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Tag: hostile work environment

Small Business Employment Law: A Guide to Investigating Sexual Harassment Claims

November 25, 2021

Sexual harassment is common in American workplaces. According to reports, five million individuals have been harassed in offices across the country annually. While this figure is alarming, the consequences for sexual harassment charges from employees are even more grave.

As such, you want to make sure your small business has measures to prevent sexual harassment around the office and deal with any claims that may arise. On that note, this article provides a comprehensive guide on dealing with sexual harassment cases around the office to avoid damages, liability, and Title VII lawsuits.

What Is Sexual Harassment?

Sexual harassment involves any unwelcome or inappropriate sexual advance or behavior exhibited towards an employee, employer, or client that has the potential to affect their employment (in the case of a staff member) if accepted or rejected, interferes with their performance, or makes them work environment hostile.

However, besides the obvious cases like company executives requesting sex from a junior staff member for a promotion, sexual harassment can also occur in several not-so-obvious scenarios.

For example, staff at a company may feel uncomfortable due to senior managers who are fond of sexually explicit jokes or one employee sending emails or IMs to coworkers that contain inappropriate sexual content.

That said, there are a couple of things you should know about sexual harassment, such as:

  • The victim doesn’t have to be a woman; men get sexually harassed in workplaces too
  • The offender isn’t always the opposite sex, as men throw unwelcome sexual advances at other men, and women do the same
  • The guilty party mustn’t be a staff; customers can sexually harass company employees
  • The victim can be a client or someone visiting the office
  • Sexual harassment can happen without the offender ( if they’re a senior staff) threatening the employee’s job

How to Prevent Sexual Harassment In The Office?

US Federal laws prohibit inappropriate sexual conduct towards employees, employers, or anyone else around the office. Title VII of the Civil Rights Act is the primary statute that provides guidelines on sexual harassment prohibition in the United States.

Therefore, with the law against it, you must create a work environment where sexual harassment can’t occur. But how do you do this? Let’s take a look:

  • Have a Sexual Harassment Policy

The first step to preventing sexual harassment in the workplace is to have specific regulations surrounding the subject. Consider having these company laws in a print and digital document and make them available to every employee.

These guidelines should define sexual harassment, state punishments or disciplinary measures for offenders, spell out procedures for filing sexual harassment claims, communicate the company’s commitments to investigating sexual harassment claims alongside specific investigative actions, and prohibit retaliation against employees who lodge sexual harassment complaints.

  • Conduct Annual Educative Training

It’d help if you train employees regularly on sexual harassment and its consequences in the office. These training sessions can occur bi-annually or annually. They should also involve reading out the company handbook on sexual harassment.

  • Conduct Separate Training Sessions for Managers and Senior Executives

Most sexual harassment complaints are usually against company executives; as such, you must hold separate meetings on sexual harassment with your senior staff. Emphasize clearly what sexual harassment is, the behaviors that constitute it, and the repercussions of such actions.

It’d be best to also educate senior managers on handling sexual harassment claims from employees since they’re typically the first point of contact in such scenarios.

How to Investigate Sexual Harassment Claims

Investigating sexual harassment cases is a complex issue, and you want to make sure your company doesn’t make any missteps in handling these claims.

That said, the Equal Employment Opportunity Commission’s (EEOC) guidelines on conducting an inquiry into sexual harassment complaints advise that employees consider all the facts surrounding the situation, including the nature of the inappropriate sexual behavior and the context in which the events took place.

With that in mind, here are some tips on handling sexual harassment cases:

  • Treat All Claims With Urgency

It’s vital to treat sexual harassment allegations as a priority. Whenever an employee comes forward with a claim, ensure they know that the company will take deliberate steps to look into the matter and get justice.

  • Interview Both Parties

After receiving the victim’s complaints, interview both parties separately to get the full details of what happened. Make sure you ask for specifics, such as date, time, the nature of the sexually inappropriate behavior, and witnesses.

You should also hold talks with witnesses and corroborate their accounts with the parties involved. Document each of these discussions, as well. Finally, discuss the company’s steps during and after the investigation with the affected individuals.

  • Treat Both Parties With Respect

During the investigations, ensure you don’t discriminate against the victim. Doing this puts you at risk of a lawsuit that could be damaging for the business. Also, assure the harassed employee of their safety and ensure no other staff abuses them as retaliation during or after the investigations.

Furthermore, accord the same respect to the offender as well. Remember, they’re innocent until proven guilty; as such, don’t discriminate against them in any way. However, we recommend sending them on leave or transfer during the investigations to protect the victim.

  • Review the Result of the Investigation and Take Appropriate Action

After the inquiry, review the information gathered and decide the next step to take. The result should determine the disciplinary measure to take towards the offender or victim.

