On October 4, 2018, the Equal Employment Opportunity Commission (“EEOC”) released preliminary data on sexual harassment claims for FY 2018, which ended on September 30, 2018. The document, entitled “What You Should Know: EEOC Leads the Way in Preventing Workplace Harassment” summarizes the enforcement and prevention actions taken by the EEOC in the almost two years since the agency released the report of its Select Task Force on the Study of Harassment in the Workplace in June 2016.
As an attorney who counsels employers through difficult personnel issues, I am often asked, sometimes even in general conversation, what issues are the “hottest” and most frequent I see in my practice. For the past several years, the task of integrating and returning disabled employees to the workplace is at the top of the list; and of those, the most common and most challenging are the ones involving mental health issues. In addition to identifying when performance problems may be attributable to mental health diagnoses, employers also need to understand how to balance the employee’s rights under the Americans with Disabilities Act with safety and productivity concerns. An upcoming seminar at which one of my colleagues will be presenting features a panel of experts ready to help.
McLane Middleton attorney, Nick Casolaro, will be part of this panel discussion at the Business and Industry Association’s “Employer’s Guide to Mental Health in the Workplace” seminar on May 31, 2017 from 11:30 a.m. to 1:30 p.m. at the Radisson Hotel in Manchester, N.H.
During the presentation, the panelists will answer questions, such as: What can business owners do to encourage recognition and to provide opportunities for treatment? What are the appropriate accommodations? What mistakes must they avoid in handling employees dealing with short-term or chronic illnesses?
For additional information about this event, please click here.
Words spoken yesterday morning by Fox News personality Megyn Kelly during an interview by George Stephanopoulos on Good Morning America. Kelly was asked about the lawsuit filed by her former Fox News colleague Gretchen Carlson against former CEO Roger Ailes and Kelly’s own experiences with Ailes a decade ago. According to Kelly, and as described in her new book, Ailes sexually harassed her and tried to entice her to engage in a sexual relationship. She rebuffed his advances, called a lawyer and notified her immediate supervisor. The supervisor vouched for Ailes and told Kelly the behavior was out of character and also advised Kelly to “ignore him.” Kelly did just that, something relatively easy for her to do since she was assigned to the network’s Washington office and Ailes was in New York. After about six months of being ignored, Ailes moved on, and he and Kelly had a cordial and mutually beneficial professional relationship until he left the network.
When pressed as to whether she regretted not having come out publicly about his advances ten years ago, Kelly told a story remarkably similar to that which women in workplaces tell every day. First, she wasn’t sure that this wasn’t an isolated incident, especially given her supervisor’s statements and advice, which seemed to work. Second, in her eyes, she had no one to go to. She had barely a year’s tenure at the station, and Ailes, the CEO, was one of the world’s most powerful men. She had done more than many women in her place might have done, but going above Ailes’ head to the owners or going to the general counsel would have been “a suicide mission” for her career. She told Stephanopoulos the obvious, “I wasn’t the same Megyn Kelly then as I am now.”
Kelly’s responses are consistent with what many women who are victims of harassment say. Why didn’t she speak out sooner? Why didn’t President-Elect Trump’s accusers come forward years ago? They didn’t know there were others; they didn’t have anyone they could safely tell; they didn’t think they would be believed.
The stories of Carlson, Kelly and countless other female employees at Fox put an exclamation point on the findings of an EEOC task force which spent a year studying the issue of workplace harassment. They issued a report in June 2016, entitled “Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace” which concluded that sexual harassment remains a significant workplace issue. Among a great deal of information, the Report provides practical resources, including checklists and a “risk factor” analysis, to help employers assess their organization and respond appropriately to troubling behavior.
Reviewing the risk factor analysis is a necessary first step for employers looking to address this important workplace issue. The task force focused on what they viewed to be environmental factors, organizational factors or conditions that might increase the likelihood of harassment rather than on the qualities that might lead one to be a likely victim or a likely harasser. The Report says:
Most if not every workplace will contain at least some of the risk factors we describe below. In that light, to be clear, we note that the existence of risk factors in a workplace does not mean that harassment is occurring in that workplace. Rather, the presence of one or more risk factors suggests that there may be fertile ground for harassment to occur, and that an employer may wish to pay extra attention in these situations, or at the very least be cognizant that certain risk factors may exist. Finally, we stress that the list below is neither exclusive nor exhaustive, but rather a number of factors we felt were readily identifiable.
