nature that can create a hostile work environment and affect working conditions.” Additionally, if the person being harassed has been refused of the benefits of their profession mainly because they denied someone sexual favors, then that can be considered as sexual harassment. Although a majority of harassment cases involve a male harasser, there have been cases where the harasser was female.  Every employee has the right to work in a safe, hostile free environment.  The law is clear – Sexual Harassment is illegal in government, business and industry.

Over the past several days, over 35 cases of sexual misconduct involving high-profile individuals such as Donald Trump with over 13 allegations, Harvey Weinstein, Kevin Spacey, Al Franken, John Conyers, Matt Lauer, Ben Affleck, George H.W. Bush, Charlie Rose, and, of course, Roy Moore have been reported. Aside from Trump’s appalling behavior where he admits to grabbing women by the p_ _ _y, Alabama Senate candidate Roy Moore is probably the most despicable.  In fact, some have labeled him as a Pedophile resulting from his improper pursuit of a 14 year old girl when Moore was in his 30s. What I and others are having considerable difficulty in understanding is that so-called “Christians” and “Evangelicals” continue to support Trump and Moore in spite of their behavior. Kay Ellen Ivey, the Governor of Alabama, and other Moore supporters, would prefer that a “Pedophile” be in the Senate rather than any “liberal.” I wonder how she and the rest of the Roy supporters would have reacted if that 14 year old was their daughter or grand-daughter. Unlike Franken and Conyers, the allegations against Trump and Moore specifically include sexual assault.

According to the United States Department of Justice, sexual assault is “any type of sexual contact or behavior that occurs without the explicit consent of the recipient.” Sexual assault is basically an umbrella term that includes sexual activities such as rape, fondling, and attempted rape. However, the legal definition varies depending on the state, and can even be different depending on where you were when the assault happened.  For example, sexual assault on college campuses in California means a sex act that occurred without affirmative consent (which is described as active, voluntary participation), while California criminal law defines rape as nonconsensual sexual intercourse, and other laws govern different forms of sexual assault beyond intercourse.

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies, labor organizations, as well as to the federal government.  Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

What is sexual harassment?  Sexual harassment is defined as “unwelcome sexual advances or conduct” and includes quid pro quo harassment or a hostile or offensive work environment. Sexual harassment is any kind of sexual conduct that is unwelcome and/or inappropriate for the work place.  Sexual harassment can take many forms such as verbal harassment, e.g. sexual or dirty jokes, visual harassment, e.g. drawings, emails, etc., physical harassment, and sexual favors, e.g. sexual advances, confrontation with sexual demands (quid pro quo sexual harassment). In the work place, sexual harassment can come from the owner, supervisors, managers, and co-workers. Sexual harassment does not only occur in the work place; it can occur off-site at office functions and parties.

Who can be held responsible of sexual harassment at work?  Both the employer and employees are liable for sexual harassment.

What is quid pro quo sexual harassment? Quid pro quo sexual harassment takes place when a supervisor or someone with authority over a person demands sexual favors in exchange for a promotion, raise or some other benefit, including keeping a job. The demand for sexual favors can be explicit, e.g. “If you have sex with me, I will promote you,” or it can be implied from unwelcome physical contact such as touching or fondling.

What must be proved to prevail in a cause of action for quid pro quo sexual harassment?  A person must show that a supervisor, or someone with authority over their job, explicitly or implicitly conditioned a job, retention of the job, a job benefits (raise, business trip, or some other benefit), on the acceptance of sexual conduct. It must be demonstrated that the harasser is someone with authority who can affect conditions of employment. It must also be proved that the sexual conduct was unwelcome.

How can it be proved that the sexual conduct was unwelcome?  The harassee may show that the conduct was unwelcome by showing that they: explicitly rejected his/her sexual advances; they suffered emotional distress; their job performance deteriorated; they avoided the harasser; they told friends and/or family of the harassment; and they told a company representative of the harassment.  Each case is different and a particular case may or may not include some of these examples.

What are the remedies in a quid pro quo sexual harassment case? The law provides that the harassee may recover damages from their employer once they have proven that they were deprived of a job benefit or suffered an adverse employment action, e.g. failure to promote or termination of employment because they refused to accept the supervisor’s sexual demands.

