Category Archives: Sexual harassment

“LOCKER ROOM TALK” STARTED THE SEXUAL HARASSMENT LAWSUIT REVOLUTION

Donald Trump has re-popularized the term “locker room talk.”  The euphemism, which Trump used to explain away his comments about women on a videotape that emerged last week, has different meanings to different people.

Trump downplayed his comments as harmless. Many others, however, viewed Trump’s words as harassing, threatening, and demeaning.  Whatever your belief, so-called locker room talk was the main catalyst behind the explosion of sexual harassment lawsuits some 30 years ago and clearly has not gone away.

Through the real-life story of Beth Ann Faragher, this article provides readers with a historic and revealing look at Title VII — the main law which prohibits sexual harassment and discrimination.  Equally valuable, this edition of the HR Law Insider explains how and why “locker room talk” gets companies sued, and provides businesses specific tools to prevent sexual harassment.

Image result for locker room talk

TITLE VII:  HOW A YOUNG WOMAN LIFEGUARD CHANGED THE WORLD 

I had a Forrest Gump moment in 1986.  As a young  ocean lifeguard in Hollywood, Florida, I  witnessed first-hand the male-dominated culture of the Beach Patrol — in our locker room and on the beach.

Little did I know, just up the road, working with men I knew and competed against in lifeguard competitions, Beth Ann Faragher, a lifeguard with the City of Boca Raton, was on her way to making US Supreme Court history.

Sexually harassed for the better part of five years, Faragher brought claims against Boca Raton under Title VII.  After a hard-fought trial, the court found:

“From time to time over the course of Faragher’s tenure at the Marine Safety Section, between 4 and 6 of the 40 to 50 lifeguards were women.  During that 5-year period, Chief of the Marine Safety Division Terry repeatedly touched the bodies of female employees without invitation,  would put his arm around Faragher, with his hand on her buttocks, and once made contact with another female lifeguard in a motion of sexual simulation. He made crudely demeaning references to women generally, and once commented disparagingly on Faragher’s shape. During a job interview with a woman he hired as a lifeguard, Terry said that the female lifeguards had sex with their male counterparts and asked whether she would do the same.”

Marine Safety lieutenant David Silverman behaved in similar ways. He once tackled Faragher and remarked that, but for a physical characteristic he found unattractive, he would readily have had sexual relations with her.  Another time, he pantomimed an act of oral sex. Within earshot of the female lifeguards, Silverman made frequent, vulgar references to women and sexual matters, commented on the bodies of female lifeguards and beachgoers, and at least twice told female lifeguards that he would like to engage in sex with them.”

The court of appeals, however, reversed the trial court and found in favor of Boca Raton.  This led to the landmark US Supreme Court decision in favor of Faragher in 1998.

Faragher’s odyssey began in the 1980s, a decade which witnessed an explosion of sexual harassment cases under Title VII.  That’s right, it took about 20 years for a cultural shift to “allow” cases to be brought under a law that was passed the year The Beatles started the British Invasion in America.

The Faragher decision is obviously important for its legal precedent in holding employers liable for sexual harassment.   The historic ruling also provides businesses with a road map as to how to avoid sexual harassment claims.

HOW BUSINESSES CAN PREVENT SEXUAL HARRASSMENT

The facts in Faragher lawsuit are very typical of the sexual harassment allegations I have observed over 25 years of representing businesses and individuals:  uncontrolled behavior by men in positions of power and/or an overall work culture that enables, encourages, or permits bad behavior.

Regardless of one’s beliefs about the Trump situation, allowing such talk in a work environment is a sure-fire way to be on the receiving end of an EEOC charge of discrimination.  Here are specific, time-tested tools to prevent locker room talk in your workplace and avoid the fate of Boca Raton :

  • Management and employees should receive sexual harassment and discrimination training from counsel once a year.
  • Employee handbooks should be carefully drafted and specifically reviewed during the training.
  • Sexual harassment and discrimination policies should be discussed in detail; hypotheticals should be played-out to understand how the policy will work in real time/life.
  • All businesses should have a personal relationship policy, particularly regarding supervisors and managers having relationships with those that they supervise/manage.
  • Managers should read the Faragher case — it takes 20 minutes; by understanding the underpinnings of the law, managers will know why their handbook says what it says, how to identify and prevent harassment, and what to do, and what not to do, when harassment is alleged.
  • Leaders should constantly assess company culture; live by the credo:  “There are no bad teams, only bad leaders.”
  • Leaders should focus on hiring and training those people who will fit within a culture that condemns and punishes discrimination and harassment.
  • Contact counsel when there is a potential complaint about harassment or discrimination; such complaints rarely occur, and, in my experience, are often addressed and resolved quickly and inexpensively with an experienced hand and laser focus.
  • Once a complaint of harassment is reported, understand that any discipline or negative treatment towards the complainant will bring a high risk of a retaliation claim.
  • Do not overlook inappropriate, stray comments; instead, view them as red flags to monitor or act on immediately to get ahead of a larger problem.
  • Detach and observe how managers and employees treat each other at the office, in the field, and at social events.  Thinking or saying “he’s just like that” or “that’s just who he is” is unacceptable when dealing with someone conducting themselves in a way that is unaligned with your company’s culture.
  • Do not slide:  review this bullet point list once every quarter and ask:  “is our company doing these relatively simple things to prevent and/or deal with sexual harassment and discrimination”?

