Si usted tiene una demanda de acoso sexual laboral, lo que usted reporta inicialmente a la Comisión de Igualdad de Oportunidades de Empleo (Equal Employment Opportunity Commission en inglés), y cómo lo reporta, puede afectar su demanda legal en las cortes.

Antes de interponer una demanda de acoso sexual laboral en contra de su empleador bajo el Título VII de las leyes de Estados Unidos, la vícitma debe de primero presentar cargos con el EEOC (siglas en Inglés para la Comisión de Igualdad de Oportunidades de Empleo). El EEOC entonces emite una notificación llamada “derecho a demandar,” la cual le permite a la víctima interponer su demanda en las cortes.

En la reciente opinión en el caso Little v. CRSA emitida el 15 de Agosto del 2018 por el Décimo Primer Circuito de la Corte Federal de los Estados Unidos, la Corte decidió que la demanda de acoso sexual de Sybil Little estaría limitada sólo a los cargos que ella presentó anteriormente con el EEOC, y afirmó la decisión de la corte del distrito, la cual desestimó la demanda federal de Sybil Little en su totalidad.

Sybil Little estuvo empleada desde el 2006 como Técnica y Coordinadora de Seguridad de la compañía CRSA en Fort Rucker, Alabama. En su demanda en la corte federal, Sybil Little alegó que ella había sido víctima de continuos acosos sexuales de parte de Jason Patrick, el Director de Operaciones de CRSA, y de Ricky Norris, Jefe de Técnincos de CRSA. Ella alegó que Patrick le propuso tener relaciones sexuales y que Norris le hizo comentarios sobre su cuerpo y apariencia personal, y la motivó a que usara vestidos y tacones para que él puediera verla trepar por la escalera.

El principal error de Sybil Little al presentar su demanda en la corte federal fue que ella sólo incluyo en su cargo con el EEOC la alegada discriminación sexual de parte de Norris, y no la de Patrick, y tampoco incluyó en su demanda con el EEOC ningún alegato de discriminación sexual en contra de su empleador, CRSA.

La decisión del Décimo Primer Circuito detalla lo siguiente:

Las demandas ante el EEOC no se interpretan de manera estricta, y la demandas judiciales son permitidas sólo si las mismas amplian, aclaran, o se enfocan con más detalles en las alegaciones presentadas antes el EEOC. En el caso de Sybil Little, las alegaciones de su demada federal no podían aclarar alegatos que ella no incluyó en su demanda ante el EEOC.”

Bajo el Título VII de las leyes de los Estados Unidos, un reclamo de acoso sexual no se puede mantener en contra de personas naturales como Norris y Patrick, sólo en contra de empleadores como CRSA. Basado en el único alegato de conducta indebida de parte de Norris, CRSA pudiera haber sido responsable bajo el Título VII si Norris hubiera sido un supervisor inmediato de Little, lo cual haría a CRSA responsable subsidiaria por la conducta de su empleado. CRSA también pudiera haber sido responsable subsidiaria si hubiese sabido o debía de haber sabido sobre la conducta de acoso sexual de su empleado, y no hubiese tomado medidas correctivas con relación a ésta conducta. Little, sin embargo, no inluyó en su demanda ningún alegato estableciendo que Norris era su superior, ni tampoco incluyó alegaciones de que ella reportó la conducta indebida de Norris a sus directores o al departamento de Recusos Humanos. Las meras alegaciones de Little de que Norris le hizo comentarios ofensivos no son suficientes para demostrar que la dirección de CRSA sabía o debió de haber sabido del acoso sexual.

Si usted ha sido víctima de acoso sexual en su lugar de empledo, usted debe de hablar de éste asunto con un abogado especializado en este tipo de leyes, él cual lo puede guiar en todos los aspectos necesarios para poder reclamar sus derechos, desde el presentar un cargo con el EEOC hasta radicar la demanda en las cortes estatales o federales.

The world’s third largest airline has been accused of failing to protect a female flight attendant from years of harassment by a male pilot. The Washington Post reports that the Equal Opportunity Employment Commission filed a lawsuit in federal court in Texas last week, alleging that the airline refused to take action against a pilot who posted compromising photos of the attendant online, even after she complained to her superiors and the pilot was arrested for stalking (here is a PDF of the Complaint). The EEOC issued a statement on the lawsuit.

