by Melissa Mozingo
This post is the first in a two-part series that will provide guidance and strategies to district and campus administration and HR personnel on conducting effective sexual harassment investigations. Although this article focuses on sexual harassment, the advice in it applies equally to racial, age-based and other types of harassment investigations.
In February 2017, a former Uber employee published a detailed, horrific story of alleged structural sexual harassment at the company. The article described an office culture in which members of an almost entirely male staff were routinely and openly hostile to female employees, from instances of verbal abuse and belittlement to job-based “blackmail” by HR and extensive sexual harassment. Among other things, the author recalls being suggestively coached on her appearance by her manager, his frequent use of striking racial slurs and his disparagement of business “ethics.” The author also described a habit among male employees of creating sexually explicit narratives about female peers and superiors in online group chats. The author alleges that she was propositioned for sex over company chat. When she reported the incident to Human Resources, she says, he did not lose his job because she was told the man was a “high performer” and it was his first offense. She says she later discovered this was untrue: Other women had reported the same manager to HR for similar offenses.
Whether or not the allegations are true, this case is a perfect example of a ‘Human Resources failure’ for how to deal to harassment claims. Here are some basics to a district’s obligations to investigate when an employee complains of harassment.
- Districts have a duty to conduct investigations. Districts have an affirmative duty to maintain a working environment free of harassment on the basis of a federally protected characteristic, such as race, color, or national origin, religion, sex, disability, age, or genetic information. 42 U.S.C. 1981; 42 U.S.C. 2000e et seq. (Title VII); 20 U.S.C. 1681 et seq. (Title IX); 42 U.S.C. 12111 et seq. (Americans with Disabilities Act); 29 U.S.C. 621 et seq. (Age Discrimination in Employment Act); 29 U.S.C. 793, 794 (Rehabilitation Act); 42 U.S.C. 2000ff et seq. (Genetic Information Nondiscrimination Act); U.S. Const. Amend. I; Human Resources Code 121.003(f); Labor Code Ch. 21 (Texas Commission on Human Rights Act); Labor Code Ch. 21, Subchapter H (genetic information). Districts can be held liable for failing to take the steps necessary to prevent such harassment from occurring or for failing to promptly correct any harassing conduct about which it knew or should have known was occurring. 29 CFR 1604.11(d), (e), (f); 1606.8(d), (e).
- Districts may have to take action before conducting the investigation. Based on the allegations and facts of the case, as a precautionary measure, a district should consider whether immediate action is warranted. The EEOC set forth examples of precautionary steps that may be necessary include: “scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.” However, districts need to ensure that the complainant “should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.”
- The investigation must be immediate. How soon the investigation must start depends on the circumstances. In Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708 (2d Cir. 1996), the employer’s response was held to be prompt where it began its investigation on the day the complaint was made, conducted interviews within two (2) days, and fired the harasser within ten (10) days. In Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th 1994), the court held that an employer’s response to complaints were not immediate when it did not seriously investigate or reprimand the supervisor until after the plaintiff filed a charge with the state Fair Employment Practices agency, even though the harasser was eventually terminated. In Saxton v. AT&T, 10 F.3d 526 (7th Cir. 1993), the court found that the investigation was prompt when it started one (1) day after the complaint was made and a detailed report was completed two (2) weeks later. In Nash v. Electrospace Systems, Inc., 9 F.3d 401 (5th Cir. 1993), the court held that an investigation was prompt when it was completed with one (1) week. The court in Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317 (7th Cir. 1992) found that an investigation was adequate when it was completed within four (4) days.
- The investigator must be experienced, unbiased, and trustworthy. There is no legal prohibition that internal employees, such as Human Resources personnel, cannot conduct investigations into employee complaints. The investigator does not have to have investigation experience or meet any certain training requirements. However, districts should take the time to thoroughly train an in-house person who can conduct harassment investigations. First, the person needs to be able to conduct appropriate investigations in order to limit the liability of the district. Second, the person’s experience and training will likely be closely examined, if not challenged, by opposing counsel if the case develops into litigation. Training for potential district investigators could include the law and district board policies regarding harassment, selecting the appropriate investigative process for different types of investigations (i.e., who to interview first), assessing credibility of witnesses, and workplace investigative techniques and report writing.
The investigator cannot have a conflict of interest or bias towards the alleged victim or alleged harasser, so it is very important to select a person who does not have any personal involvement with any of the parties who are a part of the investigation. To avoid the appearance of any undue influence, the investigator must not be subject to any control or supervisory control of the alleged harasser. This means that for some smaller districts or in cases where the assistant superintendent or superintendent is alleged to have harassed someone, it is recommended that an outside third-party or law firm be hired to conduct the investigation.
If you need assistance with a workplace investigation, please feel free to contact me or any other attorney at Leasor Crass, P.C. The next post in this series will be How to Conduct a Sexual Harassment Investigation (Part 2).
by Melissa Mozingo
Then presidential nominee Donald Trump’s 2005 ‘locker room talk’ video, which was leaked in October 2016, sparked an intense dialogue among voters about what constitutes sexual harassment. Sexually suggestive comments, inappropriate touching, and sexual innuendos can all be construed as sexual harassment. However, there should be no confusion in the workplace as to what is inappropriate.
Sexual harassment is the subject of more than 20 percent of the enforcement actions pursued by the Equal Employment Opportunity Commission (EEOC) every year. Not all inappropriate behavior is actionable. Under Title VII of the United States Civil Rights Act and its construing case law, sexual harassment occurs:
- When a work-related benefit is conditioned on the granting of a sexual favor;
- An employee or co-worker is subjected to unwanted sexual advances;
- Where hostile conduct is based on the victim’s gender; or
- When there is offensive, sexually charged workplace behavior.
Generally, one offensive comment or an isolated incident alone will not support a claim of sexual harassment. However, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature rise to the level of sexual harassment when the conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment. Courts typically consider several factors to determine whether an environment is hostile, including:
- Whether the conduct was verbal, physical, or both;
- How frequently it was repeated;
- Whether the conduct was hostile or patently offensive;
- Whether the alleged harasser was a co-worker or supervisor;
- Whether others joined in perpetrating the harassment; and
- Whether the harassment was directed at more than one individual.
The key to a sexual harassment claim is whether the actions were severe and pervasive so as to change the conditions of employment and create an abusive environment, judged either by an objective standard (in other words, any reasonable person would find the conduct abusive); and a subjective standard (in other words, the employee in question found the conduct abusive).
The 1982 landmark case Henson vs. Dundee, 682 F.2d 897 (11th Circuit 1982) established two different sets of legal grounds for claiming sexual harassment under Title VII:
- “Harassment in which a supervisor demands sexual consideration in exchange for job benefits (quid pro quo);” and
- “Harassment that creates and offensive environment.”
This ruling established that a plaintiff must also show some tangible job detriment in addition to the hostile work environment created by sexual harassment.
Sexual harassment at work is not limited to men harassing women. The federal courts have also determined that workplace harassment can be applied to incidents in which the discrimination or harassment was between members of the same sex, incidents in which the employer or harasser has engaged in gender stereotyping, and incidents based on perceived or actual sexual orientation.
Any one comment can lead to a sexual harassment claim being made against the employer and often results in demoralized employees and possibly litigation. If an employer does not promptly begin an investigation after any sexual harassment complaint is made (which may uncover a pattern of such comments), the employer may be regarded as not sufficiently concerned about or endorsing inappropriate conduct in the workplace.
As with other workplace issues, it is not effective to simply have policies and procedures in place. One of the best ways to maintain a respectful and compliant workplace is ensure documentation is kept to show supervisors and employees have been trained about what constitutes sexual harassment, how to report conduct believed to be sexual harassment, and each employee’s obligation to promote respect and civility in the workplace.
In addition, it goes without saying that workplace culture usually has a “trickle-down” effect. Therefore, it is the responsibility of administration at all levels to set the right tone for ending workplace harassment. This includes avoiding conduct that may be construed as sexually harassing and keeping in mind that supervisors serve as a role model for employees. Consequently, administration should never ignore “locker room talk,” even if no one complains.
If you have questions or would like training for your employees on this or any other school law topic, please do not hesitate to contact the attorneys at Leasor Crass, P.C.
by Melissa Mozingo
Most people who read this article will wonder how any court could not find a hostile work environment claim to have merit when a noose is discovered in the workplace by an African-American employee. Under existing case law, one or two isolated incidents is generally not enough to constitute a hostile work environment. As this recent case highlights, plaintiffs in discrimination, harassment and hostile work environment cases, have very difficult burdens to meet.
