Articles Posted in Hostile Work Environment

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The Seventh Circuit Court of Appeals recently found that a lower court erroneously ruled against an Indiana prison employee who had brought Title VII discrimination claims against her employer.

prison-1431136-m.jpgThe details of Orton-Bell v. Indiana seem like they belong in a movie or television show. Connie Orton-Bell worked as a substance abuse counselor in Pendleton Correctional Facility, one of Indiana’s maximum security prisons, from 2007 until April 2010. During her time in the position, she claimed that numerous sexually inappropriate behaviors took place in her work environment. For instance, an investigation into security breaches uncovered that night shift employees were having sex on Orton-Bell’s desk. The investigator’s only reaction was that Orton-Bell should wipe her desk off every morning.

Orton-Bell also claimed to be the personal recipient of many sexual remarks by her superior, Superintendent Brett Mize. Mize allegedly instructed Orton-Bell to never wear jeans to work because “her ass looked so good, she would cause a riot.” Such comments were allegedly common from Mize, who was eventually terminated for reasons unknown prior to the events that led to the lawsuit. However, Ortin-Bell claimed that these comments were common among all of the male employees, and that female employees were “bombarded.”
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Not long ago, the Sixth Circuit Court of Appeals determined in Deleon v. Kalamazoo County Road Commission that a job transfer could be considered an adverse employment action, even if it was to a position that the employee initially wanted.

industrial-park-1372192-m.jpgThe case involved a 53-year old man of Mexican descent, Robert Deleon, who had worked for the Kalamazoo County Road Commission for 28 years. In 1995, Deleon served as an Area Superintendent who supervised road maintenance activities, road crews, and road repairs. Although he received positive reviews for his work, Deleon also claimed to have experienced a pervasive atmosphere of racial insensitivity and hostility.

In 2008, a vacancy opened up for the Equipment and Facilities Superintendent position. The description stated that the work took place primarily in an office and in a garage where there would be exposure to loud noises and diesel fumes. Deleon applied for the position, viewing it as a good opportunity to advance in his career. Had he been offered the position, Deleon claimed that he would have requested a $10,000 increase in salary.
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In the recent case Stevens v. Saint Elizabeth Medical Center, Inc., the Sixth Circuit Court of Appeals ruled that terminating an employee after discovering a consensual, but inappropriate, workplace relationship that has soured is not grounds for wrongful termination or hostile work environment.

gavel-4-1409594-m.jpgThe case involved a nurse, Caroline Stevens, who worked for Physician Associates, LLC and Patient First Physicians Group, the latter of which was later acquired by Saint Elizabeth Medical Center. Stevens served as a nurse and personal assistant for the Doctor. During many of the years they worked together, Stevens and the Doctor had a romantic relationship, until Stevens broke it off in 2009 when she learned that the Doctor had not divorced his wife.

Stevens later filed a complaint that her site supervisor, Gary Brown, was pressuring her to take a new position after the Doctor expressed a desire to reduce his patient load. She noted that no patients had been transferred to other doctors. Brown was aware that Stevens and the Doctor used to be in a relationship. Investigation into the complaint revealed that Stevens and the Doctor not only had an affair, but that they also had several sexual episodes on office grounds. As a result, their employer gave them both the option of resigning or being terminated. The Doctor resigned, while Stevens was terminated. Stevens then filed a lawsuit against the Doctor, Patient First Physicians Group, and Saint Elizabeth Medical Center, alleging sexual harassment under Title VII, the Kentucky Civil Rights Act, wrongful termination (retaliation) and fraud. The defendants filed a motion for summary judgment and the district court ruled in their favor. Stevens then appealed to a three-judge panel on the Sixth Circuit to review the case.
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Everyone knows that sexual harassment is wrong and that it can lead to serious consequences if it occurs in the workplace. Some types of sexual harassment are very obvious, forcing oneself on another person, firing someone for refusing to have a sexual relationship, making continuous lewd comments or sexual requests. But some aspects of sexual harassment are a little less clear.

Touching someone else while at work can also be obvious sexual harassment, depending on where on the body the person is touched. As children, we are taught that places covered by our swimsuits should not be touched by others because they are private. This rule also applies to the workplace. But touching in other places can be considered sexual in nature as well.

Take for example the recent case in Oregon where a police captain touched several women on the upper leg. His chief stated the touching was not sexual in nature because the offender did not mean it to be, but several others begged to differ. A slap on the leg from one guy to another probably would not be considered sexual, but that is not what happened here. The captain touched several female subordinates on the upper thigh, and those who were touched said he either rubbed their leg or allowed his hand to linger.

First, it is not up to the person who is doing the touching to determine whether it was sexual or not. The person being touched is the one who determines if it made them feel uncomfortable or threatened. Second, because the person doing the touching was their supervising officer, the women probably felt more intimidated and unwilling to say anything about the behavior. Third, the upper thigh is a questionable area, unlike a shoulder or arm.
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On November 26, 2012 the Supreme Court heard the case of Vance v Ball State, an Indiana workplace discrimination lawsuit. Their ruling on the case will likely affect not only plaintiff and defendants in the case, but also other current and future workplace harassment lawsuits.

