Are You a Victim of Sexual Favoritism at Work?

I was working on a summary of a case called Miller v. Dept of Corrections for the community when, like fate, this question was posted to the forum by a woman who was feeling driven from her job by her boss:

QUESTION: [Edited for clarity]  “I don’t think he’s discriminating based on sex, race or religion. He just didn’t like what I said one day, which was that he “should be more discrete with that girl in accounting” since he is married.

He has had it out for me ever since.

He gave me a horrible review. I went to HR with examples disproving the review. They pushed it to the side and agreed with him. I talked to his boss and stated if someone was going to be given a review that bad then examples should accompany it. She said “Well, he said he told you about it”.

I work in a technical field. His review was based on what I said to him, not my work. When I asked how is that possible in a technical field, where I am given trouble tickets to work on, they said the intangible and subjective items matter most.

Fast Forward, I am now on a performance improvement plan and made to do things that no one else on my 12 person team is required to do. He took away my entire bonus when I can prove, by way of tickets worked, that I do 33% of the work on my team.  I am stressed, I cry all the time, I walk on eggshells and HR is not helping at all. It’s like nothing I say or any proof provided will make a difference. Lastly, it’s Christmas and I haven’t bought my children anything…After i leave work I can’t stop crying enough to make it to a store…”

ANSWER: As I mentioned above, it seemed like fate that this question arrived while I was working on a summary of Miller v. Dept of Correction; let me tell you a bit about it.

Edna Miller worked for the Department of Corrections in California.  Miller worked for a Warden named Kuykendall, who was having three simultaneous affairs with his own secretary, an associate warden, and still a third subordinate employee; The three women were named Patrick, Bibb, and Brown.

Sexual Favoritism Starts

Patrick and Miller both applied for a open management position.  Miller was the senior employee, with more training and more releveant expereience.  A panel of interviewers recommended that Miller be awarded the position, but Kuykendall gave the promotion to Patrick.

Soon after Patrick received yet another promotion and became Miller’s direct supervisor; it was common knowledge that Kuykendall and Patrick were having an affair, and there was widespread grumbling that the way to get ahead was to have sex with the Warden.

To further complicate matters, a new female Deputy Warden named Yakamoto transfered into the workplace and began inviting Miller to dinner.  It was known that Yakamoto was a lesbian, and although Miller refused Yakamoto’s advances Brown did not.  Brown, at this point, was having affairs with both Yakamoto and Kuykendall.

Retaliation Against Miller

Miller believed that because she had refused Yakamoto’s dinner invitations, Yakamoto began interfering with Miller’s ability to do her job.  Yakamoto countermanded Miller’s orders, reduced her supervisory duties, added onerous low-level duties on Miller, and made unwarranted criticisms and write-ups of Miller’s work.  When Miller threatened to report Yakamoto to Kuykendall, Yakamoto and Brown threatened to harm Miller.

Eventually Miller did report Yakamoto’s abuse to Kuykendall, who assured Miller that he “would look into it.”  Nothing ever happened.  Feeling that she had no where else to turn, Miller reported Kuykendall’s failure to control Yakamoto and all Kuykendall’s own affairs to Kuykendall’s supervisor, the Regional Director.

The Regional Director started an internal affairs investigation.  Miller was required to paticipate in interviews as part of the IA investigation, but she was promised confidentiality.  Soon after, however, it became apparent to Miller that Brown knew exactly what Miller had said during to the investigators.

Failure of Promised Confidentiality

Brown and Yakamoto again began retaliating against Miller; one time Brown screamed at Miller at work, then actually followed Miller home from work to continue screaming at her.

Miller, feeling that the stress was damaging her health, resigned from the Department.  Kuykendall retired.  Yakamoto was demoted and given another transfer.  Brown resigned with disciplinary charges pending against her.  About a year after resigning Miller filed a lawsuit against the Department of Corrections alleging sexual harassment and retaliation.

First Court Battles Lost

The trial court and the appeals court found against Miller, concluding that “a supervisor who grants favorable employment opportunities to a person with whom the supervisor is having a sexual affair does not, without more, commit sexual harassment toward other, nonfavored employees.”

The Supreme Court of California reversed both the trial court and the court of appeals, and instead found for Miller. The California Supreme Court reasoned that it was reasonable for Miller to believe that her employer was hostile toward women because of “widespread sexual favoritism.”

Signs of “Sexual Favoritism” You Should Watch For

The Court cautioned that “the presence of mere office gossip is insufficient to establish the
existence of widespread sexual favoritism,” but, enough evidence can be shown by such things as:

1. Admissions by the participants concerning the nature of the relationships;
2. [B]oasting by the favored women;
3. Eyewitness accounts of incidents of public fondling;
4. Repeated promotion despite lack of qualifications; and
5. A supervisor’s admission that he/she cannot control a subordinate because of a sexual relationship with the subordinate.

Despite all of this, the Department of Corrections argued that Miller should not prevail, because this case would mean that courts were starting to regulate private consensual relationships, and the personal privacy of employees and employers alike should not be compromised.  The Department argued that it is better to treat sexual favoritism as a matter of personal preference, in order to avoid establishing a “civility code” governing the workplace.

