Hostile Work Environment

New York City’s Upper East Side is in a tizzy because Nello, a local restaurant, has banned single women from eating at the bar because they might be escorts. That might sound outlandish, but the solicitation of customers by escorts seems to be an issue for some high end restaurants. I recently met with a server, we’ll call her Jane, who has worked for several local restaurants. According to Jane, she has seen escorts in action, along with restaurant managers and owners who serve as the go-between the madam and celebrities to place the escorts in strategic locations throughout the restaurant. Jane also said that one restaurant in particular makes it a point to hire hostesses who are young, beautiful, and new to Miami. Jane said she has heard the instructions from managers to the young hostesses to do whatever is necessary to make the celebrities and athletes happy, including going on dates. Jane says she has seen several of these young women leave the hostess position and go on to become escorts or date the celebrities they encounter at the restaurant. Meanwhile, Jane says, single women who sit at the bar are sometimes mistaken for escorts by patrons.

Although some restaurants may encourage escorts, what can a restaurant do if wants to prevent illicit sexual conduct and harassment? Nello’s answer is discriminate against all unaccompanied women with their new seating policy. Restaurants could be fertile ground for hostile work environment claims if restaurant management directs servers to look the other way and for hostesses to enable and participate in the sexual gratification of patrons as a condition of employment. One approach is for restaurants to adopt a system like the restaurant Homeroom in Oakland, California. Homeroom’s owner described her color-coded system in the Washington Post as a system in which:

different types of customer behavior are categorized as yellow, orange or red. Yellow refers to a creepy vibe or unsavory look. Orange means comments with sexual undertones, such as certain compliments on a worker’s appearance. Red signals overtly sexual comments or touching, or repeated incidents in the orange category after being told the comments were unwelcome.”

Homeroom’s staff are instructed to report harassment or unsavory behavior to the manager according to the color and the manager must take specific action such as taking over the table if “orange” is reported or ejecting the customer from the restaurant if “red” is reported. This system seems like an effective way to protect the restaurant’s staff and handle illicit activity without discriminating against female patrons.

Security cameras are another way that restaurants can work toward cracking down on bad behavior. For example, a restaurant in Savannah, Georgia installed security cameras after several servers reported assault by a customer, but the police were unable to press charges due to insufficient evidence. One of the servers, Emilia Holden, stopped a customer and called the police after he touched her butt in appropriately. The customer was charged with sexual battery after the police reviewed the security footage.

If you have been the victim of a hostile work environment, you should discuss your story with an attorney who can guide you. Our attorneys can assist you at any stage. Please contact us to set up a confidential consultation.

The Fourth Circuit Court of Appeals in Ray v. International Paper Company, released on November 28, 2018, overturned a lower federal court’s decision to dismiss Tamika Ray’s sexual harassment, hostile work environment, and retaliation claims against her employer, International Paper Company, for lack of sufficient evidence to support her claims. The FourthCircuit found Ms. Ray had presented sufficient evidence to survive summary judgment and to allow a jury to decide her claims.

Tamika Ray worked as a “bundler’ and then promoted to the position of “operator” at International Paper Company, which manufactures and distributes packaging boxes. Johnnie McDowell was Ms. Ray’s supervisor in both positions. One year after Ms. Ray began working, Mr. McDowell started asking Ms. Ray to engage in sexual activity and offered her money in exchange for those sexual acts, in addition to making several overtly sexual comments to her. On one occasion, he grabbed her thigh while the two were alone in his office. Several years after the conduct began, Ms. Ray reported it to two other supervisors, but asked that they not report to higher authorities for fear of retaliation. When Mr. McDowell found out that Ms. Ray had complained about his conduct, he informed Ms. Ray that she could no longer perform voluntary overtime work before the beginning of her shifts, for which she would get paid time and half. This voluntary overtime work represented a significant portion of her income.

When a supervisor, such as Johnnie McDowell, is the harasser and the harassment culminates in a “tangible employment action,” an employer like International Paper Company is strictly liable. Tamika Ray had to show that action taken against her was “tangible,” by demonstrating

that any action taken against her was ‘tangible,’ such that the action constituted a ‘significant change in employment status,’ and that there was ‘some nexus’ between the harassment and the tangible action taken.”

The Fourth Circuit held that the opportunity to work voluntary overtime that was taken away from her could constitute a tangible employment action. The Court also recognized that Mr. McDowell was responsible for the decision to eliminate Ms. Ray’s voluntary overtime work, creating a sufficient nexus between the ongoing harassment and the decision to deny voluntary overtime work. The Seventh Circuit overturned the lower court’s decision, which had dismissed Ms. Ray’s claim because of lack of sufficient evidence that the harassment culminated in a tangible employment action.

As to Ms. Ray’s retaliation claim, the Fourth Circuit also held that she had sufficient evidence to show that she suffered an adverse employment action after having reported the harassment to other supervisors, and that a jury reasonably could determine that Mr. McDowell retaliated against Ms. Ray after learning she had complained about him to other supervisors. Thus, there was enough evidence for a jury to reasonably find that International Paper Company was strictly liable for Mr. McDowell’s acts.

If you have been the victim of workplace sexual harassment perpetrated by a supervisor, and have experienced retaliation for reporting the misconduct, you should discuss your story with an attorney who can advise you of your legal rights. Please let us know if we can help.

Catherine, a cultured woman in her late fifties, had worked as a sales associate with her high-end retail employer for almost twenty years.   She loved her job, and excelled at it. Catherine was a people person. She had an approachable, polite, yet assertive demeanor, and had a knack for sizing up and tuning into customers. Most of all, she generated sales. She was one of the company’s most valued employees.  She not only loved her success, but also her work environment, enjoying respectful, friendly, and professional relationships with co-workers, subordinates and management alike. But as all good things must come to an end, so too did Catherine’s harmonious employment environment.

The New Abusive Manager  

Catherine’s new manager was a brash, impulsive, ill-mannered thirty-two year old named Rudy. Rudy happened to be the nephew of one of the company’s top executives, and because of this relationship, Rudy felt all too secure in his employment. Yelling, screaming, and hurtling insults at employees were the defining features of Rudy’s management style. But not only did Rudy have anger management problems, but he also fancied himself a Don Juan. He was constantly trying to impress younger female staff, and even on occasion customers, through graphic descriptions of his penis size, sexual prowess, and sexual conquests.  He would make sexually explicit comments about female workers, and even make noises simulating intercourse when younger attractive women would enter the store. Those female employees who were receptive to Rudy’s vulgar comments got special treatment, including more flexibility with days off, and even recommendations for raises.

Perhaps because of her age or her refined demeanor, Rudy never directed any of his sexually explicit comments toward Catherine. But Catherine was devastated by Rudy’s behavior, suffered from daily anxiety, and grew to hate the job she had once loved so much. Catherine knew she needed to take action.

Complaints Fall on Deaf Ears

Catherine went to the human resources director, who at first seemed sympathetic to her situation. The director agreed that the behavior Catherine described was unacceptable, and said she would speak to Rudy about it. In the days following the meeting, Catherine felt relieved.   But the following week, Catherine learned that her complaints had fallen on deaf ears.   Rudy had asked all the retail sales associates to come to his office for an emergency meeting. “I understand somebody has gone upstairs to complain about me”, he said. “Do you really think they’re going to get rid of me? Don’t you know who I am? You people are pathetic”. Later that evening, Catherine placed a call to the regional manager.   But her call would never get returned.   The following day, Catherine was terminated.

Even if Not Targeted Directly at You, Abusive Words and Conduct Can Provide a Basis for a Hostile Work Environment Claim

Sexually explicit words and actions of a supervisor that are not specifically directed at you can still provide a basis for a hostile work environment claim, particularly when the remarks and actions cause you harm and are sufficiently pervasive and severe.

A Florida appellate court in Blizzard v. Appliance Direct, Inc.  relied on an earlier Federal case involving racially offensive language in the work place, found that sexually explicit language and actions by a supervisor in the presence of the employee need not be specifically directed toward the employee in order for her to have a claim based on a hostile work environment. The court reasoned that because the offensive conduct was by the employee’s supervisor, was severe and pervasive, and the employee was “essentially swept up in its backwash”, there was still a basis for holding the employer liable for the supervisor’s conduct.

While many claims of sexual harassment involve harassment by someone in a position of authority, the law also protects victims of sexual harassment by a co-worker.

If you believe that your co-worker is engaging in frequent, severe, and pervasive conduct that is physically threatening or humiliating, and it is interfering with your job performance, you should report it to your employer.  If your employer does not take sufficient action to put measures in place to stop the co-worker’s offensive conduct, you may have a claim for sexual harassment based on a hostile work environment created by the co-worker.

The Hostile Work Environment

There are certain standards to meet for you to have a valid hostile work environment claim against a co-worker.  When harassment is perpetrated by a co-worker as opposed to a supervisor or manager, the conduct complained of must be sufficiently severe or pervasive to alter the terms and conditions of the victim’s employment, and if the conduct is sufficiently severe or pervasive, the employer must have failed to take adequate action to remedy the situation.

