Tag Archives: discrimination

Seminar: What’s a Business to Do in the Age of #MeToo?

In light of all of the attention that is being focused on issues relating to harassment and the #MeToo movement, it is now more important than ever for businesses to develop a better understanding of what constitutes harassment in the workplace.

Join us Wednesday, April 11, at the Lakewood Ranch Business Alliance’s upcoming seminar featuring Williams Parker board certified labor and employment attorney Jennifer Fowler-Hermes. Jennifer will discuss types of harassment and provide guidance on how employers can prevent, recognize, and respond to harassment.

WHEN:
Wednesday, April 11, 2018
7:30-8:00 a.m. Networking & Breakfast
8:00-9:00 a.m. Presentation

WHERE:
Keiser University
6151 Lake Osprey Drive
Sarasota, FL 34240

COST:
$10 Members, $20 Non-members

Register Online

MORE ON #METOO:
Catch Williams Parker labor and employment attorney Gail Farb discussing the #MeToo movement on a recent ABC7 news TV segment and roundtable discussion.

Intro Segment (Gail first appears at 2:31):

Roundtable Discussion (Gail first appears at 2:55).

The Tax Act May Limit Resolutions of Sexual Harassment Complaints

One aspect of the new Tax Act (the Act) that has not been widely reported impacts employers that amicably resolve claims of sexual harassment. The provision denies tax deductions for any settlements, payouts, or attorneys’ fees related to sexual harassment or sexual abuse if such payments are subject to a non-disclosure or confidentiality agreement. Specifically, Section 162(q) to the Internal Revenue Code provides:

PAYMENTS RELATED TO SEXUAL HARASSMENT AND SEXUAL ABUSE.—No deduction shall be allowed under this chapter for—

(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or
(2) attorney’s fees related to such a settlement or payment.

The intent of this provision is to deter confidentiality provisions in settlements of harassment claims. It is unclear if this provision will actually have the desired impact. Companies may value the confidentiality provisions more than the tax deductions permitted in their absence, and thus continue to enter into confidential settlement agreements. Alternatively, this provision of the Act may end up hurting those bringing harassment claims. Alleged victims may want confidentiality provisions in order to avoid any publicity about their claims. However, by removing tax incentives for employers, an employer may reject a higher settlement amount or settlement of claims altogether.

Section 162(q) of the Act is bound to create confusion as to its applicability as it fails to define key terms. Namely, the Act fails to define “sexual harassment” or “sexual abuse,” both of which are pivotal to the application of the new provision. The Act also fails to contemplate how the provision is to be applied in settlement arrangements involving a variety of claims. Are the sex-based claims separable from a universal confidentiality covenant? Causing further confusion, the Act fails to explain what attorney’s fees are considered to be “related to such a settlement or payment.” Are these only the fees related to settlement negotiations, drafting the agreement, and execution or payment? Or does it extend to the claim’s inception and include the underlying investigation of the claims?

In light of the numerous questions raised by Section 162(q), employers should review their standard settlement agreements and practices and consider revising the breadth of any releases, nondisclosure provisions, or any representations or remedies.

Ryan P. Portugal
rportugal@williamsparker.com
941-329-6626

What is Harassment?

In light of all of the attention that is now being focused on issues relating to harassment and the #metoo movement, employers that do not take time to review policies and train employees may be at a disadvantage if claims ever arise. It is now more important than ever for employers to develop a better understanding of what constitutes harassment in the workplace, as well as how to prevent, recognize, and respond to harassment. Sexual (and other) harassment training is not just about reviewing company policies and telling employees how to report complaints. Training should be tailored for the specific workforce, in person, and promote respect and civility. It should be geared to help employees at all levels in an organization recognize harassment and when others are uncomfortable. In addition, employees that are responsible for receiving, investigating, and responding to complaints should be trained on how to properly fulfill these duties.