The plaintiff, Jerome Cole, an African-American, had worked for Northern Illinois University in the Building Services Department since 1998. Cole alleged that, beginning in 2009, he experienced race discrimination, retaliation, and a hostile work environment based on his race. In mid-November 2012, Cole discovered a hangman’s noose in his work area. Cole threw the noose away, but the next day he discovered another noose outside the building. Cole emailed one of his supervisors and told her that he had found a noose and taken it to the police. The supervisor took Cole’s email to the police station, turned it in to the acting superintendent, and spoke to two other university officials about the incident. By February 2013, the university police had begun an investigation. A detective interviewed Cole, but was then told by his supervisor to stop the investigation. The person who left the noose was never identified. The police investigation was the only substantial step the university took after the noose incident. There was no evidence that the noose incident was repeated after that.
7th Circuit Finds No Hostile Work Environment
The district court rejected the hostile work environment claim, holding that (1) most of the hostile events were not based on Cole’s race; (2) Cole had not produced evidence that the noose was intentionally left for him to find; and (3) Cole had not shown a basis for employer liability.
Harassment sufficiently severe or pervasive to alter the terms and conditions of employment is actionable under Title VII as a claim of hostile work environment. To prove a claim for hostile work environment based on race, an employee must show: (1) he/she was subject to unwelcome harassment; (2) the harassment was based on his/her race; (3) the harassment was severe or pervasive so as to alter the conditions of the employee’s work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability. A plaintiff has a large burden to meet and a lot of things to prove to meet their burden.
The crux of Cole’s hostile work environment claim was the discovery of the noose. The 7th Circuit found that the first and second prongs were easily met as the noose undoubtedly qualifies as “unwelcome harassment” and that given its status as a symbol of racial terror, the Court had no difficulty assuming that the harassment could be treated as based on race. However, the Court found that the record in the case did not support a reasonable inference that most of the hostility Cole encountered was connected to his race as there was almost no evidence of racial animus in the record. There were no reported hostile or ambiguous remarks, no racial slurs, nothing beyond the noose itself and the later secondhand report of a racist sign posted somewhere, at some unknown time by some unknown person.
With respect to the third prong, the 7th Circuit held that they were hesitant to agree with the district court when they found that Cole could not produce evidence that the noose had been displayed or intentionally left for him to find. The Court noted that a noose on display is generally likely to have more of an impact on employees than one hidden away in a co-worker’s desk. Thus, the Court did not lay firm rules for when a noose in the workplace is or is not severe enough to be actionable.
The Court ruled, however, that Cole failed to present evidence to support the basis for employer liability, the fourth element of his claim. Employers are strictly liable for supervisor harassment, but when a plaintiff claims that co-workers are responsible for the harassment, “he must show that his employer has ‘been negligent either in discovering or remedying the harassment.'” There was no evidence that a supervisor was involved in leaving the noose, so Cole had to present evidence allowing a reasonable jury to find that the university was negligent, meaning that it failed to take “prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring.” A prompt investigation is the first step toward a reasonable corrective action. The undisputed facts in this case, the Court held, showed that Cole notified a supervisor of the discovery of the noose, the supervisor spoke to him about it, and delivered her notes of the incident to the university police. The supervisor also reported the incident to a couple of university officials. The Court held that in these circumstances, it was reasonable for the administration, having involved the university police, to leave the investigation to them. However, the Court was careful to make clear that they were not holding that an employer necessarily fulfills its responsibility to take appropriate corrective action if it has reported an incident to some other party–such as university police. The question is whether the employer took corrective action “reasonably likely” to prevent harassment from recurring. The Court stated that, “bad ‘joke’ or not, the presence of a hangman’s noose in the workplace is not acceptable. But based on the circumstances here, including Cole’s reaction and the fact that the Building Services Department turned the matter over to the police for investigation…we see no basis for employer liability in this case.”
Finally, the 7th Circuit found that Cole presented no direct or circumstantial evidence of disparate treatment based on race and that Cole had not engaged in protected activity to survive a retaliation claim. While these claims were not the highlight of this case, it is important to note that this decision cited another significant case, Ortiz v. Werner Enterprises, Inc., No. 15-2574, – F.3d -, -, 2016WL 4411434, at *4 (7th Cir. Aug. 19, 2016), which is a case that held that “evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself–or whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence.”
