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.

Advertisements

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

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

November 2, 2011

Raising Cain: HR lessons from the political battlefield

Posted in Discrimination, Employee Handbooks, Gender / Sex, Sexual Harassment, Sexual Harassment tagged , , , at 10:22 am by Tom Jacobson

Allegations that presidential hopeful Herman Cain sexually harassed employees while he was head of the National Restaurant Association in the 1990’s have sent his campaign into damage control mode (see Herman Cain denies allegations of sexual harassment, Cain says he was “falsely accused” of harassment, Herman Cain reacts to allegations, etc.).  How these allegations will ultimately impact his bid for the White House remains to be seen, but the story gives us a chance to reflect again on the overall problem of sexual harassment.

Sexual harassment has been recognized as a form of unlawful sex discrimination since the 1980’s, but it continues to be a problem in the workplace.  The Equal Employment Opportunity Commission reports that in 2010 there were 11,717 charges of sexual harassment filed nationwide.  According to the EEOC’s statistics, these charges resulted in $48.4 million in benefits paid, excluding money recovered in litigation.  Of  course, this also does not account for the tremendous expense and disruption that results from investigating and resolving these charges, nor does it account for the countless complaints that are undoubtedly raised and resolved internally by employers each year.

The first step in combating the problem is gaining an understanding of what sexual harassment is.  In Minnesota, the state legislature has defined sexual harassment in the workplace to include:

 …unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when:

(1) submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining employment …;

(2) submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual’s employment …; or

(3) that conduct or communication has the purpose or effect of substantially interfering with an individual’s employment…, or creating an intimidating, hostile, or offensive employment … environment.

The federal definition is similar, but knowing the definition is only part of the solution.  The definition should also be incorporated into written policies which, among other things, should expressly prohibit sexual harassment, outline what a victim should do if it occurs, and stress that no employee will be retaliated against for raising the issue.  Complaints need to be taken seriously, investigated properly, and resolved promptly and in a way that is likely to end the harassment. Education and training are also key components to preventing sexual harassment.

For more information about sexual harassment policies, investigations or anything else covered in 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

October 26, 2011

MDHR reports 20% jump in discrimination charges

Posted in Disability, Discrimination, Employee Handbooks, Gender / Sex, Race, Sexual Harassment tagged , , , , , at 12:02 pm by Tom Jacobson

The Minnesota Department of Human Rights reports that during the first half of 2011, it received 455 charges of discrimination.  This represents a twenty percent increase when compared with the previous six month period.

Other notable figures from the MDHR’s report, which was submitted on October 11 to the Minnesota Legislature, include:

  • Disability discrimination charges accounted for the highest percentage of cases (24%); race and sex discrimination were next (15% each).
  • MDHR recovered $209,197 in monetary damages for charging parties.
  • 41 cases were submitted to mediation, and 21 of those cases were settled in mediation.
  • 60% of charges were dismissed for lack of merit.
  • 9% of charges were closed after findings of probable cause, while 16% were closed after findings of no probable cause.
The MDHR is responsible for enforcing the Minnesota Human Rights Act, which covers discrimination in employment, housing, public accommodation and other areas.  However, the vast majority of the MDHR’s activity (61.2%, according to this report), is in the area of employer discrimination.

It is difficult to determine whether the recent surge in charges is due to more aggressive enforcement by the MDHR, better outreach, more unlawful discrimination, and/or greater awareness on the part of employees and other aggrieved parties. Regardless of the cause, the MDHR’s report confirms the importance of maintaining sound equal employment opportunity policies.

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

May 17, 2011

Same sex harassment costs contractor $451K

Posted in Discrimination, Employee Handbooks, Gender / Sex, Harassment, Sexual Harassment, Sexual Orientation, Stereotyping tagged , , , at 10:53 am by Tom Jacobson

A federal jury has awarded $451,000.00 to a male ironworker who was the victim of male-on-male sexual harassment.

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.'”

The EEOC also claimed that Boh Bros. retaliated against Woods after he reported the harassment.  The evidence indicated that Woods was transferred to another location, paid less, and then “laid off.”

Another important aspect of this case was the company’s failure to adopt a sexual harassment policy.  Boh Bros. had no policy defining or specifically prohibiting sexual harassment, and the harassing supervisor testified that prior to the lawsuit, he had never received sexual harassment training.  “The jury’s verdict signals to employers the importance of having robust sexual harassment policies and training in place, including in predominantly male workplaces,” said EEOC General Counsel P. David Lopez.

Another EEOC attorney, Jim Sacher, noted how “This case demonstrates the failure of this company to prevent and properly respond to a serious matter for the construction industry: male-on-male sexual harassment by a supervisor and under isolated working conditions.”

For additional details of the Boh Bros. lawsuit, see EEOC Obtains $451,000 Jury Verdict Against Boh Brothers Construction Co. For Male-On-male Sexual Harassment, http://1.usa.gov/lxvmre.  For information on related cases, see Ellen DeGeneres & Gender Stereotyping under Title VII, http://bit.ly/kudWku and Tomboy Firing Costs Company $50K, http://bit.ly/jRkzco.

If you would like more information about this topic, 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, PA

September 21, 2010

The importance of HR policy development, part 1 of 3: sexual harassment

Posted in Discrimination, Employee Handbooks, Gender / Sex, Harassment, Sexual Harassment tagged , , , , , , at 7:59 am by Tom Jacobson

Occasionally the courts decide a series of cases which, though based on completely different facts and laws, share a common thread.  When tied together, the cases teach a valuable lesson that applies across the board.  So it is with sexual harassment, unemployment, USERRA and FMLA cases decided over the last several weeks.  Their common thread:  developing and applying effective employment policies is crucial to business success.

In the first of this three-part series, the topic is sexual harassment; the case is Cross v. Prairie Meadows Racetrack and Casino, Inc.  In this case, Lucy Cross alleged that she was sexually harassed while working as a parking valet for Prairie Meadows.  She described a work environment where, among other things, there was horseplay directed at her, an incident of inappropriate touching, and at least one sexually graphic conversation.

Prairie Meadows had zero tolerance for sexual harassment, and its policy listed various ways that employees could seek help if they experienced harassing or violent behavior.  The remedies included talking to a supervisor or directly contacting the human resources department.  The policy also provided that if an employee was unhappy with the resolution of her complaint, s/he could address his/her concerns to upper level management and the company CEO.

Cross read the policy and testified that she was aware that there were multiple effective avenues for reporting harassment.  Cross reported some of her concerns to the company, and the company followed up on them.  Despite the company’s policies which provided many other avenues for obtaining relief, Cross did not pursue them.

The court threw out Cross’s case because the company had followed its policy and responded appropriately to Cross’s complaints while Cross herself did not take reasonable steps to prevent the harassment or lessen the harm.  The court specifically noted that when an employer’s sexual harassment policy provides multiple effective avenues for reporting misconduct, a reasonable employee, after realizing that her initial complaints were ineffective, would then seek another remedy.

Cross vs. Prairie Meadows stresses that having and following a well-written sexual harassment policy can provide an effective defense to sexual harassment claims.  This will help satisfy the employer’s obligation to take prompt remedial action designed to end the harassment.  Moreover, it stresses that an important element of an effective sexual harassment policy is providing multiple avenues of relief for the aggrieved emploee.

Next in this series:  how strong personnel policies impact eligibility for unemployment benefits.

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.

%d bloggers like this: