October 6, 2015

Jack Link’s Missing Link: Company Pays $50K to Settle Claim of Ongoing Sexual Harassment

Posted in Discrimination, Employee Handbooks, Gender / Sex, Harassment, Harassment, Hostile Work Environment, Minnesota Human Rights Act, Sexual Harassment, Sexual Harassment, Title VII of the Civil Rights Act of 1964, Uncategorized tagged , , , , , , , at 10:28 am by Tom Jacobson

A recently settled Minnesota Department of Human Rights charge against Jack Link’s Beef Jerky emphasizes the importance of follow-through when responding to sexual harassment allegations. According to the Department, Jack Link’s initially took the “right step” in disciplining the alleged harasser but then failed to monitor the situation, which included ongoing harassment.

Specifically, MDHR reports that shortly after being hired by Jack Link’s, a female employee’s supervisor made sexual advances toward her, called her “baby,” said she was beautiful, asked if she was single, chanted “pack baby pack,” and asked if he was too old for her. The Department also reports that although Jack Link’s initially disciplined the supervisor, the company then promoted him to be woman’s direct supervisor, after which he continued to harass the employee. Claiming she could no longer tolerate the work environment, the woman quit.

Thus, based on the MDHR’s findings, the missing link in Jack Link’s response was the lack of follow-through and monitoring. As noted by MDHR Commissioner Kevin Lindsey:

This is an unusual case in that the employer took the right step in originally disciplining the supervisor. The employer however undermined its efforts by not subsequently monitoring the actions of the alleged harasser. Employers need to maintain contact with the employee who has complained of sexual harassment to make sure that the measures that they have undertaken are actually working.

To settle the charge, Jack Link’s agreed to pay the victim $50,000.00 and to provide training on the Minnesota Human Rights Act and how to properly respond to sexual harassment allegations.

Generally speaking, employers must first take steps to prevent unlawful workplace harassment. But if, despite those efforts, an employee claims that harassment has occurred, employers must take prompt action to correct and stop that behavior. As the Jack Link’s case points out, this includes careful monitoring and follow-through to make sure the harassment does not continue or recur.

For more information about this article or about the harassment training, policy development, and related services I can provide, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

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January 29, 2015

Hit-men, harassment & the perils of office romance

Posted in Discrimination, Employee Handbooks, Gender / Sex, Harassment, Harassment, Hostile Work Environment, Minnesota Human Rights Act, Office Dating, Office Romance - Dating, Sexual Harassment, Sexual Harassment, Title VII of the Civil Rights Act of 1964, Workplace Romance tagged , , , , , , , at 11:09 am by Tom Jacobson

office romanceWith Valentine’s Day just around the corner, it seems like a good time to remind everyone that office romance is generally a very bad idea. After all, it might lead to murder-for-hire plots, ugly custody fights, and the occasional sexual harassment suit.

Take the recent Stearns County, Minnesota case involving Nomad Pipeline Services CEO Robert Schueller. He was charged with orchestrating a murder-for-hire plot where it’s alleged that he tried to hire a hit man to kill the fiance’ of an employee with whom he had an affair (see MyFox9, Charges: Office affair break-up, murder-for-hire plot). Mr. Schueller ultimately pled guilty to one count of sending threatening communication (See WCCO TV, Company President Pleads Guilty in Plot Involving Employees).

Or, there’s the case that fellow blawger Eric Meyer recently noted where an office affair apparently resulted in pregnancy, a custody battle, and a sexual harassment claim.

Those are extreme examples of love gone bad, but I’ve seen office romance cases that have taken a big toll, albeit without the intrigue. Co-workers perceive favoritism toward the boss’s paramour. Jilted lovers persist in their advances, which are then perceived as hostile. Encounters that were once consensual are suddenly claimed to be unwelcome. Employees struggle to know how to end a personal relationship when they have to continue working with their former significant other. What was once romance becomes harassment that ends up in court.

Of course, there are examples where office dating blossoms into healthy relationships. However, no one can predict where a new romance will lead. To mimimize the risk that it will lead to the courthouse, see my prior article, Big Bang and the Office Dating Game.

