As seen in the January, 30 2012 CT Law Tribune

Last year was a record-setting year for the Equal Employment Opportunity Commission.  It received more charges than ever, resolved more charges and obtained more monetary relief through mediation than ever, and reduced its pending charge inventory by nearly 10 percent.  The agency secured several multi-million dollar consent decrees in class actions against large employers.  To top it off, the EEOC accomplished these feats despite a hiring freeze.

The EEOC is on an upswing, so compliance is more important than ever.  Employees are filing charges in record numbers, in part due to outreach programs in which the EEOC encourages employees to go after employers who have violated the law.  In addition, the mandatory EEOC poster contains a toll-free number for employees.  For details of this program, click here .

As with many of the Obama Administration’s initiatives, the revitalized EEOC is not about changing the law but about increasing scrutiny.  This can be more significant for employers because new laws do not necessarily lead to more enforcement, but when an agency steps up enforcement of existing laws, employers need to be ready.

Take this opportunity to make sure you know whether you are in compliance.  Have you trained your supervisors?  Do your employees, and more importantly supervisors, understand the ramifications their behavior can have for the company?  Is your handbook up to date?  When did you last have an HR audit?  Make sure your company is ready if the Government focuses on you.

Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general.  We also help employers with all aspects of Human Resource audit and compliance strategies.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Do you want to hold a company holiday party, but worry about being sued?  In the past, employers have faced worker’s compensation claims for holiday party injuries as well as lawsuits for sexual harassment, drunk driving by employees, and religious discrimination.  Some companies are asking employees to sign holiday party waivers, but they won’t be effective if a third-party is injured, not to mention that a court is unlikely to enforce a waiver of a sexual harassment claim signed before the offensive conduct occurred.  Instead, focus on prevention.  Following these tips can help you protect your business from costly litigation without putting the kibosh on holiday cheer. 

First, make it clear that participation in the party is entirely voluntary.  This simple step may protect your company from a worker’s compensation suit if an employee is injured.  Also, some employees may be uncomfortable attending a holiday party for any number of reasons, so keep it optional.

Second, many of the sexual harassment, worker’s compensation, and drunk driving matters can be prevented if alcohol consumption is reduced or eliminated.  Surveys show that alcohol-free workplace holiday parties are about as common as those with alcohol.  If you decide to provide alcohol, consider limiting consumption through drink tickets or a cash bar.  Inviting spouses and significant others is a good idea.  Their presence can temper drinking and inappropriate conduct toward coworkers.  Holding the event at a restaurant where bartenders serve the drinks can also help limit your liability in the event of injury to third-parties.  Also, encourage designated drivers or provide taxi vouchers to keep impaired drivers off the road. 

Finally, remember to respect the diversity of your workplace.  Many companies employ workers of different faiths, and a holiday party should not make some employees feel excluded.  A “winter celebration” or “New Years’ party” is likely to make everyone feel comfortable.  Neutral decorations keep the party festive but non-religious.

Office holiday parties provide a great opportunity to reward employees, build camaraderie, and celebrate the season.  Considering and addressing the risks can keep the holidays fun and joyous for you and your employees.

We wish everyone a happy holiday season.  We offer assistance to management on these and all types of employment-related issues.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

In this case, a female employee was fired while on maternity leave.  She brought claims for pregnancy discrimination under the federal Pregnancy Discrimination Act and the Connecticut Fair Employment Practices Act.  In order to prove her discrimination claim, the plaintiff must first show she 1) is a member of a protected class; 2) was a satisfactory employee; 3) was fired; and 4) was replaced by someone outside her protected class or the circumstances surrounding her discharge give rise to an inference of discrimination.   

The employer in this case moved for Summary Judgment claiming the plaintiff failed to satisfy the first element of the test: that she was pregnant.  The employer argued the law protects pregnant employees, but the plaintiff was not pregnant when she was fired.  The court disagreed finding the laws protect women affected by pregnancy, not women who are pregnant.  Therefore, the plaintiff, having given birth only one month before her discharge, was affected by pregnancy and therefore covered.

The case will now continue to trial.  It will be interesting to see whether the plaintiff ultimately prevails.  For now, employers in New York, Connecticut, and Vermont need to be aware that there is a trend in the Second Circuit towards protecting women on maternity leave against discrimination.  Employers everywhere should always document all instances of employee misconduct especially those leading to discharge.  This is every employer’s best defense to a claim of discrimination.    

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Shannon Mandel began working for M&Q Packaging Corp. in 1996.  She claimed that on a daily basis she was called names such as “toots,” “missy,” “woman” and “bitch.”  In addition male coworkers and supervisors made various comments to her such as commenting on her legs when she wore skirts, saying her shoes were “beat me, bite me” shoes, telling her she should use her “assets” to her advantage, and asking her to make them coffee.  She also claimed pay disparities between herself and her male counterparts.  

However, there is one important difference here than in most sexual harassment cases.  Mandel herself regularly participated in sexual jokes.  She often emailed sexually explicit jokes to her coworkers, she called the plant manager “gay” as an ongoing joke with coworkers, and regularly used the “f” word. 

Mandel said she complained once to a manager in 1996 when a male coworker asked her to make him coffee, and complained once to a female coworker about her supervisor’s comments.  Finally, in 2007, Mandel quit, but claims she was constructively discharged because of the hostile work environment which was created by the male employees.  She filed a lawsuit claiming constructive discharge, sex bias in pay and sexual harassment. 

The District Court said there were no facts to show these sexual comments and jokes caused her any distress.  Mandel was not distressed to the point of being unable to perform her job duties, and suffered no psychological harm.  She failed to show the conduct was subjectively offensive.  The sexual jokes were commonplace in the office and the facts showed she had a casual attitude towards the situation.  Mandel never made any formal complaints to M&Q officials besides the one time in 1996, and worked under these conditions for over ten years before quitting. 

The Company was lucky in this case to have avoided liability.  Once harassment claims are made, it is unusual for that allegation to be proven, but the company was exonerated because the conduct was “welcome.”  Needless to say, M&Q should not tolerate such a work environment.  Comments and jokes such as those taking place at M&Q should be immediately reported and the offenders disciplined.  It is also important to remember that sexual harassers are not always male.  Mandel’s sexually explicit emails and name calling could constitute sexual harassment to her coworkers. 

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

The plaintiff Ashley Alford, an employee at a large rent-to-own furniture chain, claimed she was constantly harassed by her manager Richard Moore.  The harassment began with pinching, lewd comments and unwanted gifts.  On one occasion, Moore hit Alford’s head with his genitals.  The harassment culminated with the manager trapping plaintiff in a storeroom, holding her down and masturbating over her. 

Plaintiff claims she called the Company hotline to report the harassment but she was never contacted by an investigator.  However, she says shortly after this, Moore’s supervisor confronted her in front of Moore, and told Moore to “watch his back.”  The Company never took any disciplinary action against Moore.  The Company however claims her complaint to the hotline was vague and it never received any other complaints from plaintiff. 

The jury awarded plaintiff $15 million in compensatory damages and $80 million in punitive damages.  This judgment represents about 80% of the Company’s 2010 profits.  It is very likely this will be reduced, as there are caps on the amounts of damages which can be awarded under certain statutes.  In fact, about half of the award has already been reduced.  A judge reduced the $4 million awarded under Title VII to $300,000 and the $50 million in punitive damages under Title VII to zero. 

While the damage reductions are a relief to employers, the Company’s argument is a lesson to all employers.  Even if a complaint is vague, Management must take steps to investigate.  If the Company had gone to the plaintiff and asked for further details, it could have performed an investigation and disciplined Moore before things got out of hand.  It is important to note that this case went beyond the usual employment sexual harassment case.  This case involved instances of sexual assault and battery.  Nevertheless, no employer wants their company name splattered across the headlines.  This is a vivid reminder that investigating each and every claim of harassment and discrimination is vitally important to maintaining a positive environment for all employees and avoiding litigation. 

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Representative Jackie Speier (D-CA) recently introduced a House bill which would extend COBRA benefits to same-sex couples and their partner’s children.  The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) provides employees the opportunity to continue health insurance coverage after losing their job.  Currently, COBRA benefits only extend to an employee, their legal spouse and legal dependents.  This bill would allow domestic partners and same-sex spouses to receive COBRA benefits as well.  These COBRA requirements would only apply to employers who already voluntarily provide health insurance benefits to same-sex couples.  The bill’s main goal is to protect the children of domestic partners from losing their health insurance.  Republicans oppose the bill, as they say it will increase costs for employers. 

In addition, the Family and Medical Leave Inclusion Act was introduced into the Senate by Senator Dick Durbin (D-IL) which would allow an employee to take leave under the Family and Medical Leave Act (FMLA) to care for a domestic partner, same-sex spouse, or the family members of a domestic partner or same-sex spouse.  Currently, the FMLA does not require an employer to allow such leaves.  Employers should continue to keep an eye on the state and federal laws surrounding this issue.  If the laws change, you may need to change your workplace policies.  Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

These statistics are a reminder to employers that the wage gap between females and males persists.  While we all know gender discrimination is illegal, employers should remember that by asking for a salary history from employees, you may perpetuate past discrimination.  This claim has been made before and could be made again.  Each time the wage gap is confirmed, we wonder if this theory will finally gain tradition.  Therefore, it is important to evaluate whether a salary history is something you need to assess how much a prospective employee should earn.  If not, avoid the inquiry and avoid the possibility of discrimination claim.  

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

In this case, Miriam, an employee, was fired and subsequently brought a claim of sex discrimination with the Equal Employment Opportunity Commission (EEOC).  Shortly after the Company learned of the pending charge, it fired Miriam’s fiancé, who also worked at the Company.  The Company claimed it fired the fiancé for poor performance and for disparaging the Company’s management in an office memo.  The fiancé then brought suit under Title VII, claiming the Company retaliated against him because his fiancée filed an EEOC charge. 

The 6^th Circuit Court of Appeals (covering Tennessee, Kentucky, Ohio and Michigan) found the fiancé had no retaliation claim because he was not the one who originally complained of discrimination.  However, the Supreme Court disagreed.  The test for retaliation is whether the action would have “dissuaded a reasonable worker from making or supporting a discrimination charge.”  Here, the Court answered in the affirmative, holding employees would be dissuaded from reporting discrimination if they knew their fiancé might be fired.  The Court also ruled the fiancé has a separate cause of action under Title VII for retaliation because Title VII was meant to protect employees like him.  It was not clear from the Court’s opinion how close a relationship two employees would need to have before they considered the non-complainant to have a cause of action for retaliation.  The Court opined that mere acquaintances would not qualify for such protections, but a person’s spouse or fiancé probably would. 

This decision is extremely employee-friendly.  Employers now need to be even more vigilant in making adverse employment decisions after they are notified of a charge pending with the EEOC.  As is always the case, the best way to avoid discrimination charges, is to have a full record of proper discipline.  However, if the paper file is weak, the likelihood of a successful charge is now even greater. 

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.