SEXUAL HARASSMENT CHALLENGES IN THE EVOLVING WORKPLACE Presented

SEXUAL HARASSMENT: CHALLENGES IN THE EVOLVING WORKPLACE Presented by: Annmarie Simeone Norris Mc. Laughlin & Marcus, P. A. Somerville, NJ 08876 -1018 908 -722 -0700 amsimeone@nmmlaw. com 1

STATISTICS* 2006 n EEOC received 12, 025 sex harassment complaints n Annually, victims of sex harassment recoup upwards of $50 million from EEOC cases alone (not including NJ Division of Civil Rights complaints) n Innumerable cases in state court n The high profile case - $11. 6 million punitives in Knicks case. *Star Ledger Op Ed, October 2007, following jury award in Knicks case. 2

DEFINITIONS OF HARASSMENT Types of Harassment Quid pro quo ‑ (literally, “this for that”) an employee’s job advancement or continued employment or employment assignments are conditioned on submission to sexual demands or an employee suffers job detriment for refusing to submit to demands. Hostile work environment ‑ conduct that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. 3

THE FOUR PART TEST n Courts will use a four part test to determine whether a hostile working environment exists: The complained‑of conduct … 1) would not have occurred but for the employee’s gender, 2) and was severe or pervasive enough to make a 3) reasonable woman believe that (not hypersensitive plaintiffs) 4) the conditions of employment are altered and the working environment is hostile or abusive. 4

THE NEW JERSEY SUPREME COURT’S LEHMANN DECISION Lehmann v. Toys ‘R’ Us, Inc. n Addresses the scope of an employer’s liability for a supervisor’s sexual harassment that results in a hostile work environment. To state the claim: n a “female plaintiff must allege conduct that occurred because of her sex and that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile or offensive working environment. ” 5

“THE HOOK” Protected Classes: n n n n Sex Race Age Religion Color National Origin Disability Marital Status n n n Sexual Orientation Gender Identity Domestic Partners Civil Unions Military Service You can’t discriminate against these classes. You can’t harass someone because they belong to one of these classes. 6

SOME EXAMPLES OF SEXUAL HARASSMENT - Verbal n Referring to an adult as a girl, hunk, doll, babe, or honey n Whistling at someone, cat calls n Making sexual comments about a person's body n Making sexual comments or innuendoes n Turning work discussions to sexual comments n Telling sexual jokes or stories n Asking about sexual fantasies, preferences, or history n Asking personal questions about social or sexual life n Making sexual comments about a person's clothing, anatomy, or looks n Repeatedly asking out a person who is not interested n Making kissing sounds, howling, and smacking lips n Telling lies or spreading rumors about a person's personal sex life 7

SOME EXAMPLES OF SEXUAL HARASSMENT - Non-Verbal n Looking a person up and down (elevator eyes) n Staring at someone n Blocking a person's path n Following the person n Giving personal gifts n Displaying sexually suggestive visuals n Making facial expressions such as winking, throwing kisses, or licking lips n Making sexual gestures with hands or through body movements 8

SOME EXAMPLES OF SEXUAL HARASSMENT - Physical n Giving a massage around the neck or shoulders n Touching the person's clothing, hair, or body n Hanging around a person n Hugging, kissing, patting, or stroking n Touching or rubbing oneself against another person n Standing close or brushing up against a person 9

Harris v. Forklift Systems, Inc. (U. S. Supreme Court) n A plaintiff does not need to show psychological injury in order to prevail on a claim of hostile work environment sexual harassment. (i. e. , plaintiff need not prove the harassment “seriously affected [her] psychological well-being or led her to suffer injury. ”) 10

Tarr v. Ciasulli (N. J. Supreme Court) n Plaintiff can obtain redress for mental anguish, embarrassment without showing severe emotional or physical ailment. n Less stringent standard of proof than required for tort-based emotional distress cause of action. n Expert may not be necessary to meet proofs. 11

GENERALIZED HARASSMENT Lombardi v. Cosgrove (Federal) n One outburst by supervisor in which he used curse words not enough to make a working environment hostile or abusive. Dungee v. Northeast Foods, Inc. (Federal) n Stray Remarks Doctrine BUT SEE Ferraro v. Bell Atlantic (State) n Single outburst where supervisor referred to employee as a “bitch” may be evidence of hostile work environment. 12

AIDER/ABETTOR LIABILITY * Liability for discrimination when one knowingly gives substantial assistance or encouragement to the unlawful conduct of the employer. Consider: 1) The nature of the act encouraged 2) The amount of assistance given by the supervisor 3) Whether the supervisor was present at the time of the asserted harassment 4) The supervisor’s relations to the others, and 5) The state of mind of the supervisor 13