At this point, it’s vital to mention that you should probably work with your HR department or a specialized company committee for sexual harassment cases to review the investigation and make a decision.

Also, once you’ve decided on what to do, let each party know immediately.

Hire a Competent Employment Lawyer

Sexual harassment claims are serious issues that could lead to a lawsuit if you’re not careful. As such, you’ll probably need legal help to navigate these cases professionally and avoid any damaging actions.

An employment lawyer is your best bet in this regard. However, finding an experienced attorney might be a bit challenging. That said, if you’re struggling to find a lawyer to handle a sexual harassment claim in your company, we recommend you reach out to The Law Office of Sheri Oluyemi, LLC. With years of experience in employment law, we can help you navigate sexual harassment cases in your firm and get justice served.

Does Title VII Include Discrimination Based on Sexual Orientation?

May 23, 2019

By Hauwa Adamu

In Bostock v Clayton County and Evans v Georgia Regional Hospital, the US Court of Appeals for the Eleventh Circuit held that reliance on Title VII of the Civil Rights Act of 1964 as prohibiting discrimination on the basis of sexual orientation failed to state a claim recognizable under law. 

Background

Evans v Georgia Regional Hospital

Jameka Evans worked at the Hospital as a Security Officer from August 2012 to October 11, 2013. During her time at the Hospital, she was discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a “traditional womanly” manner. She experienced a hostile work environment. She was denied equal pay or work, harassed and physically assaulted.

Although she was a gay woman, she did not broadcast her sexuality. However, it was evident that she identified with the male gender, because of how she represented herself. Evans was punished because her status as a gay female did not comport with the Hospital’s gender stereotypes.

Evans lodged a complaint with the Human Resource department about some adverse treatment at work. Shortly thereafter she also complained that she was harassed and retaliated against because of her complaint. HR indicated that the Hospital had investigated Evans’ complaint, and had found no evidence that she had been singled out or targeted. Evans voluntarily resigned.

Bostock v Clayton County

Gerald Bostock, a gay man, began working for Clayton County, Georgia, as a child welfare service coordinator in 2003. During his 10-year tenure at Clayton County, Bostock received positive performance evaluations and numerous accolades. In 2013, Bostock began participating in a gay recreational softball league. 

During a meeting in which Bostock’s supervisor was present, at least one individual openly made disparaging remarks about Bostock’s sexual orientation and his participation in the softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed as part of his job.

Shortly after, Clayton County terminated Bostock allegedly for conduct unbecoming of its employees. Bostock filed a charge of discrimination with EEOC following which, he filed a pro se lawsuit against the County alleging discrimination based on sexual orientation, in violation of Title VII.

The Courts

In Evans, at the United States District Court for the Southern District of Georgia, Magistrate judge Smith issued a report and recommendation (R&R) dismissing Evans Complaint for failure to state a claim. The Judge concluded that while same-sex harassment can be actionable under Title VII, Title VII discrimination claims based upon the plaintiff’s sexual orientation or perceived sexual orientation is not. Judge Randall Hall concurred with Judge Smith’s R&R and dismissed Evan’s case. 

The Eleventh Circuit Court of Appeals rejected Evans request for an en banc rehearing, stating that Evans’ pro se Complaint failed to plead facts sufficient to create a plausible inference that she suffered discrimination. It stated: “Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.” 

Evans then filed a petition for certiorari, requesting review from the SCOTUS. Regardless of the fact that several friends-of-the-court briefs were filed urging the SCOTUS to hear the case, including briefs from 79 businesses and organizations, the Court denied review of the case, leaving for another day resolution on whether Title VII prohibits discrimination based on sexual orientation.

In Bostock, the US District Court for the Northern District of Georgia and the Eleventh Circuit Court of Appeals dismissed the case in the same grounds.

After more than nine conferences during which the US Supreme Court could have acted on the petition for review, the SCOTUS has granted review in this case and two others that concern anti-LGBTQ employment discrimination. The cases will be heard in the Court’s 2019-2020 term to create a binding precedent and decide the issue for all courts.

Encounters of the Hostile Kind: What Do You Need to Prove a Racially Based Hostile Work Environment?  

March 20, 2019

Meet Brenda Smelter. She is a black woman that was hired by Southern Home Care Services, Inc. d/b/a/ ResCare Homecare in July 2013 as a Customer Service Supervisor. She was the only black person who worked in her office, she replaced a white employee who was away from the office on maternity leave. Brenda struggled with performing her job but most distressing at work was that she often overheard co-workers making racist comments about black people; sometimes these comments were made directly to her face and in the presence of others, including members of management.

The severity of these racist comments peaked on the last day of her employment when a co-worker called her a “dumb black nigger” during an argument. According to Smelter, she was fired for reporting this epithet, along with her co-workers’ other racist comments, to her direct supervisor. The reason Southern Care provided for the termination was “poor fit” citing performance concerns and chaos. After her termination, she was replaced by a white employee, in addition to the return of her predecessor, also white, from maternity leave.

Brenda sued Southern Home under Title VII and 42 U.S.C. § 1981, asserting claims for discriminatory termination, hostile work environment, and retaliation. Smelter contends that Southern Home (1) discriminated against her by permitting a hostile work environment to exist at the office, (2) discriminated against her by terminating her because of her race, and (3) retaliated against her for reporting her co-workers’ racist comments.

After the case was dismissed by the District Court, the 11th Circuit Court of Appeals agreed with the district court that Smelter’s discriminatory termination and retaliation claims fail because she provided insufficient evidence of pretext in response to Southern Home’s legitimate, nondiscriminatory reasons for terminating her. But the 11th Circuit Court disagreed that, as a matter of law, the harassment Smelter suffered was not severe or pervasive and Southern Home lacked notice of that harassment.

Thus, in October 2018, the 11th Circuit Court gave us a recent window into the elements required to establish a racially based hostile work environment claim.

To prove a hostile work environment claim, an employee must show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” When the employee’s harassment claim is based on her race, she must prove five elements: (1) she belongs to a protected class, (2) she was subjected to unwelcome harassment, (3) the harassment was based on her race, (4) the harassment was sufficiently severe or pervasive to alter the terms of her employment and create a discriminatorily abusive working environment, and (5) the employer is responsible for the environment.

Typically at issue, as was the case here, is the “severe and pervasive” threshold. To establish that harassment was sufficiently severe or pervasive to alter the terms or conditions of her employment, an employee must prove that her work environment was both subjectively and objectively hostile. In other words, the employee must first establish that she “subjectively perceive[d] the environment to be abusive.” Then she also must satisfy the objective component by showing that her work environment was one “that a reasonable person would find hostile or abusive.”

Beginning with Smelter’s subjective perception of her work environment. Smelter repeatedly testified that enduring her co-workers’ racist comments was stressful and hurtful. She also explained that it felt like the harassment “never stopp[ed],” as though her co-workers were pushing her to “see how much she [could] take” in the hopes that she would “just quit and leave.” The Court found this testimony sufficient to demonstrate subjective belief in the severity and pervasiveness of the conduct.

The employer objected that Smelter’s failure to report the incidents indicate a lack of subjective believe in the harassment. Precedent recognizes, however, that an employee’s failure to report harassment is not dispositive of whether the employee perceived the environment created by the harassment as hostile or abusive. 

Regarding objectivity, the facts sufficient to meet this threshold were: 

1.    Pervasiveness, also known as Frequency

Smelter endured racist remarks by her co-workers nearly every day that she worked in that office. There were at least 8 racist comments in 2 months that Smelter could recall with specificity.

2.    Severity

Brenda endured the following comments: black men were “lazy” and “the scum of the earth; “black women[] ha[d] babies on welfare,” President Barack Obama’s “big ears” made him “look[] like a monkey,” and she did not know that black people could be buried on Sundays; Smelter’s hair made her look like a “mixed monkey” from the movie Planet of the Apes; an occasion when black people were exiting a bus at a Wal-Mart store was described as looking like they were “chained together.”; and a desire expressed to “send them all back . . . to Africa.”. A co-worker “jumped up . . in a rage” and said “get out of my office . . . you dumb black nigger.” in doing so she “hit the desk” like she was about “to charge at” Smelter. 

 The Court held that these comments were directed at Brenda to humiliate her and were egregious even just once because it was preceded by two months of related abuse, thus, they were severe.

3.    “Physically threatening or humiliating”

See point number 2; the comments were severely humiliating. The Court stated that “physical threat” is not always a dispositive requirement.

4.    Altered job performance is optional in light of totality of other circumstances 

Indeed, “[t]he Supreme Court has cautioned that harassment need not be . . . so extreme that it produces tangible effects on job performance in order to be actionable.”

5.    Because the comments were made by co-workers, management needed to be aware or made aware of the harassing conduct and must also have failed to take prompt remedial action

Here, there was a concession that no report was made until the day of termination but there might have been actual notice because Smelter testified that everyone thought the slurs were funny and that others, including management, overheard the slurs. Smelter also testified that members of management overheard these comments and were amused by them, but she never made a formal report until the day of her termination. 

Take away for employees making this claim: this case demonstrates the type of hostility that makes the threshold for a hostile work environment claim.

Take away for employers defending such a claim: the company must take prompt remedial action if any members of management have actual or constructive notice of this type of hostility.