Have you taken my poll on President Obama’s mandatory paid sick leave proposal? If not, click here. Poll closes January 30.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 1, 2014

Another day, another Executive Order impacting federal contractors

Posted in Age, Alternative Dispute Resolution, Americans with Disabilities Act, Arbitration, Arbitration, Color, Creed, Disability, Discrimination, Fair Labor Standards Act, Family and Medical Leave Act (FMLA), Gender / Sex, Harassment, LGBT, Minnesota Human Rights Act, National Labor Relations Act, National Origin, Pregnancy, Race, Religion, Sexual Harassment tagged , , , at 11:23 am by Tom Jacobson

White HouseIn another attempt to flex his regulatory muscle, President Barack Obama on July 31, 2014 issued yet another Executive Order aimed at federal contractors. This one, the Fair Pay and Safe Workplaces Executive Order, requires potential federal contractors to disclose past employment and labor law violations before they can secure federal contracts.

Earlier this month, President Obama issued an Executive Order to protect the rights of LGBT employees of federal contractors (see President Issues Order to Protect LGBT Workers).

Yesterday’s Order requires most potential federal contractors to disclose violations in the past three years of thirteen specified federal labor and employment laws. These laws include the National Labor Relations Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Americans with Disabilities Act, the Occupational Safety and Health Act, the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964, and any state counterparts of these statutes.

The Order also directs employers with contracts of $1 million or more to “agree that the decision to arbitrate claims arising under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after such disputes arise.” In other words, the Order will severely limit these federal contractors’ rights to enter into pre-dispute arbitration agreements.

The Order appears to be directed at preventing repeat offenders, but it will have a major impact on employers who will need to overcome this new regulatory hurdle before securing federal contracts.

For more information about the President’s Order, see Obama Signs Executive Order Protecting Federal Contractors’ Employees (CBS News, 7/31/14), President Issues Order Requiring Contractors to Disclose Labor Law Violations When Competing for Federal Contracts (SHRM, 7/31/14), the President’s FACT SHEET: Fair Pay and Safe Workplaces Executive Order, or contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

September 27, 2013

The Big Bang and the office dating game

Posted in Discrimination, Gender / Sex, Harassment, Hostile Work Environment, Office Dating, Sexual Harassment, Workplace Romance tagged , , , , , , , , at 10:47 am by Tom Jacobson

Raj & Mrs Davis

Raj & Mrs. Davis commiserate

In case you missed the season premier of The Big Bang Theory , it looks like romance may be on the horizon for Raj and the university’s Director of Employee Relations, Mrs. Davis. If that storyline goes anywhere, it will undoubtedly be fodder for many of my posts over the next few months, including this one.

In this episode, Raj has recently broken up with his girlfriend, and Mrs. Davis’ marriage is apparently on the rocks. The two of them hit it off well at a work party, so it doesn’t take a theoretical physicist to hypothesize where this is headed.

Workplace romance is nothing new, but it can be very difficult to manage. Take, for example, the recent case of Larson v. Arthur J. Gallagher & Co., where two female employees sued their employer for sexual harassment and related claims. Their claims were based on allegations that their manager had a practice of engaging in consensual but sexually inappropriate relationships with female employees, which led the manager to exhibit favoritism toward his paramours and those who supported (or did not disapprove of) his relationships. The plaintiffs also claimed the employer retaliated against them after they reported their concerns about these relationships.

The United States District Court for the District of Minnesota ultimately dismissed these claims after finding that the plaintiffs could not show widespread sexual favoritism or that men were treated differently than women. Regarding the retaliation claim, the court ruled that the plaintiffs could not have had an objectively reasonable belief that their employer broke the law; therefore they did not engage in protected activity when they reported their concerns.

What you need to know: Although the Larson case was dismissed, the parties no doubt spent considerable time and money litigating the issues. And the fact that this all led to an expensive lawsuit suggests that the overall workplace environment at this company was unhealthy. Perhaps they could have altogether avoided the angst and litigation with an office dating/relationship policy addressing topics such as:

  • The impact of such relationships on the work environment;
  • The types of relationships that are allowed or prohibited;
  • The right to say “no” if the relationship is or becomes undesired;
  • Employee’s options if feeling pressured to start or continue such a relationship;
  • Consequences if the relationship is between a superior and subordinate;
  • Employer’s options to change or end the working relationships of employees who are involved in romantic/dating relationships.

