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Sexual Harassment and Abuse at Michigan State University Raise Title IX Concerns

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Larry Nassar, was once a renowned sports doctor for both Michigan State University and the U.S. Olympic Gymnastics team. But reports of sexual harassment and abuse from gymnasts he worked with ended his career. Now MSU is dealing with the public and legal consequences of inaction.

In this blog post I will review the criminal convictions of Larry Nassar, a doctor at Michigan State University, for sexual harassment and abuse. I will discuss the response of professors and students to the violations of Title IX of the Civil Rights Act, and how the university responded to allegations of harassment.

Michigan State University Doctor and Gymnastic Coach Charged with 20 Years of Sexual Abuse

Michigan State University has come under fire in recent months because of how it responded to complaints of sexual harassment and abuse by sports doctor Larry Nassar. The complaints began in the late 1990s and ran through 2016, with athletes and students complaining that Nassar sexually assaulted them under the guise of medical treatment. The case includes complaints from several former U.S. Olympic gymnasts. In many cases, the minors’ parents were present in the room when the sexual assault occurred.

The complaints resulted in lawsuits and even an internal investigation at MSU in 2014. However, Nassar kept working and the issue remained private until 2016, when the Indianapolis Star published an investigative report about the U.S.A. Gymnastics program. Responses to that report raised concerns about Dr. Nassar’s conduct, including the story of Rachael Denhollander, a former gymnast who was abused at age 15. In total, more than 150 women came forward to testify at the sentencing hearings in criminal cases including charges of criminal sexual conduct and federal child pornography. He was sentenced to 40 to 125 years in prison, in what Michigan Circuit Court Judge Rosemarie Aquilina called “a death sentence.”

Title IX and a University’s Response to Sexual Harassment and Assault

Title IX of the United States Civil Rights Act serves a similar role in schools as Title VII does in the workplace in preventing sex and gender discrimination. It prohibits sexual discrimination in all educational institutions that receive federal funding. This includes public and private K-12 schools, and most universities. It applies to all students, regardless of gender identity, and requires schools to take proactive and reactive steps to prevent and respond to sexual harassment against students by students, faculty, or other staff.

While the Equal Employment Opportunity Commission (EEOC) handles Title VII sexual discrimination in the workplace, Title IX places school-based sexual harassment issues in the hands of the U.S. Department of Education. Each school is responsible for publishing a non-discrimination policy and designating at least one employee to coordinate compliance with the Department of Education’s regulations applying the statute. Schools must respond promptly and effectively to allegations of sexual harassment or violence, and take immediate action if they know or have reason to know sexual harassment or violence has created a hostile environment.

Many larger universities have Title IX offices that investigate and respond sexual harassment complaints by their students. When they fail, it can be grounds for a Title IX complaint to the Office of Civil Rights at the Department of Education, or even a federal lawsuit.

Michigan State University’s Response to Nassar Complaints Raise Title IX Questions

Larry Nassar continued to work for Michigan State University until the issue went public in 2016. Once Nassar pleaded guilty to the charges, public attention turned to the university and how it responded to the matter. Many of the women who came forward said that they had tried to file complaints at the school, but their concerns were ignored or downplayed. Larissa Boyce told CNN:

I told Michigan State University back in 1997. . . . Instead of being protected, I was humiliated. I was in trouble and brainwashed into believing that I was the problem.

This complaints of sexual harassment and abuse at Michigan State University have caught the attention a variety of public officials and sports regulating organizations. Many organizations and political branches have announced investigations into Dr. Nassar, Michigan State University, and its faculty:

  • The National Collegiate Athletic Association (NCAA)
  • United States Olympic Committee
  • Michigan’s Department of Licensing and Regulatory Affairs (as to Dr. Nassar’s medical license)
  • The Federal Bureau of Investigation (FBI)
  • Michigan Attorney General’s Office
  • United States Department of Education

At the same time, Michigan State University is hurrying to take what steps it can to respond to these complaints after the fact. MSU President Lou Anna Simon resigned in January 2018, but even a week before, MSU issued a statement that “any suggestion that the university engaged in a cover-up is simply false.” The Board of Trustees then named former Michigan governor John Engler as interim president to replace Simon. But even that choice has been questioned by students, faculty, and the press, because of Engler’s response to sexual harassment allegations in Michigan prisons during his time as governor.

Federal and state laws mandate that sexual harassment and abuse must be taken seriously whether it happens at school or in the workplace. At Eisenberg & Baum, LLP, our sexual harassment attorneys help employees facing gender discrimination on the job. If you are face a hostile work environment, we can help you make sure your complaints are heard. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Harassed at Work: Can You Sue for Emotional Abuse?

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When you are harassed at work, it can make you dread every shift and put your physical and mental health at risk. But can you do anything to stop it? Can you sue for emotional abuse if harassed at work?

In this post, I will review the laws that protect employees from workplace harassment and emotional abuse. I will summarize the damages available for stress, mental health treatment, and other emotional distress, and how an employment discrimination attorney can help you be compensated for your emotional pain and suffering.

Emotional Abuse Can Cause Serious Health Concerns

Emotional abuse at work is always about power. The conscious, repeated effort to wound an employee with words is designed to undermine those employees’ accomplishments and rob them of their self-confidence. Workplace harassment can include:

  • Misplaced blame for errors
  • Sabotage of work done
  • Unreasonable work demands
  • Stealing credit for work done
  • Discounting accomplishments
  • Intimidation
  • Insults and put-downs
  • Humiliation
  • Threats to a person’s job, seniority, or assignments

Workplace bullying and other forms of emotional abuse aren’t just about hurt feelings. Psychological harassment can seriously harm an employee’s well-being and productivity. Over time, emotional distress caused by a hostile work environment can result in anxiety, depression, stress, and even trauma responses like Post Traumatic Stress Disorder (PTSD). It can cause reduced productivity, increased absenteeism, and even require leaves of absence as the victim addresses the mental-health consequences of the abusive treatment.