Consensual Relationship, Photos, and an Injunction

The Post reports that the woman, who is not identified in the complaint, began a consensual relationship with United pilot Mark Uhlenbrock in 2002, and allowed him to take pictures and record video of her in provocative poses.  She ended the relationship in 2006 when she discovered that Uhlenbrock had posted the pictures on a website for swingers without her knowledge and refused to stop.  The harassment, however, was just beginning.  Over the next decade, Uhlenbrock continued to post the pictures and videos on the internet, including partially nude images of the woman in her uniform, and listing her name, occupation, and home airport.  The Post reports that she filed at least three lawsuits against Uhlenbrock, obtaining a $100,000 damages award and a permanent injunction barring Uhlenbrock from posting the images.  The FBI became involved when he continued to post the images, ultimately arresting Uhlenbrock in 2015 for stalking. He later pleaded guilty and was sentenced to 41 months in federal prison.

No Action from United Airlines

The EEOC’s complaint focuses on United’s response, or lack thereof.  According to the suit, the woman reported the harassment to United’s human resources department and general counsel on several occasions, but the company refused to take action.  Amazingly, the airline allegedly told the woman the Uhlenbrock’s conduct did not constitute workplace sexual harassment and did not warrant intervention or action by the company.  The EEOC alleges that this to prevent and correct Uhlenbrock’s conduct violated Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on sex, which includes sexual harassment.  The complaint notes that Uhlenbrock had supervisory authority over flight attendants, and that the airline had rules of conduct, disciplinary mechanisms, applicable policies and procedures, and the authority to prevent and correct Uhlenbrock’s harassment.  Perhaps most disturbingly, United allegedly granted Uhlenbrock long-term disability following his arrest, and allowed him to retire with full benefits following his guilty plea.

The complaint, which was filed after the EEOC attempted to reach a voluntary settlement through its conciliation process, asks the court to order United to pay compensatory and punitive damages to the flight attendant, and permanently enjoin the airline from engaging in further gender-discriminatory practices.  The EEOC also asks the court to order the company to create and carry out policies and practices that eliminate and prevent sexual harassment in the workplace.

In the EEOC statement, Supervisory Trial Attorney Eduardo Juarez notes that “United was aware of the intimate details of how its pilot was harassing its flight attendant, but took no responsibility to put a stop to it. As a result, over a period of many years, the flight attendant had to work every day in fear of humiliation if a co-worker or customer recognized her from the pilot’s postings. This is unacceptable, and the EEOC is here to fight such misconduct.” According to the Post’s report, a United spokesman disputed the EEOC’s allegations, and claimed that “United does not tolerate sexual harassment in the workplace and will vigorously defend itself against this case.”

We will continue to follow this story as it develops.

Beyonce, as usual, is making headlines with her September issue of Vogue and a candid interview with her thoughts on all sorts of topics, including, the legacy she wants to pass on to her kids. She wants her daughters to see themselves in books, films, as CEOs, and knowing that they don’t have to fit a certain mold. When it comes to her son, she says:

I hope to teach my son not to fall victim to what the internet says he should be or how he should love. I want to create better representations for him so he is allowed to reach his full potential as a man, and to teach him that the real magic he possesses in the world is the power to affirm his own existence.”

This quote led me to think about how toxic masculinity (and femininity) influences our lives and our roles at work, home, school, and in our communities. I certainly can’t answer what it’s like to be a man, but I don’t think men and women should feel confined to play certain roles and fulfill stereotypes to be “quiet and nice” or “strong and stoic.”

How do men and women work together to turn things around?

