Survey Says! You Have Some Extra Time to File Your EEO-1 FormWe all know how much HR professionals LOVE to fill out government-mandated forms. One of the forms at the top of the list is the EEO-1 compliance form that must be filled out by companies that have 100 or more employees or that are a federal contractor with 50 or more employees and a contract of $50,000 or more. The form asks for basic information on the company’s full-time and part-time employees, including gender and ethnicity. Usually, these forms are due on March 1 of every year. However, due to the partial government shutdown, the deadline has now been extended to May 31, 2019. So enjoy that additional time, but get your forms in!

Winning Harassment Claims in the #MeToo EraIn this #MeToo era, employers are, understandably, a little sensitive when someone raises a claim of harassment. Even with the heightened sense of peril, companies should remember that if they are doing the right thing—having effective policies in place and handling complaints appropriately—they can still prevail. A recent decision, Peebles v. Greene County Hospital Board and Elmore Patterson, makes this abundantly clear.

The Facts

Elmore Patterson was the CEO of Greene County Hospital’s (GCH) residential care facility. Beginning in November 2013, Wennoa Peebles was his executive assistant, as well as an accounts payable clerk in the business office. According to Peebles, Patterson created a hostile work environment in a number of ways, including his use of profanity, demeaning comments (telling Peebles she was “just part of the room” and “not to speak,” referring to female employees as “opossums” and that he would not sleep with the “opossums”), and occasional, off-handed sexual comments (such as comments about paddling a female employee’s rear end and bosom).

Peebles, who was not the only employee who raised concerns about Patterson, complained to a number of GCH board members about his behavior. In October 2015, GCH got a letter from Peebles’ lawyer noting that Peebles’ had complained about her work environment, was experiencing discrimination and retaliation, and was filing an EEOC charge. She filed the charge on November 4, 2015, alleging sex discrimination, retaliation, and a hostile work environment. About 10 days later, GCH told Peebles she should submit any complaints about her work environment to a designated board member. GCH also gave Peebles the option of transferring to her prior position (certified nursing assistant) at no loss of pay.

In January 2016, Patterson suspected that Peebles had disclosed board member email addresses. When he asked Peebles about it, she denied doing so. Patterson did some additional digging and concluded that not only had she disclosed the emails, she had lied to him about it and terminated her. Not surprisingly, Peebles believed that GCH terminated her not because of her disclosure of the email addresses but because of her protected activity.

Summary Judgment for the Employer

The district court granted summary judgment to GCH on both the harassment and retaliation claims. With regard to Peebles’ harassment claim, GCH apparently conceded that Peebles had established that she belonged to a protected group, that she was the subject of unwelcome harassment, and that the harassment was based on her sex. The court found, however, that Peebles had not established that the harassment was sufficiently severe or pervasive enough to alter the terms and conditions of employment to create a discriminatory or abusive working environment. The court explained that there are four factors to consider in determining whether conduct is severe or pervasive enough to permeate a workplace:

  • The frequency of the conduct
  • The severity of the conduct
  • Whether the conduct is physically threatening or humiliating, or a mere offensive utterance
  • Whether the conduct unreasonably interferes with the employee’s job performance

On balance, the court found that Patterson’s conduct over the two-year period, which was described in the opinion as hardly “boss of the year” material, was not sufficiently severe or pervasive. Accordingly, the court granted summary judgment in favor of GCH.

The court went on to find that Peebles failed to establish a case of retaliation, and GCH’s reasons for terminating her employment were legitimate and had nothing to do with her complaints about Patterson.

Takeaways

So, what can we learn? GCH did a lot of things right and still ended up getting sued—but they won. Here are a few things that employers should consider when a harassment complaint (or something that could be a harassment complaint) arises:

  • Effectively manage the complaints immediately. As soon as Peebles made complaints about Patterson, GCH addressed them, going so far as to designate a board member as a contact. GCH did this even though at least some of Peebles’ concerns were about bad behavior that did not clearly fall in the sexual harassment realm.
  • Take steps to stop any alleged harassment. In addition to a complaint procedure, GCH offered Peebles a transfer so she would not have to work with Patterson. While this is not always appropriate, employers should consider whether it is a viable option. You would not want to involuntarily transfer someone who complained, but giving them the option of getting away from the alleged harasser may be a good option to retain an employee and prevent a retaliation complaint. Of course, that is not what happened in this case, but it is still a good idea.
  • Don’t limit the assessment to the legal standard. Although the court relied on whether the behavior was sufficiently severe and pervasive enough to create a hostile work environment, employers should not limit their internal assessment to this legal standard. Behavior may not rise to the level of legal harassment but it can still violate a company’s harassment policy.

Two Guys Walk into a Wine Bar… Not a Joke as Another Court Recognizes Claim for Harassment Based on Sexual OrientationI have told clients for years that they ignore claims based on sexual orientation at their peril, and another court is backing me up. An Arizona federal district court just ordered a wine bar to pay real money ($100,000) to two servers based on claims about sexual orientation harassment and retaliation.

Curiously, this was a default judgment, so we have no idea what the employer’s side of this story is. With that caveat, two servers, Wyatt Lupton and Jared Bahnick, filed charges with the EEOC claiming that 5th & Wine allowed its management and employees to harass them because their actual or perceived sexual orientation. According to Lupton, he was fired after he said he planned on taking legal action. The EEOC found cause and ultimately filed a lawsuit on their behalf. The company did not answer, and the EEOC obtained a default judgment—money for Lupton and Bahnick, as well as injunctive relief.

Regardless of what actually happened at this wine bar, employers should be careful when confronted with claims of discrimination or harassment based on sexual orientation or transgender status. Even though Congress has not added these as protected categories under Title VII, many courts are treating them as covered. In light of that trend, cautious employers should consider the following:

  • If an employee reports that he or she is being harassed because of sexual orientation or transgender status, treat it like you would any other harassment complaint.
  • Consider revising EEO and harassment policies to explicitly include sexual orientation and transgender status as protected categories.
  • Make sure supervisors and managers understand that ignoring these issues could land the company in court.