Atlanta Employment Lawyer Blog

Many times retaliation claims may be brought and won even where it may not be possible to maintain the underlying case for harassment or employment discrimination. If you have been fired or subjected to an “adverse employment action” after complaining about behavior you believe is in violation of discrimination laws, you may have a claim for retaliation. Consulting with an experienced employment discrimination lawyer is important to determine your next steps.

In a recent Seventh Circuit case - Egan v. Freedom Bank - the court determined that a woman who complained about a male board member revealing his sexual fantasies about her could bring a claim for retaliation when she was later fired. Here Egan was the vice president of Freedom Bank and interacted with a member of the board of directors for business purposes. The board member told her that he “fantasized about making love to her on a dance floor and wanted to take her to Las Vegas and other places around the world.” Egan declined his advances and subsequently filed a claim for sexual harassment.

A few months later, Egan learned her position had been eliminated “based on financial and organizational efficiency.” Another employee reported that he overheard a conversation where the future bank president said he had heard Egan had been doing “something she should have been fired for.” He assumed the president was referring to filing the claim.

After her termination, Egan filed a lawsuit for sex discrimination, harassment and retaliation.

Continue reading "Retaliation Claim Allowed In Egan v. Freedom Bank Where Vice President Is Fired After Complaining About Sexual Harassment " »

Over the last several years employers have started to recognize that sexual comments, lewd jokes and other types of sexual behavior may make employees uncomfortable and efforts should be made to eliminate offensive behavior. Allowing unwelcome conduct to continue may create both a bad working environment and lead to sexual harassment lawsuits.

But what about when a client is the harasser? Are employees supposed to put up with crude behavior for the sake of a company?

A recent third-party harassment case out of the 4th Circuit Court said “no,” finding that an employer may be liable for sexual harassment if it allows a client to harass an employee.

In EEOC v. Cromer Food Servs. Inc., the job of Homer R. Howard, an employee of CFS, a food-stocking company, was to go to clients’ businesses and stock their vending machines. On a daily basis while at a client's business Howard was stalked, called names and questioned about his sexual orientation.

Howard complained to CFS – including three supervisors, a manager and chairman of the board of directors of CFS - but nothing was done. CFS called Howard a “cry baby” and said that they couldn’t do anything about the harassment because the harassers weren’t under the control of the company.

The appeals court disagreed, determining that “CFS is liable if it knew or should have known of the harassment and failed to take appropriate actions to halt it.”

Continue reading "Allowing Clients To Harass Employees May Lead To Lawsuits" »

If you’re the victim of sexual harassment and you complain to management about the offending behavior, what actions must the company take?

This question is at the root of many work-place disputes.

A recent case from the Tenth Circuit, which includes Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah, questioned if a nursing home did enough in response to an employee’s complaints of harassment. In Aguiar v. Bartlesville Care Ctr., a nursing assistant complained to officials that a resident was groping her - kissing her had, touching her buttocks, and pulling her on top of him. She also complained that he was verbally harassing her.

In response to her complaints, nursing home officials talked to the resident and required that two care givers be present when attending to the patient. The nursing home also provided that different caregivers give him his medicine. The nursing assistant claimed that these actions were not enough. Because the resident was free to move about the nursing home, he continued to seek out the nursing assistant and harass her. In one incident, after “exchanging words” the resident made a threatening hand gesture and pushed the assistant into a medicine cart.

Continue reading "Could Nursing Home Have Done More To Prevent Sexual Harassment?" »

An Oklahoma judge recently ruled that your past sexual experiences do not affect your right to bring a case for harassment. In a lawsuit against Digicut Systems, a judge determined that a former prostitute – Susan Terry - could bring a case for sexual harassment. Terry, who had previously run a tanning salon that doubled as a brothel, said that her supervisor at Digicut made unwanted and offensive sexual advances toward her.

A main issue in sexual harassment cases is if the person claiming harassment truly feels uncomfortable and offended by the sexual conduct. Each case is different and depends on how the unwelcome conduct makes the specific person claiming harassment feel. Digicut argued that Terry couldn’t feel offended because in the past she had acted “much more sexually inappropriate” than the actions she is suing for.