There is a treasure trove of answers and thought-provoking questions in the Man Enough online series that is the start of a very important dialogue. In the series, a group of men openly discuss what it means to be a man, be vulnerable, and #metoo. The men in the series recognize that the concepts of masculinity in American media ingrain misogyny in boys and girls from an early age. So much so that almost all the men in the series have witnessed harassment or assault and failed to intervene even though they consider themselves good guys. In the #metoo episode, Tony Porter, the CEO of A Call to Men says that he thinks “It’s really rooted in how the law is defined. You could do some crazy s—- and be on the side of the law, right?” Yes, he’s right in the sense that employers and harassers got away with sexual harassment and retaliation against women for coming forward for a long time (and still do sometimes), mostly because there weren’t any real legal consequences until Title VII came along, but sexual harassment continues despite the legal remedies that exist at the state and federal level. Legal remedies by themselves are insufficient to effect change in the absence of a shift in culture. If women aren’t comfortable coming forward, there won’t be any cases against harassers and/or their employers.

Social consequences

#Metoo is the dawn of social consequences for bad behavior. Will #metoo lead to legal consequences? We will have to wait and see. If we give boys the space to ignore what the internet says boys and men should be and allow them to affirm their own existence, will misogyny begin to disappear? This won’t be my last post on this complicated topic, so stay tuned!

 

It occurs to me that a more positive, not-everything-is-bad post is in order. My past posts have addressed the employee-employer imbalance of power, advocated an end to mandatory arbitration, and criticized the Senate version of the proposed, revised Congressional Accountability Act. However, progress has nonetheless been made these past months (at least I think so) and so it makes sense we take stock.

Jodi Kantor, of the (failing) New York Times [yes, that is a joke: relax!] attempted to do just that, take stock, back in March. Her article highlights a variety of actions taken by companies, cities, states and the federal government in response to the #metoo movement and society’s possible awakening. While Ms. Kantor’s assessment was certainly not all positive – much (most) work remains, much of it at a societal level – she nonetheless pointed to some bright spots. One success was Microsoft’s announcement, late last year, to get rid of forced arbitration in its employment agreements. Another was the Screen Actor’s Guild (“SAG”) publishing an updated Code of Conduct. Even if you are not a waiter/actor in LA, this is an interesting read, especially for newbies. SAG’s Code defines some basic terms (e.g., quid pro quo, hostile work environment, retaliation) and educates actors and employers on what to expect when a complaint is filed, as well as provides resources to employees.

But I am singling out Facebook for further analysis and some praise (God knows, it needs it). In December 2017, Facebook took the somewhat unusual step and put its internal policy online for all to see. In the announcement post COO Sheryl Sandberg declared Facebook’s “philosophy” was to go beyond what was legally required – not too hard, unfortunately- and to enforce a zero-tolerance approach. Undergirding the policy are the following six principles: 1) mandatory sexual harassment and unconscious bias training; 2) treating all claims with “seriousness, urgency, and respect”; 3) investigating claims in a way that protects employees from stigma or retaliations; 4) applying the process consistently; 5) taking “swift and decisive action” when wrongdoing is identified; and 6) involving all employees in making the workplace safe by encouraging people to report unacceptable behaviors, even if it does not involve them.

The Facebook policy is a real treasure-trove for commentary and analysis and over the next few posts, I aim to highlight some of the encouraging parts, compare it against the company’s stated philosophy and principles, and give you my two-cents on what (if anything) might be problematic or objectionable.

If you have time, read over the Facebook policy and stay tuned.

On June 25, 2018, the U.S. Court of Appeals for the 11th Circuit issued its opinion in Wilcox v. Corrections Corporation of America in favor of the employer in a Title VII sexual harassment claim. The 11th Circuit affirmed the district court’s granting of the employer’s Rule 50 Motion for Judgment as a Matter of Law (“Rule 50 Motion”) after a jury returned a verdict for the employee, Felicia A. Wilcox, of $4,000 in actual damages and $100,000 in punitive damages. The 11th Circuit Court of Appeals agreed with the employer, Corrections Corporation of America, that the employer could not be held liable because it took prompt remedial action after Ms. Wilcox complained about the harassment.

Helen H. Albee, one of Ms. Wilcox’s attorneys, was surprised that the 11th Circuit followed what the district court did and were “unconcerned with the amount of factual analysis the district court did on the Rule 50 motion.” Ms. Albee noted that after the jury’s verdict, the district court did “a lot of re-weighing the evidence the jury did already.” Let’s take a look at the facts and what happened in this case.

