How Can I Protect Myself from a Hostile Work Environment?

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Having to face the challenge of going to work each day in a hostile work environment can take a toll on you. Your work product, health and personal relationships can suffer when you are the target of harassment at work. You shouldn’t have to worry about jokes, slurs, touching and other unwanted conduct on top of your job duties. So how can you protect yourself from a hostile environment at work? Fundamentally, you should know that it’s your employer’s responsibility to create and maintain a workplace free from harassment, and it should never be considered the victim’s responsibility to avoid illegal harassment. However, there are some steps we recommend that can empower you to minimize the chance of a hostile work environment, and even if one exists, that will help you deal with it quickly and effectively.

If you’d like to talk with someone about your own hostile work environment claim, contact Eisenberg & Baum. We have a group of very experienced employment discrimination attorneys who can help you understand your claim and advise you of your rights under the law.

Know Your Rights

The first step to protection as an employee is knowing your rights under the law. We’ve spent a lot of time on our blog talking about employment discrimination and the idea of the hostile work environment. A “hostile work environment” is a specific type of employment discrimination claim under federal and state law, and it is created when you experience unwelcome conduct that is so severe or pervasive it affects the terms of your employment. We commonly think of a hostile work environment in terms of sexual harassment in which co-workers or supervisors subjecting an employee to repeated unwanted sexual conduct, including inappropriate comments, pictures and touching. However, a hostile work environment can be based on a number of different legally protected characteristics, not just gender.

Harassment at WorkUnder federal law, employees are protected from discrimination based on their race, color, national origin, gender, pregnancy, age, religion, disability, and genetic information. State and local laws in your area can protect you based on additional characteristics. For example, in New York City employers are prohibited from discriminating against an employee on similar grounds as recognized under federal law as well as sexual orientation, marital status, gender identity, arrest and conviction record, military status or service, observance of Sabbath, political activities, unemployment status, and status as a victim of domestic violence. To learn more about hostile work environments, read our prior post on “What Is a Hostile Work Environment.”

Discrimination Policies and Training

One of the most common and easiest things an employer can do to help prevent discrimination in the workplace is to adopt a policy against discrimination and a thorough process for reporting and investigating claims of discrimination, then train employees and management on the subject. If you notice your employer does not have these policies and processes in place or what they do have does not sufficiently address workplace discrimination, we recommend you talk with your employer. A strong set of policies and training can help educate all employees about what is and is not appropriate conduct at work and reduce instances of harassment and discrimination. Having an explicit procedure for reporting and investigating discrimination claims encourages victims to speak up when they have a complaint and can show that the employer takes such complaints seriously and responds with action when needed. When you contribute to a better set of policies and procedures at work, you not only help yourself but your co-workers, managers and employer. Try talking with your supervisor or if you’re uncomfortable talking with your supervisor, try another member of management or a human resources team member.

Confront, Report and Document

If you are already experiencing harassing behavior that is disrupting your ability work, it’s time to take action. If you’re comfortable with the idea, let the harasser or harassers know clearly and directly that you want them to stop what they’re doing. Whether it’s a supervisor who is belittling you because of your age or a group of co-workers who like to share stories about their sexual experiences in the open, let them know that their behavior is making you uncomfortable and you want them to stop. If you are afraid to confront your harasser directly, maybe because they’ve physically threatened you, then we encourage you to talk with your supervisor or human resources contact. Even if you’re not directly affected by harassing conduct at work, if you witness it, say something. This is your chance to help change the culture at your job. By reporting harassing conduct at work, you can protect the victim and everybody else at work, including yourself, from future harassment.

In addition to reporting any instances of harassment, there are other steps you can take at work to protect yourself when you’re in the midst of a hostile work environment. You can start making sure that your story is heard and supported by having co-workers around you when you encounter your harasser. Your harasser might be less bold around other people, and if they’re not, you will at least have witnesses to their conduct. Also, you can begin taking notes of your interactions with your harasser. Make sure you’re as detailed as possible in describing when, where and how your encounters with your harasser happened, and take the notes as close as possible to each event so that your memory is still fresh. These notes can help in your employer’s investigation and in any future legal action you may have to take.