The Court flatly rejected this argument, stating that “it is not the relationship, but its effect on
the workplace, that is relevant under the applicable legal standard” (emphasis added).

If You Are a Victim of Sexual Favoritism

If you are the victim of sexual favoritism at work, don’t be afraid to print this case out and hand it to your H.R. person or any attorney that you are hoping will take your case.

You can download the full case of Miller v. Dept of Corrections with this link: http://bulk.resource.org/courts.gov/states/Cal/S114097.PDF

Although Miller was decided under California law, the California Supreme Court was persuaded by written regulations from the EEOC which apply to all of us, in all 50 states.  You might want to highlight that part for your HR person.  It starts on page 19.

Have you seen this in your own workplace?  I think I did — where young male attorneys could not get a break with influential senior partners who only wanted to work with young attractive female associates.

I think this is an area of the law that is ripe for expansion.  Let me know what you have seen in your own workplace, and I’ll tell you what else on the topic I can find.

-Curt K.

Three Female Employees Win $485,000 For Retaliation & Sex Harassment from Fred Meyer Stores

SEATTLE - Fred Meyer Stores, Inc. (Fred Meyer) will pay $485,000 to three female victims of sexual harassment and retaliation to settle a lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the EEOC announced today.

According to the EEOC’s suit ( EEOC, et. al. v. Fred Meyer Stores, Inc. No. CV08-0208 HA, United States District Court of Oregon), the company’s practice of harassing female employees occurred during 2004 through 2005 at the Fred Meyer Oregon City store. The EEOC says the sexually hostile work environment started at the top, with illegal conduct by the store director and operations manager. The EEOC further asserted in the litigation that the store director and operations manager repeatedly subjected females to graphic sexual discussions, unwanted touching, and requests for sexual favors.

The lawsuit alleged that Fred Meyer condoned and accepted this sexually harassing behavior, and the Commission obtained testimony from the company’s human resources manager who witnessed the harassing conduct on several occasions and simply walked away. According to the EEOC, the same human resources manager failed to take appropriate action against the store director or operations manager. In addition, the EEOC charged that the company retaliated against the female employees when they complained about the sexual harassment.

Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a voluntary settlement.

Under a consent decree filed with the federal court, Fred Meyer agreed to pay $485,000 to the three women who came forward during the EEOC’s lawsuit. The company also agreed to provide anti-discrimination training for the owner, managers, supervisors and employees; establish policies and procedures to address sexual harassment issues; provide information to the EEOC concerning any future discrimination complaints; and allow EEOC to monitor the work site for the next two years.

It is unfortunate that these women had to endure a workplace permeated with such sexual hostility. We are hopeful that Fred Meyer Stores learns from this litigation that one of the most important duties it has to its employees is to keep them safe from workplace discrimination,” said EEOC’s San Francisco District Office Director Mike Baldonado.

EEOC Regional Attorney William Tamayo added, “The evidence in this litigation pointed to an alarming lack of recent workplace, anti-discrimination training for the high level managers involved in this case. It is unfortunate that a sophisticated employer like Fred Meyer Stores failed to recognize the importance of such training for its managers.”

The EEOC enforces federal laws prohibiting employment discrimination based on race, color, gender, religion, national origin, age and disability. The Seattle Field Office’s jurisdiction includes Alaska, Idaho, Montana, Oregon, and Washington. Further information about the EEOC is available on its web site at http://www.eeoc.gov.

Avoiding the Axe…Part Two — by Jenn S.

Here are a few more tips for keeping on the straight and narrow at work and avoiding many of the common pitfalls that I have seen result in many lost jobs…

DON’T gossip. It’s hard, I know. I have a hard time following this one myself. Gossip is just so fun. Though talking about other people’s faults and foibles can be great entertainment, it can also cause a lot of problems. Generally speaking, people don’t like to be gossiped about and when word gets around that you’re one of the folks spreading other people’s business to all parts of the office, you might become the target of some unpleasant commentary yourself. Office dramas and rivalries often begin with what some might characterize as harmless gossip and end with someone losing a job or at least being moved or demoted. And be especially leery of the boss or supervisor who pumps you for the office gossip and information on coworkers… You might think that you’re scoring points with management but ultimately, you are demonstrating a lack of loyalty and integrity. Best advice: Steer clear of the juicy gossip mill.

DON’T get sucked into the cancer crowd. Cancer, as an illness, usually starts out small. But those cells multiply and the disease spreads until it overtakes its host OR the host eliminates it through treatment. Same goes for an office “cancer.” One unhappy employee starts grousing about how mistreated they are and how rotten management is and then goes around trying to get other employees to join the grousing. A small group of grousers may then emerge, bitching and complaining about the workplace but not really confronting management on any certain issue. And their negativity spreads and spreads, ultimately affecting employee morale and productivity. Sound familiar? Well, let me tell you that these little cancer groups do not go unnoticed by employers and the treatment of choice is often termination. Instead of being part of the cancer, try being part of the cure. Said another way, if you are unhappy about something at work and know that others are, too, try to actively make a difference, instead of just letting things fester and brew. If you are viewed as part of the cancer crowd, you might just find yourself jobless when management seeks to stop the spreading negativity.

