But this time, at least the losing plaintiff has to pay a sizable chunk of the defense costs.
Ellen Pao lost a very high profile, "try the case in the media" sexual harassment lawsuit last year. She has now been ordered to pay more than $250,000 in attorneys fees to the defense team.
I've often argued that the only effective way to cut down on people filing cases that have no basis in fact or law is to shift more of the the risk of losing to the plaintiff's side. This decision does exactly that, and I hope we see more of these kinds of awards when there are defense verdicts.
UPDATE: Ms. Pao's misfortunes continue.
Showing posts with label sexual harassment. Show all posts
Showing posts with label sexual harassment. Show all posts
Friday, June 19, 2015
Wednesday, May 28, 2014
Rebuffed Coworkers With Influence Create Liability
If you read this blog enough, you will know that intra-office romances seem to come up frequently as a catalyst for some type of lawsuit. In fact, sexual attraction between coworkers is a dominant theme in any number of workplace problems, from harassment of all types to compensation problems to unfair labor practices. Companies are routinely sued for harassment, discrimination or some other real or imagined slight in situations where a supervisor is attracted to an uninterested (at least at the time of the illegal conduct) subordinate.
But what about a situation where a manager, who is not a supervisor, wants to be get romantically involved with another employee, but is rebuffed? A federal case out of the First Circuit provides some useful guidance on how the Title VII model of proof plays out in these unusual circumstances.
The male plaintiff was hired as a manager for a company in Puerto Rico. In the course of his position as a regional general manager, a position into which he was promoted less than six months after he was hired, he interacted extensively with a female human resources manager. The two had apparently a friendly, casual flirting relationship that lasted until the woman expressly began indicating she wanted a romantic relationship with him, something in which the plaintiff was not interested. He raised her romantic interest, which she expressed in a number of e-mails, with his supervisors, and in response was told that he should send her a conciliatory e-mail because if he did not, the woman was going to get him fired.
True to this prediction, the HR manager began a systematic campaign against the plaintiff with his supervisors, who then determined to put him on a performance improvement plan. The HR manager was not satisfied with this, and sent a message to company headquarters indicating that she thought any additional opportunity for work improvement was unwarranted and that the plaintiff should be terminated immediately. This is exactly what occurred.
The plaintiff sued for harassment, gender discrimination, and retaliation. The trial court granted summary judgment to the company on all counts, but the First Circuit reversed with respect to the gender discrimination claim, determining that the plaintiff's termination was a violation of Title VII. The court determined that even though there was no supervisory relationship between the spurned HR manager and the plaintiff, a jury could find that she was effectively engaging in quid pro quo gender discrimination and that she was the proximate cause of the plaintiff's firing for his failure to comply with her wishes. The court set the following test for what is effectively a cat's paw discrimination claim: the plaintiff's coworker must make statements or take actions maligning the plaintiff for a discriminatory reason and with the intent to cause the plaintiff's termination or other adverse employment action; the coworker's discriminatory acts must proximately cause the plaintiff to be fired; and the employer acts negligently by allowing the coworker's actions to achieve their desired effect, though the employer knows or should have known of the discriminatory motivation.
The court noted that the female manager's motivation here was discriminatory-she was responding to being rebuffed on a sexual basis, something that had she been a supervisor would have resulted in strict liability for the company. Her actions were a direct factor in the termination of the plaintiff. And, most importantly, the people actually making the decision were aware of her conduct and the basis for it. Under the circumstances, the company could be held liable for gender discrimination.
An interesting case, and a useful one for the analytical steps demonstrated by the court in funding liability.
Footnote: because the relationship did not appear to affect the plaintiff's work performance, the court determined that the romantic come-ons were not harassment, and that the retaliation claim failed because the plaintiff could not show that he was terminated as a result of his complaints about the female manager. This is consistent with a limited view of the evidence; I think I would've found harassment under the circumstances.
But what about a situation where a manager, who is not a supervisor, wants to be get romantically involved with another employee, but is rebuffed? A federal case out of the First Circuit provides some useful guidance on how the Title VII model of proof plays out in these unusual circumstances.
The male plaintiff was hired as a manager for a company in Puerto Rico. In the course of his position as a regional general manager, a position into which he was promoted less than six months after he was hired, he interacted extensively with a female human resources manager. The two had apparently a friendly, casual flirting relationship that lasted until the woman expressly began indicating she wanted a romantic relationship with him, something in which the plaintiff was not interested. He raised her romantic interest, which she expressed in a number of e-mails, with his supervisors, and in response was told that he should send her a conciliatory e-mail because if he did not, the woman was going to get him fired.
True to this prediction, the HR manager began a systematic campaign against the plaintiff with his supervisors, who then determined to put him on a performance improvement plan. The HR manager was not satisfied with this, and sent a message to company headquarters indicating that she thought any additional opportunity for work improvement was unwarranted and that the plaintiff should be terminated immediately. This is exactly what occurred.
