What Does The Future Hold For Severe Obesity Claims Under The ADA?

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

The Fall Edition of Professional Liability Defense Quarterly, published by the Professional Liability Defense Federation, features an article by Robert G. Chadwick, Jr. entitled “What Does The Future Hold For Severe Obesity Claims Under The ADA?

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Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor and employment law issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com.

Combating Sexual Harassment By Narcissists

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

Much has been written recently about the rise of individualism in America. Some psychologists have even posited that the most severe form of individualism, narcissism, has become an epidemic in this country. See The Narcissism Epidemic: Living in the Age of Entitlement, by Jean M. Twenge, Ph.D., and W. Keith Campbell, Ph.D. (2010).

The term “narcissism” has both clinical and subclinical meanings. The clinical meaning is set forth in the DSM-IV-TR, which defines Narcissistic Personality Disorder (NPD) as “an all-pervasive pattern of grandiosity (in fantasy or behavior), need for admiration or adulation and lack of empathy ….” Drs. Twenge and Campbell estimated 1 in 16 of the general population have experienced NPD.

The broader subclinical meaning of narcissism is self absorption to the point of having little or no empathy for others. Some studies estimate that around 17% of the general population have experienced subclinical narcissism. Some industries, such as the financial sector, may have an even higher percentage.

One consequence of narcissism is intolerance for information which challenges a person’s belief system. In a May 31, 2017 article, Tom Nichols, a Professor at the U.S. War College and the Harvard Extension School, opined that this disregard isn’t just human nature, but a product of growing narcissism: “Surrounded by affluence, enabled by the internet, and empowered by an educational system that prizes self-esteem over achievement, Americans have become more opinionated even as they have become less informed, and are now utterly intolerant of ever being told they’re wrong about almost everything.”

Another consequence of narcissism is disregard for other people’s sensitivities. Indeed, exploitation of others is classic narcissistic behavior.

Predictably, these consequences of narcissism present formidable obstacles in traditional sexual harassment training. Such training normally aspires to achieve four goals – (1) increased awareness of types of gender discrimination, (2) increased awareness of the laws against discrimination and harassment, (3) review of the employer’s sexual harassment policy (including how to file complaints), and (4) alteration of employee attitudes about what type of behaviors in the workplace are wrong.  These are the four goals achieved by an online sexual harassment training video developed by New York City in 2018 for private employers.

For the narcissist, the reaction to such traditional training can be apathy, boredom, amusement or even ridicule. Worse, the training may lead him or her to believe sexual harassment is not a big deal.

Indeed, one study found that men who score high on a likelihood to sexually harass showed greater acceptance of sexual harassment after training than before training. See Lori A. Robb & Dennis Doverspike, Self-Reported Proclivity to Harass as a Moderator of the Effectiveness of Sexual Harassment-Prevention Training, 88 Psychol. Rep. 85 (2001). Another study indicated that men who completed harassment training were more likely to believe that both parties contribute to inappropriate sexual behavior. See Shereen G. Bingham & Lisa L. Scherer, The Unexpected Effects of a Sexual Harassment Educational ProgramThe Unexpected Effects of a Sexual Harassment Educational Program, 37 J. Applied Behav. Sci. 125 (2001). Still another study showed that personal attitudes of participants toward sexual harassment were minimally changed or completely unchanged after training. See Vicki J. Magley et al., Outcomes of Self-Labeling Sexual Harassment, 84 J. Applied Psychology, 390 (1999).

So, how can an employer overcome these shortcomings of traditional harassment training for employees inclined to narcissism?

The short answer may be as simple as a reminder of the personal stake of all employees in maintaining a work environment free of sexual harassment. This personal stake can include continued employment with the employer and personal liability under certain state laws. For the self-absorbed personality, self preservation may be the only interest which motivates compliance with an employer’s sexual harassment policy.

In fact, Jonathan Segal is quoted in the June 2016 Report of the EEOC Select Task Force on the Study of Harassment in the Workplace as advocating such an approach to all sexual harassment training. In describing this approach, he said: “[Compliance training] is not training to change your mind. It is training to keep your job.”

Of course, an employer must follow through on any warning that compliance with sexual harassment policies is essential to continued employment. In the training itself, it is helpful to cite examples of other (unnamed) employees being disciplined, terminated or sued for harassment. If the training is exposed to be a bluff, the reaction of a narcissist may be more dire than if the training never occurred.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com

Why Your Workforce Should Not Be Debating Trump’s Tweets

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

In a tweet on July 27, 2019, President Trump described Representative Elijah Cumming’s Congressional District in Baltimore as “a disgusting, rat and rodent infested mess.”

On July 14, 2019, President Trump also tweeted: “So interesting to see ‘Progressive’ Democrat Congresswomen, who originally came from countries whose governments are a complete and total catastrophe, the worst, most corrupt and inept anywhere in the world (if they even have a functioning government at all), now loudly… and viciously telling the people of the United States, the greatest and most powerful Nation on earth, how our government is to be run. Why don’t they go back and help fix the totally broken and crime infested places from which they came.”

Not surprisingly, these tweets are a hot topic of debate across America. On one side of the debate are those who describe President Trump’s tweets as racist. On the other side of the debate are those who describe the accusations of racism as hypocritical, partisan or unfounded.

So, why should such debates be avoided in the workplace? The answer is two-fold:

First, the debates themselves may be cited as part of a charge or lawsuit alleging race discrimination or harassment under Title VII of the Civil Rights of 1964 (“Title VII”), the Civil Rights Act of 1866 or state or local law.

To illustrate this point, consider the debate which continues today regarding the 1995 murder trial of O.J. Simpson. Workplace remarks stemming from such debate are still cited as evidence in cases alleging race discrimination or harassment in employment. In Chattman v. Toho Tanex America, Inc., 686 F.3d 339 (6th Cir. 2012), for example, the claim that a human resources manager was racially biased included a joke as to O.J. Simpson’s innocence. A racially-charged disagreement as to the O.J. Simpson verdict was also at the heart of a race discrimination claim in Campbell v. Hamilton County, 2001 WL 1322785 (6th Cir. Oct. 17, 2001).

Other racially-charged debates have been referenced in race discrimination cases. In David v. Trugreen Partnership, Ltd., 1999 WL 288686 (N.D. Tex. May 5, 1999), it was a debate regarding the trial of police officers who had allegedly beaten Rodney King. In Neal v. Whole Foods Market Company, Inc., 2018 WL 2219362 (E.D.La. May 15, 2018), it was a discussion regarding Bill Cosby’s alleged sexual misconduct.

Second, the very nature of the debate surrounding President Trump’s tweets forecloses any argument the debate is benign as a matter of law.

Take for example the evidence at issue in EEOC v. WC&M Enterprises, Inc., 496 F.3d 393 (5th Cir. 2007).  In this case, the plaintiff was an Indian and practicing Muslim who alleged a hostile environment at work. The U.S. District Court for the Southern District of Texas granted summary judgment in favor of the employer, but the Fifth Circuit reversed. As grounds for reversal, the Fifth Circuit said sufficient evidence existed to support the claim that the plaintiff was discriminated against on the basis of national origin and religion. This evidence included the taunt: “Why don’t you just go back where you came from if that is what you believe?”

In Siam v. Porter, 2006 WL 1530155 (N.D.Cal. June 5, 2006), a Title VII case alleging race and national origin discrimination, a federal court cited evidence that a decision-maker harbored prejudices against Asians generally, and Filipinos in particular. Such evidence included a complaint by the decision-maker that an Asian family had moved in next door and caused a cockroach infestation.

To be sure, not all remarks made during a racially-charged debate will support a claim of race bias. As many employers already know, however, even frivolous lawsuits cost money to defend.