Finally, we don’t recommend retaliating against your harasser. This could cloud your employer’s investigation or a court’s determination of your original claim and potentially subject you to liability. Use the resources you have at work and under the law to report and stop the discriminatory conduct against you.

Contact an Attorney

If you find your employer isn’t appropriately responding to your complaints, contact an attorney. An experienced employment discrimination lawyer can help you get the resolution you need, whether that requires filing a charge with the Equal Employment Opportunity Commission or a lawsuit in federal or state court. A lawyer can help advise you of your legal rights and options as a victim of workplace discrimination. Eisenberg & Baum’s employment discrimination attorneys have decades of experience handling hostile work environment and other employment discrimination claims, and we encourage you to contact us for a free initial consultation. For employment discrimination and retaliation cases, we bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.

Sexual Harassment and Racial Discrimination Lawsuit Against McDonald’s

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Last year, McDonald’s and one of its franchisees faced an employment discrimination lawsuit that may be a sign of things to come. The lawsuit, brought by employees of McDonald’s franchises in Virginia, claimed both the franchisor and the franchisee were liable for alleged race and gender discrimination committed by supervisors at the restaurants. While the case settled, it along with recent labor law developments provide an interesting current look at employment discrimination cases in the fast food franchise business.

We’ll discuss the allegations in the recent discrimination lawsuit against McDonald’s and the changing landscape of franchisor liability for the employment actions of franchisees, specifically in the context of violations of anti-discrimination laws. If you’d like to talk with an attorney about your own employment discrimination claim, please contact Eisenberg & Baum. We have a group of employment discrimination attorneys with years of experience handling discrimination claims.

The Allegations of Employment Discrimination Against McDonald’s

Eleven former employees brought the employment discrimination case against McDonald’s and its franchisee, Soweva Co., in federal court in Virginia. The legal basis for their claim was Title VII of the federal Civil Rights Act of 1964, which prohibits discrimination against employees based on their sex, race, color, national origin, or religion. The allegations in the McDonald’s case included both race and sex discrimination claims.

Racial Discrimination

The former employees in the case were all either African-American or Hispanic. The group alleged they’d been discriminated against on the basis of their race, having been harassed and wrongfully terminated on that basis. Please check out our prior blog posts on harassment and wrongful termination for more information about those types of claims.

The harassing conduct allegedly engaged in by the employees’ supervisors included offensive jokes, racial slurs, and a different disciplinary standard than their white counterparts. The employees alleged that, ultimately, the franchise owner decided to decrease the number of African Americans working at his restaurants and targeted them in a mass termination that impacted mostly African American employees. The employees say that, when asked why they were being fired, the owner explained they “didn’t fit the profile” he wanted.

Sexual Harassment

In addition to their racial discrimination allegations, the former employees claimed that their supervisors had also engaged in activity that constituted sexual harassment. Sexual harassment is a form of gender discrimination prohibited under Title VII. For a broader discussion of what constitutes sexual harassment, you can read our prior blog post on how to identify when you have a sexual harassment claim.

Among other allegations, the former McDonald’s employees claimed that supervisors at their workplace made inappropriate comments about employees’ bodies, sent and showed employees inappropriate pictures, touched female employees on their legs and buttocks, and attempted to solicit sexual activity with employees.

Holding a Franchisor Liable for Employment Discrimination

McDonald’s operates under a franchise business model, meaning that the vast majority of McDonald’s restaurants are not actually owned by McDonald’s USA, the franchisor, but by independent franchisees. Many other fast-food restaurant chains, like Subway, Wendy’s, Jack in the Box and Taco Bell, work under a similar model. For many years, franchisors have seen the franchise model as a way to guard against liability for employment law claims under the argument that the franchisee is truly responsible for employment decisions and matters. While this has been accepted in many labor and employment law cases, there has also been an exception for those situations where the franchisor and franchisee are seen as “joint employers” of an employee. Typically, for a franchisor to be considered a joint employer, they would need to have exercised some direct control over the day-to-day operations of the franchisee.