DON’T be the office jokester. There is always one, isn’t there? That person who always has some new joke or story to relate that is highly inappropriate for work but who shares it, anyway? Get this - Save the joking for your non-work friends. Learned a great new joke about some racial minority? Save it. Think it’s funny to shove two oranges under your shirt and pretend that you’re the supervisor who just got breast implants? Do it after work at your apartment, preferably alone. Acting out in the workplace is a sure way to get attention from your coworkers but you may also garner attention from management, who will not likely be amused. Inappropriate behavior in the workplace paves a road right out the door so keep a lid on your inner comedian.

DON’T let your guard down. This tip goes right along with the previous one. Do not let yourself get too comfortable at work. It is tempting, especially when you’ve become very friendly with your coworkers, to let your professionalism slide. In a fashion that is alarmingly reminiscent of high school, we want to be “cool” and part of the crowd and are willing to lower our standards of conduct to fit in. But the bottom line is this…you may feel safe in your work environment to “be yourself” or “be real” but you’re not. Do not drop your guard and think that because you are “friends” with everyone at work that it’s cool to drop f-bombs or pinch your cube-mate’s butt. The familiarity that is created at work can be a good thing, certainly, but it can also backfire…badly. Best advice: Do your best to maintain a professional and friendly demeanor at work and avoid crossing lines into unprofessional conduct.

I’m Being Harassed at Work! What Can I Do?

By Jenn S.

Illegal harassment in the workplace is no joke.

Workplace harassment involves unwelcome and offensive conduct that is based on race, color, national origin, sex (including pregnancy), religion, disability, or age (age 40 or older). Many states also have other protected classes so it is important to be familiar with your own state’s discrimination laws.

Some examples of harassment include offensive or derogatory jokes, racial or ethnic slurs, pressure for dates or sexual favors, unwelcome comments about a person’s religion or religious garments, or offensive cartoons or pictures, to name a few.

Keep in mind, however, that not all workplace harassment is illegal. Discrimination laws generally do not prohibit simple teasing, offhand comments, or isolated incidents that are not particularly serious. For workplace harassment to be illegal, the conduct must either be severe (meaning very serious) or pervasive (meaning it occurred with frequency).

One instance of harassing conduct is generally not sufficient to meet the definition of illegal harassment, unless the conduct is very serious, such as a physical assault. If you believe you are being illegally harassed at work, there are several steps you should take right away to protect yourself:

1. Tell the Harasser to STOP:

Be direct – say what you feel. If you are not comfortable with the comments or conduct being directed toward you, be sure to let the actor know – right away. Make it clear that their comments or conduct are unacceptable and that you expect it stop immediately. One caveat: You are not required to confront the harasser. However, it is a great first step if you feel comfortable doing it. Your direct admonishment to the harasser may stop him or her in their tracks without having to resort to more serious measures.

2. Write it Down:

If you are being treated in a way that you don’t think is appropriate by any person at work, write it down. Dates, times, quotes – it is ALL important. The better the documentation, the better your case. Any notes are better than none – steno notebook, computer file, or cocktail napkin – it all works. Most important item – DATE. Don’t leave it out.

3. Tell a Member of Management:

If things don’t change after you’ve told the harasser that you’re not comfortable (OR if you simply do not want to confront your coworker), tell you boss or go straight to HR.

Take a look at your employee handbook and determine how it is that you bring a complaint of harassment. Follow any procedures that are outlined and if your company does not have any sort of procedure outlined, just talk with your supervisor.

Any inaction on their part will only add fuel to your fire, should you actually be forced to bring a sexual harassment complaint through a state agency.

Another caveat: If it happens to be your supervisor that is doing the harassing, go above their head to the next person in control, or any other supervisor-level person that you feel comfortable with, including HR.

Don’t just share with coworkers – You must go to HR or some supervisor to report the problem because an employer will not be held legally responsible for conduct that they did not know about. The only way an employer can know is if you tell them – and that is generally only through HR or management.

4. Demand Action:

Don’t let your employer sit on their laurels when it comes to your complaint – demand action and a result. Be sure to ask your employer for written evidence of their investigation into your complaint, as well as a written explanation of their results and findings.

It is your right to know what your employer is doing to address your concerns and if the employer’s action is ineffective in stopping the harassment, you probably have a case to take to a lawyer or your state agency that enforces discrimination laws.

5. Don’t Wait:

Do not wait to report the problem. As soon as you feel that you are being harassed, make your move, being it confronting the harasser or making a report to management.

Waiting could subject you to further acts of harassment that may worsen in severity or frequency – who wants that? Waiting may also result in keeping certain instances of harassment or discrimination from being considered should you wait too long to file a formal complaint through a state agency or attorney.

So don’t sit around thinking about it – if you feel you are being illegally harassed, stand up and fight NOW.

STEP 5 of Walking The Plank Toward Termination: Is Your Boss Hassling You About Tiny Aspects of Your Work?

If you feel like your boss has suddenly started hassling you about tiny, and seemingly irrelevant aspects of your job, then a red flag should go up in your mind.  This is another tell-tale sign that your boss is on the hunt for an employee to terminate — you.

Your boss may be trying to “build a record” of documented mistakes you have made, in order to justify terminating you. Your boss probably has not given you any negative feedback for years, if ever. And when the boss evaluates the major parts of your job — everything is fine. So, instead of noting your solid performance and moving on, your boss redoubles his or her efforts to find something, anything, that you are doing wrong.