Office relationships can develop into romance, and when they do, they can be very difficult to manage. Implementing an appropriate workplace dating/relationship policy may ease the heartache. For more information about how to handle them, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

June 26, 2013

Supreme Court issues employer-friendly decision defining “supervisor”

Posted in Discrimination, Employee Handbooks, Harassment, Harassment, Hostile Work Environment, Sexual Harassment, Sexual Harassment tagged , , , , , at 9:34 am by Tom Jacobson

IMG_5577Even though they’re over two centuries old, the words of United States Supreme Court Chief Justice John Marshall in Marbury v. Madison hold true today — it is the court’s job to say what the law is. Because of that power, we rely on the court to interpret the laws that affect our everyday personal and work lives. This week was no exception, as the court issued its long-awaited decision in Vance v. Ball State University.

Vance is a very important case for employers and employees because it defines who is a “supervisor” under Title VII of the Civil Rights Act of 1964. It’s a significant issue because in harassment cases under Title VII, an employer’s liability depends to some extent on whether the harasser is a supervisor.

In previous cases, the Supreme Court said that if the harasser is a co-worker, the employer is liable if the employer is negligent in controlling the work environment, but if the harasser is a supervisor, then the employer’s liability depends on whether or not the harassment resulted in tangible adverse employment action against the victim.  If so, the employer is strictly liable. If not, the company may avoid liability by proving that it exercised reasonable care to prevent and correct harassment and that the victim unreasonably failed to take advantage of the preventive or corrective opportunities provided.

The unanswered question, which the high court answered in Vance, was just who is a supervisor under Title VII? In a 5-4 opinion written by Justice Samuel Alito, the court answered the question by ruling that for the purposes of Title VII, supervisors are only those employees who are empowered by the employer to take tangible employment action against the victim.  The court rejected a broader definition of supervisor, which would have included anyone with authority to direct and oversee the victim’s work.

What you need to know: The Vance decision is a victory for employers because it limits the number of employees who are considered “supervisors” under Tittle VII, and that, in turn limits the circumstances under which strict liability will attach. It is not, however, a green light to allow unlawful workplace harassment. Therefore, employers must still be proactive in taking steps to prevent and correct such behavior, including policy development, training and prompt and effective responses to harassment allegations.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

November 9, 2012

January 16, 2013 Employment Law Update Announced

Posted in Acknowledgment, Age, Arrest records, At-will Employment, Background Checking, Color, Conviction Records, Criminal History, Disability, Disclaimers, Discrimination, Employee Handbooks, Facebook, Fair Labor Standards Act, Family and Medical Leave Act, Gender / Sex, Harassment, Hiring and Recruiting, Interactive Process, Leaves of Absence, National Labor Relations Act, National Origin, Posting Requirements, Posting Requrements, Protected Concerted Activity, Race, Reasonable Accommodation, Religion, Retaliation, Sexual Harassment, Sick Leave, Social Media, Social Media in the Workplace, Workplace Posters tagged , , , , at 10:28 am by Tom Jacobson

Need continuing education credits?  Want to keep up to date on the latest developments in employment law?  If so, here’s an opportunity for you.

I’ll be moderating Lorman’s Employment Law Update in Fargo, North Dakota on January 16, 2013. The day-long event has been approved for 6.5 hours of HRCI and CLE credit, 1.0 hour of HRPD credit, and 8.0 hours of CPE credit.

In interested, please contact me at taj@alexandriamnlaw.com, or click here for more information or to register.

I hope to see you in Fargo on January 13!

P.S. Don’t forget to ask me about a discount on the registration fee!

August 15, 2012

Court Rejects Same-sex Harassment Claim

Posted in Discrimination, Gender / Sex, Sexual Harassment, Sexual Orientation, Stereotyping tagged , , at 10:56 am by Tom Jacobson

Last year I wrote about a case where a jury awarded a construction worker nearly half a million dollars in  a same-sex / gender stereotyping case (see Same-sex Harassment Costs Contractor $451K). That verdict has now been overturned.