The effects of emotional abuse can’t be easily undone. They often require ongoing mental health treatment, therapy, and sometimes even require medication. When emotional abuse rises to the level of psychological trauma, the effects can even be permanent. Stress and trauma can also cause physical illnesses including ulcers, digestive issues, and sleep disorders.

When Emotional Abuse is Illegal

There is no general law against workplace bullying or other forms of harassment at work. But state and federal laws do protect against a hostile work environment based on a number of protected traits:

Often, a hostile work environment includes emotional abuse and derogatory statements based on or about a person’s protected trait. When an employer doesn’t respond to complaints about sexual harassment or racial jokes, it can open the door for an employee to sue for emotional abuse.

What to Do When Workplace Harassment Isn’t Discrimination

Even when your emotional distress isn’t caused by racial tension or unwanted sexual advances, you may still have the ability to sue for emotional abuse. Many employer have anti-bullying policies against workplace harassment. When a superior refuses to enforce those policies it can create a breach of contract action against the company. However, the claims and damages available in these cases depend on the language in each individual contract or policy. So it is important to meet with an experienced employment lawyer to review your options.

Damages Available in an Emotional Abuse Lawsuit

If you and your employment discrimination attorneys determine you have a valid emotional abuse lawsuit, you may be able to recover a variety of damages and other remedies. On the one hand, you will be entitled to back pay and front pay for any time you were unable to work as a result of the abuse. This can cover leaves of absence under FMLA or short-term disability, as well as constructive firing if you had no choice but to leave your job.

You should also keep a record of all actual costs connected to the abuse and any related job loss. You may be able to receive compensation for anything from hospital bills and therapy costs to travel for interviews in replacement jobs or training needed to shift employment.

Depending on the nature of your workplace harassment claim, and the laws in your state, you may also be entitled to compensatory and punitive damages based on your emotional distress, pain and suffering, harm to reputation, and other non-economic injuries. Often these damages must be objectively demonstrated. You and your lawyer should be prepared to use medical records and even expert witnesses to present your claims.

Finally, if you want to keep your job, you may be entitled to injunctive relief. This is where a judge orders your employer to change its ways. An injunction could require a company to create or enforce anti-harassment policies, change hiring, job assignment, and firing practices, or put managers, supervisors, and employees through training. A judge could even require a business to fire the one responsible for the harassment.

There are many options for remedies available in an emotional abuse lawsuit. At Eisenberg & Baum, LLP, our employment discrimination attorneys will review your case, determine which laws apply to your circumstance, and help you understand your rights. We will discuss your options and create a plan, so you know what to expect. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Autistic Dishwasher Sues for Psychiatric Disability Discrimination, Sexual Harassment and Discharge

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Chronic mental and emotional conditions can make it hard to hold down a job. Everyday activities are often much more difficult when working around a diagnosis like depression or autism. When your employer engages in psychiatric disability discrimination, it can become too much to handle. But the EEOC and private employment discrimination attorneys are here to help you stand up to psychiatric disability discrimination, sexual harassment, and wrongful discharge, just like they did for one autistic dishwasher in North Carolina.

In this blog post, I will review the Complaint in EEOC v Jax, LLC d/b/a Golden Corral, Civil Action No. 3:17-cv-00535-RJC-DCK), alleging psychiatric disability discrimination, sexual harassment and wrongful discharge. I will explain how the Americans With Disabilities Act and Title VII of the Civil Rights Act protect employees from discrimination based on mental health disabilities. I will also summarize the remedies available to a disabled employee facing harassment and discrimination.

Golden Corral Restaurant Creates Hostile Work Environment for Autistic Dishwasher, EEOC Says

Sean Fernandez was a dishwasher at the Golden Corral restaurant in Matthews, North Carolina. He had a psychological disability in the form of high-functioning autism. This limited his ability to communicate and interact with others. According to the complaint filed in EEOC v Jax, LLC d/b/a Golden Corral, an assistant manager in his workplace took advantage of that disability, creating a hostile work environment. The EEOC complaint says that this male assistant manager called Fernandez a “retard” and “stupid”, swore at him, requested oral sex, threatened to sexually assault him, and made repeated unwanted physical contact. Fernandez filed a complaint with Golden Corral and asked to be assigned a different shift, with a different manager. When he was again assigned to the same assistant manager, who again sexually harassed him, Fernandez was allegedly forced to leave his job.

The Golden Corral complaint raises concerns over psychological disability discrimination under the Americans with Disabilities Act (ADA), sexual harassment under Title VII of the federal Civil Rights Act, and wrongful discharge.

Psychological Disability Discrimination and the ADA

The Americans with Disabilities Act (ADA) protects workers from discrimination based on their disabilities. It also requires employers to make reasonable accommodations to allow disabled workers to complete their assigned tasks. The ADA applies to psychiatric disabilities resulting from mental illness as well as physical limitations. According to the ADA National Network, 44 million adults report having a mental health condition in the past year. That is about 18% of the U.S. working population. This includes diagnoses like:

  • Anxiety disorders such as post-traumatic stress disorder (PTSD), panic attacks, or generalized anxiety disorder
  • Depression
  • Attention deficit/hyperactivity disorders (ADD or ADHD)
  • Bipolar disorder
  • Schizophrenia
  • Autism-spectrum disorders

All of these psychological diagnoses can qualify a person for protection under the ADA. The statute defines disability as “a physical or mental impairment that substantially limits one or more major life activities.” In the case of autism, this could include limitations on how the person communicates with coworkers. The ADA protects employees with current disabilities, those who have a record of psychiatric disability, and even those who are perceived as having a psychiatric disability.

