Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

Sexual harassment can happen in any workplace, with any profession, including lawyers.  Recently, there have been two law firms/attorneys sued for sexual harassment by employees.  Both arose in New York. 

Sabrina Rafi, who is 27, worked as a paralegal for James R. Ray, 50, whose office is located on Park Avenue.  The New York Post reports that Rafi filed a lawsuit alleging that Ray asked her to be his third wife in a polygamous relationship, forced her to feed him with chopsticks at a Korean restaurant, bragged about having sex with several partners and being married to multiple women, and talked about lesbian pornography with her.  Rafi claims that she wore several layers of clothes in an attempt to thwart his sexual advances, but that only irked Ray.  She said that she felt sick working for him.  Ray ultimately fired Rafi in February, after she joined the firm in December.  She filed the lawsuit shortly after she was terminated.

In March, Alexandra Marchuk, a junior lawyer at the New York firm of Faruqi & Faruqi, filed a sexual harassment suit against the firm and a partner, Juan Monteverde.  The lawsuit alleges that Monteverdi made numerous improper comments and unwanted sexual advances toward her, and he forcibly had sex with her in the office on one occasion.  In response to the lawsuit, Monteverde and the firm filed counterclaims against Marchuk, alleging defamation and damage to their reputation.  The New York Times reports that after they appeared at a court hearing in Delaware, where Monteverde asked Marchuk to "dress alluringly", they went to a local bar and engaged in kissing and fondling.  She alleges it was not consensual, he says it was.  She claims that after the firm's Christmas party in 2011, they went to a bar and were kissing and fondling each other, and that they went to the offices where he "quickly and forcefully had sex with her".  He alleges that the sexual contact fell short of intercourse, and was consensual.  Monteverde's counterclaim alleges that when the suit was filed, she sent it to the media, Faruqi clients and Mr. Monteverde's wife. 

Practice pointers.   Bad publicity is something that no employer wants, especially when it is as sensational as these two stories.  When a senior level employee/partner, such as Mr. Monteverde, who is married, admits to kissing, fondling and having sexual contact with a subordinate, it will be difficult for anything good to happen.  And there will be attorneys fees, expenses, time away from work, marital issues, and the stress of litigation.  Train all employees, including owners and senior level management, as the dangers and ramifications of sexual harassment. 

• Email This
• Print
• Comments
• Trackbacks

Special thanks to my partner, Jim Sturdivant, who provided this entry as it pertains to criminal offenses.  Among other things, Jim handles cases around the state of Alabama for clients who are arrested and charged with DUI.

Attending Holiday Parties and the consumption of alcoholic beverages between Thanksgiving and New Year’s offers increased opportunities to engage in risky behavior.  The criminal penalties for DUI are steep, including up to one year in jail and a fine of up to $2,100.  In addition, the person who is charged with DUI faces a suspension of their driving privileges for up to 90 days.   This suspension can be imposed as a result of a conviction for DUI or can be administratively imposed prior to any conviction based upon either a refusal to perform a blood alcohol breath test or a person’s breath alcohol level being at .08% or higher.

In addition, the Alabama DUI statute has recently been amended to impose even more serious penalties upon any person who is convicted of having at least .15% or higher of alcohol in his blood while driving.  Most notably, a person in such a situation convicted of a .15% or higher violation will stand to have their license revoked for a period of not less than one year. Further, an individual conviction under the so-called “super drunk” provision of the DUI statute will be required to provide an approved ignition interlock device for a period of two years from the date of the issuance of a driver’s license following such a revocation.

As if all that isn’t serious enough, anyone who has ever been “stopped” for DUI should know about another provision of Alabama law, which requires the Department of Public Safety to suspend a motorist’s driving privileges for one year if the person has had at least one “alcohol related contact” within the previous five years.  See Alabama Code § 32-5A-304(b)(5).  Note – a mere contact is sufficient.  A conviction for this prior DUI charge is not required.

The bottom line is that if a person chooses to drink at a holiday gathering or event, they should do so very sparingly, if at all.   The better practice is simply not to consume alcohol, or to consume  a  very,  very  small  amount  of  alcohol,  prior  to  driving  a  motor  vehicle.    The consequences of consuming more than one drink and driving a motor vehicle is just too risky for the individual.