AIDER/ABETTOR LIABILITY (CONT’D) n Brown Sanders alleged Thomas aided and abetted the harassment of MSG. The jury found “yes” as to hostile work environment, but “no” as to retaliation (because Dolan said he was sole decision maker on her termination following complaints of harassment). 14

RESPONSIBILITY FOR ACTS OF FELLOW EMPLOYEES AND OUTSIDERS The EEOC has issued guidelines on sexual harassment which prohibit harassment by both fellow employees and non-employees: n An employer may be responsible for the acts of non-employees where the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action. 15

CO-WORKER HARASSMENT n When a co-worker engages in harassing conduct, the employer is liable only if management knew, or in the exercise of reasonable care should have known, about the campaign of harassment and failed to take prompt remedial action. 16

THIRD PARTY HARASSMENT n Third party harassment is always a matter of hostile work environment harassment. n Employer liability is based on negligence: Whether the employer knew or should have known of the harassment and failed to take reasonable corrective action. 17

THIRD PARTY HARASSMENT CONTROL n EEOC GUIDELINES – Employer liability depends “on the basis of the total facts and circumstances of each case, including employer knowledge, corrective action, control, and other legal responsibility. ” n An employer who condones or tolerates the creation of a hostile work environment should be held liable regardless of whether the environment was created by a co-employee or a nonemployee, since the employer ultimately controls the conditions of this work environment. 18

RETALIATION n The NJLAD provides that “[i]t shall be an unlawful employment practice **** for any person to take reprisals against any person because he/she has opposed any practices or acts forbidden under this act or because he/she has filed a complaint, testified or assisted in any proceeding under this act. ” N. J. S. A. 10: 5 -12 d. 19

RETALIATION (CONT’D) n Goal of recognizing retaliation claim: “to promote the integrity of the underlying antidiscrimination policies of the Act by protecting against reprisals ‘any person’ who has sought to protect his or her own rights not to be discriminated against or who has acted in support of such conduct. ” 20

RETALIATION (CONT’D) n Under LAD, a person engages in “protected activity” when that person opposes any practice that is unlawful under the LAD, such as gender discrimination. EXAMPLE: The plaintiff employee engaged in a protected activity when she turned to various levels of management with complaints regarding work environment sexual harassment and where management knew of the harassment. 21

RETALIATION (CONT’D) n A plaintiff must show an employer’s retaliatory motive Usually there is no smoking gun document. Courts allow plaintiffs to rely on surrounding circumstances as evidence of retaliatory motive, such as: 1) Plaintiff was singled out by the company for enforcement of certain rules 2) The company failed to perform a thorough investigation of plaintiff’s complaints 3) The company initiated an extensive investigation of her work history 4) An employer’s timing in reassignment or termination – did it coincide with complaints of harassment? 22

E-MAIL/INTERNET ISSUES n People will say in email what they would never say in person n Email is a record n Delete does not mean delete n Employers will respond to harassing email under the same standards applicable to all harassment claims n Emails can be evidence of other claims of discrimination 23

E-MAIL POLICIES/ISSUES Blakey v. Continental Airlines n Co-employees who allegedly published derogatory and insulting remarks about plaintiff on an on-line computer bulletin board which they knew would be published in New Jersey, could be subject to jurisdiction in New Jersey. n Also, simply because electronic bulletin board was located outside of the workplace it does not mean it is not part of the workplace and did not mean that employer might have no duty to correct harassment taking place through use of the electronic source. n Harassment can occur in a “work-related” setting. n Under Blakey, employer did not have duty to monitor employee’s private communications in NJ. This changed in 2005 in Doe v. XYC. 24

Employer’s Duty To Stop/ Report Worker’s Porn Surfing Doe v. XYC Corporation n Prior to Doe, employers were obligated to protect employees from hostile work environment. n Ruling in this case expands that obligation to protect 3 rd parties. n “We hold that an employer who is on notice that one of its employees is using a workplace computer to access pornography, possibly child pornography, has a duty to investigate the employee’s activities and to take prompt and effective action to stop the unauthorized activity, lest it result in harm to innocent third-parties. No privacy interest of the employee stands in the way of this duty on the part of the employer. ” 25

E-MAIL/INTERNET POLICIES n Personal use of E-Mails/Internet at work is very high n Companies must respond under the same standards applicable to all harassment claims n Evidence of Other Claims of Discrimination n Adopt E-Mail/Internet Policies n Reserve the Right to Review and Monitor 26

ELECTRONICALLY STORED INFORMATION n Both federal and state courts now allow for the demand production of electronically stored information. – How Does This Relate to Sex Harassment? § Predominance of e-mails and use of electronic means to perpetuate harassment § Proof of effective policies § Litigation preparation 27