Workers with qualifying conditions cannot be subjected to psychiatric disability discrimination by their managers, supervisors, or coworkers. The EEOC has take the position that this includes hiring and firing decisions, as well as unfair treatment in the workplace that could create a hostile work environment, such as the use of disability-related slurs.

Sexual Harassment and Mental Illness

The EEOC says that Fernandez also faced illegal sexual harassment while working for Golden Corral. Sexual harassment and mental illness can often be linked. In some cases, severe sexual harassment can cause temporary, or even permanent, mental health conditions such as anxiety or depression, which in turn can affect a person’s ability to work. In other cases, like with Fernandez, a person’s existing psychiatric disability can make him or her vulnerable to sexual harassment at work. Abusive coworkers and superiors may see the disabled person as an easy target, singling him or her out for discriminatory conduct.

Can You Quit Your Job to Escape Psychiatric Disability Discrimination?

The last part of the EEOC’s complaint against Golden Corral says that conditions on the job were so bad that Fernandez was forced to quit. The ADA and Title VII both protect against retaliation, including discharge, after a discrimination complaint is filed. They also both cover wrongful discharge or termination. But your employer doesn’t have to take the first step. If the conditions at work are bad enough that a reasonable person wouldn’t work there, you may be able to quit your job and still recover for wrongful discharge.

Under this theory, if the EEOC and Fernandez win their case, Golden Corral may have to give Fernandez his job back, and either reassign or fire the offensive assistant manager. Fernandez may also receive lost wages, both past and future (if he does not get re-hired), and other money damages for the harm caused by the psychiatric disability discrimination and sexual harassment.

Psychiatric disability discrimination can make living with mental illness even tougher. These conditions are often invisible, and many who suffer from them learn coping mechanisms and take medication that allow them to carry on at work. But when you become a target, it can put extra strain on your coping mechanisms. You shouldn’t have to put up with psychological discrimination or sexual harassment just because of your mental health condition.

If your mental illness is leaving you exposed to psychological disability discrimination at work, the disability discrimination attorneys at Eisenberg & Baum, LLP, can help. We will help you negotiate with your employer, prepare your case, and stand up for you in court. If you or a loved one is being targeted at work because of a mental illness, contact Eisenberg & Baum, LLP, today to schedule a free consultation.

Sexual Harassment in the Federal Government: #MeToo Hits Congress

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The #MeToo movement has affected big names from Hollywood to Washington. Now, a string of allegations against Congressmen (and women) are raising questions about how sexual harassment in the federal government is handled, and who gets to know about it.

In this blog post, I will review allegations weighed against a number of U.S. Representatives and congressional candidates. I will explain how the Congressional Accountability Act and Title VII can be used to protect federal employees, including congressional staffers.

#MeToo Sexual Harassment Complaints Sweep Washington

Since the #MeToo movement went viral recently, allegations have been raised against actors and producers, news personalities, corporate executives and others. Now, a number of complaints have been raised against members of Congress and congressional candidates leaving some staffers wondering who will be next.

Senator Al Franken

Senator Al Franken, a Democrat from Minnesota, was the first sitting congressional figure to face sexual harassment allegations. At least 6 women claimed Franken groped them while posing for photos during his media career. On December 7, 2017, Franken announced he would resign from the Senate. However, by December 18, he was still appearing on the Senate floor, and several legislators who had called for his resignation appear to have had a change of heart.

Representative John Conyers

Representative John Conyers from Michigan, the longest-serving member of Congress, also faced allegations of sexual misconduct. An online news article described a confidential settlement of over $27,000 paid to a former staffer who claimed the congressman created a hostile work environment for women staffers. Marion Brown told USA Today that Conyers pressed her for sexual favors, particularly when his wife was out of town. Conyers resigned his seat on December 5, 2017, despite continuing to deny the allegations by Brown and at least six other women and witnesses.

Representative Blake Farenthold

Representative Blake Farenthold, a Republican from Texas, also settled a sexual harassment lawsuit filed by a former aide. Lauren Green said Farenthold made sexually charged statements and engaged in off-color behavior. The settlement was paid through the Office of Compliance, which handles all congressional workplace concerns. However, Farenthold has since promised to repay the taxpayer funds used to cover the cost and announced he would not seek re-election at the end of his term.

Representative Ruben Kihuen

Representative Ruben Kihuen, a Democrat from Nevada, faces allegations by a young woman working on his 2016 campaign that he touched her thighs without consent twice. She quit the campaign rather than report the behavior. He apologized for his behavior amid calls that he resign.

Representative Trent Franks

Representative Trent Franks, a Republican from Arizona, resigned just hours after Sen. Franken. He too faced allegations of sexual harassment. This time two female staffers reported he pressured them to agree to act as surrogates and discussed fertility issues with them.

Congressional Candidate Roy Moore

Sexual harassment allegations also played a large role in the recent special election in Alabama. Republican senate candidate Roy Moore was accused of kissing and sexually assaulting a 14 year old girl when he was 32 years old. Three other women said Moore had pursued them while they were underage. Despite several members of his party recommending he withdraw from the election, Moore pressed on with the support of President Donald Trump. He lost to Democrat Doug Jones by a narrow margin.

The Congressional Accountability Act and Sexual Harassment in the Federal goverment

The 1995 Congressional Accountability Act (CAA) ensures that federal government employees are covered by employment and workplace safety laws, including Title VII of the Civil Rights Act. The CAA applies to over 30,000 legislative branch employees both in Washington and in state offices across the country. Under the CAA, those employees can raise complaints about sexual harassment in the federal government, among other worker protection laws.

The CAA created the Office of Compliance, an independent administration office that handles all congressional workplace complaints. The Office facilitates settlement of claims, provides workplace education and training programs, and investigates and enforces the laws described in the CAA within the halls of Congress.

Government workers must report civil rights violations within 180 days of the incident. Then the victims are required to go through 30 days of counseling and another 30 days of confidential mediation. If the matter is not resolved, the OCC may hold a hearing, or the employee can file a lawsuit in federal court.

When a federal legislative office commits a civil rights violation, including sexual harassment of staffers, the Office of Compliance is authorized to pay settlements out of the U.S. Treasury. Between 1997 and 2014, the office paid $15.2 million toward 235 awards and settlements addressed by the Office of Compliance. That means that when the victims of sexual harassment by members of Congress or other federal employees, the money comes from U.S. Taxpayers.

Changes to Sexual Harassment Claims in Washington

The House of Representatives recently voted on HB 4155, a bill that would amend the CAA to make the names of those accused of sexual harassment publicly accessible. Both houses have also approved bills to make sexual harassment and gender discrimination training mandatory.

Federal government employees face sexual harassment just like any other industry. But the CAA adds extra layers to the process to receive relief. At Eisenberg & Baum, LLP, we have sexual harassment attorneys ready to help you fight back against sexual harassment in the federal government. If you are a congressional staffer facing discrimination, contact us today to schedule a free consultation.

What is Ford Motor Company Doing About Harassment of Women and African-Americans?

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When a workplace turns hostile, it is often not just one employee who suffers. Even when only a handful of employees come forward to the Equal Employment Opportunity Commission (EEOC), it is often a sign that relief will take company-wide changes. At Ford harassment of women and African-Americans has been going on for decades. Find out what Ford Motor Company is doing to combat harassment in its Chicago plants. In this blog post I will discuss the recent Ford Motor Company settlement with the EEOC. I will explain when sexual harassment and racial discrimination can result in class action lawsuits. I will also explain how the EEOC’s conciliation process can sometimes be used to avoid public embarrassment, and lengthy litigation.

Title VII Protects Classes of Protected Employees

Title VII of the Civil Rights Act makes it illegal for employers to engage in or allow harassment or discrimination based on race, color, or national origin, as well as sex or gender. Employers are not allowed to make hiring or other employment decisions with these traits in mind. They are also required to take reasonable steps to stop discrimination or harassment from creating a hostile work environment for their employees.

When a Title VII complaint includes larger employers like Ford Motor Company, it often includes harassment against more than a handful of employees. In these cases, the EEOC or private workplace discrimination attorneys often pursue class action lawsuits for the benefit of all employees in the protected class.

EEOC Conciliation Settlement Advantages

Class action lawsuits can become large and complicated, including extensive testimony from affected employees, witnesses, and experts. They are also attractive to journalists, and can turn into bad press for the employer. What that happens, it puts the representative plaintiffs in the uncomfortable position of becoming the public face of a highly publicized lawsuit.

This can make a settlement attractive for everyone involved. EEOC investigations include a request that the parties voluntarily engage in conciliation, an informal mediation process, to resolve complaints. Many larger companies are willing to use conciliation, especially when there is a chance the complaints will lend themselves to a class action lawsuit. In those cases, employees may want to take advantage of the mediation process to resolve their cases more quickly and privately, while still getting the relief they need.

If employees do decide to use the EEOC conciliation process, it is a good idea discuss the matter with an independent employment attorney first. The EEOC often has the big picture in mind — looking for ways to make the workplace less hostile for the largest number of employees. If an individual claimant’s damages or concerns are different or more severe than the average class member, those needs can sometimes be overlooked in the settlement process.

Ford Motor Company’s Conciliation Settlement

In August 2017, Ford Motor Company decided to take advantage of the EEOC’s conciliation settlement to resolve complaints of workplace harassment of women and African-Americans. The charges claimed that personnel at the Chicago Assembly Plant and Chicago Stamping plant had subjected female and African-American employees to sexual and racial harassment. The EEOC’s investigation also revealed evidence that Ford had retaliated against employees who complained about the treatment.

According to announcements by the EEOC and Ford Motor Company, the settlement included:

  • Up to $10.125 million in cash damages
  • Regular training at the Chicago facilities over 5 years
  • Distribution of the company’s anti-harassment and anti-discrimination policies to employees and new hires
  • Reporting to the EEOC on all harassment and related discrimination complaints
  • Workplace monitoring

By entering into the settlement, Ford was able to avoid admitting liability for the harassment allegations.

Neither Ford nor the EEOC commented on how many employees were involved in the original charges. But the financial part of the settlement could apply to any of the company’s 5,500 employees at the two plants who are women or African-American men working at the plant after January 1, 2010. To receive their portion of the settlement, employees will need to establish their eligibility through a process set out in the agreement.

A conciliation settlement can often resolve claims of workplace harassment of women, African-Americans, and other protected employees sooner and more discreetly than extensive litigation. But it isn’t right for every case. If you are facing harassment at work, our experienced workplace harassment attorneys at Eisenberg & Baum, LLP, can help you consider your situation, and your options through the EEOC and in court. Contact us today to schedule a free initial consultation and get your case started.

Is an Employer Responsible for Sexual Harassment by Its Employees?

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When many people think of sexual harassment in the workplace, it brings to mind coercive bosses and oppressive business owners taking advantage of younger workers beneath them. But what about when the harasser is a coworker? Is an employer responsible for sexual harassment by its employees?

In this post I will discuss whether an employer can be held liable for sexual harassment or discrimination by its employees. I will explain when an employee can sue under federal law for the behavior of his coworkers or supervisors. And I will lay out what an employee should do if she wants to hold her employer responsible for sexual harassment committed by its employees.