CONCLUSION

To understand the root problem and cure for sexual harassment one should do more than adopt wooden, form policies from attorneys or websites.  Instead, endeavor to understand the “culture” in which sexually harassment thrives.

Once one understands the roots of sexual harassment, it is far easier to avoid it in the first instance and, failing avoidance, to identify, combat and eradicate the ugly disease.

EPILOGUE

Here is a fascinating footnote about Title VII’s enactment:  Unlike today, when congressional votes are typically cast along party lines, in 1964 Title VII’s vote occurred along geographical lines — with the North for Title VII and the South against.

The House vote:

  • Southern Democrats: 7–87   (7–93%)
  • Southern Republicans: 0–10   (0–100%)
  • Northern Democrats: 145–9   (94–6%)
  • Northern Republicans: 138–24   (85–15%)

The Senate vote:

THREE COMMON EMPLOYER MISTAKES HIGHLIGHTED IN 11.9 MILLION DOLLAR SEXUAL HARASSMENT VERDICT

Last Wednesday a federal jury handed down a $11.9 million verdict in favor of a toy company employee.  The huge verdict is the result of three common mistakes I have seen many businesses make over the course of my career:  (1) having poorly written complaint procedures in their employee handbooks; (2) failing to train and oversee management; and (3) commingling the business and human resource operations of parent, subsidiary, and related entities — which can result in the “joint employer” liability of all entities for just one supervisor’s misconduct.

THE TOY COMPANY CASE IS A CAUTIONARY TALE

Danielle Rennenger  worked at a ToyQuest call center in Iowa.  According to the Des Moines Business Record, Renneger alleged in her lawsuit that her direct supervisor and a co-worker created a hostile work environment with vulgar and harassing remarks as well as gestures and physical advances toward Rennenger and other women. At one point, the supervisor grabbed Rennenger’s head and forced it into his crotch.

“Danielle tried to complain and get them to stop, but Downey basically told her that Hong Kong, referring to the owners, doesn’t care about women,” according to a release from the Newkirk Zwagerman law firm, which represents Rennenger and other plaintiffs.

U.S. District Judge James Gritzner said in an August 3 ruling, “Fundamentally, we know that there’s really no dispute about what happened to Ms. Rennenger in terms of the call center and the behavior of people in the call center.”

After hearing the evidence, a federal jury  awarded Rennenger $10 million in punitive damages, $1.8 million for past and future emotional distress, and nearly $83,000 in lost wages.

Sexual harassment lawsuits brought by other ToyQuest employees are also pending.

MISTAKE NUMBER ONE:  TOYQUEST DID NOT HAVE AN ADEQUATE COMPLAINT POLICY 

The ToyQuest case judge noted that “[I]t seems rather clear in this record that it was very difficult for employees there to know how to proceed in the event that their supervisor was actually the harasser.”

Failing to have a clear policy as to how victims of sexual harassment and discrimination can complain — especially when management or ownership is alleged to be the harasser —  is a surefire way for businesses to get in trouble.  The typical mistakes I see are poorly drafted policies, policies that do not reflect the actual organizational structure of the subject company, policies that contradict themselves, and policies that are hard to understand or are ambiguous.

Avoid mistake number one:  have a bombproof complaint and sexual harassment/discrimination policy and review it annually with counsel.

MISTAKE NUMBER TWO:  TOYQUEST DID NOT TRAIN AND OVERSEE MANAGEMENT

ToyQuest management at the Iowa call center was out of control.  Management training and oversight is critical to create a management team and work environment that is free from harassment and discrimination.  Equally so, management training is essential so that management knows how to apply and comply with the complaint provisions in the employee handbook.

Avoid mistake number two:  conduct periodic management training with counsel and stay ahead of the myriad of problems that come with ignorant or undertrained management.

MISTAKE NUMBER THREE:  TOYQUEST APPEARS TO HAVE COMMINGLED ITS DIVISION’S BUSINESS OPERATIONS

After the lawsuits were filed ToyQuest’s parent company created multiple companies, apparently in an effort to avoid liability, according to Rennenger’s lawyers.  The federal judge agrees:  “And there is a very complex series of positions that the various companies have taken here absolutely contradictory of one another in terms of their relationship and how they were set up. Depending upon which executive you talk to, you get a completely different version of how the call center was set up and who employed those people. In the process of looking at the entire picture of this case, there is substantial evidence of active avoidance of liability,” he said in the Aug. 3 ruling.

If your company has a parent, subsidiary, or related company, it is very easy to expose all your businesses to liability for the “sins” of one.  For example, running HR operations from a central location can expose your businesses to the claim that they are a “joint employer” and thus all liable for harassment which occurred only at one business.

Avoid mistake number three:  if you are operating more than one business and are concerned regarding commonality of operations, ownership, or control  — factors which can expose all the businesses to joint employer liability — contact counsel to determine methods to keep the businesses separate.

Don’t be like ToyQuest.  Instead, understand “joint employer” liability before your businesses  — emphasis on plural — get sued and make any necessary changes.

CONCLUSION

Businesses should stay ahead of harassment, discrimination, and joint employer problems by staying proactive with their policies, training, and organizational structuring.  ToyQuest had the chance to do these things but failed — abysmally — to do so.

Speaking of failing to take advantage of a chance to do something the right way, enjoy “I Had My Chance” by Morphine, one of my top ten favorite blues songs: