Tag Archives: harassment

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

Office Holiday Parties: Avoiding Adding Names from Your Company to the Naughty List

Harvey Weinstein, Kevin Spacey, Michael Oreskes, Brett Ratner, Louis C.K., Charlie Rose, and Matt Lauer are a few well-known names that have already appeared on the naughty list for 2017. Although the Mad Men days of the sexy secretary sitting on Santa’s lap (the boss’s lap) with his arms wrapped around her while both are drinking a dry martini SHOULD be a vestige of the past, there are those that believe that “keep your hands to yourself” does not apply to them.  And, there are those that understand the “hands-off” rule, yet when under the influence of alcohol, find their inhibitions on the copy room floor.

Most employers and employees now recognize that in today’s world there is a different expectation as to how to behave appropriately at work then there was in, say, the 1950s or 1960s. Setting aside a discussion of power and how power can lead some to believe that these social norms do not apply to them (see the list above), employers should keep in mind that social norms that are generally recognized in the workplace sometimes are forgotten when there is a party, especially a party with libations. A holiday office party can embolden inappropriate behavior, from simple innuendos to unwelcome touching. The office holiday party can be a quagmire of potential employment issues, even beyond sex harassment including, but not limited to, workers compensation, the Fair Labor Standards Act, and religion. However, this year, with stories of sexual harassment and abuse dominating the news, it is more important than ever for employers to consider the potential risks associated with any planned celebration.

As you prepare for your office party, consider whether alcohol should be available, as most issues arise due to someone bending the elbow a bit too much. If you do decide to provide spirits make sure you have someone (a designated responsible adult) that is watching to ensure that your workforce does not get too “relaxed” and cross the line. Possibly limit how much alcohol is served and make sure any employee that drinks a little too much has a ride home. Evaluate in advance whether the party is going to be mandatory or not. If its voluntary and employees do not feel compelled to attend, then employers are not required to compensate employees for their attendance. Review the plans for the party in advance to see if there are any activities that could be considered inappropriate or offensive to members of any protected class.  Finally, make sure that employees understand that the company’s policies and procedures, especially those related to conduct, are still in effect at the party. Most parties are benign and conclude with no real issues to speak of, but you don’t want to be the exception to the rule. You do not want your CEO or VP added to the naughty list.

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

Office Holiday Parties: Avoiding the Naughty List

pexels-photoIf you have not yet seen the movie Office Christmas Party, watch the trailer and you will see a perfect example of what not to do at your annual office holiday party. The Mad Men days of the secretary sitting on Santa’s lap (the boss’s lap) while both are drinking a dry martini SHOULD be a vestige of the past. Most employers and employees now recognize that in today’s world there is a different expectation as to how to behave appropriately at work then there was in say the 1950s or 1960s. However, social norms that are generally recognized in the workplace sometimes are forgotten when there is a party, especially a party with libations. A holiday office party can embolden inappropriate behavior from simple innuendos to unwelcome touching. The office holiday party can be a quagmire of potential employment issues, even beyond sexual harassment, including but not limited to, workers compensation, the Fair Labor Standards Act, and religion.

As this holiday season heads into full throttle, it is important for employers to consider the potential risks associated with any planned celebration. Consider whether alcohol should be available, as most issues arise due to someone “bending the elbow” a bit too much. If you do decide to provide spirits, make sure you have someone (a designated responsible adult) that is monitoring to ensure that your workforce does not get too “relaxed” and cross the line. Possibly limit how much alcohol is served and make sure any employee that drinks a little too much has a ride home. Evaluate in advance whether the party is going to be mandatory or not. If it’s voluntary and employees do not feel compelled to attend, then employers are not required to compensate employees for their attendance. Review the plans for the party in advance to see if there are any activities that could be considered inappropriate or offensive to members of any protected class. Finally, make sure that employees understand that the company’s policies and procedures, especially those related to conduct, are still in effect at the party. Most parties are benign and conclude with no real issues to speak of, but you don’t want to be the exception to the rule.

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

 

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