Employers also need to be cautious during the Holiday Season.  Holiday parties often create or increase the risks of inappropriate behavior, whether it is inappropriate dress, inappropriate dancing with co-workers, sexual harassment, assault and even wrongful death claims if an accident is caused by a driver who became intoxicated at the party.  Arrests, EEOC charges and lawsuits can be the result.  In order to cut down on the risk of liability, there are many things an employer can do.  This includes:

          Remind all employees of the company’s sexual harassment policy at work, including company sponsored parties.  

          Remind managers of their responsibility to enforce company policy at any company sponsored party

          Have non-alcoholic beverages available for consumption

          Train staff to recognize employees who may be intoxicated, and to not serve any more alcohol to them.  Or hire a professional who is already trained to do this.

          Pre-arrange for designated drivers or alternative transportation, taxis, busses, etc.

          Stop serving alcohol at least an hour before the official end time of the party.

          If a complaint is made, follow your policy, which should include a prompt, thorough and complete investigation, with appropriate disciplinary action if required.

This is a wonderful time of the year.  Enjoy it, but be smart.

I hope all of you have a wonderful and safe Thanksgiving. 

• Email This
• Print
• Comments
• Trackbacks

Answer:  Cell phone pornography, sexist and religious comments, hostile work environment and inattention to work.

Question:  Who are Dr. Cercioglu and Mount Saint Sinai Hospital?  ABC news reported last week that Sandra Morris, a hospital technician at Mount Saint Sinai Hospital in New York, worked in an operating room where Dr. Cercioglu, a cardiovascular perfusionist and her immediate supervisor, allegedly watched X-rated movies on his cell phone while he was operating equipment that keeps patients alive while undergoing bypass surgery.  Dr. Cercioglu also allegedly called her a "dumb Jew bitch" and a JAP, short for Jewish American Princess, in front of co-workers at a farewell party.  Morris also alleges that Dr. Lazala, a cardiothoracic surgeon and a second supervisor, stated that she could not work on some cases "because she doesn't have a dick" and that they would "never hire a woman again".  On July 31, 2012, Ms. Morris filed a lawsuit against the hospital and Dr. Cercioglu alleging sex and religious discrimination, a hostile work environment alleging that other perfusionists "routinely joked about his behavior", and that she was not paid the proper amount for overtime.  She was fired after being off work for 6 months on unpaid leave as the result of an on-the-job injury.

Answer:  The EEOC is about to file many lawsuits around the country.

Question:  What is about to happen as we approach September 30, the end of the governments' fiscal year?  The EEOC historically waits until the last minute to file the vast majority of their lawsuits around the country.  I anticipate a large number being filed during the next 30 days.  If your company has been involved in an investigation by the EEOC, and have been unsuccessful in the conciliation process, be on the lookout for a possible lawsuit.

Answer:  Acting in Bad Faith.

Question:   What can you say about a governmental agency that doesn't follow its own requirements about investigation and resolving charges?  The EEOC has been under fire around the country for not acting in good faith during the conciliation process, which is mandatory before it files suit.  In EEOC v. La Rana Hawaii, LLC, decided on August 22, 2012, the District Court relied on the case of EEOC v. Pierce Packing in finding that the EEOC must actually investigate charges that are filed with it and then enter into good faith conciliation in an attempt to resolve the charges.  These are conditions precedent that must be met before the EEOC can file a lawsuit in it's own name.  As stated by Molly DiBianca in her Delaware Employment Law Blog, "Specific problems that the court identified included the EEOC's "obstinate refusal" to provide the defendants with any specific information about he class members or the allegedly unlawful acts.  This refusal constituted a failure to demonstrate a "willingness to work toward settlement."  The court found that the EEOC's "take it or leave it" offer further demonstrated the insufficiency of its efforts".  The court stayed the case while ordering the parties to engage in good faith conciliation.  

Final Jeopardy.

Answer:  Emoticon-laced emails.