This leads your boss into the tiny minutiae of your job — items that you can’t really say are unimportant, but are often get done not exactly “by the book.”  Your boss comes in, and makes a huge deal about something you are doing that is not EXACTLY “by the book.”

Everything works fine.  And your boss has never cared.  Until now.

But to your boss, this is an end-of-the-world problem you’ve caused.

Step back and realize, your boss’s reaction fits with how bad the boss wants to let you go; your boss’s reaction does not fit with how bad a mistake you actually made.

What Should You Do?

1. Ask your boss what is going on

Be polite about this. Don’t sneer and be sarcastic. Simply state that its obvious that something has changed, and ask what happened? Why the change?

You’re probably going to hear something like “Well I found one obvious error in your work, so I’m worried that there are other errors in your work that are not so obvious.” This is how your boss will justify tearing through your desk and computer in search of any mistake that could possibly justify terminating you. How to deal with this is the next tip…

2. Ask what your boss needs to see from you in order to win their trust back

The directness and honesty of saying this will knock your boss off-balance.  For just a moment, they will think to themselves “Maybe there is a better employee here than I realized…”  You must seize that moment.  Follow up with something like, “I want to show you that I still deserve the trust you once had in me.  What would you like to see from me in order to get that trust back?”

If your boss starts telling you what they want to see, then you’ve won.  That’s because a boss is not going to give an employee a list of goals, and then terminate the employee the next day.  So take careful note of that list that comes pouring out of your boss’s mouth — make sure they are measurable goals, and achieve them.  You will save your job.

BUT, if your boss does not respond with a list of things he or she wants to see from you, then you know your job situation is truly dire.  For example, your boss may say, “I don’t know, let me think on that one.”  Or, “I’m surprised to hear you say that… wish you had said that earlier…” (and then walks away).

So if your boss doesn’t give you a list of things to improve, and continues hassling you about the tiniest aspects of your work, then you know you are one step further down the plank toward termination.  It may be time to consider legal defenses, that do not rely on changing your boss’s mind about you.

Have you had a boss that micro manages your work, hassling you about the tinies aspects of your work?  Tell us about it in the comments section below.

10 Steps of Walking the Plank Toward Termination: STEP 3, Your Good Work Gets No Rewards

A law firm partner who wanted me fired used to sing my praises, calling me a “golden boy” and going on and on about how I seemed to have a “magic wand” that would solve all the partner’s problems.  Now, this partner’s inability to remember to take all their pills each morning was not my doing, but it was nearly my undoing (ever had a boss like this?).

One day I had obtained an especially good result for a demanding client in a challenging case.  I was exuberant as I bounded into my boss’s doorway and blurted out “Did you hear how the judge ruled on our Rule 11 motions? Granted! We got them!”  I fully expected my boss to jump out of their chair and hug me, or at least shake my hand and offer to call the client and give me credit for the victory.

Instead I got a cold emotionless stare, and a partly sneered question, “When am I going to see your draft of the summary judgment motion for the Kline case?”

The question didn’t hit my hears, it hit my gut.  It took my breath away.  “We won,” I said meekly.

“I heard you.  I’ll inform the client.  I want to see your draft before I leave today.  I wanted to see it yesterday.”

This exchange depressed me for days.  It was obvious my formerly skyrocketing career working under this boss had fallen back down to earth and crashed.  I knew I was NOT going to continue to grow and move up if I continued working for this person.  When I got over my shock and depression, I started trying to make a lateral move so I could work for a new boss at the same firm.

Luckily for me, this boss also alienated their own boss, and their own management level co-workers.  My boss was asked to leave the firm before getting an opportunity to totally “get” me.  Not long after, I learned that my former boss had wanted me fired.  Given my boss’s total 180 toward me and my accomplishments, I wasn’t surprised to hear it.

Does your own boss act like you can’t do anything right, even when you are bringing him or her great results?  Are other employees getting pats on the back for the same things you do, but you get no rewards?

This is the heart of “The Third Step of Walking the Plank Toward Termination”: a boss that no longer gives you any credit for your accomplishments, especially if he or she used to praise you regularly.

A close cousin of this scenario is when your boss gives you no credit for accomplishing something, while lavishing praise on your coworker for doing nearly the same thing, or less.

In either case, you should be aware that if you were a little doll, your boss would be walking you across the plank of the toy ship on his desk and smiling at the thought of dropping you down into the trash can.

What can you do?  You can try to move away from the boss, like I did.  I got lucky, and the Executives at my firm dropped my boss into their own trash can.  Your boss probably has enemies too, but I wouldn’t rely on them to save you.

Another option is that you can leave your job and look for a new one.  In this economy, I would not recommend that path to anyone.  It’s hardly even an option anymore.

Or, you can learn to fight back by using the tools that the law provides employees — and which mostly go unused.  The knowledge of how to fight back, and the friendship and encouragement you need to actually do it — those are the things this website and forum are all about.  But even if you don’t choose that path, it’s good to be able to recognize the path you are on.

So now you know: when your boss gives you zero credit for accomplishments that used to get praises, it’s time for you to start thinking through your options.

You do, however, usually have a bit more time.  In most cases their are other steps yet to come before the termination axe falls.

We’ll reveal another one of those steps right here on this blog tomorrow.

Does Your Boss Harass You Like This?

One of the most frequently recurring patterns of conflict in the workplace is when a New Supervisor joins a department and ruins everything the senior employees liked about their jobs.

Company Executives often assign the New Supervisor the task of “clearing out the dead wood” or “cleaning house.” Excited to have his or her first supervisory job, the New Supervisor charges into the task of “cleaning house” with all the delicate subtlety of a pro wrestler.

Is the New Supervisor just doing their job, or buying into a company policy and practice of age discrimination toward older “dead wood” workers?

True Story: A New Supervisor at Best Buy bought into the task of clearing out 54 year old Jolyn McDonald, big time.

McDonald worked at Best Buy for 17 years before the New Supervisor, Ed Stald, arrived.

1. The first thing he did was tell all the employees they now had a “clean slate”;
2. The second thing Stald did during his initial meeting with the store management team was to brag that he could fire any employee “with documentation.”
3. Third, Stald immediately put McDonald on a “Performance Improvement Plan.” Stald did this before he had even worked with McDonald.

After Stald did begin working in the store full time (for a period he split time between his previous Best Buy store and his newly assigned store where McDonald worked) Stald called McDonald “Grandma.” He did this in front of other employees and other members of the store management staff. He also referred to McDonald as “Grandma Jo” and “Grandma Jolyn”.

For McDonald, Stald was harassing her and turning her world upside down. She had 17 years of experience, had been promoted into the store’s management team as the “Customer Service Manager,” and had a history of strong performance appraisals.

None of that appeared to matter to Stald or the Best Buy brass.

Best Buy had begun a new “customer focused” operating plan that required Customer Service Managers, such as McDonald, to change many aspects of their jobs.  Best Buy claimed that “more tenured” employees had difficulty adjusting to the new system.

McDonald felt that “more tenured” was code for “older.” From her perspective, she had loyally served Best Buy for nearly two decades, but despite that the company decided that older workers couldn’t succeed in the new system.   And Best Buy decided this before even giving older workers a chance to show that they could perform in the new system just like they did in the previous one.

Feeling harassed by her boss, and believing the company was “building a case” to terminate her, McDonald left on vacation for a week to get away and decompress.

When McDonald returned from vacation she was demoted.  Stald told McDonald that while she was on vacation her staff had dealt poorly with some customer service issues.

Rather than accept her demotion, McDonald quit.  Then she filed an age discrimination lawsuit under the Age Discrimination in Employment Act (ADEA) against Best Buy.

Best Buy made a number of arguments in it’s defense. Maybe you have heard some of these arguments yourself?

Best Buy claimed that McDonald’s performance really had gotten worse, despite 17 years of great appraisals.

The court rejected this argument, saying that Best Buy wrote up McDonald for nebulous, unprovable things like “failure to manage labor.”

Best Buy claimed that its statements that the new company operating plan was difficult for “more tenured” employees did not mean “older” employees. Best Buy claimed that “more tenured only meant people who had been with the company many years, and that people under 40 could be with the company many years and also have a hard time with the changes.

The court rejected this argument too. The court said that because Best Buy never came forward with actual examples of employees under 40 years old who had been with the company for many years and who were having a difficult time adjusting to the new system, Best Buy’s argument was suspicious at best, because there was no denying that it was implementing “a business model that results in the demotion or termination of “more tenured” employees is an effective artifice to push older employees out the door.”

Best Buy actually argued that calling McDonald “Grandma” was not an age related comment. Best Buy claimed that since it’s possible for people under 40 to be grandparents, all the times Stald called McDonald “Grandma” or “Grandma Jo” should be disregarded by the court.

The court said that Best Buy’s argument “does not stand the test of logic.” The court continued to rip into Best Buy:Simply because a racial epithet could beused to refer to a person outside of a protected class does not mean that a racialepithet is not race related and is acceptable in the workplace. What matters is the commonly accepted meaning of the word. In this case, a woman who is labeled
Grandma” is unquestionably labeled with the moniker because of her age or personal characteristics popularly associated with persons of an older generation.

Conclusion: Multiple Bad Acts = Mosaic of Age Discrimination

In the end, the court said that no one piece of evidence was enough to get McDonald to a jury trial.  But, “when considered in combination, they present a mosaic that could convince a jury that Plaintiff’s termination was the product of a new corporate culture geared toward putting older employees out to pasture.”

Take Away Tips From The Undercover Lawyer:

1. Courts Care About the Common Everyday Meanings of Words. If your company engages in corporate doublespeak like Best Buy, rest assured that in a court of law this type of talk won’t fly.
2. A Decade of Positive Appraisals DOES MEAN SOMETHING. However much your employer may try to convince you that “that was then and this is now” courts are persuaded by a history of good reviews.
3. Companies Should Not Push New Systems That Push Older Workers Out the Door.
4. Courts Consider All the Facts Of A Hostile Workplace Together as a “Mosaic.” Usually, no single factor will determine the outcome either way. But the law will consider all of the facts together, and look at “the big picture.”