CONTINUED IN PART 11

 

Elizabeth Hill, press secretary for the Department of Education, told ProPublica that the new “enforcement instructions seek to clear out the backlog while giving every complaint the individualized and thorough consideration it deserves.” Lifting the requirement of collecting three years of data will allow complaints to be addressed “much more efficiently and quickly,” she said in an emailed statement.  For many years, the Department of Justice has used court-enforced agreements to protect civil rights, successfully desegregating school systems, reforming police departments and ensuring access for the disabled. Under Sessions, however, the Justice Department is turning away from one of its most effective weapons against discrimination, “consent decrees” and its Civil Rights Division has issued verbal instructions through the ranks to seek settlements without consent decrees that result in no ongoing court oversight.  This action is just one part of a plan by the Trump administration to limit federal civil rights enforcement. Other Federal departments have also scaled back the power of their internal divisions that monitor such abuses. In a previously unreported development, the Education Department recently reversed an Obama-era reform that broadened the agency’s approach to protecting rights of students. The Labor Department and the Environmental Protection Agency have also announced major cuts to their enforcement actions.

“At best, this administration believes that civil rights enforcement is superfluous and can be easily cut. At worst, it really is part of a systematic agenda to roll back civil rights,” said Vanita Gupta, the former acting head of the Justice Department’s Civil Rights Division under President Barack Obama.

The Trump administration is also preparing to weaken legal deals struck by the Justice Department under President Obama forcing local police to prevent excessive force or racial bias, Sessions said during his confirmation hearings. He also said that he would not rule out the “withdrawal or modification” of consent decrees secured by the Justice Department from police departments such as Ferguson and Missouri, which he said tend to “undermine respect for our police officers”. 

Sessions, a so-called “law-and-order conservative,” has consistently attacked what he sees as the overreach of federal authorities into local policing. While allowing that some consent decrees were legitimate, Sessions said that it was a “difficult thing” for a city to be taken to court by the federal government.

“I think there’s concern that good police officers and good departments can be sued by the Department of Justice when you just have individuals within a department who have done wrong,” said Sessions. “It can impact morale, it can impact and affect the view of citizens to that police department.”

Although it is unlikely that affirmative action will be completely eliminated, too many schools are committed to maintaining a diverse student body. College administrators will find one way or another to achieve balance in their admissions. However, if the current trends continue, women and minorities will need to seek out new sources of college financial aid and develop new strategies for gaining entrance to the nation’s top universities.

The lack of respect for the Office of the President and Attorney General under the Obama Administration was unprecedented.  Congressional Republicans wanted to impeach Obama apparently for the crime of being President while Black.  For almost eight years, “all manner of conservatives including libertarians, Republicans, and teabaggers were obsessed with one topic and they spent every waking minute preoccupied with how to turn back time and pretend Barack Obama was never elected as President of the United States,” according to a Huffington Post article published in August 2013.

Before and after his election and re-election to the presidency, Barack Obama had been vilified as subhuman in graphics, email transmissions and posters used to undermine him. He has been portrayed as a shoeshine man, an Islamic terrorist, a non-American citizen, and a chimp. The image of his altered face was shown on a product called Obama Waffles in the manner of Aunt Jemima and Uncle Ben. The depictions of Obama as ape-like sparked the most controversy, considering that blacks have been portrayed as monkey-like for centuries to suggest that they’re inferior to other groups.  When Marilyn Davenport, an elected official in the Republican Party of Orange County, Calif., distributed an email depicting Obama and his parents as chimps, she initially defended the image as political satire.  Mike Luckovich, Pulitzer Prize-winning editorial cartoonist for the Atlanta Journal Constitution, had a different take. He pointed out to National Public Radio that the image wasn’t a cartoon but photo shopped.

“And it was crude and it was racist,” he said. “And cartoonists are always sensitive. We want to make people think—we even want to tick people off occasionally, but we don’t want our symbolism to overwhelm our message. …I would never show Obama or an African American as a monkey. That’s just racist. And we know the history of that.”

We now live in a Trump American where hate, bigotry and vitriol against people of color has become the norm.  The recent violence in Charlottesville, Virginia, in August of 2017 at a white nationalist have become a new touchstone in the nation’s long-running debate over racism, free speech and violence.  One woman was killed and many more injured when a car driven by a rally participant, sped into a crowd of anti-racism protesters.  The event quickly took on enormous political importance as an overwhelming majority of Americans, both Republicans and Democrats, condemned the violence and the white supremacist views embraced at the rally.  Trump, of course, said that both side were responsible for the bloodshed and would not criticize the Neo-Nazis and White Supremacy groups since they are part of his group of supporters.  Klan leader David Duke even tweeted his thanks to Trump about his support for those hate groups.

As civil rights activist Pauli Murray once cautioned, “Racism is like a deadly snake coiled and ready to strike, and one only avoids its dangers by never-ending watchfulness.”