In the McDonald’s case, the plaintiffs sought to hold both the franchisor, McDonald’s Corp. and McDonald’s USA, and franchisee, Soweva Co., accountable for the alleged discrimination the plaintiffs suffered at work. To bring the McDonald’s corporate entity in, they argued that the company had the right to control operations at all of its restaurants through its franchise agreement and its business manuals. According to the plaintiffs, the McDonald’s corporate entity directs everything from how franchisees spend their advertising dollars to how they manage, train and supervise their employees. McDonald’s manuals also contain corporate policies and processes on discrimination and sexual harassment.

The parties to the McDonald’s lawsuit settled the case before it went to trial and the details of the settlement were not made public, so we won’t know if the plaintiffs’ argument for holding the McDonald’s franchisor entity liable would have been successful. However, recent developments in the area of labor law seem to indicate that the standard for holding franchisors liable as joint employers may be expanding in the favor of employees. In August 2015, the National Labor Relations Board issued a ruling in Browning-Ferris Industries of California, Inc. that created a new standard for the joint employer theory of liability in the context of unfair labor practices. The prior standard required an entity to take actual direct action over a worker to be considered a joint employer, while the new standard expands joint-employer status to entities that have indirect control or an unexercised right of control over a worker.

The ruling in Browning-Ferris did not directly apply to franchisors or to employment discrimination claims, but there is reason to believe that the ruling could be used in those contexts. The NLRB is currently in a fight with McDonald’s over whether it should be responsible for labor violations at independently owned franchises. Also, the Equal Employment Opportunity Commission, the federal agency charged with enforcing federal employment discrimination laws, sided with the NLRB’s position in Browning-Ferris noting that the NLRB’s standards can influence the judicial interpretation of joint employment in the discrimination context. The Browning-Ferris ruling is now being appealed and Congress is considering a new law that would overturn the ruling. Whether
franchisors like McDonald’s will be held increasingly responsible for employment law violations at the franchise level remains to be seen.

Who Should Be Responsible for Your Discrimination Claim?

If you’ve been the victim of discrimination and have questions about who should be responsible and what types of legal claims you can bring, we suggest you to contact an attorney immediately. An experienced employment discrimination attorney can advise you about the merits of your claim and the best way to pursue it. Eisenberg & Baum is ready and able to help you with your discrimination claim, and we encourage you to contact us for a free initial consultation.Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we likely can help no matter where you are.

The Sexual Harassment Case Against the University of Tennessee

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Peyton Manning’s name has been in the news recently for reasons other than his football team’s Super Bowl win. You may have heard about a recent lawsuit filed against the University of Tennessee for allegedly creating a campus culture that tolerated sexual violence, specifically violence committed by male athletes against female students. The lawsuit includes allegations that the school has a history of sexual harassment and assault dating back to the mid-1990s and references an incident from that time involving Manning, who was the quarterback of the Tennessee football team. The lawsuit comes at a time when sexual harassment and violence on college campuses has received heightened attention nationally, with President Obama launching the “It’s On Us” campaign in 2014 to end sexual assault on campuses.

In today’s blog post, we’ll talk about the allegations in the lawsuit against the University of Tennessee as well as the legal grounds that can be used to hold colleges accountable for systemic issues that contribute to and enable sexual harassment and assault on their campuses.

Title IX Claims Against The University of Tennessee

Sexual Harassment LawsuitA group of six female former students of the University of Tennessee filed the case against the university in federal court last month. Two more former students have since joined the lawsuit. The primary basis for their lawsuit is that the university violated Title IX of the Education Amendments of 1972 (“Title IX”) by creating a hostile environment that allowed for multiple sexual assaults to occur and were indifferent and unreasonable in responding to sexual assault claims by victims.

What is Title IX?

Title IX is a federal law that was enacted in 1972 to prohibit sex discrimination in education. The law applies to any educational program that receives federal funding, from elementary schools to colleges. The impact of the law has been far reaching. It has famously opened the doors to equal participation in sports for girls and women, allowed for women to have equal access to college and graduate school programs, and required schools to provide equal treatment of students who are pregnant or parenting. Title IX also prohibits sexual harassment against students as part of the overall prohibition on sex discrimination.

Sexual harassment of a student under Title IX is very similar to sexual harassment of an employee, which we’ve discussed in prior blog posts. Under Title IX, sexual harassment consists of unwelcome conduct of a sexual nature that creates a hostile environment by interfering with the victim’s ability to participate in school activities. The hostile environment concept is like the hostile work environment we’ve talked about in prior posts regarding workplace sexual harassment. In the context of Title IX, though, a school can be held liable for damages only if it has notice of the harassing activity and responds with deliberate indifference.