Does your employer stop short of blatantly discriminating against older employees, but does it engage in lots of discrete negative actions that — when taken together — push older employees out?  If so, here is a link to the full text of the case, so you can print it out and have ready to include in a letter to your own boss or company H.R. Dept:

(McDonald v. Best Buy Co., U.S. Dist. Court, CDIL, 8/28/08)

Tweeters Hate Working, Especially on Mondays

Tracking comments on Twitter about work related topics has been like getting to see all the morning drive-time auto collisions, all across the country, all at once.

People on Twitter like to gripe, and they like to gripe about work.  The following comments come from tracking the words “Hate work” over the last 48 hours, which includes the weekend!  You would think there would be less anger expressed toward one’s job on the days most people are off work… but, maybe those who are forced to work weekends are especially vocal with their angry dismay over laboring away while their friends play (one Tweet said almost exactly that).

Without further ado, here’s the best of hating work from Twitter posts during the last 48 hours.  (If my readers find this “best of Twitter” concept interesting, I have a nice collection of posts on peoples’ feelings toward their “boss” and “job” that could also become a blog post).

• I hate the feeling of a hang over and being drunk yet again and having work tomorrow. It freeking suxxxxx afsfgshjsjdjdj
• Missing my small group peeps and my Sunday night dinner date with friends. I hate work.
• I can’t sleep! I have to be up at 5. I hate going back to work after vacation!
• dreading work in the morning!!!! i hate mondays
• Headed to work in a dumb smiley happy fog. I hate people like me.
• I hate it when I arrive at work thinking there’s nothing big on today, then remember I’ve an important presentation.
• Woke up from possibly the best dream ever. Sometimes I hate having to work because it means getting out of bed.
• I hate those work nights when you have to force yourself to go to bed. I’ll be visiting an apothecary come morning for a caffeine potion.
• oh work. I hate Mondays.
• At work, hate monday’s!!!
• I hate Monday mornings, up and getting ready for work - gah
• I hate hate hate Mondays! I am dreading work
• Ahh Monday, I hate Monday. Back at the work, starting the week all over again. Is it Friday yet?
• On my way to work…I hate Mondays
• Another Monday at work and I hate it. I want to play!
• On the train to work I freaking hate Monday mornings
• class and work. i hate mondays
• happy monday, indeed….my interns hate me, my attendings don’t like me….life at work is awesome!
• Monday Morning 5:22!!! I hate work
• Hate missing work, always come back to a messy desk and everyone is mad at you for missing one day.
• I hate when people walk behind me while I’m at the computer at work. @_@;;
• I HATE when people have music on their sites that autoplays-it causes much stress in my marriage since I work in the office with my husband.
• No more wearing sandals at work It’s still summer! I hate dress codes….
• off to do two things I hate: work and homework. sweet. someone do something rebelious for me.
• i hate my new hours at work, i might as well just live at the store.
• I hate people bitching about things at work, because it cause me to bitch about them bitching…
• Have I mentioned yet today how much i hate work?
• managed to survive the day. only five left. few issues at work ontop of the usual shit. hate not being at meetings. gah
• I hate doing this work that I don’t care about only out of fear of not getting accepted anywhere outside of AZ when I graduate.
• LOL I hate math with passion but I work for finance =\
• Blahhh I hate weekends where I don’t work. Maybe I will try to get a part time position with mac when girl scouts is over
• wtf. i hate work and wwe atm.
• The older I get the more I grow to hate the little pukes that work at Dairy Queen.
• I hate the stupid white lights at work! How the hell am I going to cope with this until the end of the month when we move office?
• I hate work. I just want it to go away. I can’t stand the little freshmen with their friends thinking their all cool.
• i hate work! the only good part is the free sandwich and cookies. and the aychecks of course…
• I hate working Izea fest will be going on 8 miles from my job and I can’t even go because I have to be at work next week
• I hate work. and the male species.

Hostile Workplace Podcast #3: Straight-Male to Straight Male Sex Harassment

Episode #3 of the Hostile Workplace Podcast, by the Undercover Lawyer

To access this podcast through the iTunes music store (for free) click HERE.

Announcements

In Epsisode #3 I mentioned that you can follow me on Twitter. In you are not familiar with it, Twitter is a “micro-blogging” site, where people can post short, text message length updates about what they are doing each day. You can see it for yourself at www.Twitter.com .  My username on Twitter, if you would like to follow me, is “Undercover_Lawr”.

Quick Tip

For the Quick Tip, we talked about how employees have zero expectation of privacy for anything done with their work computer, or their work network (like signing in from home – still utilizes work network).

Feature Segment – Straight Male to Straight Male Sex Harassment

Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998)

Facts of the Case

Joseph Oncale, a male, filed a complaint against his employer, Sundowner Offshore Services, Inc., alleging that he was sexually harassed by co-workers, in their workplace, in violation of Title VII of the Civil Rights Act of 1964 (”Title VII”). On appeal from a decision supporting a district court’s ruling against Oncale, the Supreme Court granted certiorari.

Question

Does the prohibition against sex discrimination, set out in Title VII of the Civil Rights Act of 1964, apply to same-sex sexual harassment?