The Civil Rights Act Protects Employees Against Sexual Harassment

Title VII of the federal Civil Rights Act is designed to protect American employees against discrimination and sexual harassment in the workplace. It gives workers the ability to file complaints with the Equal Employment Opportunity Commission (EEOC) or in federal court when inappropriate sexual advances affect a person’s employment.

Legally speaking, sexual harassment takes two forms:

  • Quid pro quo situations where an employer makes employment decisions based on an employee’s willingness to engage in sexual conduct
  • Hostile work environment claims where an employee’s coworkers or supervisors make repeated sexual statements or advances that are so severe that a reasonable person would find them inappropriate

In some cases, sexual harassment can also lead to retaliation claims, when an employer decides to remove the source of sexual harassment complaints, instead of the person committing the inappropriate behavior.

In either case, Title VII entitles the employee to a variety of financial and practical remedies, depending on the claimant’s circumstances and desired outcome:

  • Reinstatement into the same or similar position
  • Transfer to a different unit or shift
  • Removal or transfer of the offending employee or supervisor
  • Payment for lost wages, both past and future
  • Reimbursement for the costs of finding replacement employment
  • Punitive damages in some cases

Is an Employer Responsible for Sexual Harassment by Its Employees?

Sexual harassment is often caused by a desire to exert power and control over another person. In a traditional case, this is usually done by a boss, supervisor, or manager against an subordinate. In these cases, Title VII provides a clear path to recovery. When the harasser has the ability to significantly change the employee’s employment status, the United States Supreme Court has said the employer can be held directly responsible if those decisions are motivated by a person’s sex or sexuality.

But what about when the harasser is just a co-worker? A 2013 Supreme Court decision, Vance vs. Ball State University, 133 S.Ct. 2434, says that an employer will not automatically be responsible for a coworker’s independent intentional act. An employer is generally liable for actions done as part of the job, but discrimination and harassment aren’t part of anyone’s job description. According to the Court, an employee trying to hold an employer responsible for sexual harassment by its employees will have to do more than show that the behavior was offensive and happened at work.

Instead, if the sexual harassment didn’t involve a negative employment action, like hiring, firing, shift assignments, promotions, or pay raises, the employee must show that the employer was negligent in response to complaints. In other words, the company must have failed to prevent harassment it knew (or should have known) was happening on its dime.

For example, in September 2017, the EEOC sued coffee manufacturer Massimo Zanetti for sexual harassment and retaliation after the company allegedly fired an employee rather than respond to her complaints. LaToya Young was employed at the company’s Suffolk, Virginia roasting facility. After only two weeks of employment, a male co-worker began harassing her, asking for sexual favors, and making crude comments and gestures. The EEOC says Young filed three complaints about the behavior, but the harassment continued. Soon after her third complaint, Young was fired for alleged performance issues. The EEOC sued saying this was retaliation for Young’s sexual harassment complaints, which Massimo Zanetti had negligently failed to address.

What an Employee Should Do When Faced By Sexual Harassment by Co-Workers

The added step in proving an employer responsible for sexual harassment by its employees puts the pressure on the harassed employee. If you are facing harassment by coworkers on the job, you will need to take some proactive steps to protect your claim.

1. Say Something About the Harassment

Your employer needs to be on notice that sexual harassment is happening. So say something. Tell your supervisor, or your HR department what is happening and give them a chance to respond.

2. Write a a Formal Complaint

The larger your company, the more likely they are to have a formal discrimination policy with reporting procedures. Follow it. Make a formal written complaint and keep a copy for yourself.

3. Document the Employer’s Response

Start gathering documentation to support your sexual harassment claim and your employer’s investigation, or lack thereof. Follow up as often as it takes, in writing or via email, and keep track of every response you receive.

4. Track Continued Sexual Harassment

Along with your formal written complaint and the employer’s response, start tracking any continued sexual harassment happens: who, what, when, where, and who witnessed it. You will need this sexual harassment log to show your employer did not take reasonable steps to resolve the hostile work environment.

5. Get a Sexual Harassment Attorney to Help

Proving an employer responsible for sexual harassment of its employees isn’t easy. Don’t feel like you need to do it alone. At Eisenberg & Baum, LLP, we have sexual harassment attorneys ready to help you fight back against sexual harassment at work. We can help you stand up to your employer and demand that they protect you from sexual harassment by your coworkers. Whether all it takes is informal negotiations with your company’s attorney, or formal litigation in federal court, we can help you stand up for your rights. Contact us today to schedule a free consultation.

What if Your Boss Finds Out You Talked to a Sexual Harassment Attorney?

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If you are facing sexual harassment at work, you may feel torn between wanting to explore your legal options and not wanting your boss to find out you talked to a lawyer. You may be worried that you could be fired — or your work life could get worse — if your boss finds out you talked to a sexual harassment attorney. Find out what an attorney can do to protect your privacy and what you can do to protect yourself.

In this blog post, I will review attorneys’ professional responsibility of confidentiality, and what that means for employees facing sexual harassment. I will also explain how federal civil rights laws protect against retaliation. Finally, I’ll provide five tips to protect yourself from retaliation if you decide to talk to a sexual harassment attorney.

Sexual Harassment Attorneys Commit to Confidentiality

All lawyers are required to comply with professional responsibility rules designed to protect our clients from harm caused by our work. One key rule is attorney-client confidentiality. Every state’s language is slightly different, but generally speaking, this rule says attorneys may not reveal information relating to their representation of a client without the client’s consent. Lawyers are also required to take reasonable steps to prevent accidental disclosure of a client’s information.

Attorney-client confidentiality starts at the consultation. Even if we determine that you don’t have a claim, or you decide to proceed without us, it is our job to make sure your privacy is protected.

Sexual harassment lawyers take attorney-client confidentiality very seriously. We understand the sensitive nature of our work, and the possible effects of early disclosure. We will work with you to ensure that you are safe before your employer learns you have sought private legal advice.