Harassment can occur both inside and outside of the workplace. Certain forms of harassment, such as a woman walking down the street getting cat-called by a stranger, do not implicate the workplace at all. However, if that same woman works for a construction company and is walking past other employees of the organization when she is cat-called by them, the same conduct may be workplace harassment and actionable. For more details on what is actionable harassment, see our October 14, 2016 blog post. Not all harassment is immediately obvious, and answering the question “what is harassment?” can sometimes be a difficult task. Are you able to recognize it?

Friends star David Schwimmer and writer and director Sigal Avin released several short videos that reflect different types of harassment in society, including three that involve workplace harassment. These videos start innocent enough, but develop into awkward and uncomfortable situations. At the end of this post is a link to one of these videos. Test yourself, watch the video, and consider the following questions:

Are you able to recognize when the harassment begins?

Can you identify the non-verbal and verbal cues that the employee is giving to indicate that she is not comfortable with the interaction?

Do you think that others in your organization would be able to recognize these cues?

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

A Flurry of EEOC Activity Just Before and Up to Inauguration Day, and the Appointment of an Acting Chair

In the month leading up to Donald Trump’s Inauguration, the EEOC issued several notices that may be of interest to employers.

National Origin Discrimination.  In late November the EEOC issued a new enforcement guidance on national origin discrimination. The guidance provides insight into how EEOC investigators are going to analyze claims of national origin discrimination. In addition to the guidance, the EEOC issued a fact sheet that specifically reminds employers that Title VII protects job applicants and employees regardless of immigration status and customer preferences. This protection is established law and not part of an executive order.

Mental Disabilities. On December 13, 2016, the EEOC provided notice of a new resource document directed at employees and applicants explaining that those with mental disabilities are protected from discrimination and harassment based on their conditions. In this resource document, the EEOC notes that its data shows that charges of discrimination based on mental health conditions are on the rise. Handling issues relating to mental disabilities is often difficult (and sometimes scary) for employers. An understanding of the EEOC’s position on employers’ obligations is important to avoiding legal liability.  A helpful resource for employers dealing with disability accommodation issues is the Job Accommodation Network, a service of the Office of Disability Employment Policy, U.S. Department of Labor. This website provides suggested accommodations for employees with disabilities, including those with mental disabilities.

Highlighting Accomplishments. On December 21, 2016, the EEOC issued a notice discussing its 2016 highlights. This document details the number of charges resolved by the EEOC and points out that the EEOC secured more than $482 million dollars for victims of discrimination.

Affirmative Action. On the first business day of January 2017, the EEOC provided notice that it issued final rules requiring federal agencies to engage in affirmative action for individuals with disabilities. These new rules are set to go into effect on March 6, 2017. The EEOC followed up with a question and answer document providing general information about the rules. These rules are not applicable to private sector employers.

Harassment. On January 10, 2017, the EEOC issued a proposed Enforcement Guidance on Unlawful Harassment, and is inviting comment on the guidance. The deadline to provide feedback on the draft guidance is February 9, 2017.  If you are interested in providing feedback, it can be posted (publically) here.

Case Law Digest. On January 12, 2017, the EEOC issued its quarterly publication that reviews federal court cases of interest, as well as recent Commission decisions. Although interesting and informative, unless you are a L & E attorney looking for something specific, preparing a presentation on the EEOC’s legal activity, or want to pretend that you are in law school, reading this document should not be a high priority.

Litigation Statistics. The day before the inauguration, the EEOC issued its enforcement and litigation statistics for 2016. The information provided shows that in Florida the number of charges filed in 2016 was greater than those filed in 2015. The statistics also give information on the breakdown by state of charges filed, as well as the type of charges filed (age, race, sex, retaliation, etc.).

Progress Report. On Inauguration Day, the EEOC sent out a notice highlighting the January 19, 2017 release of its Progress Report. This document is the EEOC’s review of its own work, detailing how the EEOC has been complying with its legislative mandate to enforce Title VII (and other laws). It will be interesting to see what the next Progress Report looks like, as it is likely that the agency may adjust its focus over the next year or so.

