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

October 16, 2014

Workplace bullying: on the job with Scut Farkus

Posted in Bullying, Bullying, Cyber Bullying, Discrimination, Harassment, Harassment, Hostile Work Environment, Workplace Violence tagged , , , , at 10:30 am by Tom Jacobson

Scut Farkus

Scut Farkus – future workplace bully?

In the holiday classic A Christmas Story, playground bully Scut Farkus torments Ralphie Parker until Ralphie pummels Scut after one too many snowballs to the face. We cheer for Ralphie because he’s the good kid who takes a stand against Scut’s relentless bullying. But what happens when Scut gets a job? What is the law on workplace bullying?

I recently attended a community conversation about workplace bullying. The discussion confirmed that there is much confusion about the topic. The debate is no doubt fueled by recent media attention and legislative attempts to regulate bullying.

Those efforts have been partially successful in the school setting. For example, the State of Minnesota earlier this year passed the Safe and Supportive Schools Act. This new law defines and regulates bullying in the state’s public and charter schools. However, workplace bullying is neither defined nor prohibited by any state or federal law.

Even if the conduct creates a hostile work environment, bullying alone is not unlawful unless the behavior violates some other established law. Recent court decisions emphasize how difficult it is to turn garden-variety bullying into a legal claim.

For example, in Johnson v City University of New York, an employee claimed that a co-worker’s bullying violated Title VII. The judge last month threw out the case, saying:

Victims of non-discriminatory bullying at the workplace, like those treated unfairly for reasons other than their membership in a protected class, must look outside Title VII to secure what may be their fair due. The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin.

The Minnesota Court of Appeals last year overturned a $270,000.00 Ramsey County jury verdict in favor of an employee who reported being bullied by his boss (see Absey v. Dish Network, LLC). Because Minnesota has no anti-workplace bullying law, the plaintiff’s legal theory was actually based on Minnesota’s whistle-blower law, Minn. Stat. § 181.932. In reversing the jury’s verdict, the Court of Appeals ruled that the plaintiff failed to prove that the employer’s adverse action against him was because he complained about his boss.

Bullied employees have found some limited success in the courts. In one Indiana case, Raess v. Doescher, an employee won a lawsuit based on his employer’s behavior, which the court described as “aggressively and rapidly advanc[ing] on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him.” This conduct could certainly be characterized as “bullying,” but the plaintiff won his case not because he was “bullied” but because the jury found the employer’s conduct to be an assault under Indiana law.

These cases underscore the current reality that when employees are confronted by a Scut Farkus-like co-worker, there are no laws specifically defining or prohibiting workplace bullying. However, if the bully’s conduct is egregious enough, there already exist other legal claims that could provide recourse. In addition to assault and whistle-blower claims, it is conceivable that under the right set of facts, bullied employees could successfully sue for intentional infliction of emotional distress, negligence or other wrongs based on another employee’s bullying behaviors. And, when bullying is based on employees’ protected class status, they may have viable claims under Title VII and/or comparable laws.

But rather than litigation and legislation, perhaps the better solution is to curb such behaviors through better employment policies and practices that encourage and model respectful working relationships.

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 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

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

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