Here is a little background on the case. Ms. Vance started at Ball State University in Indiana in the banquet and catering department in 1989. During her numerous years of employment, she was usually the only African-American employee. One of her supervisors did not seem to care for her. She allegedly threatened her physically, and at one point the plaintiff heard that the supervisor referred to her in a derogatory manner because of her race. She reported the behavior, but the only outcome was both women were required to undergo counseling. The worker contacted the Equal Employment Opportunity Commission (EEOC) and filed a discrimination and retaliation lawsuit against the university. The lower court that heard the case threw it out because they did not think the alleged harasser was an actual supervisor of the plaintiff. She then appealed to the U.S. Supreme Court.

So the matter before the Supreme Court is deciding what constitutes a “supervisor.” The federal appeals courts seem divided on the issue, with some using a broader definition than others. The court that heard the case above took a very narrow approach to the meaning of the word. They ruled that because the alleged harasser did not have the power to hire or fire employees, she was not a supervisor. The EEOC and some other federal courts define a supervisor as someone who “has the authority to recommend tangible employment decisions affecting the employee or if the individual has the authority to direct the employee’s daily work activities.” The plaintiff in this case felt the harasser was her supervisor because she was not required to fill out time sheets like the rest of the employees.
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Online social media and mobile communication are very prevalent in today’s society and are being used in all sorts of ways. They can be used to invite friends to a party, notify faraway relatives that a new baby has arrived, find long-lost friends from high school, and share decorating ideas and silly videos with people around the globe. Even charity efforts have gone mobile as phone apps have been created as a convenient way for people to help donate to those who were affected by Hurricane Sandy. Unfortunately, it can also be used in negative ways as well, such as harassment.

Supervisors and co-workers often find each other on social networks or share cell phone numbers to allow for easier communication. Sometimes it is easier to send a text regarding a work matter than it is to have an actual phone conversation. But these technologies can also be used in an abusive manner and result in workplace harassment or sexual harassment even when an employee is not at work.

There are many different ways a worker can be harassed electronically. If a supervisor repeatedly sends texts messages to an employee asking for a date or an intimate relationship, the employee may feel uncomfortable or threatened. This constitutes sexual harassment and can create a hostile work environment. Sexual harassment can also occur when a supervisor or co-worker emails or posts pictures or jokes of a sexual nature that other employees find offensive. In a recent case, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against a company because a manager was sending sexual texts to an employee, who told her supervisor. When the supervisor reported the harassment, the company allegedly retaliated against him by firing him. A settlement for $2.3 million was made by the company for both the sexual harassment and retaliation claims.

Other types of harassment or workplace discrimination can also occur. If supervisors or co-workers are posting disparaging remarks regarding an employee’s disability, race, ethnicity, gender, or religion, this may also be discrimination. An employee was recently awarded $1.6 million by a court because co-workers had posted negative comments about his disability and his employer did not take any action when he reported the discrimination.
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In two separate cases, a former Louisville, Kentucky public works director has been accused of sexual discrimination and sexual harassment. The director resigned at the end of August 2012. Although he denies his departure was in connection with any of the allegations, it certainly seems to be the case.

Sexual discrimination is illegal under Title VII of the Civil Rights Act of 1964. This portion of the act prohibits employers and supervisors from treating employees differently because of their race, religion, ethnicity, or gender. Employees cannot be turned down for employment, denied promotions, paid less, terminated, or otherwise treated unfairly because of any of these factors. The Equal Employment Opportunity Commission (EEOC) enforces this portion of the act by determining if an employee has a valid claim and contacting the company. If the company refuses to resolve the issue, a lawsuit will most likely be filed.

In the Kentucky sexual discrimination case, a public works employee claimed she was discriminated against because she was female. The lawsuit states she was denied a promotion for 18 months and was only given the job after complaints of potential sexual discrimination were made to the mayor. She was finally awarded the position in June 2012, but allegedly at a lower salary than her male predecessors.

According to the EEOC, “Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.” Sexual harassment involves actions by a supervisor or co-worker that makes an employee uncomfortable. Unwanted sexual advances, inappropriate touching, and the distribution of pictures, cartoons, or jokes of a sexual nature are just a few examples of sexual harassment. A one-time incident involving something of a mildly sexual nature is generally not enough to constitute harassment; it must be either frequent or serious enough to cause a hostile work environment.

In the Kentucky sexual harassment complaint against the public works director, he allegedly entered the employee’s cubicle on more than one occasion and hugged and kissed her without her consent. Non-consensual touching like this is quite serious, and the fact that it happened more than once makes it even worse.
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An ex-employee of the Hyattsville Police Department in Maryland has filed a sexual harassment lawsuit against the city of Hyattsville. She joined the force in 2005 when she was 21 and stayed until she was allegedly forced to retire in 2009.