Especially as to a newsworthy racially-charged debate, such as President Trump’s tweets, the urge to take a side can be overwhelming. Where the debate spills into the workplace, however, the risk to an employer is a costly claim or litigation. Employer inaction or acquiescence only increases this risk.

Prudent risk management thus dictates that an employer include debates rooted in race amongst prohibited activities in the workplace. Better yet, such a prohibition should be part of the employer’s discrimination and harassment training program.

[This post is an update from a May 2018 post entitled “Why Your Workforce Should Not Be Debating Roseanne’s Demise!]

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com

Supreme Court To Decide Whether Title VII Bars LGBT Discrimination

The Summer 2019 Edition of Professional Liability Defense Quarterly, published by the Professional Liability Defense Federation, features an article by Robert G. Chadwick, Jr. entitled “Supreme Court to Decide Whether Title VII Bars LGBT Discrimination.”

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Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor and employment law issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com.

 

Supreme Court To Hear Three LGBTQ Discrimination Cases

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On Monday, April 21, 2019, the U.S. Supreme Court agreed to hear, during the 2019-2020 term, three cases alleging sex discrimination in employment under Title VII of the Civil Rights Act of 1964 (“Title VII”). These three cases provide the Court an opportunity to  decide whether Title VII’s bar against sex discrimination extends to discrimination based upon sexual orientation and gender identity.

Zarda v. Altitude Express, Inc.

On February 26, 2018, the Second Circuit ruled en banc that Title VII bars discrimination based on sexual orientation. The Court opined: “… the most natural reading of the statute’s prohibition of discrimination “because of sex” is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.”

Bostock v. Clayton County Board of Commissioners 

On May 10, 2018, the Eleventh Circuit reached a different conclusion as to whether Title VII bars discrimination based upon sexual orientation.  In doing so, the Court followed 1979 precedent from the 11th Circuit holding that “discharge for homosexuality is not prohibited by Title VII.”

EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.

On March 7, 2018, the Sixth Circuit ruled that “[d]iscrimination on the basis of  transgender and transitioning status is necessarily discrimination on the basis of sex …”  The Court clarified that “discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping.”

Takeaways for Employers

As observed in a March 2018 post on this blog, a new wave of lawsuits alleging LGBTQ discrimination in employment had begun long before the Zarda ruling on February 26, 2018. Even in circuits which, as the Eleventh Circuit, have rejected the application of Title VII to LGBTQ claims, the chance that the Supreme Court may overturn such precedent has provided hope that such suits can ultimately prove successful.

To be sure, the Supreme Court may ultimately decide that Congressional, not judicial, action is needed to expand the scope of Title VII to include sexual orientation and gender identity discrimination. Such a decision, however, may not come until 2020. In the meantime, employers must manage the risk of LGBTQ lawsuits even in states which do not have state or local laws barring such discrimination.

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Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com

Hateful Conduct or Hate Hoax? Important Lessons For Employers

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

According to FBI statistics, hate crimes rose 17% in the U.S. in 2017. Amongst the motivations for hate crimes tracked by the FBI are “race/ethnicity/ancestry bias”, “religious bias”, “sexual orientation bias”, “disability bias” and “gender bias.” 

The FBI does not similarly document the number of false allegations of hate crimes. Recent events, however, have shown that hate hoaxes are real.

On January 29, 2019, actor Jussie Smollett, who is black and gay, claimed to have been attacked in Chicago by two masked men. According to Smollett, the two men yelled racist and homophobic slurs, wrapped a rope around his neck, physically assaulted him and poured a substance over him. The media, politicians and entertainers were quick to condemn the incident as a hate crime.

Paradoxically, what started as a police investigation of a hate crime, quickly became an investigation of a hate hoax. On February 20, 2019, Smollett was formally charged with filing a false police report.