Terry responded that she had changed her ways since being convicted in 2000 of prostitution, and now was a married woman and a “committed Christian.”

The judge left the decision of whether she felt harassed for a jury to decide, but stated that a person’s past sexual history should not determine whether you have a legitimate harassment claim.

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In late August, the U.S. Court of Appeals for the Seventh Circuit held that “one action” is sufficient to create a hostile work environment claim if it is sufficiently severe, especially uninvited, physical and intimate, bodily contact.

In Berry v. Chicago Transit Auth., Cynthia Berry sued the Chicago Transit Authority under Title VII of the 1964 Civil rights Act alleging sex discrimination and hostile environment harassment. At issue, an incident where Berry was playing cards with co-workers. She was asked to move to allow another employee to play, but refused to do so. A male co-worker then allegedly picked her up by her breasts and rubbed his body against hers before bringing her down to the ground forcefully and pushing her into a fence. When Berry complained to her manager, he responded that she was a “pain in the butt” and could lose her job if she filed a complaint.

In order to prove a case for sexual harassment, you must show that you have been subjected to unwelcome conduct that creates a hostile environment based on your sex that is sufficiently severe and pervasive to alter the terms and conditions of your employment.

Here, the federal trial court dismissed all claims. On appeal the 7th Circuit held that the dismissal was in error, explaining that the co-worker’s actions as alleged “qualify undeniably as unwelcome sexual conduct that establishes a hostile work environment.”

Further, because all inferences must be drawn in favor of the plaintiff, a reasonable fact finder could find that manager thwarted any legitimate investigation and a hence, the CTA was negligent – or worse – in responding to her report of harassment.

Continue reading "If Severe Enough, One Action Can Constitute A Hostile Environment" »

In a recent Second Circuit Court of Appeals decision, the court determined that a female could pursue a claim of gender discrimination based on sexual harassment and disparate treatment against Verizon Communications, Inc., pursuant to Title VII of the 1964 Civil Rights Act. The 2d Circuit reversed the lower court decision.

Although sexual harassment is one of the most well known forms of employment discrimination, it is also hard to define. It is not single instance of name calling, requesting a date or inappropriate touching. Rather, it is necessary to show that you’ve been subjected to unwelcome conduct that creates a hostile environment. This conduct must be so sufficiently severe and pervasive that it alters the terms and conditions of your employment.

In addition to sexual harassment claims, employees may bring sex discrimination charges where an employer takes adverse employment actions against you because of your sex. This includes failures to hire or promote, and disparate treatment concerning pay, disciplinary actions, suspensions and discharges.

In Pucino v. Verizon Commc’ns Inc., a female cable technician alleged that a male foreman repeatedly referred to her using an “intensely degrading epithet”” and that after she complained of discrimination, she found a large dead snake in her work truck. The technician also claimed that they assigned her less desirable work than male technicians, was required to work in unsafe locations, and the foremen ignored her requests for help. After complaining of disparate treatment, she was told to “get lost” or “go kill yourself.”

A unanimous appeals panel determined that based on these actions a reasonable jury could find that the alleged abuse was “sufficiently severe and pervasive” and that the disparate treatment regarding work assignments, discipline, and access to needed equipment was based on her sex. Further, the 2d Circuit held that although the use of derogatory gender-based verbal abuse may not automatically command an inference of gender based hostility, its repeated use along with other instances of abuse was sufficient to support the inference.

Continue reading "Verizon Technician Raises Triable Claim Of Sexual Harassment " »

Actions constituting sexual harassment or those that create a hostile work environment can take many forms such as lewd comments, inappropriate touching, and sexually explicit joke telling. Despite the sexual nature of the harassment – actual sexual desire or attraction need not exist to support an inference of sexual discrimination.

In a recent sexual harassment case, Rosario v. Dep’t of Army, the U.S. Court of Appeals for the First Circuit court ruled that the lower court’s focus on whether a sexual attraction between the harasser and the employee existed was misdirected. Citing Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the court noted that no requirement exists that the hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures. Rather, circumstantial evidence showing a hostile work environment is sufficient.