Student Allegations

The former University of Tennessee students claim that the University of Tennessee violated Title IX because it knew of and acted with deliberate indifference to acts of sexual harassment of its students. To set the background for the incidents of rape that the former students allegedly endured, they described a history of harassment at the school going back more than a decade.

Among the historical incidents cited was a 1996 incident involving Peyton Manning in which the former Tennessee quarterback allegedly placed his rectum and testicles on a trainer’s face while the trainer examined his foot. The incident was settled out of court, and Manning, for his part, denies the allegations. Yet, the incident has been raised 20 years later as just one of many examples of sexual assault and harassment that male athletes at the University of Tennessee have allegedly engaged in over that time.

Seven of the eight unnamed former students in the case claim to have been sexually assaulted or raped in separate incidents, primarily by male athletes at the school, and the eighth student claims to have been retaliated against because of her friendship with one of the alleged victims. The students allege that the university, including its chancellor, athletics director and head football coach, had actual notice of the long history of sexual harassment and violence on its campus and its indifference to those past incidents created an environment that enabled continued acts of harassment and violence, like those endured by the plaintiffs. The students also allege that the university had a disciplinary process that favored the athletes charged with rape and that the university actively stepped in to delay some proceedings, allowing the accused students in those cases to transfer or graduate before facing discipline.

The former students seek damages including reimbursement for tuition, pain and suffering, and other expenses the plaintiffs incurred as a result of the alleged sexual assaults. They also seek injunctive relief that would, among other things, require the university to institute a comprehensive sexual harassment policy and change its disciplinary process in sexual assault cases.

The University of Tennessee’s Response

The University of Tennessee has not yet filed a formal response with the court, but it has released a public statement regarding the allegations through its legal counsel. In the statement, the school defends its process for investigating and resolving sexual assault complaints and claims it “has devoted significant time and energy to provide a safe environment for our students, to educate and raise awareness about sexual assault, and to encourage students to come forward and report sexual assault.“ All 16 of the university’s head coaches for both men’s and women’s teams have also come forward to praise the environment at their school, without addressing the specifics of the Title IX lawsuit.

Incidents on Other Campuses

As the University of Tennessee noted in its public statement, it is one of many college campuses facing the challenge of sexual assault. A recent survey conducted by the Association of American Universities across 27 university campuses revealed 23% of female respondents had experienced some form of unwanted sexual contact while they’d been enrolled in school. The issue of sexual assault and sexual harassment is clearly not confined to Knoxville, Tennessee. Where schools have contributed to this problem by turning the other way or favoring a particular group of students, like athletes, in sexual harassment and assault claims, Title IX can be the tool to hold those schools accountable. Likewise, in states like New York, there may be state and local laws that can provide students with additional protection from sexual harassment and discrimination. New York State and New York City each hav
e a Human Rights Law that prohibits sex discrimination in places of “public accommodation,” which can include schools.

If you’ve been the victim of sexual harassment or assault as a student or an employee, we encourage you to report the incident to your school or employer and contact an attorney to discuss your case. Eisenberg & Baum’s attorneys have decades of experience handling sexual harassment cases in New York and can help you understand the merits of your claim and advise you on your next steps. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.

Justice Scalia’s Legacy on Employment Discrimination Claims and What His Departure Means

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News of Justice Antonin Scalia’s death and the vacancy it has left on the Supreme Court has reverberated throughout the country over the last several weeks. That it happened during an election year has only heightened the attention given to the impact of his sudden absence and his potential replacement. Justice Scalia was known for using the doctrine of “originalism” to interpret the Constitution and for writing colorful, blunt opinions. His impact on areas of the law from the Voting Rights Act to the Second Amendment has been well-established over nearly three decades of service on the Supreme Court.

In this posting, we’ll talk about Justice Scalia’s legacy in the area of employment discrimination law and what the future may hold depending on his replacement. This isn’t intended to be a deep scholarly analysis for our fellow employment lawyers, but a general overview for anyone interested in Justice Scalia’s impact on employment discrimination cases and how his departure might affect similar cases in the future.