The case was filed by the Equal Employment Opportunity Commission on behalf of Kerry Woods who alleged that his supervisor at Boh Brothers Construction Co., LLC harassed and taunted him.  According to the EEOC, the supervisor engaged in verbal abuse, made taunting gestures of a sexual nature and exposed himself. The EEOC also presented evidence that the supervisor harassed Woods “because he thought he was feminine and did not conform to the supervisor’s gender stereotypes of a typical ‘rough ironworker.'”

Boh Brothers appealed the verdict, and in a July 27, 2012 decision, the United States Fifth Circuit Court of Appeals vacated the judgment. The appellate court based its decision on a finding that there was “insufficient evidence that [the alleged harasser] ‘acted on the basis of gender’ in his treatment of Woods.”

Importantly, the court stopped short of rejecting all sex-stereotyping cases under Title VII:

There is the question raised in this appeal whether sex stereotyping is a cognizable form of same-sex harassment under Title VII. As the facts allow for resolution on narrower grounds, we leave that question for another day.

What you need to know:  Minnesota employers need to be careful to not assume that the Boh Brothers decision frees them from liability for same-sex harassment or gender stereotyping. The Boh Brothers case was decided by the United States Fifth Circuit Court of Appeals, but Minnesota is part of the Eighth Circuit Court of Appeals; therefore, the decision is not binding precedent here. It was also decided based on the specific facts of the case. Moreover, the Minnesota Human Rights Act expressly prohibits employment discrimination based on sexual orientation.; therefore, the outcome of the case may certainly have been different under Minnesota law.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

May 17, 2012

Sex-based Hostile Work Environment Claims Clarified by MN Supreme Court

Posted in Discrimination, Gender / Sex, Harassment, Hostile Work Environment, Sexual Harassment tagged , , , , , , at 11:58 am by Tom Jacobson

The term “hostile work environment” is one of the most commonly misunderstood terms in the world of employment law. For example, I’ve heard many employees complain that they work in a hostile environment because their boss is a jerk or because their co-workers are mean to them. While such an environment may indeed be hostile, hostility is generally not a sufficient basis for a legal challenge unless it is based on a person’s protected classification, such as his or her sex.

But even when it comes to sex-based hostile work environment claims, there has been a lingering question: If a person is targeted with hostility because of his/her sex, but the hostility is not sexual in nature (for example, unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature), may the sex-based hostility be the basis of a hostile work environment claim under the Minnesota Human Rights Act (MHRA)?  The Minnesota Supreme Court has now answered that question in the affirmative.

In the case of LaMont v. Independent School District #728, which the Court decided on May 16, 2012 Carol LaMont was employed as a custodian by Independent School District #728 in Elk River, MN. LaMont was supervised by a male, Doug Miner, who she claimed made frequent comments about his negative view of women in the workplace. LaMont also claimed that Miner treated men and women differently regarding certain terms and conditions of employment. She did not allege that Miner’s conduct was sexual in nature.  Relying on the MHRA, LaMont sued the school district based on a hostile work environment sex discrimination theory.

As a threshold issue, the Court had to decide whether a hostile work environment claim under the MHRA can be based on harassing conduct that is based on sex, even if the offending conduct is not sexual. To reach its decision, the Court first noted that the MHRA’s definition of discrimination “does not limit claims of a hostile work environment to sexual harassment.”  The Court then noted how in prior cases, it had recognized that “sexual harassment is just one form of  hostile work environment that constitutes sex discrimination in the terms and conditions of employment.” Finally, the Court found support from federal cases interpreting Title VII of the Civil Rights Act of 1964. Ultimately, the Court said:

For the foregoing reasons, we conclude that the MHRA permits a hostile work  environment claim based on sex. We hold that verbal and physical harassment directed at an employee because of her sex may constitute discrimination in the terms and conditions of employment.

Turning then to the specific allegations in the LaMont case, the Court found that even though these types of claims can be brought under the MHRA, Lamont’s allegations were not enough to support a claim under the law.

