Nontraditional Workplace Harassment Lawsuits Increasing
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CHICAGO—Nontraditional workplace harassment lawsuits “seem to be popping up all over the country—not just in California,” Matthew Effland, an attorney in Ogletree Deakins’ Los Angeles office told attendees May 13 at the firm’s 2011 Workplace Strategies seminar here. In the last 10 years, there have been increases in the number of lawsuits claiming female-on-male harassment and same-sex harassment, as well as an increase in claims of religious harassment and intra-racial harassment, according to Trina LeRiche, an attorney in Ogletree’s Kansas City office. This is true despite the fact that the total number of harassment charges filed with the federal Equal Employment Opportunity Commission (EEOC) has declined during that time period.
In addition, claims of workplace bullying, not involving a class covered by anti-discrimination laws, have resulted in verdicts for employees under state tort laws, which protect employees from assault, battery and infliction of emotional distress, added attorney Alfred Southerland, from Ogletree’s Houston office.
And these claims can get quite expensive for employers, noted Southerland. For example, a California jury awarded $18 million dollars to James Stevens, who was described as a devout Christian who did not discuss sex at work. Stevens claimed that a female co-worker harassed him at work daily for almost two years, assuming suggestive poses and making crude remarks. When he complained, he was transferred and eventually fired. The jury awarded Stevens $1.67 million for economic loss and emotional distress and $16.73 million in punitive damages.
In March 2011, a jury awarded $451,000 in a same-sex harassment case, LeRiche said. The employee alleged that a construction superintendant engaged in verbal abuse and taunting gestures of a sexual nature and exposed himself. The evidence at trial showed that the boss thought the employee was too “feminine” and not a “rough ironworker.” The company in this case lacked a sex harassment policy and did not conduct anti-harassment training, LeRiche noted.
The Indiana Supreme Court, in 2008, upheld a jury award of $325,000 in an assault case filed by a male nurse against a male surgeon. Evidence indicated that the surgeon was a “known bully” who terrorized other employees, Southerland said.
Intra-Racial Color Harassment and Religious Harassment Claims Also Increasing
Title VII includes “color” in its list of protected characteristics, LeRiche noted, adding that not all employers are aware of this fact and that claims of discrimination based on color are also on the rise.
In 1992, the EEOC received 374 charges of color discrimination. In 2006, the number had risen to 1,241, she said. A restaurant chain, in 2003, settled a lawsuit filed by a dark-skinned African-American waiter who claimed discrimination by his light-skinned African-American manager. The employee claimed that his manager called him a “tar baby” and “black monkey” and told him to bleach his skin, she noted.
Claims of religious harassment are also more common, Southerland said, noting that these claims have increased by 95 percent since 2001. More than 33 percent of employers reported an increase in religious diversity in the 1990s, he added. Lawsuits involved factual situations such as a supervisor continually urging an employee to join the supervisor’s church and an employee who felt persecuted based on a belief in Native American spirituality.
Employer Can Minimize Risk
Employers can take steps to minimize the risk of being on the wrong end of a nontraditional harassment suit, Southerland advised. In the case of female-on-male harassment, a common mistake is to assume that the treatment was, at some point, welcomed by the victim, he said. LeRiche added that this is a common mistake even among sophisticated HR people.
Every claim must be treated seriously, she stressed. Remember that discrimination “because of sex” doesn’t mean that physical intimacy was the end goal. Another common mistake, made in the case of same-sex harassment is treating the conduct as “horseplay.” Make sure that your harassment guidelines include same-sex harassment, she advised.
Investigate all harassment claims, even those not involving a protected class, Southerland said. Don’t forget that state law protects employees from bullying that rises to the level of assault, battery or intentional infliction of emotional distress. A common mistake is to focus only on “protected” types of harassment.
In addition, make sure that you have “color” in your harassment policy, LeRiche added.
In fact, regular training and policies should cover all forms of harassment, not just sex harassment, Southerland stressed. “A common mistake is failing to keep up with the changing legal environment,” he concluded.
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.
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