Sexual Harassment Retaliation Is Illegal

Title VII of the Civil Rights Act says that sexual harassment at work is illegal. It also goes further to protect employees investigating possible sexual harassment claims by prohibiting retaliation. It is unlawful for an employer to punish job applicants or employees when they assert their rights under Title VII. Your employer may not retaliate you for any “protected activity” including:

  • Filing an internal complaint, union grievance, EEOC complaint or federal lawsuit
  • Participating in an employer or EEOC investigation as a party or witness
  • Communicating with a supervisor or manager about workplace harassment
  • Refusing to participate in harassment or discrimination
  • Resisting sexual advances or intervening to protect others
  • Asking about salary information

You are protected from retaliation even if it turns out you don’t have a valid sexual harassment claim. You employer could face charges for retaliating against you as long as you reasonably believed you were working to protect your rights or the rights of other employees to be free from discrimination. You could potentially be terminated or disciplined for unrelated reasons during an investigation, but your employer cannot legally do anything to discourage someone else from complaining about future discrimination.

Retaliation is its own cause of action. That means it applies even if your meeting with a sexual harassment lawyer ends without a case being filed. If an employer disciplines you for meeting with a lawyer to discuss your rights, that alone is enough to file an EEOC charge or federal lawsuit.

5 Ways To Protect Yourself From Retaliation If You Talk to a Sexual Harassment Attorney

Retaliation may be illegal, but it still happens. It is always better to avoid the hurt and financial damage caused by an unlawful termination than to be compensated after the fact. Here are some things you can do to protect yourself if you talk to a sexual harassment attorney and are worried about retaliation.

1. Don’t Talk About Your Complaints With Coworkers

It can be tempting to vent your frustrations about sexual harassment with your coworkers at the office. But if you are concerned about retaliation, it is better to keep your complaints to yourself. The unfortunate truth is that even your closest working friends may feel pressure to reveal what they were told to save their own jobs or advance their careers. Open offices, communal break areas, and factory floors are also great places for gossip. If your conversation is overheard it could quickly get back to your supervisor.

2. Don’t Use a Company Email or Smartphone

It is easy to assume that what happens through email or private message will stay between you and the recipient. But if you are using a company email server or smartphone, your boss may have the ability to view your communications. Always use private equipment to connect with your sexual harassment attorney. It may be inconvenient, but it is the only way to ensure your privacy and protect against retaliation.

3. Don’t Keep Your Harassment Logs in the Office

In many sexual harassment cases, your attorney will advise you to create a harassment log. Whether in electronic form or a paper binder, this log gathers the evidence your employment discrimination lawyer will need if the case goes to court. But the log can also be used against you and prompt retaliation if your manager gets a hold of it. Be sure to bring your harassment log home with you every day, or better yet, keep it outside the office altogether.

4. Don’t Take Attorney Calls on the Clock

Developing a sexual harassment claim often takes time, and repeated communication with your lawyer. But even if your boss hasn’t figured out how to monitor your emails, he or she probably knows how to eavesdrop. When your sexual harassment lawyer calls while you’re on the job, don’t take the call. Unless you are immediately able to step away to someplace private, let it go to voicemail. You may also want to schedule calls for your lunch break (off site) or after the end of your shift.

5. Don’t Post on Social Media

Today many people choose to live a very public life. They post about every aspect of their lives on social media, from the death of a loved one to what they ate for dinner. But if you are at all concerned about retaliation, you should make an exception for your sexual harassment matter. When it comes to ongoing legal issues, mum’s the word on Facebook, Twitter, Instagram, or any other social media platform. Don’t post anything about the issue — you meeting with the lawyers, your decision, or even what is happening at work. Remember that if your case goes to trial, whatever you post could become evidence for your employer.

By the time sexual harassment pushes you to speak to an attorney, it can seem all-consuming. You may rightfully fear that your boss will find out and retaliate against you. But by being discrete and protecting your privacy, you and your lawyer can help you ensure that a consultation doesn’t cost you your job.

At Eisenberg & Baum, LLP, our experienced workplace harassment attorneys take your privacy seriously. We will meet with you confidentially to review your case, and your options, and help you decide when, where, and how to file your claim. Contact us today to schedule a free initial consultation and get your case started.

What is Workplace Intimidation?

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Workplace intimidation can make your office a toxic place to be. When your boss or coworker is subjecting you to workplace bullying, you can feel you have no choice but to quit. Find out what workplace intimidation is, and how you can stop it.

In this blog post, I will explain what workplace intimidation is and provide examples of bullying conduct. I will explain what forms of intimidation are illegal, and explain what you can do to stop it.

What Workplace Intimidation Looks Like

Workplace intimidation, which is also called workplace bullying, happens when a superior, coworker, or direct report uses physical violence or threats, blackmail, or verbal abuse to manipulate a company employee for some professional advantage. It usually occurs over time, developing a pattern of mistreatment that can negatively affect an employee’s mood, productivity, and even mental and physical health.

No two workplace intimidation situations are exactly the same. What bullying looks like will depend on the nature of your business and what your workplace typically looks and sounds like. Some common examples of workplace intimidation include:

  • Physical violence or threats
  • Yelling or screaming
  • Hostile physical posturing
  • Ridiculing or insulting you in front of coworkers or customers
  • Intentionally assigning tasks outside your expertise
  • Finding fault with your work or assigning errors to you that are not your responsibility
  • Taking credit for your work
  • Sabotaging your work or setting you up to fail
  • Raising the bar for success or setting up different standards for the targeted employee
  • Interfering with your ability to work

Is Workplace Intimidation Illegal?