In Rosario, the supervisor’s actions in commenting on an employee’s body and underwear everyday, calling co-workers’ attention to her body and underwear and repeating sexually oriented jokes could create an inference that the superior’s behavior was improperly motivated by gender. As a result, the Court held that a reasonable jury could find that the employee was exposed to harassment that differed in both kind and degree from that imposed on male employees.

Here, the supervisor created a work environment that ultimately harmed a female employee’s emotional stability and health. Whether the supervisor had a crush or was attracted to the employee was irrelevant to the existence of a hostile environment.

Continue reading "Sexual Attraction Not Necessary For Harassment Claim" »

In a recent sexual harassment case, an administrative assistant asserted that her company’s response to her complaints of sexual harassment under Title VII of the 1964 Civil Rights Act created a hostile work environment. The U.S. District Court for the Eastern District of Pennsylvania disagreed.

In Sheer v. Motorola Inc., E.D. Pa., No. 09-209, an administrative assistant became friendly with an engineer at Motorola, exchanging social emails and gifts. The relationship started to decline and the engineer made increasingly sexual and threatening comments. After the administrative assistant complained to Motorola, the engineer was investigated, formally punished and had his duties diminished.
The administrative assistant claimed she was treated differently by co-workers after the complaint, and she subsequently lost her job a year later after a reduction in force. She then filed a lawsuit alleging violations of Title VII as a result of a hostile work environment and retaliation.

Here, Motorola’s response to the assistant’s claim was in question. After the administrative assistant complained, Motorola assembled a security team to investigate, told her to work from home, and provided her with safety advice.
The court concluded that rather than being discriminatory, these actions show that company took the woman’s complaint seriously and invested significant time and resources to resolving the matter quickly and effectively. The court also stated that if they found the company’s actions to assist the woman created a “hostile work environment” employers would be on a ‘razor’s edge’ for fear of liability for investigating too thoroughly or not investigating at all.

The court also determined that the fact that her job was eliminated nearly one year after the woman complained was not sufficient to show retaliation.

If you believe you have been subject to sexual harassment, the first thing to do is seek legal advice. Often the employer will have a policy that requires you to report the harassment to someone in authority. If you fail to do so, you risk losing your right to pursue a sexual harassment claim if the conduct persists. Here, the company responded and took actions to investigate the complaints of harassment. Often, that’s not the case. Many times when an employee complains of harassment, the employer does nothing. In situations where a company fails to respond to a complaint, you have the right to file a sexual harassment charge with the Equal Employment Opportunity Commission (EEOC), the federal agency that investigates all claims of employment discrimination. The EEOC will then investigate the charge and require your employer to investigate.

Continue reading "Security Response Does Not Create Hostile Work Environment" »

In a surprise decision, the 11th circuit has decided to rehear a claim for alleged sexual harassment and retaliation. Corbitt v. Home Depot involves two men who claim that a male human resources manager made unwanted sexual advances toward the men. When they complained, the men were allegedly fired in retaliation.

Last August the 11th Circuit Court of Appeals, which encompasses Georgia, determined that the men’s claims of sexual harassment were not sufficiently severe or pervasive to constitute sexual harassment under Title VII.

The specific actions complained of included unwanted sexual advances, inappropriate comments over the phone and in person, massages and suggestive comments. They also allege that the human resources manager rubbed up against them when they hugged.

The 11th Circuit issued a revised opinion in December, confirming the dismissal of the sexual harassment claims. However, the retaliation claims were not dismissed.
In March, the court issued an order vacating its previous opinion and requesting an en banc hearing,

Although its impossible to know what the ultimate outcome will be, it seems likely that some of the initial holding will be reversed or modified, and possibly change what constitutes sexual harassment in the 11th circuit. If the dismissal is reversed, the men will be allowed to proceed with their lawsuit.

In the 11th Circuit, in order to prove sexual harassment, you must show that you have been subject to unwelcome conduct that is “sufficiently severe and pervasive” to alter the terms and conditions of your employment.