Question:    What is the most frequent cause of office romances?  According to the Huffington Post,  a study by the dating site Whatsyourprice.com, shows that almost 45% of women and 59% of men who were romantically involved with a co-worker say that the relationship began with an emoticon in an email or text message.  71% of women and 90% of men reported that receiving a winky face indicates the possibility of a romantic involvement or a first date.  Finally, 85% of those between 18 and 29 said they would have a romantic relationship with a colleague, and 40% said they would date their supervisors.   

And the Winner is.......All of us.  Have a wonderful Labor Day. 

• Email This
• Print
• Comments
• Trackbacks

This past weekend was an exciting one for me.  I returned to my home town of Lakewood, New Jersey (yes, I am a Yankee who stayed in Alabama) where I graduated from high school in 1976.  I had the honor and privilege of being inducted into the Lakewood High School Athletic Hall of Fame.  I played football and threw the discus while in high school.  My school was extremely diverse and I participated in sports with African-Americans, Caucasians, Hispanics, Cubans, Estonians,  Jews, Catholics, and more.  I was fortunate to be exposed to a cross section of society at an early age.  So, what does this have to do with Title VII?

For many years, there has been a problem with racism in the professional soccer leagues all around Europe.  CNN published an interesting article this past November, pointing out that the racism is not only between players, but also comes from fans.  From throwing bananas at  a Brazilian player in Russia to Nazi salutes, there were 195 documented incidents of racist and discriminatory behavior from September 2009 through March 2011. 

In American football, a court in New York is allowing a lawsuit filed by 2 massage therapists to proceed against Brett Favre and the New York Jets.  The therapists allege that they were sexually harassed by Favre who sent them sexually suggestive text messages.  They also allege that they were fired after complaining to the Jets about the text messages.

Similar conduct has recently occurred in the United States.  Just last week, during the National Hockey League playoffs, the Boston Bruins lost in overtime to the Washington Capitals in the 7th game of their series.  The winning goal was scored by an African American player.  CNN reported on the outbreak of racist comments across the internet by Boston fans.  This has led to investigations at some schools in New England concerning students who may have posted racist remarks, including at least 5 students (3 of whom are athletes) at Gloucester High School and at least one student at Franklin Pierce University. 

Last week also saw an anti-Semitic incident involving baseball.  In New York, Delmon Young, an outfielder with the Detroit Tigers, who was born in Montgomery and played for the Montgomery Biscuits,  was arrested after an altercation with a number of men outside a hotel.  Young had been drinking and has been accused of yelling Anti-Semitic remarks at them.  Young was suspended for 7 games without pay.  With a salary in excess of $6 million this year, he will lose more than $240,000.  He was also ordered to have a psychological and physical evaluation by Major League Baseball.    Although relatively rare, there have been other similar incidents in baseball:  In 1993, Marge Schott, the ex-owner of the Cincinnati Reds was fined $25,000 and suspended for 8 months after making anti-Semitic and racist comments, and Umpire Bruce Froemming was suspended for calling a female administrator for umpires a "Stupid Jew Bitch" in 2003. 

Concerning activities that may be in violation of Title VII, discrimination or harassment based on sex, race, color,gender, religion and national origin, professional sports seems to be a microcosm for the rest of society.  On a regular basis, charges continue to be filed with the EEOC alleging violations of Title VII.  Lawsuits are regularly filed alleging violations of Title VII.  Judgments are regularly returned against employers for violating Title VII..  Employees are regularly fired for violating Title VII.  In just the past several weeks, a Taco Bell in North Carolina paid $27,000 to resolve a religious discrimination claim filed by the EEOC, a Little Rock, Arkansas real estate company settled a class action race discrimination claim for $600,000, and a Burger King restaurant in Oregon agreed to pay $150,000 to settle a sexual harassment claim where a teen employee was sexually harassed by her supervisor at her first job.

Practice pointer.  Employers must continue to educate and train ALL employees, from top to bottom, as to what is prohibited by Title VII.  Complaints must be taken seriously and properly investigated.  Appropriate disciplinary action, up to and including termination, must be taken once the investigation is complete.  These cases are expensive, legal fees, settlements/judgments and lost time dealing with the allegations.  Morale is decreased when harassing conduct occurs in the workplace.  And employers don't want to be named in an EEOC press release or on the front page of the local newspaper. 