According to the lawsuit, the female police officer was frequently the victim of sexual harassment from her supervisors and coworkers while on the job. Perhaps the worst incident allegedly occurred in 2007 in Louisville, Kentucky. The officer was invited by her superior officer to attend a Fraternal Order of Police Conference there. During the conference, the suit claims that the superior officer took her into a men’s restroom and forced her to touch his crotch. Then later that night he allegedly came into her hotel room, climbed on top of her and tried to have sex with her. The female officer’s roommate allegedly helped to get him off of her. The female officer claims that nothing was done when she reported the incident and that she was even assigned to the offending officer’s squad after it happened. The city of Hyattsville disagrees with her claim, stating disciplinary action was taken against the superior officer, but they did not provide any details.

The female officer said the repeated sexual harassment and hostile work environment forced her to go on short-term disability because she suffered from post-traumatic stress syndrome. The suit also claims that she was retaliated against after reporting the harassment and she was eventually forced to retire and relocate in 2009.

Her lawsuit seeks an unknown amount of damages. The damages would cover her lost wages and benefits as a result of supposedly being forced to retire early. They would also compensate her for any mental or emotional distress incurred because of the harassment and retaliation. If a jury would rule in her favor, the police department would likely have to provide training to all personnel regarding avoiding sexual harassment in the workplace, and how to handle sexual harassment complaints when they occur. The Equal Employment Opportunity Commission’s (EEOC) goal is not only to obtain justice for those who have been mistreated, but also to prevent that type of behavior in the future, so training and supervision from an outside party is frequently part of the award or settlement in this type of case.
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In 2009, an employee at the Fayette County Detention Center in Kentucky alleges that her supervisor sexually harassed her. Her lawsuit stated that he humiliated her in front of her co-workers and an inmate on separate occasions. She also claimed that he touched her breast. When she reported this behavior, she was supposedly a victim of retaliation as well. The lawsuit named the director of the detention center and the city. She was one of three women who filed lawsuits against the detention center alleging sexual harassment, racial discrimination, and retaliation.

This Kentucky sexual harassment case went to trial in March 2012. The jury handed down a split decision, which means they agreed with the plaintiff on some points and agreed with the defendants on others. The detention center director was excused from the case by the judge because he did not think the director played a role in the harassment. The jury found that the supervisor had indeed harassed the employee, but did not find any evidence that he actually touched her breast. Jurors also did not think there was enough evidence to prove her supervisor had retaliated against her after she complained about his behavior. They awarded the sexual harassment victim $60,000, most likely to cover any lost wages and to compensate her for any emotional or mental distress the alleged harassment may have caused her. Some of the damages may have been awarded simply to punish the city for allowing this to happen and to persuade city officials not to allow this to happen again at the detention center. Damages of this type are called “punitive damages.” The employee that was allegedly harassed says she is thankful that someone listened to her.

As a further blow to the city and its bank account, the judge agreed that the city was responsible for the plaintiff’s attorneys’ fees that accrued during the preparation and attending of the trial. They totaled just over $200,000. If the city decides to appeal this decision and loses, it will likely be held responsible for those additional attorneys’ fees as well.
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Known as the sponsor of the 2010 World Equestrian Games at the Kentucky Horse Park in Lexington, Alltech is an international company based in Nicholasville, Kentucky that produces animal feed, a beef product, coffee and alcoholic beverages. According to a lawsuit against the company that recently settled, it also allegedly produces a hostile work environment for female employees.

A woman who worked for Alltech for about four years filed a sexual harassment lawsuit against the company in May 2011. She had allegedly been harassed by her boss for the duration of her employment. The harassment ranged from sexual calls and emails to actually being locked in a conference room and inappropriately touched by him. She also claims that other employees were sexually harassed by her boss and others, stating “The culture and leadership at Alltech created an environment which fostered and condoned acts of sexual harassment.”

The employee allegedly reported the situation to her boss’s supervisor who told her not to worry about it because she was a strong woman and could take care of herself. In April 2011 she went to someone who worked outside the company – an auditor – and reported what had been happening. It was announced shortly thereafter that all emails over a year old would no longer be kept, and Alltech began an investigation into the sexual harassment allegations. Her boss resigned from the company, but was kept on for special projects at the beginning of May 2011.

Then on May 17, the company stated that any employee disputes would be handled through arbitration rather than through the courts. The employee was told this new policy would cover her complaints even though she had complained before the policy was put in place. The employee did not agree with this policy and she left the company and filed a lawsuit on May 20, 2011. Alltech tried to have the lawsuit dismissed based on their new arbitration policy, but the courts said the employee had not agreed to the policy and the case was allowed to proceed. To avoid having depositions taken of their executives and other employees, the company agreed to settle the lawsuit with the Kentucky worker for an undisclosed amount.
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