May 5, 2016

Tick Tock: Appeals Court Opens Door to Stale Discrimination Claims by Broadly Interpreting Statute of Limitations Tolling Clause

Posted in Age, Discrimination, Employee Handbooks, Harassment, Limitation of Actions, MDHR Mediation, Sexual Harassment, Statutes of Limitation tagged , , , , , , , at 11:42 am by Tom Jacobson

Tom Jacobson retake - Copy - Cropped

“In light of the Peterson decision, employers should review their HR complaint policies to minimize the chance of inadvertent extensions of the Minnesota Human Rights Act statute of limitations,” says employment law attorney Tom Jacobson.

Employers may need to update their HR complaint policies and procedures in light of a May 2, 2016 decision by the Minnesota Court of Appeals in the case of Peterson v. City of Minneapolis. The decision has the impact of potentially extending the time limit employees have for pursuing claims under the Minnesota Human Rights Act, and policy updates may minimize the impact of this decision.

The Peterson case started when two Minneapolis police officers claimed their October, 2011 transfers were the result of age discrimination. The officers filed complaints with the city’s human resources department a month later. The HR department investigated the complaints, and in January, 2013 the department concluded that the transfers were not based on age.

The officers then filed age discrimination charges with the Minnesota Department of Human Rights. They later withdrew those charges, but in March, 2014 they filed a lawsuit against the city of Minneapolis. The trial court dismissed the officers’ case on the basis that it was started after the one year statute of limitations in the Minnesota Human Rights Act had expired. One of the officers appealed.

In reviewing the trial court’s decision, the appellate court noted that under the MHRA:

The running of the one-year limitation period is suspended during the time a potential charging party and respondent are voluntarily engaged in a dispute resolution process involving a claim of unlawful discrimination under this chapter, including arbitration, conciliation, mediation or grievance procedures pursuant to a collective bargaining agreement or statutory, charter, ordinance provisions for a civil service or other employment system or a school board sexual harassment or sexual violence policy.

Thus, the issue before the Court of Appeals was whether filing an internal complaint with the city’s HR department meant the parties were “voluntarily engaged in a dispute resolution process involving a claim of unlawful discrimination,” so as to suspend (or “toll”) the running of the MHRA’s one-year statute of limitations. The court ruled that they were.

Specifically, the court held that the city’s HR complaint process was a “dispute resolution process” under the MHRA, so by engaging in that process, the statute of limitations did not run while that process was ongoing. Consequently, the officers’ MDHR charge, which was filed more than a year after the alleged discrimination, was ruled to be timely despite the MHRA’s one-year statute of limitations.

With this ruling, the Court of Appeals has essentially given employees a tool for dragging out their deadline for filing MHRA charges or lawsuits well beyond the one-year time limit they would otherwise have. This is because for as long as they and the employer are engaged in an internal HR complaint process, the statute of limitations clock will likely not be ticking.

Taken to extremes, this means an employee could file an internal complaint 364 days after an alleged discriminatory act, thereby likely suspending the statute of limitations that would otherwise have expired the next day. And, because the Court of Appeals did not clarify the limits of what it means to “voluntarily engage in” such internal complaint processes, it appears an employee could extend the time limit almost indefinitely by repeatedly engaging the employer in ongoing discussions about the same problem or the process itself.

It is difficult to predict how this case will play out in practice. However, to minimize its impact, employers should consider: revising HR complaint policies to address how such complaints impact the MHRA’s statute of limitations; promptly investigating and resolving discrimination and harassment complaints so as to quickly end what could be perceived as “voluntary engagement” in a “dispute resolution process.”

For more information about these or other employment law issues, please contact me at taj@alexandriamnlaw.com.

The comments posted in this article 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 2016 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA.

