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There is a difference between workplace pranks and actual harassment, court finds.
A white truck driver who quit his job because he felt he was subjected to racial harassment could not go forward with his case, because a single racial epithet and several harmless pranks were not enough to create a severe and pervasive hostile work environment, a court recently decided.
The plaintiff was harassed by a coworker named Hardy, an employee who was known for constantly playing pranks on a number of the truck drivers. On one occasion, Hardy made a racial epithet to the plaintiff because he had married an African American woman. Additionally, the plaintiff had previously supported another employee in his race-discrimination case against the company, and he believed that Hardy’s actions were partly in retaliation for that support. Over the course of two years, Hardy also filled the plaintiff’s truck trailer with garbage on a number of occasions -- a prank he played on numerous drivers.
Although other drivers told the plaintiff that Hardy had made additional racial slurs about the plaintiff to them, the plaintiff only told management about the single racial comment he had heard. After he complained to management that Hardy had filled his truck trailer with garbage again, his supervisor told him that he could quit if he did not like the way things were done at the company. The plaintiff resigned and then argued that Hardy’s statement and actions, along with the company’s failure to investigate, constituted racial harassment, and that the supervisor’s invitation that the plaintiff could resign caused him to be constructively discharged.
The court disagreed that these actions were severe enough to support a case of constructive discharge. First, the plaintiff only heard a single racial statement, made by a nonsupervisory employee. Second, there was no evidence linking the pranks to any race bias by the company; testimony by other drivers showed that many drivers were subjected to Hardy’s pranks, and none of them found the conduct severe enough to force their resignation. Therefore, a reasonable employee in the plaintiff’s situation would not have felt compelled to resign because of his work environment.
This case shows that not all workplace pranks, or even all inappropriate comments, are enough to support a claim of harassment or discrimination. Of course, employers should still investigate all complaints and take corrective action against employees who engage in inappropriate behavior.
-- Marc Jacobs, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Carpenter vs. Con-Way Central Express Inc., 481 F.3d 611 (8th Cir. 2007)].
Evidence that employer knew about alleged sexual harassment two years before plaintiff made a formal complaint is enough to let the case go to a jury.
An employee who experienced constant sexual harassment by two nonsupervisory coworkers can go forward with her case based on her testimony that another coworker told her she had informed their supervisor about the harassment.
The plaintiff worked on the pressroom floor of a newspaper printer. Almost from the day she started work, two male coworkers grabbed her sexually, pulled on her clothing and made inappropriate comments. She did not complain to management for two years until the publisher hired a new human resources manager. As soon as the harassment came to light (and was investigated and corroborated by other employees), the two men were fired. The employer argued that it took action as soon as it had notice of the harassment, but the plaintiff testified that two years earlier a coworker told her that she had reported the harassment to another supervisor.
Although both the supervisor and coworker denied that the conversation about the harassment ever occurred, the court said that it was not its place to make credibility decisions. If a jury decided that the plaintiff was telling the truth, then the evidence would show that the company knew about the harassment two years before it fired the harassers. Thus, it could be liable for not taking action earlier.
Employers need to take every complaint of harassment seriously. This case shows that the possibility of a single report of sexual harassment might be enough to hold the company liable for damages.
-- Marc Jacobs, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Bombaci vs. Journal Cmty. Publ’g Group Inc., 2007 U.S. App. LEXIS 8213 (7th Cir. April 10, 2007)].
A new type of employment claim has arisen relating to “family responsibilities” discrimination.
A new trend in employment law is the rise in the number of cases claiming discrimination based on family responsibilities discrimination (FRD).
FRD claims are usually brought by female employees who feel they have been discriminated against, disadvantaged or stereotyped in the workplace because of their need to concurrently work and attend to family needs or because of the unfounded perception that they have less time and energy to devote to the workplace than male employees or those without family responsibilities.
Although only the state of Alaska and the District of Columbia (and various other municipalities) formally prohibit discrimination based on family responsibilities, such claims have been brought successfully in both state and federal court under a number of legal theories. For example, FRD claims may be brought under Title VII, the Equal Pay Act, the Americans with Disabilities Act’s association provision and the Family and Medical Leave Act (FMLA). The discrimination can be formal, such as a female employee who does not get a promotion because of the belief that she will probably get pregnant soon and not want to undertake the travel the new position requires. Or it can be subtler, such as the tendency of a supervisor to give more challenging work to the male employees so that female workers can leave earlier.
It is particularly important to train managers about FRD and how to avoid it in the workplace. The training should include such things as identifying stereotypes that individuals may have about working mothers, recognizing the ways that bias could make its way into decision-making and strategies to ensure such bias does not occur. With proper training, supervisors and managers should be able to make employment decisions without regard to their employees’ gender or family status.
-- Marc Jacobs, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Daily Labor Report, April 16, 2007, pg. B-1.]
Company forced to bargain with union over new work rule requiring employees to be available by telephone 24 hours a day.
The contract between a printing company and the union representing its employees gave the employer the right to “manage its business” and to establish and enforce shop rules consistent with the terms of the contract.
However, the National Labor Relations Board held that these provisions did not give the employer the right to unilaterally implement a new policy that required off-duty workers to be available by telephone at all times and established a disciplinary structure for employees who were unavailable when called.
The Board explained that under the National Labor Relations Act, the employer was required to bargain with the union over the phone policy unless the union had clearly and unmistakably waived its right to bargain over the matter. Although the collective bargaining agreement made reference to employee availability in general and gave the employer the right to discipline employees who violated workplace rules, it did not explicitly allow the employer to discipline or fire employees who were not available 24 hours a day or who did not possess the correct telephones or messaging equipment. Therefore, the union had not waived its right to bargain over these issues.
This case shows that there is a difference between an employer’s right to maintain discipline within the structure of a previously agreed-upon contract and its right to make unilateral changes to employees’ rights and responsibilities in the workplace. Because the union had not agreed to the new and greater burden on employees’ rights, the employer committed an unfair labor practice when it implemented its new availability policy.
-- Marc Jacobs, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see California Offset Printers Inc. 349 NLRB No. 71, April 12, 2007].