In 2017, the Jackson, Michigan home of Nikki Joly, a prominent member of the local LGBTQ community, was burned to the ground. The FBI initially regarded the incident as a hate crime. A Jackson newspaper named Joly its 2018 Citizen of the Year. After a lengthy investigation, Joly was surprisingly charged in 2018 with first degree arson in burning his own home.

Just as in society as a whole, hateful conduct continues to be an unfortunate reality in the workplace. Indeed, most employers understand their legal obligations to take reasonable measures to prevent such conduct and to take prompt remedial action in response to such conduct. Recent hate hoaxes nevertheless underscore three important lessons in exercising these legal obligations.

Lesson 1: Take All Allegations of Hateful Conduct Seriously

The possibility of a hate hoax does not diminish an employer’s obligations to be vigilant in remediating hateful conduct in the workplace. This duty requires that all explanations be considered, including the explanation that the allegation is truthful.  

A hate hoax thus cannot be the first and certainly not the only explanation embraced by an employer for alleged hateful conduct. The risk of precipitously embracing such an explanation is that it may ultimately prove to be wrong. Any action subsequently taken against the accuser could then result in a discrimination claim. Even worse, the accused may only be emboldened to engage in other misconduct in the future.

Lesson 2:  Look Beyond Mere Appearances

The possibility of a hate hoax does underscore the importance of a thorough investigation of alleged hateful conduct. This duty requires that all explanations be considered, including the explanation that the allegation is untruthful.  

What may appear at first to be a clear case of misconduct by the accused may through further investigation be revealed to be a case of misconduct by the accuser. The risk of a rush to judgment is that the accused may be wrongfully punished, and the accuser may be wrongfully rewarded. Any action taken against the accused could then be the basis of a reverse discrimination claim against the employer. Having been successful in one hoax, the accuser may also be encouraged to undertake other hoaxes in the future.

Lesson 3: Be Objective

The possibility of a claim by the accused or accuser does mandate an objective response by an employer to allegations of hateful conduct. Even as to conflicting accounts, such a claim can simply be based upon alleged favoritism in the employer’s response.

For some employers, such alleged favoritism may lean toward the conclusion of a hoax.   The alleged reasons for such favoritism can include (1) the prospect of punishing or losing the accused employee, especially if he or she is a productive employee, (2) the fear of finding evidence of its own culpability in failing to prevent the misconduct, or (3) previous performance or conduct issues of the accuser employee.

For other employers, such alleged favoritism may lean toward the conclusion that hateful conduct occurred. The alleged reasons for such favoritism can include (1) fear of suit by the accuser, (2) fear of backlash by the accuser’s community, (3) empathy for the accuser’s status, or (4) past discriminatory behavior by the employer.

In responding to allegations of hateful conduct, employer must thus avoid even the appearance that the process is being influenced by favoritism in either direction. The risk of not heeding this advice is a costly discrimination or reverse discrimination claim.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com

“Dog Whistle Racism” In The Workplace

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

In today’s politically and culturally divisive environment, the term “dog whistle” has taken on a new meaning. Traditionally, the term refers to an ultrasonic whistling sound heard by dogs but inaudible to humans. Now, the term is more frequently used to denote code words that are facially innocuous, and are thus understood by many to be neutral or innocent, but are nevertheless understood by others, to whom the words may be targeted, to have a more malevolent meaning.

In the racial context, dog whistling is more than the mere substitution of a seemingly race-neutral term for a slur universally associated with racism, such as the n-word. It also includes statements intentionally calculated by the speaker to stoke fear or prejudice in others. Dog whistling can thus function not only as a mask of racism, but as a catalyst for racism.

As employers already know, employee communications are no longer confined to the walls of the workplace. They take place in social media, texts, electronic mail, and instant messaging. Some social media platforms even allow communications to be anonymous.  The danger of “dog whistle racism” infecting the workplace has thus never been greater.

