Archive for the ‘Sexual Harassment’ Category

I written before about how an employer can be damned when supervisors have sex with employees: https://damnedif.com/category/sexual-harassment/.

 

But being obsessed and pursuing a relationship can be just as damning. Take the recently-reported case at the Massachusetts Commission Against Discrimination (“MCAD”) MCAD v. Illumina Media. The employer is on the hook (subject to potential appeals) for a sizable award because, the MCAD found, one of the company’s owners made repeated sexual advances to a female employee, even though she repeatedly rejected them. This was the case even though, the MCAD found, the female employee actively participated in a sexually charged workplace atmosphere, where sexual innuendo and horseplay were commonplace and people looked at pornographic images on the internet.

 

The case reads like a made-for-TV movie of the week. The female employee started at Illumina as a 24 year old. According the case report, the company owner was at first friendly, but soon started to make comments about his sexual prowess with much younger women, and then suggested that he and the victim were “on a date.” The employee thought that these comments were strange and inappropriate, and would often reply that “it’s not happening” or “it will never happen.” Undaunted, the owner continued his pursuit, according to the report, and escalated the behaviors by explicitly asking for sex on a number of occasions, which the employee refused. The actions went downhill from there, according to the report. You can find a link to the decision here: http://www.mass.gov/mcad/documents/MCAD%20&%20Brooke%20Anido%20vs%20Illumina%20Media%20LLC%20dba%20Illumina%20Records%20&%20Ronald%20Bellanti.pdf

 

It does not appear that Illumina strongly or effectively contested that the owner aggressively pursued a sexual relationship with the employee. The MCAD Hearing Officer found Illumina and the owner liable for quid quo pro sexual harassment (generally thought of as conditioning a job or employee benefits on succumbing to sexual advances) as well as for constructive discharge. The MCAD reasoned that by treating the employee differently after she rejected the owner’s sexual harassment, Illumina could be held liable for quid quo pro sexual harassment. The decision was upheld after an appeal to the Full Commission of the MCAD.

 

Illumina and the owner were ordered to pay $75,000 in emotional distress damages and nearly $10,000 in lost wages. These two figures are subject to 12% interest from the date of filing the Complaint, which was a staggering six years prior to the decision of the Full Commission. Thus, interest will run at about 71%, adding $60,000 to this figure. The defendants are also liable for the employee’s legal fees and costs of over $62,000. Assuming that Illumina spent a similar amount on legal fees, the total out of pocket for the company appears to be at least $270,000, barring any further appeal.

 

While the facts here appear to be fairly egregious, the case should serve as a warning to all employers. Owners and managers, as human beings, will inevitably be attracted to subordinate employees. If you are a company of any significant size, there is no doubt that there are such attractions occurring right now at your business. You need to train all of your managers on how to deal with these issues (a subject for another post), or you could be on the hook for $270,000 or much, much more. Mangers and owners can easily fall into the trap of thinking that a loose environment means that anything goes in the workplace. But this case proves that such thinking can lead to big trouble.

 

By Adam P. Whitney

 

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At some point in time, every employer of a certain size will have to deal with employees who begin a romantic relationship.  In a perfect world, that would be none of an employer’s business, and would not be a basis for a lawsuit.  In the real world, a host of bad things can happen, especially when the relationship is between a supervisor and a subordinate.

The most obvious problem is that a subordinate may feel pressured to go on a date or enter a relationship.  He or she may feel that their job is on the line if they don’t.  That’s called quid quo pro (Latin for “this for that) sexual harassment.  It also translates to “big ass lawsuit.”  Especially in Massachusetts, which makes your company strictly liable for the actions of a supervisor.

Even if the relationship is completely consensual, you are still not in the clear.  First, the relationship may end badly, and the subordinate may engage in revisionist history and claim that he or she was pressured into the relationship.  They may even file suit to get back at the supervisor, especially if he’s an owner of the company.  Believe me, this happens.

Second, the other subordinates in the office will resent what they see is favoritism for sleeping with the boss.  They get the subtle message that to get ahead, you have to put out.  This can translate into a form of sexual harassment, for which your company will also be liable. 

What can you do?, you ask.  You can’t stop human nature.  I agree that you are never going to completely stop workplace relationships.  Nor should you try.  I’ve known plenty of people who met their spouses at work.  But you can and should protect yourselves.  You should have certain polices in place, especially for your supervisors.  You should also consider a Consensual Relationship Agreement (a/k/a a “Love Contract”). 

If your company wants to proactively address these issues, or if you are already faced with an employment relationship in your office, give me a call.  As always, this blog is information and not legal advice.

By Adam P. Whitney, 617-338-7000.

Here’s a very interesting read from a fellow blogger, Attorney Jon Hyman, who has an excellent blog on employment law in Ohio: http://www.ohioemployerlawblog.com/2011/08/if-your-workplace-has-no-bra-thursday.html

As you can read from the post and the attached complaint, the employee alleges that her supervisor asked her sign a note agreeing that he could sexually harass her.