The plaintiff sued for harassment, gender discrimination, and retaliation. The trial court granted summary judgment to the company on all counts, but the First Circuit reversed with respect to the gender discrimination claim, determining that the plaintiff's termination was a violation of Title VII. The court determined that even though there was no supervisory relationship between the spurned HR manager and the plaintiff, a jury could find that she was effectively engaging in quid pro quo gender discrimination and that she was the proximate cause of the plaintiff's firing for his failure to comply with her wishes. The court set the following test for what is effectively a cat's paw discrimination claim: the plaintiff's coworker must make statements or take actions maligning the plaintiff for a discriminatory reason and with the intent to cause the plaintiff's termination or other adverse employment action; the coworker's discriminatory acts must proximately cause the plaintiff to be fired; and the employer acts negligently by allowing the coworker's actions to achieve their desired effect, though the employer knows or should have known of the discriminatory motivation.
The court noted that the female manager's motivation here was discriminatory-she was responding to being rebuffed on a sexual basis, something that had she been a supervisor would have resulted in strict liability for the company. Her actions were a direct factor in the termination of the plaintiff. And, most importantly, the people actually making the decision were aware of her conduct and the basis for it. Under the circumstances, the company could be held liable for gender discrimination.
An interesting case, and a useful one for the analytical steps demonstrated by the court in funding liability.
Footnote: because the relationship did not appear to affect the plaintiff's work performance, the court determined that the romantic come-ons were not harassment, and that the retaliation claim failed because the plaintiff could not show that he was terminated as a result of his complaints about the female manager. This is consistent with a limited view of the evidence; I think I would've found harassment under the circumstances.
Tuesday, August 6, 2013
Do Not Use This as a Defense--Just Sayin'
One of the reasons why I like employment law is that no matter how many types of cases you see, there is always something even more bizarre around the next corner. So let's turn the corner and our attention to Bob Filner, the Mayor of San Diego, a 70 year-old Democrat who apparently never met a woman he didn't try to grope or sexually harass. In fact, things were so bad that his honor's staff apparently had a rule that women were not allowed in to see him without an escort, under any circumstances. At last count, there were at least 10 women who have come forward indicating that Filner inappropriately touched them or propositioned them. And he has only been the mayor since November.
All of this would be bizarre enough, but Filner’s lawyer rolled out a legal defense, or at least a way of paying for a legal defense, that is almost as insulting as the actual harassment itself. Filner’s counsel alleged that the City of San Diego should have to pay for the mayor’s lawsuit defense (Filner’s former director of communications has filed a harassment lawsuit) because Filner never received mandatory sexual harassment training from the City. This is the functional equivalent of somewhat defending a murder claim by saying that they should be given a break because no one ever told them that it was illegal to kill people.
For those of you who are confused about whether this is an intelligent strategy – please refer to headline at the top of this article and let's hope the taxpayers of California’s second largest city not only reject this silly claim but also boot this guy out of office
UPDATE: I seriously can't make this stuff up.
All of this would be bizarre enough, but Filner’s lawyer rolled out a legal defense, or at least a way of paying for a legal defense, that is almost as insulting as the actual harassment itself. Filner’s counsel alleged that the City of San Diego should have to pay for the mayor’s lawsuit defense (Filner’s former director of communications has filed a harassment lawsuit) because Filner never received mandatory sexual harassment training from the City. This is the functional equivalent of somewhat defending a murder claim by saying that they should be given a break because no one ever told them that it was illegal to kill people.
For those of you who are confused about whether this is an intelligent strategy – please refer to headline at the top of this article and let's hope the taxpayers of California’s second largest city not only reject this silly claim but also boot this guy out of office
UPDATE: I seriously can't make this stuff up.
Thursday, July 12, 2012
Sexual Harassment and the CIA
The CIA is apparently dealing with some problematic issues involving sexual harassment, and a few of the details are leaking out of the Agency.
With respect to sexual harassment cases, at least, the Agency is probably no different from any other long hour, high stress organization. Romantic liaisons between bosses, subordinates and coworkers are also common in places like hospitals, law firms, and financial investment companies. Moreover, paramilitary organizations are usually highly male-dominated, so it's not surprising at all that the women working there might be exposed to the occasional dirty joke, explicit remark or come on. Although the article doesn't mention it, managing these cases is a real challenge in this environment because of the security clearances of the people involved and the nature of their work. In addition, internal CIA personnel matters are typically classified, meaning that much of the investigation of a complaint has to take place behind closed doors.
And whatever stresses there are at the headquarters, the situation is only exacerbated once the agents are placed into the field.
Which raises the issue of whether typical Title VII jurisprudence should even apply to this kind of employment situation.
With respect to sexual harassment cases, at least, the Agency is probably no different from any other long hour, high stress organization. Romantic liaisons between bosses, subordinates and coworkers are also common in places like hospitals, law firms, and financial investment companies. Moreover, paramilitary organizations are usually highly male-dominated, so it's not surprising at all that the women working there might be exposed to the occasional dirty joke, explicit remark or come on. Although the article doesn't mention it, managing these cases is a real challenge in this environment because of the security clearances of the people involved and the nature of their work. In addition, internal CIA personnel matters are typically classified, meaning that much of the investigation of a complaint has to take place behind closed doors.
And whatever stresses there are at the headquarters, the situation is only exacerbated once the agents are placed into the field.
Which raises the issue of whether typical Title VII jurisprudence should even apply to this kind of employment situation.
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