Appointment of an Acting Chair. On January 25, 2017, President Trump appointed Victoria Lipnic to serve as the EEOC’s acting chair. Lipnic joined the Commission in 2010 and was confirmed for a second term in late 2015. Before joining the Commission, she served as Assistant Secretary of Labor for Employment Standards.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

The Customer is Not Always Right…

Most employers understand Title VII’s requirement to provide a workplace free of unlawful harassment and discrimination. Some employers may not be aware that this obligation extends beyond co-workers’ harassment to include customers’ mistreatment of employees. Recently a situation arose on an Alaska Airlines flight that demonstrated how this obligation to provide a workplace free of unlawful harassment and discrimination extends to customers.  During a female flight attendant’s life-vest demonstration, a male passenger yelled, “ooh, sexy.” When asked by the flight attendant to be respectful, the passenger responded “C’mon, I’m just playing with you.” Shortly thereafter, Alaska Airlines required the passenger to leave the plane.

When an employer becomes aware of harassment on the basis of a legally protected characteristic (sex, disability, religion, race, color, etc.), the employer is required to take prompt remedial action to protect its employees – even if the harasser is a customer.

It should be noted that despite the offensive nature of the passenger’s conduct, that conduct alone would not constitute sexual harassment creating liability for the employer. However, when combined with other conduct the flight attendant might face (from anyone, that day or over time), failure to act in the employee’s defense could certainly give rise to a harassment claim and employer liability. The EEOC advises, “Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.”

For harassing and offensive conduct to rise to the level of unlawful harassment (sexual harassment, racial harassment, etc.), the conduct must relate to a protected characteristic or conduct, and enduring the conduct must become, expressly or impliedly, a condition of employment or be so severe or pervasive that a reasonable person would consider the work environment to be intimidating, hostile, or abusive. The law also protects employees from retaliation relating to complaints and investigations.

Defending these claims is expensive. More and more employers are stepping in earlier to prevent them altogether. In this case, Alaska Airlines made a strong statement in favor of protecting employees, dissuading future conduct of this type, and prevented future claims. When the situation is not as time-sensitive, a quick call to an employment lawyer may help employers frame a diplomatic approach that fully protects the employee and prevents harassment.

Kimberly Page Walker
kwalker@williamsparker.com
(941) 329-6628

Is “Locker Room Talk” in the Workplace Sexual Harassment?

The discourse that has followed a political candidate’s recently released 2005 statements regarding women has brought renewed interest in the impact of “locker room talk” in the workplace, as well as when such talk violates the law. Sexual harassment occurs when a work-related benefit is conditioned on the granting of a sexual favor, when an employee or co-worker is subjected to unwanted sexual advances, where hostile conduct is based on the victim’s gender, and when there is offensive, sexually charged workplace behavior. Although sexual banter and ribbing of co-workers can be a basis for a sexual harassment claim, there is only a viable claim of harassment if the conduct at issue is sufficiently severe or pervasive to alter the terms and conditions of employment. Thus, one offensive comment, alone, will generally not support a claim for harassment.  Regardless, one comment can result in a claim being made against the employer. Further, when one off color comment is made in the workplace and it is not dealt with swiftly and appropriately, the employer is often viewed as being complacent. It is best for employers to create a work environment that maintains respect and prohibits conduct that may one day be used as evidence of harassment.

One of the best ways to maintain a respectful workplace is to educate managers and employees about what constitutes harassment, how to report conduct believed to be harassment, and to provide training on promoting respect and civility in the workplace. The September 1, 2016, blog post discussed the EEOC’s Report on its Special Task Force Study of Harassment in the Workplace and what types of training are most effective.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

 

Deadline for Filing the 2016 EEO-1 Survey is September 30

The submission deadline for private employers that are required to complete the EEO-1 Survey is September 30, 2016. The EEO-1 Report, Standard Form 100, is a compliance survey that requires company employment data to be categorized by race/ethnicity. As set forth on the Equal Employment Opportunity Commission’s website, all companies that meet any of the following criteria are required to file the EEO-1 report annually:

    1. The company is subject to Title VII of the Civil Rights Act of 1964, as amended, with 100 or more employees; or
    2. The company is subject to Title VII of the Civil Rights Act of 1964, as amended, with fewer than 100 employees, if the company is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees; or
    3. The company is a Federal government prime contractor or first-tier subcontractor subject to Executive Order 11246, as amended, with 50 or more employees and a prime contract or first-tier subcontract amounting to $50,000 or more
    4. https://www.eeoc.gov/employers/eeo1survey/fact_sheet_filers.cfm
    5. https://www.eeoc.gov/employers/eeo1survey/faq.cfm
    6. If your business meets one of the three criteria set forth above and you are not familiar with the EEO-1, the following links will provide essential information:

https://www.eeoc.gov/employers/eeo1survey/faq.cfm

https://www.eeoc.gov/employers/eeo1survey/fact_sheet_filers.cfm.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Conducting Appropriate Training for Employees Helps Deter Workplace Harassment

In June 2016, the EEOC issued a report by its Select Task Force on the Study of Harassment in the Workplace. The report details how one third of the 90,000 charges filed with the EEOC in fiscal year 2015 included an allegation of harassment. However, as set forth in the report, this number does not accurately reflect of the number of persons that experience harassment at work. One of the most surprising aspects of the report is that it concludes that “approximately 90 percent of individuals who say they have experienced harassment never [took] formal action against the harassment.” EEOC Commissioner, and report co-author, Victoria Lipnic states that the reason for this failure to take action is fear: “There have been a lot of resources devoted to this in the workplace for many years, but there is a very high percentage of people who still do not report harassment. Part of that is out of fear — fear they might be retaliated against, that they might lose their job, that no one is going to believe them.”

The report also reaches the conclusion that despite efforts of employers to educate workers regarding harassment through workplace training, that most of this training is too focused on avoiding legal liability. The report suggests that different approaches to training should be explored such as bystander intervention training, as well as civility training that focuses less on harassment but instead on promoting respect and civility in the workplace.

This study and the resulting report reinforce the need to provide employees not only with training, but training designed for the specific workforce and presented by a professional. As stated in the report summary, “[in]effective training can be unhelpful or even counterproductive….one size does not fit all: Training is most effective when tailored to the specific workforce and workplace.” Employers should look closely at the training they provide to employees, ensure that it is effective and beneficial for their workplace, and consult with counsel as needed.

A summary of the EEOC’s recommendations can be found at https://www.eeoc.gov/eeoc/task_force/harassment/report_summary.cfm

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Increased Fines for Employers Failing to Comply with EEO Posting Requirements

Title VII of the Civil Rights Act of 1964 and other civil rights statutes require that covered employers post notices describing equal employment opportunity laws and how employees and applicants can file a complaint for perceived violations of those laws. The required notice “Equal Employment Opportunity is the Law” poster must be posted in a conspicuous place where other notices to employees and job applicants are customarily located. For those employers that are required to post the notice, generally those with 15 or more employees, the civil fines for failing to do so have been increased from $210 to $525 per violation.

The required notice for covered employers is available here:
https://www1.eeoc.gov/employers/poster.cfm

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

For Employers with as Few as Four Employees, Mistakes in “Onboarding” Can Lead to U.S. Department of Justice Investigations

The EEOC is not the only federal agency charged with investigating and prosecuting employment discrimination in private-sector workplaces. The Department of Justice’s Office of Special Counsel (“OSC”) is charged with investigating and prosecuting citizenship discrimination and document abuse for employers with four or more employees, as well as national origin discrimination for employers that have between 4-14 employees, thereby encompassing smaller businesses that fall below the 15 employee threshold required for Title VII coverage. The authority for the OSC investigations is provided for in the Immigration and Nationality Act’s anti-retaliation provision. Businesses with at least four employees should ensure that the person completing I-9 paperwork on behalf of the company is properly trained, or risk an investigation by the OSC and the potential imposition of civil and criminal penalties.

For a summary of the OSC’s authority as compared to the EEOC see:
https://www.justice.gov/sites/default/files/crt/legacy/2013/05/08/EEOC_v_OSC_Flyer2.pdf

A summary of the acts prohibited by the INA can be found at:  https://www.justice.gov/crt/types-discrimination

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558