Where Do You Find Electronically Stored Information (ESI)? • • Laptops/Desktops Servers Phone Systems (Vo. IP) Printers & Copiers PDA’s/Cell Phones CD’s/DVD’s USB Thumb Drives 28

Production of Documents R. 4: 18 -1 & FRCP 34 Amendment Implications Employer defendants are integral part of process: Assess and understand company’s information management n Meta data is potentially discoverable; sound recordings are also to be considered as potentially discoverable n Attorney and client must work to identify: – key custodians – relevant ESI on the client’s system – locations of data storage devices n 29

Production of Documents R. 4: 18 -1 & FRCP 34 Amendment Implications n Preservation obligation attaches once “triggers” surface: – notice of a lawsuit – litigation that is “reasonably anticipated” n Attorney and client must preserve ESI 30

Production of Documents R. 4: 18 -1 & FRCP 34 Amendment Implications n Notify employees of obligations to preserve ESI n Consider offices in other geographic locations n Formulate a cost-effective strategy for reviewing and managing ESI 31

Production of Documents R. 4: 18 -1 & FRCP 34 Amendment Implications n Suspend automated document destruction policies, and place “hold” on key ESI 32

Production of Documents R. 4: 18 -1 & FRCP 34 (CONT’D) n Litigation “holds” must be: – communicated in writing – issued by someone with authority – tailored to identify purpose of the hold – specific in detailing which data should be maintained and why – periodically confirmed 33

Case Management Conference R. 4: 5 B-2, R. 4: 10 -2 & FRCP 16 Amendment Implications n n n n Implement procedures to ensure compliance Discuss the “reasonable accessibility” of ESI Must make these efforts a “high priority” Assemble team of corporate representatives Formalize instruction to employees in writing Monitor employee preservation efforts Factor costs of e-discovery in litigation budget 34

EMPLOYER DEFENSES Smith v. Nordstrom n A company which has a (1) well-publicized anti-harassment policy (2) with an effective complaint structure, and (3) which responds promptly and forcefully when apprized of misconduct, cannot be held vicariously liable for that misconduct. 35

EMPLOYER DEFENSES Gaines v. Bellino. et al. n Plaintiff, a County employee, alleged she was sexually harassed by a supervisor in 1990. Her co-workers encouraged her to file a formal complaint against him, as permitted under the sexual harassment policy in place. She initially chose not to file a formal complaint. However, she did informally complain to various people, including supervisors. Employer was denied affirmative defense. Supervisors admitted they had not received training on anti-harassment. Supervisors joked when they heard complaint or told her to drop it because no one would believe plaintiff. “An employer’s antiharassment policy must be more than the mere words encapsulated in the policy. ” 36

PREVENTIVE POLICIES n To establish an effective anti-harassment policy in the workplace, an employer must establish the following: 1) Formal policies prohibiting harassment in the workplace. 2) Complaint structures for employees’ use, both formal and informal. 3) Anti-harassment training, which must be mandatory for supervisors and managers, and must be available to all employees of the organization. 4) The existence of effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures. 37

PREVENTIVE POLICIES (CONT’D) 5) An unequivocal commitment from the highest level of the employer that harassment would not be tolerated, and demonstration of that policy commitment by consistent practice. 6) Formalize instruction to employees in writing 7) Monitor employee preservation efforts 8) Factor costs of e-discovery in litigation budget 38

PREVENTIVE POLICIES (CONT’D) n An employee’s known or suspected illegal activities impose new duties on employers: 1) Conduct thorough investigation. 2) Take prompt and effective remedial action to stop the activities (may need to terminate employee). 3) Prevent harm to third parties is the goal. 4) May need to enlist help of law enforcement under appropriate circumstances. 5) Preserve evidence to justify and explain employer’s actions. Failure to comply with these duties can subject employer to liability to third parties harmed by the illegal activities. (Doe v. XYC case) 39

TO DETERMINE IF YOUR BEHAVIOR IS INAPPROPRIATE, ASK YOURSELF THE FOLLOWING: 1) Would you behave the same way (or say the same things) if a family member was within hearing distance? 2) How would your comments or behavior appear to others if it were featured on the front page of your local newspaper or in a clip on the evening news? 3) Would you want someone to behave the same way toward your son or daughter? 4) Is there equal power and participation between the person I’m interacting with? 5) Would I act the same way with my supervisor or if my supervisor was watching? WHEN IN DOUBT, DON’T!! 40

SEXUAL HARASSMENT: CHALLENGES IN THE EVOLVING WORKPLACE Presented by: Annmarie Simeone Norris Mc. Laughlin & Marcus, P. A. Somerville, NJ 08876 -1018 908 -722 -0700 amsimeone@nmmlaw. com 41