What Happened and When?

Ms. Wilcox alleged that a coworker, Larry Jackson, slapped her buttocks twice, squeezed her thigh, and made sexually explicit remarks on different occasions. When Ms. Wilcox filed a complaint with her employer, the employer took the following steps:

  • The employer ordered Jackson not to be around Ms. Wilcox immediately, but nonetheless he rolled his eyes at her repeatedly and punched a metal machine in front of her to intimidate her;
  • After Ms. Wilcox made a second complaint to the employer about prior sexual harassment incidents and her fear that he would touch her again, the employer’s investigator interviewed Ms. Wilcox 6 weeks after her first complaint;
  • The employer’s investigation included interviews with 16 other employees that resulted in sexual harassment complaints against Jackson by other employees;
  • 8 weeks after Ms. Wilcox’s complaint, the employer’s investigator found that Jackson sexually harassed Ms. Wilcox and other employees; and
  • The employer terminated Jackson five days after the investigation report.

Knowledge + No Prompt Remedial Action = Employer’s Direct Liability

An employer can be held liable for a hostile work environment claim through either vicarious or direct liability. If the harasser is not the victim’s supervisor, an “employer will be held directly liable only if it knew or should have known of the harassing conduct but failed to take prompt remedial action.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1278 (11th Cir. 2002). Wilcox argued that her employer should have known about Jackson’s additional harassment after she complained about him because he would inappropriately hug female employees and make intimidating looks and gestures toward Ms. Wilcox after her first complaint. The 11th Circuit didn’t think the harassment was sufficiently pervasive to impute knowledge to the employer because (1) Ms. Wilcox didn’t report the hugging or intimidating conduct; (2) there wasn’t any evidence that the hugging was widespread or considered offensive; and (3) the employer’s anti-discrimination policy was well-known and vigorously enforced.

As for the employer’s “prompt remedial action,” the 11th Circuit held the employer’s action was effective “and a reasonable jury would not have a legally sufficient evidentiary basis to find otherwise.” Wilcox v. Corr. Corp. of Am., No. 17-11919, 2018 WL 3099892 (11th Cir. June 25, 2018). The only prompt action that seemed to occur here was ordering Jackson to stay away from Ms. Wilcox. Nine weeks is a long time to be working alongside a harasser who is being physically intimidating without saying a word. During oral argument, the employer’s attorney argued that Jackson’s termination within 5 days of the report concluding sexual harassment occurred and investigation into numerous other allegations showed that the ends justified the means because “the investigation was reasonable under the circumstances.” The 11th Circuit reasoned that a jury could not find that the employer failed to act promptly because “there were a lot of moving parts in the company’s investigation, and each of those workings took time” and “culminated in Jackson’s termination.” Wilcox, No. 17-11919, 2018 WL 3099892 (11th Cir. June 25, 2018).

Many employees want to know what is going on with the company’s investigation after lodging a sexual harassment complaint. Working alongside a harasser while an investigation is ongoing can be excruciating, but many employers don’t keep the victim apprised of the investigation. While taking six weeks to interview a victim scarcely seems “prompt,” a court may conclude otherwise if the investigation is complicated and results in the harasser’s termination. If you are experiencing sexual harassment at work, an attorney can help you understand your rights and guide you through the pre-litigation phase.

A new lawsuit involving non-lawyer employees at Dentons, the world’s largest law firm, reiterates that there is no area of society immune from sexual harassment issues, and that a company’s response to allegations against an employee deserves as much scrutiny as the underlying behavior. Above The Law and the ABA Journal Blog outline the allegations leveled by Kruanli Parekh, a Business Development Specialist, against Alton Delane, the Managing Director of Dentons’ Venture Technology Group.  Law.com and Bloomberg’s Big Law Business Blog also have reports.

Allegations of Inappropriate Touching and Vulgar Language

Parekh’s Complaint alleges that Delane treated her as a sex object, using vulgar language, trying to draw her in to sexual conversations during late night calls, and touching her legs and buttocks without her consent. The Complaint even offers a bullet-point list of explicit allegations against Delane, while noting that he generates significant business for Dentons and is treated as a partner. Not surprisingly, alcohol is alleged to have played a part in Delane’s alleged-behavior.

Dentons, which just a few months ago dealt with allegations made against a partner while at a firm that merged with Dentons, issued a statement explaining that it placed Delane on administrative leave upon first learning of the allegations, and that it will take appropriate action upon conclusion of an internal investigation.  Parekh’s Complaint, however, alleges that Dentons initial response was far from robust. She claims that when she complained to her supervisor, she was told not to discuss the matter with anyone, which she characterizes as the firm’s effort to silence her and discourage her from seeking outside counsel. Parekh attributes the response—and the environment which enabled Delane’s alleged behavior—to a lack of female representation among the firm’s leadership. There are just three women on Dentons’ 34-member global board, and two on its 20-member global management team. For its part, the firm noted in its statement that five women serve on its 16-member U.S. board.

Whether Dentons responded appropriately or not will be borne out as the case progresses. Above The Law notes that Parekh’s allegation that she was told,

do not discuss this with anyone else inside or outside the firm,”

could be part of a prudent direction if given in the context of a request to wait until the firm concluded its investigation. Parekh’s lawyer told Bloomberg that the firm knew about the allegations for months, and only took action once Parekh sought outside counsel.  What is clear, however, is that even though companies can’t control for every employee’s behavior, they can control their response.  And society is paying attention.

You may have a situation where not only you have been the victim of sexual harassment in the workplace, but your coworkers may also have had other negative experiences with the same employer. Can all of you jointly sue the employer for workplace sexual harassment in what is called a class action or collective action?

It depends. If you and your coworkers each have an employment contract with the offending employer, the fine print may contain an arbitration clause that prohibits bringing a class action against your employer. What does having an arbitration clause mean? It means that any dispute you have with your employer must be resolved one-on-one in a private setting by a neutral arbitrator or panel of arbitrators. The arbitrator(s) may be selected by your employer or jointly by you and the employer from a list of arbitrators. You may have given up the right to file a complaint in state or federal court, where a jury of your peers decides the merits of your claims. Theoretically, it is more favorable to have your claims resolved by a jury than an arbitrator or arbitrators selected by your employer.

The Epic Systems Corporation v. Lewis Decision

The Supreme Court of the United States in Epic Systems Corporation v. Lewis, recently considered whether employment contracts that require one-on-one arbitration for resolving disputes are enforceable if their effect is to prevent several employees from jointly suing their employer. The opinion began with the following questions:

Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective        ac­tions, no matter what they agreed with their employers?

The employees involved in the Epic Systems case argued that the National Labor Relations Act (“NLRA”), which secures employees’ right to organize unions and bargain collectively, gave them the right to collective action. The employers argued that the Federal Arbitration Act permitted a bar to collective legal action. The Supreme Court, in a 5-4 opinion penned by Justice Neil Gorsuch, held that the NLRA does not give employees a right to class actions. Rather, the Federal Arbitration Act provides that arbitration agreements must be enforced according to their terms—including terms providing for individualized arbitration.

Fatima Goss Graves, President and CEO of the National Women’s Law Center, released the following statement on the day the Supreme Court issued its opinion in Epic Systems:

Fatima Goss Graves, National Women Law Center’s President and CEO

“Today, the Supreme Court has taken away a powerful tool for women to fight discrimination at work. Instead of banding together with coworkers to push back against sexual harassment, pay discrimination, pregnancy discrimination, racial discrimination, wage theft, and more, employees may now be forced behind closed doors into an individual, costly – and often secret– arbitration process. This will stack the deck in favor of the employer. For all working people, the right to join a class or collective action is an indispensable tool to advance fairness, justice, and equality at work. For women workers, however, the stakes are particularly high. Women often face discrimination that is difficult to detect, like pay discrimination, or suffer from sexual harassment and face retaliation for reporting it. As mandatory arbitration is forced on growing numbers of employees as a condition of employment, the Supreme Court should strengthen rather than undermine the rights of workers to challenge insidious and often widespread civil rights violations.”

In Florida, if you are a non-union employee, have an employment contract, or mandatory arbitration is a condition of your employment, then your ability to sue your employer along with your coworkers for workplace sexual harassment is limited by the Epic Systems decision. Not all arbitration clauses are written the same and some companies are e-mailing their arbitration agreement to employees and telling them that if they continue to be employed there, they are deemed to have accepted the terms. If you and your coworkers are experiencing sexual harassment, you should seek legal counsel to determine whether you are restricted from raising a workplace sexual harassment claim as a class action. We are here to help you figure out the available legal avenues if you find yourself in this situation.

As the #metoo movement continues to ripple through our society, public and private companies are scrambling to update their sexual harassment policies.

Our Lawmakers didn’t want to be left out of the we-hear-you lovefest and, this February, passed what many observers consider a wide-ranging revision of the Congressional Accountability Act of 1995 Reform Act. The bill got rid of mandatory pre-suit mediation and counseling (yes, you read that right, there was a counseling requirement), made legislators personally financially liable for harassment settlements and, perhaps most impressively, provided the victim with legal counsel, something sorely needed if you are a low-paid employee or intern going up against a powerful lawmaker.

Enter the Senate, whose members appear to have thought this whole levelling-the-playing-field business went a bit too far. Last month the Senate passed its own watered-down Bill without many of the House’s most encouraging ideas. For all you nerds, here is the full text. According to a letter from the ACLU (and others) to Senate leadership, the Bill’s main issues are: curtailing the lawmakers’ financial responsibility by adding procedural hurdles and limiting the type of damages they would personally pay; increasing the difficulty of proving claims by using the legal “severe and pervasive” standard; requiring the victims to ‘opt out’ of mediation; reducing transparency by shielding the accusers from public disclosure; and, again perhaps most importantly, limiting the role of the victim’s assigned advisor.

Sidebar: as the letter points out, the Senate Bill also uses the term “unwelcome harassment,” rather than just harassment. The Bill author really should come forward and explain the difference between harassment and “unwelcome harassment” to me. I would really get a kick out of that chat.

Anyway, we will have to wait and see what the reconciliation process (aka the sausage factory) comes up with. Stay tuned.

As the #metoo movement continues gaining momentum, the dialogue around sexual harassment and assault is shifting to reveal the epidemic of sexual misconduct in our culture. Up to 85% of women report having experienced sexual harassment in the workplace, 75% of victims of hostile work environments do not report the harassment, and 75% of those who report harassment experience retaliation. What actions come next? On April 25, 2018, activists, advocates and lawmakers gathered at the U.S. Capitol to say Enough is Enough to the culture of sexual harassment and discuss how to strengthen federal law and policy, organize survivors, address workplace policies, and develop survivor-centric solutions. The Summit exemplifies the types of discussions we need to achieve justice for sexual harassment victims and prevent harassment. Video of the Summit is available on CSPAN.

The Takeaway from the Summit

Toni Van Pelt, NOW President

For Toni Van Pelt, President of the National Organization for Women (NOW), the takeaway from the Summit was “the deeply embedded need to overhaul the ways we deal with sexual assault from a political, legal, and cultural lens.” For her, identifying the scope of the problem, and where activists should target their energies were at the top of her list. Deborah Vagins, Senior Vice President of Public Policy & Research with the American Association of University Women (AAUW), found the Summit to show “we are at a moment in time where hopefully something can be done to address this problem” because the #metoo movement has “pierced the public consciousness” in a way we have not seen in decades.

How do We Strengthen Federal Law and Policy to Address Sexual Harassment?

Deborah Vagins, AAUW Senior Vice President, Public Policy & Research

Title VII of the Civil Rights Act is the federal law that makes it unlawful to discriminate because of an individual’s sex and makes sexual harassment a form of sex discrimination. In addition to built-in limitations in Title VII, court decisions have interpreted the statute in ways that further limit the protections and relief a victim can seek in court. Ms. Vagins, one of the participants on the federal law and policy panel at the Summit, said her panel identified the following barriers in Title VII cases:

  • Standards of liability against the employer have become more difficult over the years. Holding an employer vicariously liable for the misconduct of a daily manager, for example, is more difficult if the manager doesn’t have the power to hire or fire you;
  • Forced mandatory arbitration clauses that force victims to forego their day in court;
  • Non-disclosure agreements that are a condition of employment;
  • Short statute of limitations;
  • Title VII’s fifteen-employee threshold for the law to apply to the employer; and
  • Title VII’s limited reach that does not cover independent contractors.

Ms. Van Pelt adds that we need to look “towards strengthening Title VII protections for all workers,” including those in small companies, contractors, domestic workers and laborers like caregivers and maids, and farm and migrant labor workers because they “are some of the most abused and exploited workers in the world.” Ms. Van Pelt also emphasized the importance of renewing the Violence Against Women Act (VAWA) which will automatically expire if not renewed this year. She believes VAWA should also specifically address sexual harassment and assault in the workplace and in schools.

Potential Legislative Proposals

Besides strengthening Title VII and VAWA, Ms. Vagins and Ms. Van Pelt shared the following existing or potential bills with me:

  • Arbitration Fairness Act – to prohibit pre-dispute mandatory arbitration in employment discrimination, consumer, antitrust, and civil rights cases;
  • Ending Forced Arbitration of Sexual Harassment Act – limits pre-dispute mandatory arbitration in sexual harassment cases only;
  • Equal Remedies Act – an older bill that would lift the caps on Title VII damages, helping to deter companies from knowingly violating Title VII;
  • Fair Employment Protection Act – makes employers liable for harassment by workers who have the authority to control the daily lives of employees regardless of the authority to hire or fire;
  • Bills relating to the legislative workforce and their unpaid interns;
  • Bills addressing non-disclosure clauses as a condition of employment, requiring that public companies disclose the number of settlements in connection with harassment; and
  • Bills with requirements for developing and disseminating workplace training programs.

Ms. Vagins points out that none of these bills holds the answer, “but in combination would go a long way.” Ms. Van Pelt believes it is also important to strengthen Title IX to ensure it is “not only protecting students on campus, but that there are clear and transparent reporting processes.” As for timing, movement on these proposals and bills won’t have to wait until after the 2018 mid-term elections. “Right now a bipartisan committee is already working on VAWA; however I believe that the influx of progressive women running for office in November will inevitably bring about a much-needed cultural change” says Ms. Van Pelt. Ms. Vagins is equally optimistic and says to

never underestimate the power of public pressure to make change.”

If either chamber flips to a different party, Ms. Vagins thinks we will “probably see a flurry of these bills pass,” so legislators need to be careful to protect existing civil rights bills from unfriendly amendments.

Year-Round Resources

The Enough is Enough Summit may become a much-needed annual event to continue this important dialogue and find solutions. Throughout the year, AAUW, NOW, and some of the other organizations that participated in the Summit provide resources and legislative campaigns for sexual harassment victims their attorneys including: AAUW’s Legal Advocacy Fund to offset litigation costs and Know Your Rights materials; NOW’s national action campaigns; and the National Women’s Law Center’s Time’s Up Legal Defense Fund. If you are experiencing sexual harassment in the workplace, we can help you understand your rights.

Immediately after graduating from law school, Carl began working as a law clerk for Judge Jorge Martinez. Carl loved his job, which enabled him to watch civil and criminal trials, perform research and draft proposed legal opinions, provide recommendations to the judge, and meet other judges, law clerks and prominent lawyers in the community. After a few months, Judge Martinez introduced Carl to one of his colleagues, Judge Martha Stone, to whom Carl was immediately attracted. Much to Carl’s surprise, the attraction turned out to be mutual, and after consuming a few drinks and spending considerable time together at a fundraising event, Carl and Judge Stone began dating. Initially the relationship was extremely positive. The mutual attraction was both physical and intellectual. The two discussed cases and legal issues together, and Judge Stone was impressed with Carl’s abilities. But after a few months, the love affair turned sour. Judge Stone believed Carl was secretly seeing someone else, and an ugly side of her emerged. Judge Stone decided not only to end her relationship with Carl abruptly, but to make his life as miserable as possible.

