Saturday, December 17, 2011
Friday, December 16, 2011
Thursday, November 10, 2011
One HR lesson is obvious: Employers can never ignore reports of misconduct or harassment by employees against anyone—co-workers, clients or anyone on the premises.“It is not a defense for you to bury your organizational head in the sand and hope that it will all be gone when you emerge into the sunlight,” says attorney Jon Hyman, a partner with Kohrman Jackson & Krantz in Cleveland … But at what point does harassment cross the line into something more serious (like assault) that requires an employer to call to the police? When should you—or must you—make that call?“’Should’ is a broader answer than ‘must,’” says Hyman. “When children are involved, as in the Penn State story, moral obligations far outweigh legal obligations. Employees should put themselves in the shoes of victim’s family.”
Friday, October 14, 2011
If true, I think the owners, in this case the Texas Roadhouse Restaurant, better pull out their check book. Although the plaintiff in the Texas Roadhouse case has the proverbial smoking gun, she still has some hurdles to overcome to prevail in court or obtain a settlement. Generally, an age discrimination plaintiff in a failure to hire case must prove: 1) that she was over the age of 40; 2) that she applied for the job and the job was open; 3) that she was denied the position; 4) that she possessed the minimum qualifications for the job; 5) that she was not hired; and the job remained open or someone younger received the job.
Unfortunately, many employees who experience discrimination do not complain. Any employee who suspects that an employer discriminated against him or her, should contact a qualified labor and employment attorney.
Tuesday, September 13, 2011
Tuesday, May 17, 2011
At the close of discovery, the restaurant moved for summary judgment. Among other things, IHOP argued that the harassment was not sufficiently severe and pervasive to support a claim of hostile work environment sexual harassment. IHOP also argued that even if the harassment were severe and pervasive, it had taken prompt remedial action when it learned of the harassment.
The Court disagreed and denied the motion for summary judgment. The Court ruled that:
Although the frequency of the conduct was only twice, the severity of the conduct is far greater. The conduct in this case was physically threatening and humiliating, unlike the myriad of cases that involve “brushing” or “touching.” Grabbing the crotch area of either sex certainly conveys a message that extends beyond workplace crudity, which, in large part under the case law, requires one to ignore.
The Court further ruled that a fact issue existed as to whether the restaurant exercised reasonable care and corrected the sexually harassing behavior in a timely manner, thus avoiding vicarious liability. Because the Court denied summary judgment, the employee could have presented his case to a jury. See court's decision here.
This case highlights a number of lessons for employers. Employers must have an anti-harassment policy in place that allows employees to report instances of harassment. Next, employers must ensure that all employees are aware of the policy. Also, management must know how to respond to allegations of harassment and investigations must be well documented.
As a side note, a couple of years ago the EEOC reported that restaurants were the single largest source of sexual harassment claims. I am not surprised.
Any employee who feels that he/she is being harassed should be familiar with the company policy and know who to contact to stop the harassment. Employees should understand that what they may perceive to be sexual harassment, may not be sexual harassment in the eyes of a court. To be clear on these issues an employee should consult with qualified labor and employment counsel.
If you have any questions about harassment or other employment law issues, give me a call at (813) 413-2402. Bradford & Bradford's practice areas include, Wills, Trusts, Probate, Estate Planning, Civil Litigation, Employment Law, and Family Law.
Saturday, April 30, 2011
Yesterday the Tampa Bay Business Journal reported that there has been an increase in retaliation charges with the Equal Employment Opportunity Commission (EEOC). The report noted that in 2010, 36.3% of the charges filed with the EEOC involved claims of retaliation. This compares with 29.5% of the charges included claims of retaliation. The EEOC reported that there were more retaliation claims in 2010 than race, sex, national origin, age, or disability discrimination claims.
In its report, the Business Journal interviewed Georgia Marchbanks, the new director of the EEOC’s Tampa Field Office who stated:
Part of the problem occurs when an employee files a discrimination claim that may have no merit. Supervisors tend to get angry and subconsciously or consciously treat the employee differently.
Marchbanks added that employers should properly train first line managers to avoid retaliation claims.
Retaliation occurs far too often. Again, the employee believes that he is being subjected to discrimination or harassment and complains to management or human resources. Next, the employee, who by the way has strong evaluations and never experienced disciplinary action, is receiving counseling statements on a regular basis. Eventually, this stellar employee is fired with his co-workers scratching their heads.
Retaliation claims can be very dangerous for an employer. Discrimination and harassment claims are difficult to prove given the possibility of summary judgment. If retaliation is present, an employee can breath life into a lawsuit that otherwise would have been dismissed if the employee pleaded the case solely as a discrimination or harassment action.
For specific questions on Labor and Employment Law, please call at (813) 413-2402. Bradford & Bradford's practice areas include, Wills, Trusts, Probate, Estate Planning, Civil Litigation, Employment Law, and Family Law.