What follows is a list of some of the risk factors identified.
- Homogenous Workforces: Sexual harassment of women is most likely to occur in workplaces with primarily male employees; racial or ethnic harassment is more likely to occur where one race or ethnicity is predominant.
- Workplaces Where Some Workers Do Not Conform to Workplace Norms: A feminine man in a predominantly male environment where crude language is common; a woman who challenges stereotypes by being “tough.”
- Cultural and Language Differences: Diverse workplaces where “blocs” of workers from different cultures congregate; workers may not know the cultural norms of the workplace or their rights and be subject to exploitation.
- Coarsened Social Discourse Outside the Workplace: Events outside the workplace like terrorist attacks and controversial elections may lead to discussions previously deemed unacceptable at work.
- Workforces with Many Young Workers: Young workers who lack the maturity to understand the consequences of their behavior; unskilled or inexperienced young people who may be taken advantage of.
- Workplaces with High Value Employees: Where some workers are viewed as highly valuable to the employer due to significant rainmaking or sales ability or particular highly sought after skills, there may be a reluctance to challenge poor behavior combined with a belief of the employee that the rules do not apply to them.
- Workplaces with Significant Power Disparities: Executives and administrative staff, military or hierarchical organizations, the lack of knowledge of how to report or the fear that reporting may lead to the loss of a job.
- Workplace Cultures that Tolerate or Encourage Alcohol Consumption: Reduced inhibitions, clients or customers feeling emboldened by alcohol.
- Workplaces that Rely on Customer Service or Client Satisfaction: Entities where compensation is directly tied to customer service or client satisfaction, a tipped employee or a commissioned salesperson.
Employers should challenge themselves to look at these and the other risk factors set out in the Report to determine whether they are at risk for harassment issues. They should review not only their policies, but how their policies are implemented and whether employees, including high level management employees, are held accountable for their behavior. Not only will such self-examination reduce the risk of litigation, it is good business with a direct link to recruiting and retaining talented and motivated employees.
Now that the first in the nation primary is over and the politicians have headed to other states, New Hampshire employers might think they don’t have to worry about politics creeping into the workplace. This presidential election cycle, however, continues to be like no other; and even though Trump and Cruz and Clinton and Sanders have moved on, the rhetoric is only escalating at dinner tables and in bars. People are being arrested outside political rallies, and candidates are accusing one another of inciting violence. Now may be a good time to review the do’s and don’ts of campaign conversation at work.
With what seems like a debate or a town hall meeting every other night and 24/7 news coverage it is likely that employees are engaged in a lot of “water cooler” conversation about the candidates either in person or through social media. What can and should an employer do about regulating political discourse at work?
First, employees do not have so-called First Amendment rights to free speech in private workplaces. The cry of “it’s a free country” and “you’re not the boss of me!” doesn’t quite ring true at work. Employers may indeed restrict employee speech and activity during business hours and sometimes even when employees are off duty.
What follows is some general advice about what you can and can’t prohibit or require:
- Employers may prohibit employees from using office equipment in support of political activity. That includes phones, computers and copiers.
- It is also permissible to require employees to remove political buttons or take down posters. However, companies must be cautious that the material they are requesting be removed does not contain verbiage or logos related to unions as this speech is protected by the National Labor Relations Act. It is also wise to link such requests to a neutral policy or dress code which does not single out a particular type of speech or content.
- It may also be appropriate to ask an employee who drives on company business to remove a political bumper sticker from a personal vehicle. Most businesses prefer to appear neutral regarding political matters so as not to alienate prospective customers so an employer may very well have a legitimate business interest in prohibiting political advertisements on vehicles being used for business.
- Social media, as usual, presents unique challenges. If employers have a legitimate business interest in prohibiting political commentary by employees on social media, such a prohibition is usually acceptable. It would be easier for a business to justify telling an employee not to post political affiliations on LinkedIn, for example, which is often used for business. It is more difficult to do so on purely personal social media such as a private Facebook page. Again, any discussion about unions or conditions of work is protected, and must be allowed.
- Companies may either allow or prohibit discussion of politics at work. Care must be taken, however, to make sure these conversations do not become conversations about protected classes or characteristics. In this election year it wouldn’t be hard to imagine campaign conversations including the mention of age, gender, religion or national origin. Once that happens, a hostile work environment claim might follow.
A special word about non-profits: 501(c)(3) corporations must be very careful that political advocacy stays out of the workplace. The use of office equipment or advocacy by employees, for example, might compromise a non-profit’s tax exempt status.
As with most issues involving any potential controversy, an employer’s best defense is to have good policies: preferably policies which are neutral. A dress code which prohibits logoed shirts or a non-solicitation policy which limits all forms of solicitation is much safer than one which targets political speech and solicitation only. Likewise, the best way to enforce such policies is in a fair and evenhanded way. In other words, don’t put Trump bumper stickers on all the company vans and tell those with the “Feel the Bern” bumper stickers to remove them from their personal vehicles. Things might get even hotter than they are already.
Earlier this week, the New Hampshire Supreme Court issued an opinion holding that the New Hampshire Law Against Discrimination, RSA Chapter 354-A, can impose liability upon individual employees for aiding and abetting discrimination in the workplace, and for retaliation against another employee in the workplace of a qualifying employer.
The issue came before the New Hampshire Supreme Court in the form of a certified question from the United States District Court for the District of New Hampshire, in connection with a case pending in that court. In the underlying case, a female employee brought suit against her employer for sexual harassment and retaliation under federal law (Title VII) and state law (RSA chapter 354-A). The plaintiff also sued an individual employee under state law. (Under current First Circuit precedent, there is no individual liability under the federal Title VII law.) Because the New Hampshire Supreme Court has never specifically addressed the question of whether individuals can be held liable under Chapter 354-A, the Federal Court asked for clarification on the issue.
The New Hampshire Law Against Discrimination identifies certain acts which, when committed by an “employer,” constitute unlawful discriminatory practices. The New Hampshire Supreme Court pointed out that the law also provides that “any act of aiding, abetting, inciting, compelling or coercing another to commit an unlawful discriminatory practice, or attempting to do so, or obstructing or preventing any person from complying with the [law] is itself an unlawful discriminatory practice.” The Court noted that the law allows an aggrieved person to purse a claim against a “person, employer, labor organization, employment agency or public accommodation alleged to have committed the unlawful discriminatory practice.” Since “person” is defined in the law as “one or more individuals, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, trustees in bankruptcy, receivers, and the state and all political subdivisions, boards, and commissions thereof,” the Court concluded that individuals can be liable under the New Hampshire Law Against Discrimination.
The New Hampshire Law Against Discrimination only applies to employers with six or more employees. The Court addressed the issue of whether an individual employee of an employer with fewer than six employees could be individually liable. The Court held that one can only be found liable for aiding and abetting discriminatory conduct that is illegal under the New Hampshire Law Against Discrimination. Therefore, if the conduct of a smaller employer is not actionable because the employer is exempt from the law due to its size, there can be no liability for aiding and abetting.
The Court came to a similar conclusion with regard to individual liability for retaliation under the New Hampshire Law Against Discrimination. The Court held that the statute’s language makes clear that “as is relevant in the employment context … any ‘person’ may be held liable for retaliation without regard to whether that person is also an ‘employer.’” As it did with the question of aiding and abetting, the Court found that “it would be illogical to hold individual employees liable for retaliation when they are employed by an employer that is exempt from liability” due to the size of the employer, and accordingly, the Court held that only individual employees of qualifying employers (i.e., employers with six or more employees) could be held liable for retaliation.
This week’s holding brings New Hampshire law in line with existing law in the neighboring Bay State on the issue of individual liability. Under the Massachusetts anti-discrimination statute (G.L. Chapter 151B) “any person, whether an employer or an employee or not,” may be held liable for aiding, abetting, inciting, compelling or coercing the doing of any of the acts forbidden under the law.
The case is U.S. Equal Employment Opportunity Commission, et al. v. Fred Fuller Oil Company, et al., Case No. 2015-0258 (Feb. 23, 2016). A copy of the opinion can be downloaded at the Court’s website.