The Harassment Begins: Unwanted Touching and Pictures Posted in the Bathroom

Whenever Judge Stone spoke to Judge Martinez and Carl was within earshot, Judge Stone asked how Judge Martinez could manage his caseload in the absence of any competent support. She said she knew of at least a dozen other recent law graduates far more qualified for Carl’s job. On several occasions after chatting with Judge Martinez, Judge Stone would leave Judge Martinez’s chambers, enter Carl’s office, and get extremely close to Carl, brushing up against him in a way that he felt was inappropriate and intended to intimidate. One day, outside the men’s restroom, Carl found a photograph of himself he remembered had been taken by Judge Stone. Under the photograph was an added caption, “We Who Labor Here Seek Only Truth. Carl: We Don’t Want Your Tiny Hands Anywhere Near Our Underpants”. From that point forward, the judges and judicial staff shunned Carl. One day when Judge Martinez was away from his chambers, Judge Stone came in and begged Carl to get back together with her, on the condition that he promised to be faithful to her. Carl tried to be polite, but explained that he had moved on, and was uncomfortable resuming the relationship in light of recent events. Judge Stone stormed out of Judge Martinez’s chambers without a word. Later that week, Judge Martinez started treating Carl dismissively, unlike ever before, finding fault with every piece of Carl’s research and writing, and began ridiculing every one of his recommendations. Carl’s dream job was now a nightmare.

Carl is Terminated After Complaining to Human Resources

Carl reluctantly complained about Judge Stone’s harassment to human resources. The human resources manager listened politely at first, but then disclosed that Judge Stone had previously complained about Carl, claiming that he was sexually harassing her. The manager asked if Carl really expected he would be believed, and suggested that he resign voluntarily. Shocked, Carl left discouraged, but vowed he would fight on. How could he ever be an effective lawyer fighting for the rights of others, if he couldn’t even stand up for his own rights? Carl refused to quit, and was promptly terminated. He retained a lawyer, and brought an action claiming he was exposed to a hostile work environment, and that his termination was retaliation for having complained about Judge Stone.

When Can Harassment After a Failed Intimate Relationship Constitute Actionable Workplace Harassment Under Title VII?

To establish a claim of hostile work environment sexual harassment under Title VII, the employee must allege and prove that the harassment was based on the employee’s sex. The mere fact that an intimate relationship gone wrong results in harassment by one co-worker against another in the workplace, does not in itself turn sex-neutral harassment into actionable sexual harassment. Rather, courts often find that harassment by a co-worker is not considered to be based on sex when it arises from a failed relationship. On the other hand, a prior failed relationship between an accused harasser and an alleged victim does not insulate the harasser from a finding of sexual harassment. A teacher who harassed a fellow teacher following a failed intimate relationship, by making threatening overtures toward the teacher’s wife and son, verbally and physically harassing the teacher in front of colleagues and students, for example, did not constitute actionable sex discrimination under Title VII, because it was motivated not by the teacher’s male gender, but by his former lover’s contempt following their failed relationship; the male gender was merely coincidental. Succar v. Dade County School Bd., 229 F.3d 1343 (11th Cir. 2000).

In contrast, when an employee was terminated because she reasonably believed it was a retaliatory discharge because she was the victim of harassment that was at least partly sexual in nature, she had a viable Title VII claim against the employer. The harasser’s brushing up against the employee in a way that appeared sexual and made her uncomfortable, and soliciting her to reinstate their previously intimate relationship, was sufficient to provide her with an objective belief that she was the victim of gender-based actionable sexual harassment. Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir. 2001).

In Carl’s case, he likely has enough to pursue a claim for retaliation under Title VII for reporting sexual harassment, particularly because Judge Stone sought to reinstate their intimate relationship, posted the photo of Carl with a sexually demeaning caption, and brushed up against Carl in a sexual and intimidating manner. Even though Carl did not work directly for Judge Stone, she was in a position of considerable power relative to Carl, similar to a case against a judge in Massachusetts that was recently filed and led to the judge’s resignation. Have you experienced sexual harassment that resulted from what began as a consensual relationship? If so, we may be able to help.