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.

Blow Out Your Candles…and Clean Out Your Desk: The Dangers of Firing an Employee after Her 65th BirthdayNothing ruins a birthday celebration faster than a pink slip. Karen Ruerat, a receptionist, was terminated from her position at Professional Endodontics, P.C. four days after her 65th birthday. She alleges it was because of her age, and the EEOC is suing on her behalf, alleging violations of the Age Discrimination in Employment Act (ADEA).

The Details

Ruerat began working for Professional Endodontics in 1978 as a window greeter/receptionist. In January 2016, following 37 years of employment and, coincidentally, her 65th birthday, they terminated her. The EEOC complaint alleged that Professional Endodontics maintained an employment policy requiring its employees to retire at the age of 65, and Reurat’s termination was the result. Unsurprisingly, Professional Endodontics, in its answer, denied any and all contention that such a policy existed, as well as the claim that it treated Ruerat unfairly because of her age.

The Bigger Picture

Under the ADEA, it is unlawful to discriminate against a person because they are 40 years or older. In some limited instances, employers may avoid ADEA liability: (1) where age is a bona fide occupational qualification reasonably necessary to the normal operation of the par­ticu­lar business, and/or (2) where the differentiation is based on reasonable factors other than age. Generally speaking, however, any mention of age in relation to employment practices is likely to create red flags and employer headaches.

Fortunately, Professional Endodontics was able to resolve this claim by agreeing to not take any employment actions on the basis of age…and pay Ruerat $47,000. Professional Endodontics also agreed to supplement and re-distribute its existing policy with ADEA-specific language clearly stating that there is no mandatory retirement age and provide anti-discrimination training for the next two years.

What Does This Mean for Employers?

While there are clearly two sides to Ruerat’s story, employers can still take this opportunity to prevent future liability and litigation. Professional Endodontics likely did not have a mandatory retirement age; however, it also may not have clearly communicated its expectations/policies to its employees. Here, then, are a few items to help your company avoid a similar spat with the EEOC:

Avoid mentioning age (when possible) in your policies. The ADEA doesn’t have an upper age limit. Employers, then, should understand that you absolutely cannot institute a mandatory retirement age or anything that suggests people should retire. Age is a dangerous topic to broach, and for that reason employers should take care to thoughtfully review their current practices and policies.

Document employment decisions. In the normal course of business, there are countless personnel decisions made on a daily basis. It can be easy to lose track of what decision was made and why it was made. So employers should document all of their legitimate, non-discriminatory reasons when engaging in employment decisions. Create a strong paper trail so you can show that you fired an elderly employee because she couldn’t or wouldn’t do her job, not because of her age.

Use neutral communication. A lot of the tension created by employment decisions can be attributed to lapses in communication. As an employer, it is your duty to let your employees know where they stand. Whether that means reiterating performance standards or engaging in conversation over the seniority/merit/non-age based factors that you use to determine employment, be clear and stay neutral.

Provide training. With an increase in employee protections, it is never fruitless to invest in additional training opportunities for your staff. An ounce of prevention is truly worth a pound of cure. Whether the trainings are in person or through an online platform, ensure that your workers interact with anti-discrimination content regularly to help avoid any hostility, confusion, or miscommunications in the workplace.

As your employees gain experience, they gain years on the age clock. Old or young, be sure to manage all of your employees the same way.