Podcast #4: Michelle + Dan = Retaliation

Download PDF Transcript

Michell and Dan began their working relationship as friends.  Dan supervised a group of 8 employees; 7 young men plus Michelle.  Michelle was only 21.

Before work each morning, however, she had to drop off her young son at her mother’s house.  As a result, Michelle often arrived between 5 and 15 minutes late.

But Dan was sympathetic to Michelle’s struggles as a single mom.  He was the only other person at work with children.  Plus, how could you not like Michelle?  She worked hard, she was cute, and she could talk “like one of the boys.”  In fact, sometimes she made the boys blush!

Yet, little voice in the back of Michelle’s head kept telling her that the crude sex talk at work wasn’t something to be proud of.  In fact, she admitted to herself that she wouldn’t want her son talking like this.  But Michelle never spoke up… until one day when one of the guys said something so crude and disgusting that even she couldn’t take it any longer…

Listen to the podcast to hear how Michelle and Dan’s relationship changed forever, how Dan nearly lost his job, and to learn if Michelle was able to keep her position with the company.

Just by listening to this true story you will learn about retaliation in the workplace, and also about the importance of timing when establishing retaliation claims.

Show Notes and Links:

During the show I mentioned the blog article by “Careerguyd” about violence in the workplace.  If you would like to read that article yourself just click HERE.

I also mentioned that one of the members of the Forums has her own blog that is worth reading.  That is “HR Wench” and you can reach her blog by clicking HERE.

Finally, I revealed that my ace WordPress customizer is Sherry Dedman of Blog-Solace.  If you have your own blog and would like a technical expert to help you spiff it up, add complex plug-ins, or you just need some advice, you can check out Sherry’s blog about blogs HERE and her forum about the technical side of blogs HERE.

Direct download: UCL_Podcast4.mp3

P.S. Be sure to come to the forums and let me know which states you want added first to the new “State Law Resources” section.

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

Download PDF Transcript

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.