If you work in Human Resources in Hospitality, are in Los Angeles on Thursday, and are interested in a terrific networking event with a fun and informative speaker, then look no further. The Los Angeles Hotels Human Resources Association is sponsoring an event on Thursday, April 25th, and I am the guest speaker. Get ready for Hot Topics "Jeopardy" – And the Employment Law Category Is? Participants will engage in a "Jeopardy-style" interactive game to learn about the latest employment law issues and challenges. For those of you who can’t make it, I will report on the best lessons after the event. Stay tuned.
A California court of appeal ruled last week that a firefighter could proceed with a claim that his supervisor harassed him because he stood up for his lesbian daughter. The unpublished decision, Derr v. Kern County Fire Dep’t, was reported by Anne Marchessault in BNA’s Employment Discrimination Report (subscription required).
The plaintiff, David Derr, alleged the following facts:
Derr responded to a “condemnation of homosexuals” by his captain (James Rummell), by saying that he had family members who were gay and that he was offended. The captain later told Derr in an e-mail that his “embrace” of homosexuality was a “blatant opposition to the commands of God” and that his support for same-sex marriage was equivalent to standing “with [his] fist in [God’s] face.” Rummell’s wife also sent Derr (and others) homophobic e-mails.
Derr requested and received a transfer, but the captain continued to seek him out and make sarcastic, condescending, and anti-gay comments. Derr says that he was forced to retire because of this behavior and the stress it caused him. Although a lower court dismissed the harassment claims, the appellate court reversed and allowed the claims to proceed.
California’s Fair Employment and Housing Act specifically prohibits harassment and discrimination based on sexual orientation. As previously reported (California Legislature Clarifies What Sex Is), the Act defines “sex” broadly to include gender identity and gender expression. The important takeaway here, though, is that the law prohibits harassment of employees because of their association with someone who is a member of a protected class, even if they aren’t in the protected class themselves.
As current events continuously remind us -- most recently a comments by one of our own San Francisco 49ers -- too many people think that it's acceptable to make anti-gay comments in the workplace. Policies and training need to reinforce that, in California and other jurisdictions that prohibit this behavior, doing so exposes the employer and the person making the comments to liability.
As I've written before, California has specific requirements for employers investigating complaints of harassment. Failure to follow these requirements can expose an employer to just as much liability as the harassment itself -- especially if a plaintiff's attorney can characterize the shortcomings as an intentional cover up.
Remember: Harassment litigation is less about what the alleged harasser did than about how the employer responds. The whopping plaintiffs' verdicts come in cases where the response is delayed, incomplete, or appears biased.
Last week I participated on a panel that presented "50 Legal Tips in 50 Minutes" at the Cornell HR in Hospitality Conference. Our goal was to provide 50 practical and pithy tips for HR practitioners. The presentation was well received. For a summary of tips 1-26 click here; for a summary of tips 27-50 click here.
The last post discussed the importance of training employees not to let prank callers talk them into strip searching co-workers. Today’s lesson is why, when interviewing people for supervisor positions, you should ask them how they deal with smelly, frequently absent employees with open sores.
Charlene Roby worked for McKesson Corporation for 25 years. She suffered panic attacks, which caused her to miss work and run afoul of McKesson’s attendance policy. Also, the medication she took made her smell bad. If that weren’t enough, she had open sores on her arms from nervously digging her nails into her skin.
Karen Schoener, Roby’s supervisor, was not overly sympathetic. Although she knew it was medication-related, she criticized Roby’s body odor to other employees. She also described the open sores as “disgusting” and ostracized Roby (by ignoring her greetings and questions, making disapproving facial expressions, making her cover phones during office parties, and belittling her in front of co-workers).
Roby was disciplined for her absences, even though McKesson knew they were related to her condition. Ultimately, McKesson terminated Roby’s employment. Roby became suicidal and developed agoraphobia. [Agoraphobia, of course, is a fear of open spaces and crowds. It should not to be confused with angoraphobia, a fear of fluffy rabbits.]
Roby sued McKesson and Schoener, alleging wrongful termination and violations of the Fair Employment and Housing Act (harassment, disability discrimination, and failure to accommodate). The jury reached a verdict awarding Roby $1.5 million in past economic, $1.5 million for future economic damages, $1.5 million for past noneconomic damages, and $1.5 million for future noneconomic damages. The jury (displaying the math skills that makes corporate defendants wince) then specified on the verdict form that they were awarding total damages of $1.5 million. The court sent the jury back to deliberate further/recalculate. They came back with compensatory damages of $3.5 million against McKesson and $500,000 against Schoener. They also awarded $15 million in punitive damages against McKesson and $3,000 against Schoener. Defendants appealed.
The appellate court reduced the economic damages against McKesson to $2 million and threw out the verdict against Schoener (which was based on the harassment claim). It didn’t feel that Schoener's behavior rose to the level of actionable harassment. Removing harassment reduced the damage award by an additional $600,000. Finally, the court of appeal reduced the punitive damages from $15 million to $2 million.
Then the California Supreme Court got involved. In a decision issued November 30, 2009, it (1) decided that the economic damage awards were a hopeless mess; (2) reinstated the harassment verdict; and (3) agreed that the punitive damages were excessive, but disagreed with the court of appeal’s as to the proper amount.
On the first issue, the court was going to send the case back for a new trial, but Roby’s attorney asked the court to instead remove those elements of the damage award that seemed potentially duplicative. So the court did so.
To understand the second issue, you need to understand that individuals cannot be liable for discrimination, but they can be liable for harassment. One rationale for the difference is that discrimination involves official actions of the employer (e.g. hiring, firing, promotion, demotion). Harassment, in contrast, focuses on things an individual can do (or say) to make the work environment hostile. As the court expressed it, “discrimination refers to bias in the exercise of official actions on the part of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.” In tossing the harassment award, the court of appeal said that personnel management decisions couldn’t support the harassment claim because they were part of the discrimination claim.
The supreme court disagreed with the court of appeal’s premise that the same conduct couldn’t be both discrimination and harassment. It explained that official employment actions (i.e. discrimination) can communicate a hostile message (i.e. can be harassing). This is bad news for employers. By blurring the distinction between these two types of wrongful conduct, the court makes it easier for employees to proceed with both types of claims. It’s also bad news for managers. The law was clear before that managers could not be individually liable for carrying out personnel decisions. Now, it seems, the courts and juries are going to evaluate whether those personnel decisions were carried out in a way that sent a harassing message.
The third issue decided by the supreme court was the amount of punitive damages. The court explained that you need to look at (1) the degree of reprehensibility, (2) the disparity between the harm suffered by the plaintiff and the size of the award, and (3) “the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” The court discussed these various "guideposts" at length, breaking reprehensibility down into five factors . . . blah, blah, blah. Ultimately, the court decided that the punitive damage award could not exceed the compensatory award. It therefore reduced the punitive damages to $1.9 million. (What was that court of appeal thinking awarding $2 million!) Two dissenting justices wrote that they would have allowed punitive damages of twice the compensatory award.
The analysis is so fact-specific that no one should count on the 1:1 ratio as the upper limit of a punitive damage award. That only applies in cases of “relatively low reprehensibility.” There’s also some helpful language about considering the defendant’s wealth. The majority opinion states that it’s a factor in determining the deterrent effect of the award, “but the punitive damages award must not punish the defendant simply for being wealthy.” Overall, I supposed the punitive damage limit is good news for employers. But if you’re debating the size of a punitive damage award, haven’t you (by definition) already lost?
Most employers and managers understand what sexual harassment is. In California, they've gone through the mandatory training (pdf). So they know about hostile work enviroment and quid pro quo harassment. ("Quid pro quo" being loosely translated as "No I won't sleep with you to save my job. You disgust me. Now go away so I can call my lawyer.")
But California's requirements for a sexual harassment investigation still seem to be a source of confusion. The October 9, 2009 appellate court decision in Nazir v. United Airlines (pdf) highlights this issue. (Faithful readers will note that Alex and I have both blogged about different aspects of this case already. But there's a lot in there and you should thank us for giving you the highlights so you don't have to read through the 54-page opinion yourself.)
In Nazir, the court criticized United for:
- Failing to follow its own policies -- The policies are there for a reason. Use them. Any irregularities allow plaintiffs and their attorneys to raise doubts as to whether this was a good faith investigation or a cover-up.
- Delays in responding to complaints -- Delays make it too easy for a plaintiff to argue that the employer doesn't consider protecting employees from harassment to be a priority.
- Failing to interview witnesses identified by the accused -- To get any use out of an investigation, it needs to be thorough.
Other important rules for investigating harassment include:
- Picking a qualified investigator -- You want someone who's far enough from the situation to be impartial and who has experience investigating these types of issues. It also needs to be someone who understands how to question witnesses. (Now the cynics out there may be thinking that I'm just saying that so people hire us to do their investigations. To that I respond: 1) If people follow these steps, there will be less harassment litigation, and therefore less work for me and my ilk; and 2) It's not as if the goal of this blog is to repel clients.)
- Documenting every step -- The most critical documentation will be written statements from key witnesses. It minimizes the opportunity people have to change their stories. And save every scrap of documentation. If you dispose of anything expect to be questioned about what you were trying to hide.
- Evaluate the evidence objectively -- The person complaining doesn't have to prove his or her case beyond a reasonable doubt. Even if it's the proverbial "he said/she said," you need to decide who is more credible.
- Take appropriate remedial action -- If you conclude there was harassment, take actions reasonably calculated to stop it.
- Keep the complaining party informed -- Let them know the status of the investigation, the conclusions, and the steps being taken. Then when it's all over, follow up with the complaining party periodically to make sure that there have been no further issues.
- Don't add a retaliation claim to your problems -- Do nothing to the complaining party that could be viewed as punitive. This includes transfers, reductions in hours, or anything else that penalizes or isolates them.
A prompt, thorough investigation can go along way to preventing a harassment claim. A shoddy investigation can have the opposite effect. As I've said before, harassment litigation is less about what the alleged harasser did than about how the company responded to the situation.