Title VII: Stories of Shock and Awe

2013 Webinar Series

HR Shock and Awe: What
can we learn from some of
HR’s most appalling cases?
Thursday: February 21, 2013
Presented By:
Carrie B. Cherveny, Esq.
Vice President of Employment Practices
AlphaStaff

800 Corporate Drive, Ste 600 Ft. Lauderdale, FL 33334 | 888.335.9545 Toll-Free | alphastaff.com

This presentation contains explicit
and vulgar language – we have
sanitized the information as must as
possible but in some cases the
language is important to the court’s
analysis and that language may be
alluded to in this presentation.

800 Corporate Drive, Ste 600 Ft. Lauderdale, FL 33334 | 888.335.9545 Toll-Free | alphastaff.com

Title VII of the Civil Rights Act
of 1964

Employment Discrimination Basics
• Sexual Harassment is a claim of Disparate Treatment (vs. Disparate
Impact)
• Tangible employment action
• Hostile environment = disparate treatment
• Discriminatory treatment - when members of one sex are exposed to
disadvantageous terms or conditions of employment to which members
of the other sex are not exposed
• Plaintiff must show that the employer discriminated against him/her
because of his/her membership in a protected group
• Title VII is not a general civility code
• The Vince Lombardi Rule: “Lombardi treats us all alike, like dogs!” –
• The plaintiff must prove “that similarly situated persons not of the
plaintiff’s sex were treated differently and better”

Simplifying business. Benefiting people. 4

What must the plaintiff prove in a Title VII
case?
• Employee belongs to a protected class
• Employee has been subject to unwelcome sexual harassment;
(i.e. sexual advances, requests for sexual favors, other conduct of a sexual
nature);

• Harassment is based on the sex of the employee;
• Harassment was sufficiently severe OR pervasive to alter the
terms and conditions of employment (subjectively AND
objectively) ; and
• There is a basis for holding the employer liable.

Simplifying business. Benefiting people.

How to Determine a Hostile Working
Environment
• Co-worker harassment: must show that the employer “knew or should
have known” of the harassing conduct
• Workplace conduct should be considered in context and cumulatively; not in
isolation
• May prove sexual harassment even if the conduct is not directed at the
plaintiff

Factors to consider:
• Severity of conduct;
• Frequency of conduct;
• Effect on employee’s work performance;
• Employee is subject to unwelcome conduct or advances; and
• The conduct affects a term or condition of employment.


The Faragher-Ellerth Affirmative Defense

• Not available when there is a “tangible employment action”
– Pay decrease
– Demotion
– Termination
• Available for hostile working environment claims
• Elements:
– Employer exercised reasonable care to prevent and promptly correct
any sexually harassing behavior; and
– The employee unreasonably failed to take advantage of any
preventative or corrective opportunities it provided
• Employer’s burden to establish this defense


Baldwin vs. Blue Cross/Blue Shield of AL
11th Circuit 2007

• Marketing representative for BC/BS
• Workplace filled with profanity
– General use of profanity vs. gender directed profanity
– Regular use of profanity including F-word and B-word
– Head called male employees offensive gender specific names
• Propositioned Baldwin more than once
• Asked Baldwin to spend the night, claimed he went to her
house
• Asked her to perform sexual acts
• Would come up close behind Baldwin, breathe heavily and
move the zipper to his pants up and down (at least 3x)


Baldwin vs. BC/BS cont.

• Upon being hired the following comment was made “Hey,
Baldwin, look, the only reason you are here is because we
needed a skirt in the office”
• Suggestion that Baldwin perform oral sex on him, on more than
one occasion
• The reason he made one particular hiring decision: “I need to
hire a guy for this job, a Susan Baldwin, somebody who has
balls like you do”
• Referred to the female employee that he did not promote as a
“slut” and a “tramp”
• Baldwin complained about a short commission check
– Head threatened her for doing so


Baldwin vs. BC/BS cont.

• BC/BS had sexual harassment policy prohibiting Head’s conduct and
behavior
• The policy contained a complaint procedure
• Baldwin worked for BC/BS reporting to Head for 13 months
– Baldwin waiting 3 months and 2 weeks to complain from the first
proposition
– She complained to HR verbally and submitted a 5 page complaint
• The investigation team focused on Head, Baldwin, and 3 other team
members including the office manager who was present in the office
at all times


BC/BS - Lessons from the Investigation
• No evidence obtained to corroborate any of the allegations
• Baldwin Argues that the investigation was deficient
• Lessons of investigations:
– The employer is not required to conduct full-blown, due process, trial-
type proceeding
– Investigation must be reasonable in all of the circumstances
– The employer may consider methods that will not unnecessarily disrupt
the company’s business
– The court will not second guess investigations – the court is not in the
business of supervising internal investigations
– Do not have to credit uncorroborated statements made by the
complainant
– There is no special weight given to either side in a he said/she said case


BC/BS – The Proposed Remedies

Offered Baldwin the following at least 4 different occasions:
1. Enlist the assistance of an expert to counsel Head and Baldwin and
monitor their interactions to prevent future problems OR
2. Transfer Baldwin to the Birmingham office from Huntsville
• Baldwin (on several occasions) rejected the proposed
remedies
• Placed on administrative leave and then terminated
• Finding: “firing an employee because she will not cooperate
with the employer’s reasonable efforts to resolve her
complaints is not discrimination based on sex”


Was Baldwin subjected to a hostile working
environment?
In a nutshell – No
• Reasoning
– The profanity was not aimed specifically at females
– Most of the profanity was were “relatively gender-neutral”
– Baldwin testified that the language was used indiscriminately to (and
in front of) both men and women
Is BC/BS Entitled to Faragher Ellerth Defense? - Yes
• Reasoning
– It promptly responded when it learned of the compliant
– It conducted a reasonable investigation
– A written warning was received by Head
– The Complainant does not get to choose the remedy
– Baldwin waited too long to complain – affirmative and express duty
of employee to promptly/immediately follow complaint procedure


Compare Reeves vs. C.H. Robinson
11th Circuit 2010

• Female employee - Reeves worked as a transportation sales
representative in Birmingham, AL (sales ops for freight shipping)
• Previously a member of the Merchant Marines (consider
subjective prong of harassment)
• Subjected to daily profanity in the workplace
• Also subjected to a crude morning radio show that featured
discussions of women’s anatomy
• Employee displayed on his computer a pornographic image of a
fully naked woman with her legs spread open exposing herself
• Coworkers sang songs about gender derogatory topics


Reeves vs. C.H. Robinson, cont.

• Gender derogatory language permeated the workplace:
– Language to refer to women with whom they dealt inside and outside
(customers) of the office
– Gender specific expletives paired with the F-word
– Used names and phrases that were specifically directed toward women
• Behavior occurred from summer 2001 through spring 2004
• Reeves objected frequently to the offenders
• She also complained at least 5 times to her local manager (as required by
the company policy) who was also a participant in the conduct
• Asked the employee to remove the image of the naked woman from his
computer (he did)
• Reeves complained about her co-worker’s conduct in at least 2 separate
work evaluations


Reeves vs. C.H. Robinson, cont.

• Although it was his responsibility to do so, the local manager
never reported the complaints to corporate
• Reeves ultimately contacted 2 corporate executives: the
Director of Branch Operations and the Vice President
• Reeves set up a meeting with these executives during their visit
to her location
• During the Birmingham visit the executives never met with
Reeves and never discussed or addressed her complaint
• Reeves resigned on March 24, 2004


The Lessons From Reeves

• General vulgarity or references to sex that are indiscriminate in
nature will not generally be actionable
• Title VII does not prohibit profanity alone, however profane
• Title VII prohibits discrimination based on a protected category
• The court will consider the context of the profanity and
whether it contains a reference to gender
• The court stated that certain vulgar terms are more degrading
to women
• The F-word alone can be gender neutral vulgarity vs. the F-
word followed by gender specific profanity such as the B-word
• Use of profanity can be discriminatory


Reeves Lost
What Went Wrong?
• The 11th Circuit reversed the district court and ordered a
re-hearing of the entire matter
• Reasoning
– Defendant failed to respond to Reeves’ complaint thus “adopting”
the offending conduct just as if it had affirmatively authorized it
– The offending language was directly specifically at women and
constituted intentional discrimination
• What if the employer
– Had responded promptly?
– Conducted an investigation?
– Different result?


The Americans With Disabilities Act

Americans With Disabilities Act
The Basics
Prohibits discrimination against qualified individuals with disabilities
• Prohibits discrimination based on disability, limits medical/health
questions and examinations; requires medical/health information be
maintained in separate confidential file
• Requires reasonable accommodations
• Also prohibits employment discrimination based on association with
person with disability
• Disability defined as…
– A physical or mental impairment that substantially limits one or
more major life activities;
– A record of an impairment; or
– Being regarded as having an impairment


ADA - A Reasonable Accommodation
Reasonable Accommodation - Any change or adjustment to a job or work
environment that permits a qualified applicant or employee to participate in
the application process, to perform the essential functions of a job, or to enjoy
benefits of employment equal to those enjoyed by employees without
disabilities.
• For example, reasonable accommodation may include:
– acquiring or modifying equipment or devices
– job restructuring
– part-time or modified work schedules
– reassignment to a vacant position
– adjusting or modifying examinations, training materials or policies
– providing readers and interpreters and
– making the workplace readily accessible to and usable by people with
disabilities


Covington v. Walgreens,
Southern District Florida, 2012
• Employees was morbidly obese and required various forms of medical care
including dialysis
• Walgreens accommodated and provided employee with 3 afternoons off
each week to attend dialysis appointments
• Covington attended more than 200 dialysis appointments and was never
late
• Walgreens hired additional personnel to fill in for Covington and sustained
increased overtime expenses
• Covington was also provided with weekends off to be with her children
• For some time, Walgreens allowed significant latitude to Covington with
respect to time and attendance
• Covington’s poor attendance had negative impact on the business
• After going through an audit Walgreens brought in a new District Manager
to improve the store’s performance


Covington v. Walgreens, cont.

• As part of the effort to improve the store’s performance, the
new District Manager informed Covington that she must work
as scheduled
• After several additional time and attendance violations,
Covington was disciplined
• On the same day of the discipline Covington went directly to
the EEOC office and filed her charge of discrimination
• She eventually received a Right to Sue and filed suit in the
Southern District Court of Florida
• After several years of litigation and significant expense,
Walgreens won at Summary Judgment


What are the lessons from Covington?
• Employers should consistently and uniformly enforce their
policies
• Allowing an employee latitude and variances over a prolonged
period of time can create an expectation by an employee
• The decision to enforce the rules afterward may make an
employee feel like something is being taken away
• Walgreens went above and beyond its legal requirements under
the ADA and the judge agreed
• Always document all employee activities – especially requests
for and responses to accommodations
• Obtain complete medical information to support requests for
accommodation


The Family and Medical Leave Act

The Family & Medical Leave Act
The Basics
• To be eligible for FMLA benefits, an
employee must:
– work for a covered employer (BAMS is a
covered employer)
• Have worked for their employer for a total
of 12 months
• Have worked at least 1,250 hours over the
previous 12 months


FMLA
Categories
Employees may take FMLA for the following reasons:
• For a qualifying exigency;
• To provide care to a qualified family member or veteran
injured in the line of duty (servicemember leave);
• For their own Serious Health Condition;
• To provide care to an immediate family member with a
serious health condition; or
• For the birth, placement, or adoption of a child.


Serious Health Condition
Definitions
A Serious Health Condition (SHC) is an illness, injury,
impairment, or physical or mental condition that
involves
Either
(1) Inpatient Care
Or
(2) Continuing Treatment
(a) Incapacity & Treatment
(b) Pregnancy/prenatal Care
(c) Chronic Conditions


Iwanejko vs. Cohen & Grigsby
Third Circuit, 2007

• Iwanejko was an associate attorney at defendant law firm
• When arrived at work on the day in question he thought it was
Sunday (it was Monday) meaning he had one less day to
complete a project
• He had an acute psychotic episode and began shouting and
using profanity
• Another attorney told Iwanejko to stop shouting
• Iwanejko pushed the attorney aside, and began shouting and
ranting again
• Iwanejko left the office to go to the parking garage – the other
attorney followed him


Iwanejko vs. Cohen & Grigsby
• Iwanejko took the elevator to the top floor of the garage
• When we got off the elevator he began shouting a women in
the garage, threw a bottle of contact lens solution at her, and
assaulted her.
• The attorney that followed Iwanejko pulled Iwanejko away
from the woman and Iwanejko was screaming incoherently
• The attroney escorted Iwanejko to the a lower level of the
garage
• Iwanejko continued to rant and laid down in front of oncoming
vehicles
• Iwanejko was aprehended by the police and handcuffed
• He banged his head against the wall and then against the
window in the police car


Iwanejko
The Medical Information
• Diagnosed with an acute psychotic episode
• The Firm provided Iwanejko time off under the FMLA
• Retained a licensed health care provider to advise the firm
regarding Iwanejko’s ability to return to work
• Entered into an agreement to return to work with certain
limitations including limited working hours
• Iwanejko violated the work hours limitation in the agreement
87 times
• Terminated for failure to abide by the agreement
• Sued a number of parties including the firm for violation of the
FMLA


Iwanejko’s Claims Under the FMLA

• Iwanejko claims that he honored the agreement
• Court disagreed given the nature and severity of the
psychotic episode and the plan to gradually resume
Iwanejko’s workload
• They reasoned that there were safety concerns for co-
workers, tenants, and visitors
– The law firm followed the guidance of the licensed health
care provider
– Found that the limitations were reasonable and rational


Iwanejko’s Claims Under the ADA

• Claims that the firm “regarded him” as disabled and refused to
accommodate his disability
• The accommodation he sought was to remove the work-hours
limitations
• The court had already stated that the limitations were
reasonable and rational
• Found that he was terminated for a legitimate business reason
– violating the work-hours limitation in the agreement


Contact Us !
• .

Copies of the presentation
hrsc@alphstaff.com
888-335-9545 (Option 8)


Upcoming AlphaStaff Webinar

Please mark your calendars !!!

Date: Thursday, March 7, 2013
Topic: CA AB 1825 Discrimination &
Harassment Training for Managers

Date: Thursday, March 21, 2013
Topic: Recruiting and Hiring: Best Practices
in Finding Strong Candidates and Selecting
Who to Hire

36

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37

Title VII: Stories of Shock and Awe

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