Continue reading "11th Circuit Sexual Harrassment To Be ReHeard" »

The law of sexual harassment requires employees who believe they have been harassed to follow their employers’ anti-harassment procedures—which typically require employees to complain to a high company official in order to allow the company to remedy the situation—before they may file a sexual harassment lawsuit. A recent decision from the Eighth Circuit Court of Appeals, Adams v. O’Reilly Automotive, Inc., illustrates the perils of failing to file a timely internal complaint of sexual harassment.

In Adams, a female employee claimed that her supervisor had sexually harassed her for more than two and a half years. However she never reported the harassment to company officials, and when she did finally make a complaint through the company’s sexual harassment telephone hotline, her supervisor was almost immediately discharged.

The employee subsequently filed a sexual harassment lawsuit, but the employer moved for summary judgment. The company argued that the employee never filed an internal sexual harassment complaint despite the fact that the company had adopted and promulgated a zero-tolerance, multi-channel complaint procedure for sexual harassment claims, which the employee admitted she was aware of.

Continue reading "Sexual Harassment—Speak Now or Forever Lose your Claim" »

As we wrote in a prior post about the case of Reeves v. C.H. Robinson on sexual harassment, an employee complaining about sexual harassment in the workplace must prove that harassment was severe and pervasive, and not merely sporadic or occasional. Unfortunately for the employee in a recent case, Webb-Edwards v. Orange County Sherriff’s Office, even though she experienced considerable harassment from her supervisor, it was not severe and pervasive enough to give rise to a valid claim of sexual harassment.

Elaine Webb-Edwards was a deputy sheriff in the Orange County, Florida Sheriff’s Office. Her supervisor made a number of sexually charged comments that offended her, such as, “you look hot,” and “you’d look better if you’d wear tighter clothes.” On one occasion, when the employee and her supervisor were riding alone in a squad car, and the employee was speaking to her husband on her cell phone about lunch plans, the supervisor grabbed the phone out of the employee’s hands and told her husband, “I don’t know what you’re saying, but I’m eating your wife.”

After the employee complained about these comments, the supervisor stopped making them, but he continued to look at her from time to time in a way that made her feel uncomfortable.

The employee eventually filed a sexual harassment suit in federal court. The County, however, moved for summary judgment, which the court granted, finding that the alleged sexual harassment was not sufficiently severe and pervasive to create an abusive and hostile work environment. On the employee’s appeal, the Eleventh Circuit affirmed the judgment. The court held that even though the comments were made on a regular basis, they made the employee feel uncomfortable, and they were “taunting and boorish,” because they were not physically threatening or humiliating, and the supervisor never actually touched Ms. Webb-Edwards, a reasonable person in her shoes would not have found the supervisor’s conduct sufficiently hostile or abusive to support her claim of sexual harassment. The court did take special pains to note that although it was particularly concerned about the “eating your wife” comment, it concluded that this comment was still not sufficiently abusive, even in conjunction with the other offensive conduct, to establish a sexual harassment claim.

To get a good overview of the current state of sexual harassment law as it applies in the State of Georgia, take a look at the Webb-Edwards case as well as the Reeves case.

A good sexual harassment case has come out of the Eleventh Circuit Court of Appeals—the federal appeals court for the states of Georgia, Florida, and Alabama. In Reeves v. C.H. Robinson, a female employee claimed that for a period of almost three years there were daily instances of sexually offensive language and conduct in her workplace, including profanity that was derogatory toward women (such as “whore, bitch, tramp, slut” and even more disgusting language that we are too modest to repeat here), sexual jokes, and sexually explicit radio programs that were allowed to play in the office. The offensive conduct, however, was not specifically directed at the employee, and most of it she simply overheard during the course of her workday.

The employee eventually resigned and filed a sexual harassment charge against her employer. The lower court dismissed the case on summary judgment, holding that the harassment was not “based on” the employee’s sex because the conduct was not specifically directed at the employee, and everyone in the workplace—males and females—was exposed to it.

On appeal, the Eleventh Circuit reversed, and reinstated the employee’s case. Analyzing the “based on” requirement of the sexual harassment laws, the court ruled that “sex specific language”— which is language that is more offensive to one sex than the other—satisfies the “based on” requirement, whether or not the sexually harassing conduct was specifically directed at the employee.

Continue reading "“Sex Specific Profanity” Supports Sexual Harassment Claim" »