The case is Jerome Cole v. Board of Trustees of Northern Illinois University, et al., No. 15-2305 (7th Cir. Sept. 27. 2016).
Discipline for Inappropriate Racial Remarks
Although there is rule as to how much racist rhetoric, or how many comments or “jokes” can create a winning hostile work environment suit, any incident can create a hostile work environment. Some federal courts have found that even a single racial slur can make an employer liable for discrimination under state and federal laws.
Employers can shield themselves from this kind of litigation by ensuring that all established policies and procedures are followed once any allegation of racism has been received. All incident(s) should be investigated promptly and thoroughly. Everything related to the investigation and the discipline process should be documented, including the initial complaint, employee interviews, and any disciplinary action taken (including the reasoning for the discipline).
As always, if you have any additional questions about this topic or any other school law topic, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.
by Melissa Mozingo
Earlier this year, the U.S. Equal Employment Opportunity Commission (EEOC) filed two unrelated lawsuits alleging that employers violated Title VII by discriminating against employees based on sexual orientation. On June 28, 2016, the EEOC announced that one of those suits had settled. Without admitting liability, IFCO Systems (IFCO) agreed to pay $7,200 in back pay with interest, $175,000 in nonpecuniary compensatory damages, and make two $10,000 contributions to the Human Rights Campaign Foundation. The agreed settlement marks the EEOC’s first resolution of a lawsuit challenging discrimination based on sexual orientation under Title VII and represents an important development in this area of the law.
In its suit against IFCO, the EEOC charged that a lesbian employee was harassed by her supervisor because of her sexual orientation. According to the suit, her supervisor made numerous comments to her regarding her appearance and her sexual orientation, such as, “I want to turn you back into a woman” and “You would look good in a dress.” The EEOC charged that the supervisor also made sexually suggestive gestures to her. IFCO retaliated against the female employee by terminating her after she complained to management and called the employee hotline to report the harassment.
Title VII of the Civil Rights Act of 1964 prohibits discrimination because of sex and retaliation. However, Title VII does not explicitly cover sexual orientation. Still the EEOC brought the case, relying on the only authority that it could marshal — its own interpretation of Title VII. As the federal law enforcement agency charged with interpreting and enforcing Title VII, the EEOC has concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination. Federal courts generally defer to federal agencies when those agencies interpret statutes that they implement or enforce, unless Congress has already resolved the issue at hand.
To date, no federal circuit courts have adopted the EEOC’s expansive interpretation of Title VII regarding sexual orientation discrimination, although a case which may provide some judicial guidance on this interpretation, Kimberly Hively v. Ivy Tech Community College, No. 3:14-CV-1791 (N.D. Ind. 2015), is currently pending before the Seventh Circuit. The filing of these two suits, however, demonstrates that the EEOC intends to aggressively litigate its theory of Title VII.
The EEOC’s willingness to file lawsuits based on alleged sexual orientation discrimination is anchored on the rationale of its prior administrative decision in Baldwin v. Foxx, Appeal No. 0120133080 (EEOC July 15, 2015). There, the EEOC found sexual orientation discrimination to be sex discrimination, as it relies on gender stereotypes as to how “real men” and “real women” should behave, and in so doing seeks to “enforce heterosexuality defined gender norms.” Id. at 3. The EEOC further found it to be per se sex discrimination in that it involves treating an employee who has a same-sex partner differently than how the employer would treat an employee who has an opposite sex-partner.
Whether or not the federal district and circuit courts agree with the EEOC, employers should be aware that the EEOC is actively watching for potential discrimination cases on the basis of both sexual orientation and gender identity. While many states and cities have laws and ordinances in place prohibiting sexual orientation and gender discrimination in employment, Texas does not. The EEOC is apt to target employers located in jurisdictions where the question of sexual orientation discrimination is not yet settled. Even absent judicial authority, in light of EEOC guidance and legal actions regarding sexual orientation, employers should evaluate their policies, practices, and litigation risks.
If you have additional questions about this topic or any other school law topic, please do not hesitate to contact the attorneys at Leasor Crass, P.C.