What you need to know:  Even though Lamont ultimately lost, the Minnesota Supreme Court ruled in her case that a hostile work environment claim under the MHRA can be based on harassing conduct that is based on sex, even if the offending conduct is not sexual. This makes it even more important for employers to adopt and enforce policies which prohibit sex discrimination.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

February 8, 2012

Love … it’s a burning thing

Posted in Discrimination, Employee Handbooks, Office Romance - Dating, Sexual Harassment tagged , , , , , , at 10:34 am by Tom Jacobson

“Love. It’s a burning thing
And it makes a fiery ring.
Bound by wild desire,
I fell into a ring of fire.”

Johnny Cash, Ring of Fire

Valentine’s Day is next week.  At the risk of seeming to shoot Cupid out of the sky, I think that makes it a good time to consider the consequences of office romance.

Consensual relationships which are, or have the potential of becoming intimate, sexual or romantic in nature sometimes develop between employees. Because such relationships may make other employees and those involved in the relationship uncomfortable, they can increase an employer’s risk of liability for sexual harassment and other claims.

What you need to know:  Yes, love truly is a burning thing.  But, if an employer does not properly handle office romances, it is the company that can get burned. Therefore, employers should discourage those relationships, particularly those between a supervisor and subordinate and those in which differences in age, background, or other characteristics of the two individuals compromise the ability of either one to make an informed decision about participating in the relationship.  Employers should also adopt policies which clearly describe their employees’ obligations, rights and options when workplace romance ignites … or burns out.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

January 12, 2012

Federal court reaffirms importance of harassment policies

Posted in Color, Disability, Discrimination, Employee Handbooks, Gender / Sex, Genetic Information, Harassment, Harassment, Marital Status, National Origin, Race, Religion, Sexual Harassment, Sexual Harassment, Sexual Orientation tagged , , , , , , , , , at 11:07 am by Tom Jacobson

I am often asked if employers must have a written policy prohibiting sexual and other forms of unlawful harassment. The short answer is no, for there is no statute, regulation or court decision mandating such policies. However, and it is a big however, implementing such policies is clearly the best practice. And, as reaffirmed by the United States Eighth Circuit Court of Appeals on January 11, 2012, having a written policy can be the key to successfully defending harassment charges.

The case is Crawford v. BNSF Railway Co. In this case, BNSF had a “zero tolerance” policy on workplace harassment. Among other things, the policy defined the prohibited conduct, instructed employees to report complaints through one of five channels (one of which was an anonymous employee hotline), explained that  allegations would be investigated “promptly, impartially, and confidentially,” included guidelines explaining the ranges of discipline BNSF might apply to offenders, and contained a provision prohibiting retaliation for reporting discrimination. BNSF also trained employees on how to report harassment.

In this case, five employees alleged that they were victims of unlawful harassment by their supervisor. Specifically, they claimed that their supervisor engaged in a long litany of inappropriate behaviors ranging from fondling and sexual comments to requests for sexual favors, mimicked sex acts, and racial slurs.

Eight months after the alleged harassment began, the employees filed discrimination charges with the Nebraska Equal Opportunity Commission (NEOC) and the Equal Employment Opportunity Commission (EEOC).  One of the employees then reported the harassment directly to BNSF. BNSF conducted an investigation, which included interviewing four of the plaintiffs. Within two days, BNSF placed the supervisor on administrative leave. After completing its investigation less than two weeks later, BNSF informed the supervisor that he was being terminated, and the supervisor then chose to resign.

The general rule in such cases is that an employer is liable for the unlawful harassment committed by its supervisors unless it can show that: (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm.

Noting the existence of BNSF’s zero tolerance policy and its swift action after receiving the employees’ complaint, the court concluded that BNSF had exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Then, noting that the employees had not availed themselves of BNSF’s complaint procedure, the court also ruled that they had  unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Accordingly, the court held that it was appropriate to dismiss the employees’ claims. Importantly, the court stressed that “‘distribution of a valid antiharassment policy provides compelling proof’ that an employer exercised reasonable care to prevent and correct promptly harassing behavior.

Thus, the Crawford v BNSF case clearly illustrates that the best practice for employers is to implement and distribute harassment policies, for without them, employers will find it extremely difficult, if not impossible, to defend claims on the basis that they exercised reasonable care to prevent and correct promptly harassment.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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