It should go without saying that an employee cannot be forced to waive her rights against sexual harassment. In limited circumstances, participation in sexual banter can be a defense to a sexual harassment claim, but it’s really a defense of last resort, because it is an admission of a sexually charged atmosphere. Moreover, even if an employee seems to participate in sexual banter or jokes or whatnot, the employee may feel that there is no choice other than to play along. Or, the employee may be terminated and suddenly find the banter offensive and hostile.

The takeaway is obvious. Don’t tolerate any kind of sexual banter in the workplace, unless you want to try your luck explaining to a government agency, judge or jury why it was okay to do so.

If you have any questions about sexual harassment, call me at 617.338.7000.

By Adam P. Whitney

It’s all fun and games until someone files a lawsuit. That’s surely what one Massachusetts employer thought. In that recent case, decided before the Department of Industrial Accidents, the employee reportedly asked her boss, Mr. Grillo, for health insurance. She alleges that he agreed to provide health insurance if the employee would agree to wear a chicken head costume. The chicken head in question was apparently part of a running joke in the office. The employee refused, and was allegedly given other absurd options, such as e-mailing all of her friends that Mr. Grillo is god, or to come to work with red lipstick and to kiss another employee’s bald head. The case is reported at the DIA as In Re: Cappello, (DIA) (Board Nos. 026109-07 and 022705-07) (March 23, 2011).
In this case, the DIA granted the employee worker’s compensation benefits for emotional injury suffered at work. The claim could even be doubled if the DIA determines that the employee committed serious and willful misconduct.
The employee’s psychiatrist concluded that Mr. Grillo’s alleged harassment was the predominant contributing cause of the employee’s adjustment disorder and her major depressive disorder.
Although this case was brought under worker’s compensation, it has serious implications for other employment laws. For example, asking a female employee to wear red lipstick could easily be construed to be sexual harassment. Additionally, the employee almost certainly, at some point, became protected under the Americans with Disabilities Act and its Massachusetts counterpart, G.L. c. 151B. The employer could have created exposure to itself under these and other theories by harassing the employee and failing to accommodate the employee.
It’s difficult to not allow employees to have a sense of humor. Everyone needs a good laugh now and then, even in the workplace. But employers cannot assume that all employees will appreciate being the butt of jokes. Some employees will be more sensitive than others. Employers better be aware of this and either cease all horseplay, or make certain that every employee involved is a willing participant. Will we see horseplay contracts? This is in reference to “love contracts” which some employers require employees to sign when they are dating one another. I doubt that we will, but you never know.

By Adam P. Whitney, 617.338.7000.

As a recent decision from the Massachusetts Commission Against Discrimination (“MCAD”) shows, allowing an unwelcome sexualized atmosphere at the workplace can be very costly. And firing an employee who complains of sexual harassment is downright foolhardy, as shown in MCAD, et al. v. Sleek, Inc., et al. (Docket No. 06-BEM-01275) (March 15, 2011). A copy of the decision is attached.

In this case, the Complainant, a male, went to work at the all female Sleek Medspa in Burlington. He was soon exposed (no pun intended) to sexualized comments and joking about clients’ genitals and other body parts (the spa did a lot of body waxing), and an incident of a female superior flashing her breasts or bra to the owner of the company over an internet camera (the Complainant saw only her back). The sexualized comments and joking are really not that surprising, and was likely how the aestheticians blew off steam. It really doesn’t sound that bad, but the Complainant found it unprofessional and was very sensitive to it.

If that were all there was to the story, it would hardly be notable, and may not have resulted in litigation. When the Complainant complained about the behavior, he was promptly fired. This was a big no-no. The Company took a marginal sexual harassment complaint that could have and should have been addressed by cleaning up the atmosphere, and turned it into a significant loss for the Company.

How significant? The MCAD awarded the Complainant $150,000 for emotional distress alone. The emotional distress was not so much from the original incidents, but from the termination and everything that went along with that. The Complainant had been (correctly) advised by an attorney that complaining of a sexually hostile work environment was protected, and that he could not be fired. The company stupidly fired him the next day for a reason that was clearly pretextual. He was devastated by the termination and the resultant loss of income.

The Complainant also recovered over $41,000 in lost wages. And the MCAD fined the Company owner $50,000 because he and/or his companies were repeat offenders of employment discrimination laws. That’s over $241,000, without including interest and costs. Interest on the $191,000 owed to the Complainant is significant, at 12% per annum from the date of filing in 2006. By my math, it adds almost 60%, or roughly $110,000. We’re up to $341,000.

And don’t forget that the company paid its own attorneys, which surely added tens of thousands more to the loss. Let’s conservatively call it a $350,000 loss for a dumb termination that any good lawyer would have vigorously counseled against had they been called. (The company was lucky that the MCAD provided counsel for the Complainant; had he hired private counsel, the Company would have been on the hook for tens of thousands for the Complainant’s legal fees).

Don’t make a $350,000 mistake like this company did. If you have any questions about sexual harassment, a hostile work environment, or terminating an employee, call me at 617.338.7000. By Adam P. Whitney.
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