Conclusion

Yes. In a unanimous opinion, the Court held that while Title VII does not prohibit all verbal or physical harassment in the workplace, it does bar all forms of discrimination “because of” sex. Such discrimination, whether motivated by sexual desire or not, is actionable so long at it places its victim in an objectively disadvantageous working condition, regardless of the victim’s gender.

Written Option: http://supreme.justia.com/us/523/75/index.html

Davis v Coastal Intern. Sec., Inc, 275 F3d 1119 (2002)

Facts: The extended and rancorous workplace dispute giving rise to this action began in 1996 after Coastal International Security hired Wallace Davis to work as a security guard at the Environmental Protection Agency. While serving as a supervisor early in his tenure, Davis disciplined two other Coastal security guards, Aaron Smith and Everett Allen, for various on-the-job infractions. Smith and Allen, apparently infuriated by their discipline, launched a retaliatory campaign against Davis, which they began by repeatedly slashing his tires.

After Davis complained to his supervisor, Coastal required the three men to sign a memorandum of understanding in which they agreed to set aside their differences. This agreement accomplished nothing. When Davis was demoted Smith and Allen visited his work station and taunted him about the demotion. Approximately six months into their campaign against Davis, Smith and Allen expanded their repertoire. Smith approached Davis at his work station and grabbed his (Smith’s) crotch, made kissing gestures, and used a phrase describing oral sex. After Smith twice repeated this performance, Davis complained to his supervisor, who convened a meeting with Davis, Smith, and Coastal’s project manager for the EPA facility. Because Smith denied Davis’s accusations, and because Davis failed to provide corroborating evidence, the project manager took no formal action, but admonished both Davis and Smith to “ act like grown men.”

Undeterred, Smith continued his vulgar comments and gestures, and Davis again complained to his supervisor. This time the supervisor warned Smith that he would be fired if his behavior continued. This seems to have gotten Smith’s attention, for his lewd conduct ceased (although Davis alleges that Smith threatened his life on several subsequent occasions). Allen, however, twice approaching Davis and made precisely the same lewd gestures and comments that Smith had.

When Davis complained for a third time, Coastal conducted a full-scale investigation. Although the investigator interviewed ten employees, he concluded that the inquiry had been “hampered by the lack of a reliable witness to substantiate even one allegation of sexual harassment by … Davis.” Notwithstanding this lack of corroborating evidence, the investigator recommended that Davis and Allen be reassigned (Coastal had terminated Smith for unrelated reasons). Shortly thereafter, Davis filed one final complaint, claiming again that Allen, despite his reassignment, had repeated the by-now-familiar lewd gestures and comments.

In January 2000, over three years after these events began, Davis filed suit in the United States District Court for the District of Columbia, alleging that Smith’s and Allen’s behavior amounted to sexual harassment and that Coastal and Securiguard “permitted … Allen … and … Smith to make sexually vulgar gestures and statements.”

Legal Standard for Male to Male Sex Harassment:

The Court suggested three ways to prove that same-sex sexual behavior rises to the level of illegal sexual harassment: The plaintiff may show that the sexual behavior is motivated by actual homosexual desire; that the harassment is framed in “such sex-specific and derogatory terms … as to make it clear that the harasser is motivated by general hostility” toward members of the same gender in the workplace; or that there is “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” Oncale, at 80-81, 118 S.Ct at 1002.

ROBINSON v FORD MOTOR Co 277 Mich App 146 (2007)

This case was brought under STATE LAW, Michigan Civil Rights Act (MCA). “Plaintiff alleging a sexually hostile work environment on the basis of sexual advances or solicitations under Civil Rights Act (CRA) must present some credible evidence that the harasser is motivated by sexual desire; however, the same cannot be said about the third type of action barred under the CRA, namely verbal or physical conduct “of a sexual nature.” M.C.L.A. § 37.2103(i).”

Robinson presented enough evidence to allow the case to go to a jury that his co-worker’s conduct and communication inherently pertained to sex for purposes of employee’s same-gender sexual harassment claim under Michigan’s Civil Rights Act (CRA); Robinson’s co-worker allegedly exposed his testicles and forced Robinson to touch them, hit Robinson’s buttocks, exposed Robinson’s underwear, and it just gets worse from there…

FEMALE HARASSING MALE

Jones v U.S. Gypsum, 126 F Supp 2d 1172 (2000)

Legal Standard that Accuser Must Satisfy:

(a) she is a member in a protected group; (b) she was subject to unwelcome sexual harassment; (c) the harassment was based on sex; (d) the harassment affected a term, condition, or privilege of employment; and (e) the employer knew or should have known of the harassment and failed to take proper remedial action.

This case is a fun one in part because of the gender flip, the woman is harassing the man, and in part because the things the woman did would be outrageous no matter who did them.  The clear legal standard spelled out by the court, points (a) to (e) above, make the case worth noting apart from the outrageous facts.

Age Discrimination: Beware a Sudden Change in Your Performance Appraisals

Starbucks announced it is closing 600 stores. American Airlines announced it is laying off 900 flight attendants. Polaroid is shutting down two manufacturing plants. The computer chip maker AMD is cutting 10% of its workforce. From coffee to cameras, to computers to planes, people across all industries are facing mass layoffs and the potential to lose their jobs.