• Email This
• Print
• Comments
• Trackbacks

FLSA. The last month was particularly hard on restaurants and bars.  First, a restaurant owned in part by celebrity chef Mario Batali agreed to a $5.25 million FLSA settlement.  The case arose from a number of his New York restaurants, including Babbo, Casa Mono, the Spotted Pig and Tarry Lodge.  Servers at these restaurants sued in 2010, claiming violations of the FLSA including allegations that the restaurants were keeping up to 5% of wine and alcohol sale gratuities, failed to pay minimum wage, and other allegations.  Eleven waiters and bartenders were the named plaintiffs in this collective action. 

Title VII.  In Chicago, 19 women filed a sexual harassment lawsuit against the Tilted Kilt, which has a location in Birmingham.  The suit alleged that the managers created a "sexually hostile, offensive, humiliating and degrading work environment" that was "frequent, severe, on-going and lasted" the entire time the plaintiffs worked there.  The lawsuit contained almost 30 examples of improper conduct, including making comments such as "You don't know what I'd like to do to you" and sticking"g a straw full of water inside outfits, and saying "I'm trying to get your panties wet."  The parent company of the Tilted Kilt  said that  the location in Chicago  is an independently franchised business.  Allegations also include retaliation and intentional infliction of emotional distress.

In Florida, the EEOC announced a settlement against the Hurricane Grill and Wings Restaurant in West Palm Beach for $200,000.  The lawsuit alleged that the company allowed a class of female servers to be sexually harassed by a customer, who happened to be a Palm Beach County Sheriff's Deputy.  The suit alleged that the servers were "frequently grabbed on their breasts and buttocks and humiliated by sexual innuendo, as well as direct invitations to join the harasser and his wife in menage a trois." The EEOC issued a press release, saying, in part, that "A high percentage of sexual harassment charges are filed by women in the restaurant industry and this decree will serve to protect the rights of a particularly vulnerable segment of the work force." 

Practice pointer.  As pointed out by the EEOC, the restaurant industry has a large number of complaints concerning sexual harassment, as well as FLSA problems.  Any employer in this industry must be vigilant to make sure the employees are treated properly and paid according to the law. 

Title VII: Religious Discrimination.  The EEOC announced a $125,000 settlement with the Menorah House, a nursing and rehabilitation facility in Boca Raton, Florida.  For at least 8 years, the Menorah House had accommodated 2 Seventh-Day Adventists by allowing them to not work on Saturdays. Management instituted a policy that required all employees to work on Saturday, regardless of their religious beliefs.  The EEOC filed suit on behalf of the 2 employees after they were fired because their religion prohibited them from working on Saturdays.  According to the EEOC press release, Title VII "prohibits religious discrimination and requires employers to make reasonable accommodations to employees' sincerely held religious beliefs so long as this does not poses an undue hardship."

Workers' Compensation.  The Alabama Court of Civil Appeals issued a decision last week involving the right of  a workers' compensation carrier to recover funds from a third party tortfeasor.  Mongham was injured at work, and recovered a "large amount" in workers compensation benefits. He also sued a number of third parties, alleging that they caused the accident, and entered into settlement agreements with the third parties, in which they agreed to pay a lump sum and purchased an annuity to pay Mongham over time.  The employer asked the trial court to recover from the settlement funds the amount it paid in workers' compensation benefits.  The trial court ordered that they employer receive an initial lump sum payment, and a portion of the annuity payments until it was fully reimbursed.  On appeal, the Alabama Court of Civil Appeals found that an employer's right to recover from third party funds has priority over the employee's right to recover those funds, and order that the employer should receive the entire monthly payments until it was fully reimbursed. 

• Email This
• Print
• Comments
• Trackbacks

As we prepare to bring to an end 2011, I want to wish all of you a Merry Christmas, Happy Hanukkah, Happy Holidays, and a Happy and Healthy New Year.  2012 will continue to bring many changes in the employment arena, including the following:

Immigration Law: HB 56.  A reminder that any business that has contracts with the State of Alabama must begin using E-Verify effective January 1, 2012.  All employers are required to use E-Verify on or before April 1, 2012.  At this time, the 11th Circuit Court of Appeals has scheduled argument on the appeal of Judge Blackburns' orders enjoining parts of HB56.  In light of the Supreme Court's decision to accept an appeal of Arizona's law, Alabama has asked the 11th Circuit to stay the appeal, while the Plaintiffs, including the Department of Justice, have asked to go forward.  I will continue to post on my blog as the case winds it way through the courts. 