Employment Discrimination Law

Employment discrimination jurisprudence was slow to recognize the notion that a facially non-discriminatory remark can nevertheless be regarded as racist by certain employees. As late as 2005, the Eleventh Circuit in Ash v. Tyson Foods, Inc., thus refused to acknowledge that the use of the word “boy” in reference to African American employees was probative of racial bias by a plant manager who made hiring decisions. The court opined: “While the use of ‘boy’ when modified by a racial classification like ‘black’ or ‘white’ is evidence of discrimination, the use of ‘boy’ alone is not evidence of discrimination.”

Upon appeal, the U.S. Supreme Court disagreed:

“Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.”

The Court thus rejected the claim that a modifier or qualification was necessary to make the term “boy” potentially racist.

Despite the slow start, U.S. Courts of Appeal now acknowledge that many code words associated with “dog whistle racism” can be probative evidence of racial discrimination and harassment. In Smith v. Fairview Ridges Hosp., an Eighth Circuit opinion, these words were “fried chicken” and “ghetto.” In McGinest v. GTE Service Corp., a Ninth Circuit ruling, the word was “drug dealer.” In Abramson v. William Paterson College of N.J., a Third Circuit decision, the words were “all of you” and “one of them.” In Aman v. Cort Furniture Rental Corp., another Third Circuit determination, the statements were “don’t touch anything” and “don’t steal.”

In the U.S. District Courts, even more racist code words have been recognized. These words have included “welfare queen”, “Aunt Jemima”, “Buckwheat”, “terrorist”, “thug”, “illegal alien” and “slave driver.”

Drawing the line between race-neutral statements and racially charged code words, however, has proven to be difficult for some U.S. District Courts, resulting in seemingly inconsistent results. In Humphries v. City University of New York, for instance, the U.S. District Court for the Southern District of New York found the words “aggressive, agitated, angry, belligerent, disruptive, hands on hip, hostile [and] threatening” to be insufficient to reveal discriminatory animus. Last year, in Wooding v. Winthrop University Hosp., the U.S. District for the Eastern District of New York nevertheless found it plausible that the words “disrespectful” and “overbearing” were code words for racial discrimination.

The Challenge for Employers

To borrow one U.S. District Court’s phrase, it is not always easy for employers to “hear racism sung in the whistle register.” After all, employees may be deliberately using code words to conceal racist concepts from their employer. It is thus possible for employees to expose an employer to potential liability under Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1866 even as to words which the employer understands to be non-discriminatory.

The first step to meeting this challenge is the recognition that remarks may have different meanings for different people. Perhaps more important than the substance of words being used by an employee is the intent of the person using the words. As the Supreme Court recognized, “context, inflection, tone of voice, local custom, and historical usage” can be revealing of this intent.

This first step can then be followed up with workplace policies and training which address not only commonly recognized racist slurs, but also communications understood to be racist by only a select group of people. In this regard, employers should not underestimate the value of their own employees in revealing previously unknown code words.

Social media and harassment policies and training must also address the reality that communications amongst employees away from the workplace can nevertheless impact the work environment. Myopic policies confined to the workplace are simply inadequate in the electronic age.

Finally, employers must now be receptive to complaints by employees which not long ago would have been summarily dismissed. They must learn to ask why seemingly race neutral words are offensive. They must also be prepared to investigate social media messages for their employees even if the messages are posted anonymously. As many employers have already learned the hard way in litigation, quick judgments based upon antiquated presumptions can be a costly mistake.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com

What Lessons Can Employers Learn From The Kavanaugh Hearings?

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

Last week, millions watched the Senate Judiciary Committee hearings with Dr. Christine Blasely Ford and Supreme Court nominee Brett Kavanaugh. The hearings were reminiscent of the Senate Judiciary Committee hearings in 1991 with Anita Hill and then Supreme Court nominee Clarence Thomas.

To be sure, the Senate hearings were radically different from sexual harassment investigations routinely conducted at workplaces across the country. The challenges presented at the hearings nevertheless provide important lessons for employers. As most employers already know, the stakes in such investigations are (1) employee well-being and productivity, (2) employee turnover, and (3) potential legal exposure under federal, state and local employment laws.

Take All Reports of Sexual Harassment Seriously

Upon receipt by an employer, a report of sexual harassment may immediately appear to be of questionable credibility. Such questionable credibility may be due to (1) the age of the conduct reported, (2) an ulterior motivation by the alleged victim or other employees, (3) memory gaps, or (4) the absence of corroborating witnesses or other evidence.

There are inherent risks for an employer, however, in a rush to judgment as to a questionable report of harassment. First, the report may prove to have more credibility with further investigation. It is more prudent that the employer to conduct such an investigation than a government agency or plaintiff’s counsel.

Second, the report may be part of a greater sexual harassment problem which exists at the employer. An investigation of the report may be the only means of promptly addressing the greater problem, before it becomes worse.

Finally, the manner in which an employer handles a report of sexual harassment can encourage or discourage future reports of harassment by the alleged victim and other employees.  An employee who feels discouraged from reporting harassment may opt to (1) withhold information thereby allowing a bad situation to become worse, (2) quit, or (3) report such harassment in the form of a charge of discrimination or lawsuit.

Mitigation of these risks thus dictates that all reports of sexual harassment be taken seriously.

Take the Time Needed

Since federal and state employment discrimination laws mandate that prompt remedial action be taken by an employer in response to a report of sexual harassment, a sense of urgency must exist in any investigation. The danger of an artificial deadline, at the expense of a more thorough investigation, however, is that the employer will deprived of information necessary to mitigate the risks associated with sexual harassment.

Completeness is thus always a more prudent goal than expediency in any sexual harassment investigation.

Be Thorough

There are certainly times when an investigation presents hurdles for an employer. Such hurdles include (1) less than cooperative witnesses, (2) unreliable memories, and (3) witnesses represented by legal counsel.

Without reasonable efforts to be thorough, however, a sexual harassment investigation is vulnerable to a claims of bias.  The goal of an employer, therefore, should be reasonably diligent efforts to obtain any relevant information regardless of its evidentiary value.

Be Objective During Investigation

At the outset of a sexual harassment investigation, an employer may be predisposed to believe the accuser or the accused. The reasons for such predispositions include (1) prior dealings with the accuser or accused, (2) the relative values to the employer of the accuser and accused, (3) fear of litigation, and (4) the predominant gender of the employer’s leadership.

A less than partial investigation of a report of sexual harassment, however, can undercut rather than support an employer’s defense to a claim of discrimination or retaliation. An employer must thus be proactive in making sure the investigation is objective.  This means taking steps to (1) neutralize any predispositions during the investigation, (2) ensure that the investigation looks for all relevant information regardless of whether the information supports the accuser or accused, (3) evaluate objectively information learned during the investigation, and (4) otherwise preserve the integrity of the investigation.

Be Objective After Investigation

After an impartial investigation is concluded, the employer still risks legal action for discrimination and retaliation by (1) openly commenting on the credibility or motivation of the accuser, (2) openly commenting on the hardship suffered by the accused and the accused’s family, (3) leaking information learned during the investigation, or (4) lamenting the time and resources spent on the investigation.

Prompt remedial action in response to a report of sexual harassment does not mean that the employer must necessarily take a side. Such action need only be limited to remedial steps, which generally do not entail attacks on the accuser or accused.   

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com

Combating Sexual Harassment In An Open Office Environment

By Robert G. Chadwick, Jr, Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

For the past several years, studies have debated the benefits and detriments of open offices as viable working spaces. One of the benefits touted by open plan proponents is the deterrence of employee misconduct, such as sexual harassment, that privacy often enables.

Even in an open office, however, the risk of sexual harassment persists, albeit in forms unique to the work environment. The absence of walls and barriers may even provide more, not less opportunities for subtle forms of harassment. After all, open floor plans are specifically designed to facilitate close interaction among employees.  

A new study entitled “Doing gender in the ‘new office’” published in the journal Gender, Work and Organization, for instance, shows that open areas may subject female employees to increased leering or staring by male employees, and more comments regarding their personal appearance.

Other risks of an open layout include looming, crowding, brushing and stalking. Seemingly innocuous gestures, words and phrases by employees may actually have sexual connotations.

The formation of employee cliques is also a danger of an open office. Employees huddled together and whispering and giggling may seem innocent to some, but may actually be perceived by others as a form of harassment.

The more open an office environment, moreover, the greater the threat of ostracization of an employee or group of employees. Ostracization can be a powerful form of harassment or retaliation for a complaint of harassment. Fear of ostracization can also deter complaints of harassment.

In some respects, an open office environment may even be more hostile to an employee than a traditional office environment. Without walls or barriers, the employee is constantly sensitive to the surroundings. With no office or cubicle to which the employee can retreat, the affect of harassment can be constant throughout the work day.      

In implementing strategies for combating sexual harassment, employers must thus be mindful of the unique risks presented by an open office. Harassment and retaliation policies and training should address not only overt forms of harassment, but also subtle forms of harassment. Supervisors should be trained to detect and redress subtle forms of harassment. Employees should have private avenues for reporting harassment without fear of retaliation. Without a strategy tailored to an open office environment, the employer risks poor work performance, attrition and legal liability.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com

Why Your Workforce Should Not Be Debating Roseanne’s Demise!

By Robert G. Chadwick, Jr, Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

The cancellation of the ABC comedy series Roseanne in the wake of allegedly racist tweets by the show’s star, Roseanne Barr, is undoubtedly a hot topic of debate across America. On one side of the debate are those who subscribe to the view ABC did the right thing. On the other side of the debate are those who believe ABC acted precipitously.

So, why should such debates be avoided in the workplace?  The simple answer is the debates may be cited as part of a charge or lawsuit alleging race discrimination or harassment under Title VII of the Civil Rights of 1964 (“Title VII”), the Civil Rights Act of 1866 or state or local law.

To illustrate this point, consider the debate which continues today regarding the 1995 murder trial of O.J. Simpson. Workplace remarks stemming from such debate are still cited as evidence in cases alleging race discrimination or harassment in employment. In Chattman v. Toho Tanex America, Inc., 686 F.3d 339 (6th Cir. 2012), for example, the claim that a human resources manager was racially biased included a joke as to O.J. Simpson’s innocence. A racially-charged disagreement as to the O.J. Simpson verdict was also at the heart of a race discrimination claim in Campbell v. Hamilton County, 2001 WL 1322785 (6th Cir. Oct. 17, 2001).  

Other racially-charged debates have been referenced in race discrimination cases. In David v. Trugreen Partnership, Ltd., 1999 WL 288686 (N.D. Tex. May 5, 1999), it was a debate regarding the trial of police officers who had allegedly beaten Rodney King. In Neal v. Whole Foods Market Company, Inc.,  2018 WL 2219362 (E.D.La. May 15, 2018), it was a discussion regarding Bill Cosby’s alleged sexual misconduct.

To be sure, not all remarks made during a racially-charged debate will support a claim of race bias. As many employers already know, however, even frivolous lawsuits cost money to defend.

Especially as to a newsworthy racially-charged debate, such as the cancellation of Roseanne, the urge to take a side can be overwhelming.  Where the debate spills into the workplace, however, the risk to an employer is a costly claim or litigation.  Employer inaction or acquiescence only increases this risk.

Prudent risk management thus dictates that an employer include debates rooted in race amongst prohibited activities in the workplace. Better yet, such a prohibition should be part of the employer’s discrimination and harassment training program.

Photo credit:  Stand-Up Sucks, LLC

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com