Not all forms of workplace intimidation are illegal. Whether bullying behavior violates state or local laws depends on what is done, and in some cases, the motives behind the bully’s actions. However, there are some circumstances when intimidation crosses the line into illegal, even criminal behavior.

Criminal Assault

Physical assault is a crime. Depending on the specific language of your state’s criminal code, a workplace bully can be prosecuted for hitting, kicking, tripping, poking, or otherwise injuring you. Some states also allow for criminal assault charges based on offensive touching (physical contact which a reasonable person would object to), or verbal assault which causes substantial emotional injury. Threats of assaults can also sometimes result in criminal prosecution. If you have experienced physical assault or threats, most jurisdictions require you to speak directly to the police to file a complaint. A private attorney may also be able to assist you in filing civil assault charges.

Sexual Harassment

When physical or verbal conduct is based on a person’s sex or gender, it can violate federal and state laws against sexual harassment. Minor, one-time occurrences may not be enough to create a cause of action. However, the more frequent or more severe the behavior, the more likely you will be able to file a complaint with the Equal Employment Opportunity Commission (EEOC) or in federal court. An employment discrimination attorney can help you determine if you have a claim and what you need to do to preserve it.

Illegal Workplace Discrimination

When workplace bullying is based on a protected trait of the targeted employee, it can easily cross the line into illegal workplace discrimination. This applies to conduct based on:

  • Race
  • Color
  • National origin
  • Sex or gender
  • Pregnancy
  • Religion
  • Disability
  • Age

If an employer makes employment decisions (including job assignments) or allows its employees to create a hostile work environment based on one of these criteria, you may be able to file a complaint at the EEOC or in federal court. The rules about how workplace discrimination is reported depends on your employer’s policies, whether you are part of a union, and what protected trait is involved. Speak to an employment discrimination attorney to discuss your options and file the proper claims.

What to Do If Workplace Bullying Isn’t Illegal

If your situation does not violate any of the criminal or EEOC laws, you may still be able to put a stop to workplace intimidation. The Department of Labor encourages employers to establish clear anti-bullying policies that protect employees’ physical and mental health. The bigger your company, the more likely it is that there are steps you can take internally to report the abuse.

If your employer doesn’t live up to its promises or comply with its anti-harassment policies, you may be able to sue in state or federal court based on a breach of contract claim. This argument says that your employer promised to protect you from workplace intimidation and failed to do so. This kind of claim depends on the specific language of your employee handbook or company policy. Meet with a workplace harassment attorney to see if that language applies to you and your situation.

If your company does not have a formal anti-bullying policy, an employment lawyer may still be able to help. Informal negotiations on your behalf can sometimes remove the bully, reassign the targeted employee, or even help everyone in the office by creating new workplace rules of conduct.

You don’t have to put up with workplace intimidation. Whether the conduct against you is criminal, against federal or state discrimination laws, or simply wrong, an employment attorney may be able to help. At Eisenberg & Baum, LLP, our workplace harassment attorneys can meet with you to discuss your circumstances, and your options. Contact us today to schedule a meeting and fight back against the bully.

Sexual Harassment, a Blog Post, and a Shakeup at Uber

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Can a whistleblower ever make a difference in a big company? Do you have to make a formal complaint with the Equal Employment Opportunity Commission (EEOC), or could something as simple as a blog post make a difference? Find out how one former employee’s online complaint has caused a shakeup at the top of Uber.

In this blog post I will describe how a blog post by former Uber engineer Susan Fowler describing sexual harassment and retaliation led to an independent investigation and the resignation of CEO and founder Travis Kalanick. I will review the recommendations made to revise company policy and culture and explain how internal policy can affect claims of discrimination and harassment.

Former Employee’s Blog Reports Sexual Harassment

A former Uber site reliability engineer (SRE), Susan Fowler, left the company after a year of sexual harassment and retaliation issues. Her blog post, published in February 2017, blew the whistle on a corporate culture that gave free passes for sexual harassment to high performers within the company. She claimed that early in her employment, her manager inviting her to have sex with him and his wife in their open relationship. She complained about it to HR, but they claimed it was his first offense and only issued a warning.

Over the next several months, she learned of several other female engineers with similar experiences. HR and upper management gave similar warnings, claiming that no other complaints had ever been filed, even against the same manager.

Over the next year, internal management changes made Fowler want to change project teams. In spite of positive performance reviews and a lack of complaints, she claims her transfer was refused based on unreported performance problems. Then her next performance review was changed after the fact without notice. She claimed management relied on a lack of “upward career trajectory”. The negative review caused her to once again be rejected for a transfer and lose tuition assistance from the company.

According to Fowler, in 2015 when she joined Uber, 25% of the organization was women. By the time she left that number had dropped to 3%. At one point the organization used the drop in women employees as a justification for sexual discrimination, allegedly refusing to provide leather jackets to their female employees because the low numbers meant they would not receive a bulk discount. It was this incident that caused HR to call her in for a “difficult conversation” in which she claimed the representative threatened to fire her for reporting things to HR.

Uber Responds to Whistleblower Blog

Fowler’s blog post went viral, forcing Uber to respond to her allegations of sexual assault. They hired the law firms of Perkins Coie and Covington & Burling to do a probe into the systemic sexism claims. Former Attorney General Eric Holder and Tammy Albarran took a close look at the company’s culture and policies.

In the midst of the probe, another Uber employee came forward, saying he was fired for standing up for female coworkers facing sex-based discrimination and harassment. He alleged that he raised concerns with HR, and was fired soon thereafter.