NLRB.  A reminder that the NLRB is requiring a new poster to be posted in the workplace effective January 31, 2012.  I summarized the poster requirements in a prior blog entry.

11th Circuit issues 2 new discrimination decisions.  In August, 2010, I posted an entry entitled "The Case that Never Ends".  Tyson was sued by Mr. Hithon, a black employee, alleging that the use of the word "boy" by his supervisor constituted racial harassment.  The court previously held in favor of Tyson.  Just last week, the 11th Circuit revisited this case, and reversed the prior decision, awarding Hithon $364,000.  Interestingly, as the Republican Presidential primary season officially starts, one of the issues being discussed is judicial activism.  The Atlanta Journal Constitution reports that the prior decision had been condemned by 11 civil rights pioneers, who had filed a brief with the court linking the use of the word "boy" to slavery.  The court found that the use of the word "boy" in and of itself was not discrimination, but the facts surrounding the use of the word "boy" in this case was sufficient to find in favor of Mr. Hithon. 

The 11th Circuit also issued a decision 2 weeks ago, in the case of Glenn v. Brumby, addressing harassment of an individual diagnosed with gender identity disorder.  Mr. Glenn was born a biological male, and subsequently diagnoses with gender identity disorder.  He/she began working for the Georgia General Assembly's Office in 2005 as a male, but in the fall of 2007 advised his/her supervisor that he/she was undergoing a gender transformation and would be coming to work as a female.  Glenn was subsequently discharged, and filed a claim alleging sex discrimination and discrimination based on her medical condition.  The trial court granted summary judgment in favor of the employee on the sex discrimination claim, and in favor of the employer on the medical condition claim.  On appeal, the 11th Circuit reversed the summary judgment in favor of the employer, and found that all persons, whether transgender or not, are protected from gender based discrimination by government agents, and that discriminating against someone on the basis of gender non-conformity constitutes sex based discrimination.  It should be noted that  the supervisor testified that "he fired Glenn because he considered it inappropriate for her to appear at work dressed as a woman and that he found it unsettling and unnatural that Glenn would appear wearing women's clothing."

Theft by Employees.  2 articles caught my attention today concerning theft by employees.  This continues to be a problem for all employers.  First, Al.com reports that Walter Skrobak, the former head security guard at the McCalla OfficeMax Powermax Facility,  pleaded guilty to stealing over $600,000 of computer software.  Between October 2008 and November 2010, he stole at least 1,600 units of computer software and sold them, via Pay Pal, to a party residing out of state for nearly $400,000. 

In New York, 3 employees stole almost $58,000 of lingerie from a Victoria's Secret Store.  An internal investigation reveals that the thefts occurred over the last 6 months.  Incredibly, one of those arrested stated that "My heart dropped when I saw that figure on the Internet...They exaggerated a lot, trust me.  They must have charged like full price for everything, and doubled the sales tax".  He admits that he only pocketed $800 during the 6 month crime spree. 

• Email This
• Print
• Comments
• Trackbacks

The EEOC continues to file suits and reach settlements around the country on a regular basis.  Most recently, the EEOC announced a settlement with a Starbucks store in Arkansas as the result of disability discrimination.  According to KATV, Chuck Hannay was not hired because he has multiple sclerosis.  The EEOC said that Hannay applied for one of six barista positions, but he was never contacted and individuals with less experience and ability were hired instead.  The Starbucks store agreed to pay $80,000, and was enjoined from discriminating on the basis of disability and retaliation.  According to EEOC Regional Attorney Faye Williams, "People with disabilities should have equal opportunities for employment....This case demonstrates the EEOC's commitment to combat discrimination that prevents individuals with disabilities from taking their rightful place in the work force.

