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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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

August 19, 2013

He’s no woman, but hear him roar

Posted in Discrimination, Equal Pay, Gender / Sex tagged , , , , , , at 11:34 am by Tom Jacobson

I am woman. Hear me roar. Ray Burton  / Helen Reddy  (1971)

Peace 2One of my sisters started college the same year I started kindergarten – 1970 (that’s my weak attempt at noting in a politically correct way how much younger than her I am). I gained from her an appreciation of the great music of that era, plus she was for me a window to the world of civil unrest in America during the late 1960’s and early 1970’s.

I have a vague memory of her coming home after applying for a summer job at a local gas station and telling our parents that she didn’t get the job after being told something like, “Girls don’t work at gas stations.” If that were to happen today, I suspect we’d be filing an EEOC charge faster than you could say “Title VII.” Thankfully, such overt discrimination is rare in today’s workplaces, but recent headlines about the “glass ceiling” (see Gender pay gap at exec levels: Why women aren’t paid the same as men, CBS News Aug. 14, 2013) remind us that another form of gender discrimination — unequal pay for equal work — persists.

Generally speaking, the Equal Pay Act of 1963 says that except in certain gender-neutral circumstances, employers must not discriminate between employees on the basis of sex by paying them at a rate that is less than what they pay employees of the opposite sex for equal work. While we typically think of this as a rule that prevents employers from paying women less than men for the same work, a recent Minnesota case highlights that the law is gender neutral: men also must not be paid less than their female counterparts.

The case, Barron v DeCare Dental, LLC involves Patrick Barron’s allegation that he was paid less than his female co-workers and was otherwise unlawfully discriminated against by his employer. The employer asked the court to dismiss the EPA claim because of evidence suggesting that the differential was based on factors other than sex, namely conduct issues, review scores and length of employment. However, other evidence presented to the court undermined DeCare’s argument. Specifically, Barron presented evidence suggesting that some female employees were paid more despite less tenure, that performance issues had historically not been an issue, and that a supervisor testified how it would be “unfair” to pay Barron less. Because of these disputed facts, the court denied DeCare’s motion to dismiss and ordered the case to proceed to trial.

What you need to know: The Barron v. DeCare case is not ground-breaking, but it does remind us of a couple of key concepts:

  • The EPA makes it unlawful for employers to pay employees less than their co-workers of the opposite sex, unless the differential is based on specified gender-neutral criteria.
  • The EPA itself is gender neutral; that is, it protects both male and female employees.
  • Inconsistencies in the evidence submitted to support an employer’s claim that pay differentials are based on factors other than sex will weaken that defense and likely send the case to trial.

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

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

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