The probe resulted in Uber firing over 20 employees on June 6, 2017. Forty more were reprimanded or referred to counseling and training. A week later Uber released the lawyers’ recommendations after the board agreed to adopt them all. This will include:

  • Changes in senior leadership including removing CEO Travis Kalanick’s responsibilities and promoting Uber’s Head of Diversity, Bernard Coleman
  • Cultural changes eliminating policies like “Let Builders Build”, “Always Be Hustlin'”, “Meritocracy and Toe-Stepping” and “Principled Confrontation”
  • Increases board oversight of diversity and inclusion efforts
  • Developing internal controls including tracking of discrimination and harassment complaints
  • Mandatory training for managers, executives, and HR employees
  • Emphasizing diversity in inclusion in hiring and training
  • Policy changes that make sexual harassment more difficult and transfers easier
  • Addressing employee retention concerns
  • Review equal pay practices

At that time, Kalanick took a leave of absence as CEO, saying that his direct reports and leadership team would be running the company. On June 21, 2017, he formally resigned.

Susan Fowler’s story shows that a single whistleblower can sometimes bring about changes, even in the biggest tech companies. In an industry facing repeated claims of sexual discrimination, Uber’s response to an engineer’s blog post shows that protection for employees can still happen.

If you are facing sexual harassment or a culture of discrimination at work, you don’t have to hope your blog post goes viral. The skilled employment discrimination attorneys at Eisenberg & Baum, LLP, can negotiate with the company your behalf. We can help you push for change that will help you and your coworkers be able to work free of mistreatment. When negotiations fail, we can take the matter to the EEOC or court. Contact us today to schedule a free initial consultation and get your case started.

Can a Man Sexually Harass Another Man?

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When they think of sexual harassment, many people envision a male boss putting pressure on a female employee to have sex with him. But that’s not always the case. The stereotype can make it hard for a man to come forward when he finds himself facing inappropriate conduct. He may even wonder, “Can a man sexually harass another man?”

In this blog post, I will discuss what same-gender sexual harassment can look like. I will review EEOC v Discovering Hidden Hawaii Tours, Inc., in which a man is alleged to have harassed several of his male employees. I will also explain what men can do if they are facing sexual harassment at work.

Same-Gender Sexual Harassment Is Illegal Discrimination

There are laws against gender discrimination at every level of our legal system, from local ordinances to federal laws. They prevent hiring practices and decisions based on a person’s sex or gender. At the federal level, Title VII of the 1964 Civil Rights Act says:

“It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex… .”

This includes sexual harassment. The United States Supreme Court first determined that sexual harassment was a form of illegal discrimination in 1986 in a case called Meritor Savings Bank v. Vinson. In that case, as in many that followed it, a female employee was coerced by her male boss into performing sexual acts to keep her job.

But sexual harassment applies in same-gender situations too. In 1997, the Supreme Court decided Oncale v. Sundowner Offshore Services. There a male offshore oil worker was sexually harassed by several male co-workers who verbally abused him and performed physical sexual acts with him. The court noted that Title VII protects men and women from discrimination based on their sex. That includes sexual harassment no matter what the genders of the parties happen to be.

EEOC v Discovering Hidden Hawaii Tours, Inc.

Situations like the one in Oncale continue to happen today. Earlier this year, the Equal Employment Opportunity Commission (EEOC), the agency in charge of enforcing Title VII of the Civil Rights Act, sued a tourism company for very similar conduct. The EEOC’s complaint says that the president of Discovering Hidden Hawaii Tours developed a pattern of recruiting young men to work for his companies and then sexually harassing them. A decade of sexual harassment of several different employees included:

  • Inviting male employees to join sex parties with him
  • Showing them pornographic photos and videos
  • Demanding that they expose themselves to be considered for employment
  • Making employment opportunities depend on engaging in sexual acts
  • Engaging in unwanted, non-consensual sex acts against male employees

When employees complained about the president’s behavior to their superiors, the company did nothing. This forced some employees to quit. Others faced retaliation from the president for their complaints.

The EEOC took up the case, and has sued the company on behalf of a class of its employees. The lawsuit seeks back pay, compensatory, and punitive damages for the victims, as well as changes to the workplace called injunctive relief. In a statement, Anna Park, regional attorney for the EEOC’s Los Angeles District (which covers Hawaii), said:

“All employees, regardless of gender, have the right to work in a harassment-free workplace and should never be forced to endure such abuse. . . . I applaud these young men for coming forward to tell their stories.”

Sexual Harassment Includes More Than Physical Acts

If the EEOC’s allegations are true, the employees of Discovering Hidden Hawaii Tours, Inc., faced severe sexual harassment. But just because a man isn’t forced to expose himself or engage in sex acts doesn’t mean he doesn’t have a case. The federal definition of sexual harassment is broader than that. It includes patterns of behavior and comments based on or about a person’s gender, as long as they are severe or pervasive enough that a reasonable person would feel they were in a hostile working environment. For men this could include:

  • Being told they are not “manly” enough or do not fit a masculine stereotype
  • Having pornography displayed in their workplace
  • Being called a woman or feminine names
  • Being held to stereotypical expectations of male behavior
  • Inappropriate physical touching

The more often the conduct or statements happen, the more offensive they are, and the more people become involved, the more likely the EEOC and the federal courts will find that a man has been a victim of sexual harassment.

Men Can Stand Up to Sexual Harassment At Work

Men can find themselves the victim of sexual harassment from bosses, managers, supervisors, co-workers, and even customers. When abusive situations occur there are several steps men can take to stand up against sexual harassment at work:

  • File a written complaint with a supervisor or HR department
  • File a grievance with a union representative
  • File a claim with the EEOC or your state civil rights office
  • File a lawsuit in state or federal court.

An experienced employment discrimination attorney can meet with you early in the process and make sure everything is done right to protect your claim. At Eisenberg & Baum, LLP, our sexual harassment attorneys will help you collect your documents, file the necessary claims, and represent you in court. Contact us to schedule a consultation. We will help you put an end to sexual harassment at work, so you can get back to your job.