In Houston, the EEOC announced that two Sonic Drive-In franchises, with common ownership and management will pay $55,000 to settle a sexual harassment lawsuit filed by the EEOC.  According to the EEOC, the primary owner of the franchises "promoted a young, unqualified family member to consecutively higher management positions within the restaurants and allowed him to use his position of power to sexually harass the teens starting in 2006".  The EEOC also contended that this manager permitted and encouraged other male employees and managers to join in the harassing conduct.  When a 17year old female rejected the sexual advance of the manager, he became abusive to her and threatened her with a knife.  In addition to the monetary settlement, the defendants were required to develop and implement new policies and procedures for addressing illegal discrimination in the workplace, and they must be approved by the EEOC prior to implementation.  Jim Sacher, the EEOC's regional attorney, was quoted as saying:  "This lawsuit was filed in order to protect some of our nation's most vulnerable and impressionable workers-teenagers who. often are newcomers to the workplace...."

Practice pointers.  The EEOC continues to be extremely active in pursuing lawsuits and settlements  around the country.  Press releases usually accompany the filing of lawsuits and the settlement of cases, resulting in negative publicity for the companies named.  It is important to implement proper policies and procedures, and train the entire workforce on a regular basis.  This includes family members. 

As mentioned in a previous post, the EEOC is concentrating on harassment of young workers.  As we are still in the summer employment season, now is the prime time for teenagers who have summer jobs to be harassed, discriminated against and otherwise mistreated.  Again, training and monitoring the workforce is a must.

• Email This
• Print
• Comments
• Trackbacks

Oftentimes, when I give speeches, I tell the audience that I cannot make up stories that are stranger than what happens in real life.  Over the past several days, I came across two cases where the truth may be stranger than fiction.

In New York, Business Insider reports that Debrahlee Lorenzana filed a lawsuit against Citibank because "she is too hot".  Courtney Comstock, who wrote the article for Business Insider, reports that Ms. Lorenzana is 5'6", 125  pounds, and curvy.  Allegedly, she was told by her bosses that "as a result of the shape of her figure, such clothes were purportedly 'too distracting' for her male colleagues and supervisors to bear...". The Village Voice described her as "J.Lo curves meets Jessica Simpson rack meets Audrey Hepburn elegance-a head-turning beauty".  She complained to HR via phone and emails on a regular basis, and an HR investigation took place.  She alleges that after the investigation, things got worse. Allegedly, her clients were transferred to co-workers, and her performance deteriorated.  She received a letter putting her on probation for allegedly coming in late to work on 2 consecutive days: which apparently were a Saturday and Sunday, when the office was closed.  She was ultimately transferred to another branch, worked as a telemarketer, and was ultimately fired by a female manager, being told that the reasons for termination were her clothes at the previous branch and that she was not fit for the culture of Citibank.  The case will go to arbitration since she signed an arbitration provision when she was hired.

Practice pointer.  I suggest that you read the articles in Business Insider and The Village Voice for more details about the allegations.  Needless to say, they sound like a textbook case of sexual harassment and retaliation.  The comments, the delayed investigation by HR, emails sent to vice presidents that were ignored, the transfer, demotion and the ultimate determination to terminate her all raise questions, if the allegations are true.  Training all employees, including supervisors, as to company policies and procedures is very important, from dress code, to attendance, to anti-harassment/anti-retaliation.  Complaints of harassment must be taken seriously.

 In Georgia, the Atlanta Journal Constitution reported that  the ex-football coach at Savannah State University has filed suit alleging discrimination.  Robert Wells, the first white football coach in the 98 year old history of the  historically black university, alleges that he was fired one month after he accepted a one year contract extension because his fiance is black.  The suit also alleges that the school hurt his reputation saying he violated recruiting rules while recruiting 5 white football players.  In the lawsuit, Wells alleges that he was told that he "would never have the support of the citizens of Savannah because he is white and his fiancee is black" and that he was criticized by university officials for letting his fiancee host a "coach's show" on television, ride on a parade float with him and accompany him to away games.  ESPN's Outside the Lines did a story on the situation and there are many interesting statements made by both sides of this suit. 

Practice Pointer.  Whether the allegations made by Coach Wells are true or not, I want to emphasize that racial discrimination is racial discrimination: whether it is white discriminating against black, or vice versa.  Racial discrimination is illegal, and should not be tolerated in any workplace.