Justice Scalia’s Mixed Record on Employment Discrimination

Most people who follow the Supreme Court considered Justice Scalia to be one of the more conservative justices on the Court during his time. Scalia was appointed by Ronald Reagan and joined in many rulings lauded by conservatives over the last several decades. But his impact on employment discrimination law cannot be easily painted as conservative or pro-business. If you look at some of the employment discrimination cases decided by the Court over Justice Scalia’s tenure, he has been on both sides of opinions affecting employment discrimination law.

On one hand, Justice Scalia opposed expansion of sexual harassment liability and the ability of employees to raise large-scale class action discrimination lawsuits. In Burlington Industries, Inc. v. Ellerth, the majority of the Court found that an employer can be liable for a hostile work environment created by sexually harassing conduct of a supervisor, regardless of whether any adverse action was taken against the victim and whether the employer was directly responsible for the supervisor’s actions. Justice Scalia dissented from the majority opinion in Burlington, arguing that the majority created the rule for employer liability from nothing and that a supervisor’s harassing conduct should not be automatically attributed to their employer. Justice Scalia also wrote the majority opinion in Wal-Mart Stores v. Dukes, which denied a small group of female employees of the retailer the right to file a class action gender discrimination lawsuit on behalf of all female employees on the basis that the group lacked a common complaint. The burden fell, instead, on individual female employees to file their own lawsuits against one of the largest companies in the world in order to recover for any gender discrimination they experienced.

In other discrimination cases, however, Scalia sided with the employee, writing two opinions that supported broad views of anti-discrimination law. In 2011, Justice Scalia wrote an opinion in the case of Thompson v. North American Stainless that allowed family and friends of an alleged victim of discrimination to bring a retaliation lawsuit against their mutual employer. Most recently, Justice Scalia wrote the opinion in EEOC v. Abercrombie & Fitch Stores, a case in which the employer, Abercrombie, refused to hire a woman because she wore a head scarf. While the applicant claimed she’d been discriminated against based on her religion, Abercrombie claimed the head scarf violated its dress code and it had no reason to know that the applicant wore it for religious reasons. Scalia’s opinion supported the applicant by holding that she did not have to specifically request an accommodation to wear her head scarf in order to be protected from religious discrimination by a prospective employer.

Impact of Justice Scalia’s Absence on Employment Discrimination Cases

Justice Scalia’s absence from the Court has been the subject of a lot of media coverage. In the short term, how will it impact Supreme Court decisions? Will President Obama nominate a replacement, and if so, will the Republican-controlled Senate approve? What will the implications be if a Democrat or Republican appoints a replacement? We can only speak in general terms of the long-term impact of Justice Scalia’s absence from the Court. For the time being, while the Court is one justice down, its members are evenly split between four Republican appointees and four Democratic appointees. In those cases where the court is evenly divided and unable to come to a majority decision, the lower appellate court decision will stand. This could have implications on current employment law cases before the court, including Green v. Brennan, which concerns how long an employee has to raise a constructive discharge claim.

Republican DemocratMany Republican Senators have already indicated they would block any nominee sent to them by President Obama, so it’s highly likely the Court will stay at eight members until the next president takes office. If a Democrat were to win the election, the expectation is that they would appoint a more liberal judge to the Court. According to the New York Times, a liberal appointee would likely shift the Court’s overall ideology to a position it hasn’t been in for 50 years. In terms of employment discrimination cases, this could mean the new justice and the majority of the court would read the law more broadly and in favor of aggrieved employees. If, on the other hand, a Republican wins the presidential election, they’ll be more likely to appoint a conservative judge that would maintain the status quo. However, given Justice Scalia’s mixed opinions in past employment discrimination cases, it’s difficult to say that a new Republican-appointed justice would keep the status quo.

With a stalemate between the Senate and President looking likely, we’ll simply need to wait and see who will take the empty seat at the Court and how the future of not only employment discrimination cases, but a broad range of issues could be affected.

If you’ve been discriminated against at work, please contact Eisenberg & Baum. We have an experienced group of employment discrimination attorneys who are ready to help you. We offer free initial consultations for gender discrimination claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.