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

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

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

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

December 14, 2010

N-word e-mail becomes key evidence in hostile environment lawsuit

Posted in Color, Discrimination, Harassment, Race, Social Media in the Workplace, Social Networking tagged , , , , at 6:05 pm by Tom Jacobson

“We should go forward with getting this [n*****] out of here,” a Hanesbrands supervisor recently wrote in an e-mail to his boss.  The e-mail was referring to Yunusa Kenchi, a black clothing designer for Hanesbrands.  Kenchi discovered the e-mail, and two days later, he was fired.  The e-mail is now a key piece of evidence in Kenchi’s hostile environment race discrimination lawsuit against Hanesbrands.

The e-mail isn’t Kenchi’s only evidence.  He also alleges that a Caucasian subordinate was given preferential treatment and that there were discriminatory remarks made in the workplace.  For example, he claims that when someone asked about some black fabric, a co-worker pointed at him and said “Here’s the black one right here.”

In addition, the e-mail had actually been deleted after the supervisor sent it, but it resurfaced as supposedly deleted e-mails often do.  Kenchi’s attorney, Patrick Boyd, now describes the deletion at a “cover-up.”

To its credit, Hanesbrands conducted diversity training the day after the e-mail was sent, and it eventually reprimanded the supervisor who sent it.  Kenchi’s response to those efforts is essentially that they were too little, too late.

Whether Kenchi wins the $1 million-plus he is seeking will ultimately be decided by the courts.  The outcome will likely depend not only on Kenchi’s evidence of bias within Hanesbrands, but also on Hanesbrands’ evidence of its internal response to his complaints.

In most respects there is nothing particularly remarkable about this case.  Rather than being sent via e-mail, the inappropriate comments could just as easily have been made in a printed memo, in a conversation, in a Facebook post, on in any other media.  And, they could have been based on the employee’s gender, religion, age or any other protected classification.

Nevertheless, the case reminds us that despite the progress that has been made in eliminating workplace discrimination, it still exists.  It also reminds us that policy development and training, combined with prompt and appropriate internal responses to discrimination complaints, can provide solid defenses if such claims are brought in court.  Whether such defenses will work for Hanesbrands in this case remains to be seen.

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.

October 6, 2010

Tyler Clementi suicide: lessons for HR – and for us all

Posted in Bullying, Discrimination, Harassment, Harassment, Sexual Orientation, Workplace Violence tagged , , , , , at 8:55 am by Tom Jacobson

Tyler Clementi took his own life last month. He was an 18 year old student at Rutgers University.  He was also gay, and after a sexual encounter between him and another man was secretly broadcast over the internet (allegedly by his roommate using a webcam), he jumped to his death from the George Washington Bridge.

When I read the reports of this tragedy, I was reminded of the question posted on a Society for Human Resource Management discussion forum, “Workplace bullying:  is it HR’s responsibility to control?”  That question was posted months ago, and to date it has generated well over 600 comments.

So what does the suicide of an 18 year old college freshman have to do with HR?  It’s quite simple.  Tyler Clementi is really no different than any employee who has suffered the humiliation of workplace bullying.  One does not have to dig too deep to find similar examples of disgruntled workers who have harmed — and even killed — themselves and others after being harassed, bullied or otherwise disrespected on the job.

What are the lessons for HR?  First, anti-harassment policies are critically important.  They need to clearly spell out the types of harassment that are prohibited in the workplace.

These policies also need to clearly describe how victims can report their concerns, and employees (especially supervisors and managers) need to be trained on what the policies mean and how they are to be applied.  Some reports on Tyler Clementi’s death indicate that after this sexual encounter was broadcast, he reported it to his resident assistant, but that process did not save Clementi.  Comparing this to HR, I wonder if Rutgers had told Clementi where he could go for help and whether the university had trained the RA on how to deal with Clementi’s concerns.

Surely, to allow bullying to exist in the workplace will expose any company to liability, especially it is based on an employee’s legally-protected characteristic.  But the lesson for us all is that regardless of our beliefs and attitudes about another’s lifestyle and traits, every person has a right to be treated with dignity and respect.

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.  Also, the views expressed in this blog are those of the author and do not necessarily reflect those of Swenson Lervick Syverson Trosvig Jacobson, PA.

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