• Email This
• Print
• Comments
• Trackbacks

The EEOC continues to pursue lawsuits against employers for sexual harassment as well as other claims.  In Alabama, the EEOC announced a settlement with Jack Marshall Foods, Inc., a KFC franchisee based out of Tuscaloosa.  The EEOC filed it's suit in March, 2009, alleging that sexual harassment was taking place at the KFC restaurant in Monroeville.  The suit claimed that that Jack Marshall tolerated male employees openly describing sexual desires and interests with female employees and engaged in unwelcome sexual conduct including touching and groping.  Jack Marshall agreed to pay $1.05 million to settle the lawsuit brought on behalf of 19 female employees.  It should be noted that at least 3 of the female plaintiffs were teenagers at the time the harassment occurred.

In Kansas, the EEOC filed suit on May 20 alleging that an 18 year old server at a Cactus Grill restaurant was sexually harassed by one of it's managers.  The EEOC press release states that "an assistant manager at the restaurant asked the server for sex, touched her, and made unwelcome sexual advances toward her.  The harassment was so intolerable that the server was forced to quit her job, amounting to an unlawful constructive discharge."  The press release also quoted the director of the St. Louis District office as saying "Sexual harassment in the workplace is always wrong, but harassment of teenage workers, who are often in their first 'real' job, is even more egregious... Employers must provide safe, harassment-free workplaces for all of their employees, including teenagers". 

Practice pointer.  The EEOC remains active in Alabama, and around the country, in filing suits and settling claims of harassment.  Both these cases involve teenagers: it should be noted that the EEOC has a specific web site dealing with teenagers in the workplace, In light of the fact that many businesses hire teenage summer help, now is the time for employers to make sure that their entire workforce, including the summer labor force, is trained on harassment and discrimination in the workplace.

GINA UPDATE.  In what appears to be the first publicly released complaint filed under the Genetic Information Nondiscrimination Act, Pamela Fink filed suit against her employer in Connecticut alleging she was fired as the result of a positive test for BRAC2, the breast cancer type 2 susceptibility protein.  According to Business Insurance, when she received the positive result, Ms. Fink took medical leave for a double mastectomy.  The day before her second and final surgery, she received a mid year review that was "negative and scathing", was fired, and told her position had been eliminated.  In a related article by Judy Greenwald with Business Insurance entitled "Discrimination claims rising in wake of genetic bias law", the following was written : “I think the EEOC, under the current administration, is being very proactive” in pursuing claims under its jurisdiction, said Daniel J. Burnick, a shareholder with law firm with Sirote & Permutt P.C. in Birmingham, Ala. In addition, more employees “are looking to the EEOC and/or the court system in an attempt to either protect their jobs or receive compensation should they lose their jobs.”

Practice pointer.  I expect there to be more claims filed under GINA as more people become aware of it.  As you can tell from Ms. Fink's complaint, timing is very important:  the fact that she was reviewed and fired while on medical leave is suspect, to say the least. 

• Email This
• Print
• Comments
• Trackbacks

Danny Morton, the Sheriff of Blount County, Alabama, has agreed to resign effective January 15, 2009 due to allegations of sexual misconduct.   According to the Birmingham News, a female deputy sheriff, assigned to the drug task force, filed an EEOC charge on April 11, 2008 alleging that she was forced to drink alcohol while on duty, was fondled, kissed and sexually assualted.  At the time, Sheriff Morton denied the allegations of the complaint. 

A criminal investigation began, and a special proscecutor was appointed by the Attorney General's office.  An agreement was reached allowing Sheriff Morton to resign on January 15, 2009, and no criminal charges will be filed against him.  The article from the Birmingham News, dated December 16, 2008, is availble to read here.  There is no indication on how the EEOC charge is being handled at this time.

Practice Pointers.

1.  All employers must recognize that sexual harassment and other prohibited conduct can be engaged in at all levels: from the top, like a sheriff, to the bottom, of each organization.

2.  Employers should have a mechanism to report harassment, sexual or otherwise, to at least 2 people, in case their supervisor or CEO is the one accused of the wrongful conduct.

3.  Allegations of sexual harassment may give rise to a criminal investigaion and possibly charges for assault, rape, kidnapping or other crimes.

• Email This
• Print
• Comments
• Trackbacks