As an employment lawyer, I always advise companies that the only safe way to conduct a layoff is to follow this simple rule: “Last hired, first fired.” Defense attorneys love this way of selecting employees for layoff, because it is objective. There no way for discriminatory motives and biases to creep into a system that is based solely on dates of hire.

But do companies use “Last hired, first fired”? Usually not. Sometimes the cuts are spread among various departments; a new worker in a crucial department keeps her job, while a longtime employee in an expendable department loses his job. Or take Starbucks, as an example. When Starbucks closes 600 stores, all the employees at each of the 600 stores should get a pink slip. But the CEO, Howard Schultz, has said that it will try to find work at its other stores for as many of the displaced employees as possible. That’s where Starbucks and other companies usually do not follow the “Last hired, first fired” rule. Employees with long tenures at the company will get passed over for jobs at other stores. Newer employees with less experience will get hired into nearby Starbucks locations that remained open.

Why does this happen? (Keep in mind that Starbucks is just a theoretical example here). The companies will say it’s based on “job performance.” Yet, how is a newer, less experienced employee with far less training able to outperform a long term employee? Job skill is rarely the real reason that long term employees are left unemployed while new employees keep their jobs.

Often times the real answer is that the decision maker just “likes” the newer employee better. People tend to hire people who remind them of themselves. The corollary is that people do no hire, or retain, employees who do not remind them of themselves. If the reason that an employee does not remind the hiring manager of themselves has to do with a protected class – such as the employee is of a different age, different race, is disabled, is a different gender – then this very human tendency to hire people like ourselves is not just a human tendency; its illegal discrimination.

How Can You Show the Reason Was Illegal Age Discrimination?

One of the main ways displaced worker show that they were not hired, or not retained, because of their age is through suspicious timing of employee discipline. Boeing is one company who learned this lesson the hard way in a real case that serves as an excellent example.

Real Lawsuit: Eileen McKee worked at Boeing for 30 years. But she didn’t retire. Even with all that seniority she was laid off. Here’s what happened.

Boeing announced that it would be laying off employees from many different departments. Eileen worked in a human resources related department with one other (younger) employee and one manager. Eileen wasn’t nervous about the layoffs because she had more seniority and also had a history of positive appraisals from her manager.

At the same time Boeing announced the layoffs, however, the company also announced that it would use a new employee rating system “to compare employees in comparable positions.” The new system labeled Eileen and her co-worker as “comparable” even though their job duties did not overlap.  Her co-worker was also female, but was 36 years old. Using the new rating system, Elieen’s manger gave Eileen a score of 17. Eileen’s manager gave the younger co-worker a score of 39. As a result, Boeing laid off Eileen and retained the younger, less experienced co-worker.

Eileen immediately filed a state law age discrimination claim, but lost. She did not give up. Next she filed a age discrimination lawsuit in federal court under the Age Discrimination in Employment Act (ADEA). Boeing tried hard to keep Eileen from getting her case in front of a jury. The company filed a motion for summary judgment, in which the it asks the court to throw out Eileen’s case, arguing that she did not have any evidence that she was selected for layoff due to her age.

But the court did not throw out Eileen’s case. In fact, the court just allowed Eileen’s case to go to a jury trial. Eileen defeated Boeing’s summary judgment motion by arguing that her evidence of age bias was the rapid change in her performance rating, from all positive for years to a low score of 17 on the new employee rating system. Less than a year before she got a poor rating, Eileen’s same manager gave her a “glowing” performance appraisal. Suspiciously, the area in the glowing appraisal where Eileen scored the highest was at first included in the new ratings system, but was later removed. Although this one change would not have given Eileen a higher score than her younger co-worker, it was strange enough that the judge ruled that a jury could conclude the change was done in order to give the older worker, Eileen, a lower score. (Cotter v. Boeing Co., E.D. Pa. No. 05-5053, 6/26/07).

The Undercover Lawyer’s Take-Away-Tips:

1. Be Highly Suspicious of Any Sudden Change in Your Evaluations, or the a Change in the Evaluation System. These sudden changes appear to outsiders like a calculated plan to get rid of the people whose performance ratings suddenly go down. Why does the company suddenly decide to get rid of employees who have historically performed well? Is it age? Gender? Race? If you can show that your performance could not be the “real reason” you were demoted or laid off, then a judge or jury will quickly make a connection between your termination and your age. In Eileen’s case, the judge said that the “change in criteria, in the absence of a reasonable explanation, may raise an adverse inference that the change was initiated to adversely handicap [Eileen’s] final score.”

2. Push hard to keep your appraisals at least “satisfactory”. Many, if not most, companies use a 1 to 5 rating scale, where 5 is excellent and 1 is consistent failure to meet expectations. A score of “3” is usually labeled “satisfactory.” Now, be aware that your manager may believe in their mind that a 3 out of 5 is a very bad score. But if the appraisal form says that a score of 3 is “satisfactory”, then guess was a jury is going think a score of “3″ means?  That’s right, your performance was satisfactory — good enough, competent, acceptable.  If you can keep your performance reviews at this level, then it will be much more difficult for your employer to suddenly claim that your performance is the “real reason” you were demoted or laid off. And you will be well on your way to defeating a false case against you and having a strong age bias claim.

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