To determine whether the co-worker’s conduct is sufficiently severe and pervasive to alter the terms and conditions of employment, courts look at four factors:

(1) the frequency of the conduct;

(2) the severity of the conduct;

(3) whether the conduct was physically threatening or humiliating; and

(4) whether the conduct unreasonably interfered with the employee’s job performance.

Do Flirting and Isolated Incidents Create a Hostile Work Environment?

Simple teasing or mere flirtation, offhand comments, and isolated incidents (unless extremely serious) do not make up a valid claim of sexual harassment. The offensive conduct must be experienced regularly. For example, in one case reported in Florida, four isolated incidents of a co-worker brushing up against the other and making inappropriate gestures was not severe or pervasive because the isolated incidents took place within the span of two and a half years and the conduct did not affect the victim in her work.

Even if a victim can establish that a co-worker’s conduct was severe, pervasive, frequent, and unreasonably interfered with his or her work, a victim still needs to establish that the employer did not address the victim’s complaints.  Once the victim reports the offensive conduct of the co-worker to the employer, the employer must take corrective action that is immediate, appropriate, and reasonably likely to stop the harassment.  For example, an employer that confronts the co-worker using an escalating pattern of discipline, gives verbal warnings, and changes the two co-workers’ work schedules to avoid their contact satisfies an employer’s obligation to take reasonable steps to stop the harassment.

Are you the victim of inappropriate conduct by a co-worker that happens on a regular basis? Have you reported it to your employer? How did the employer respond? We can help you in figuring out whether you have a claim for sexual harassment perpetrated by co-worker. You should feel safe in calling us to listen to your story.

 

It has been over a month since Sports Illustrated broke the story of the history of sexual harassment within the Dallas Mavericks’ organization. Since then, the team has hired outside counsel to investigate its culture, and brought in a new CEO who has committed to changing that culture going forward. Now, a new report from Deadspin, based on interviews with former and current employees, shows the important role that workplace culture plays in enabling sexual harassment.

A Real Life Animal House

The stories in the SI report are sadly predictable: the now-former President and CEO of the team once openly suggested that a female subordinate was going to be gang-banged over the weekend, and openly propositioned women for sex; at least one employee was warned, “don’t get trapped in an elevator with him.” A male employee in ticket sales was known for watching pornography at his desk. And in one instance, an employee allegedly dropped a used condom outside an office bathroom, which the head of human resources picked up with a paper towel. SI quotes one employee describing the office as a “real life Animal House.”

Deadspin’s interviews shed light on how this culture persisted for so long: employees were under constant pressure to perform, and there was a feeling that management was either unwilling or unable to do anything about the culture. One former employee described the job as

like being married to a Hollywood star, knowing he was abusive emotionally and physically to you, but you stayed with him because he’s a star.”

In the case of the porn-watching employee, Deadspin reports that employees felt they had no choice but to ignore it because the employee had a long tenure with the team, was known for bringing in a log of money, and, perhaps most importantly, was seen as close with the powerful people above him, who were known for caring only about how many tickets their employees sold. Reports of sexualized comments were dismissed as “talking shop.” And in perhaps the most widely-discussed revelation, the team allowed an accused-domestic abuser to remain with the team, even after he was arrested for alleged abuse of one woman, and was widely suspected of abusing a coworker whom he was dating.

When the Office Culture Protects the Harassers

Above all, the team’s handling of the abuse and harassment allegations sent a message to female employees that they were “just there to protect the men.” Sexual harassment persisted while male employees were given multiple chances. And the physical environment didn’t help. Many employees worked in a completely-open office space, meaning that everyone knew when someone was screamed at, belittled, or harassed. One employee stated that she was initially shocked by the abuse, but felt like she had to look the other way to keep her job.

As the #metoo and #timesup culture movement continues to evolve, it is stories like this that will help us understand how we got here, and how we can improve. In the case of the Mavs, the office culture played a critical role in enabling sexual harassment. Management looked the other way, or even participated in the harassment, intimidating victims and would-be whistleblowers alike into silence. It is in such a situation that an attorney can be a vital resource to a victim or whistleblower. We owe our clients a duty of confidentiality, and can also provide an objective analysis of the situation and possible remedies. If you have been a victim of or witness to sexual harassment in the workplace, don’t hesitate to reach out, especially when the office’s culture would encourage you to remain silent.