Several recent cases illustrate the problem of insufficient action when an employee complains of harassment:
Sexual harassment of male worker compounded by company’s stereotyped defense. A recent widower began receiving sexual overtures from a female coworker. He asked her to stop. Instead, she continued and became more overtly graphic and frequent in her propositions. The man repeatedly complained to management. Once, the woman was given a verbal warning, but she continued unabated. Repeated complaints received no action. The male employee suffered resulting psychological stress, his work suffered and he was discharged for lowered performance and “poor attitude.” In the ensuing Title VII suit, the company’s attorneys asserted that “most men would have welcomed the advances” and therefore this was not a hostile environment, which should be recognized under Title VII. The court rejected this argument as a “stereotype.” It was clear the male employee found the advances “unwelcome and abusive.” The employer’s response to the complaint was “ineffectual” in the face of known ongoing harassment. EEOC v. Prospect Airport Services. (9th Cir., 2010)
Insufficient efforts to correct harassment. Black employees were subjected to a hostile environment, much of it created by a coworker known to be a “notorious serial harasser.” The harassment included racist bathroom graffiti, repeated racial slurs, racial jokes and celebration of “James Earl Ray Day.” The company was slow to clean up graffiti, never conducted a serious investigation of complaints and merely gave the main harasser a few slap-on-the-wrist oral warnings. The company knew of this and other racist workplace behaviors for years and took no effective action. The court found that the company did not seriously act to correct a 20-year problem until after the Black employees sued. The court found it could be reasonably concluded that the company “passively waited for complaints, occasionally checked for damage to the bathrooms, but made no efforts to correct the underlying problems.” The company took no initiative and no responsible steps to correct the impact of clearly known harassment. Armstrong v. Whirlpool Corp. (M.D. Tenn., 2010).
“Recommendations” for harasser to take training and counseling was not sufficient action for overt behaviors. A female physical therapist was repeatedly propositioned, kissed and fondled by a male chiropractor in a medical center. The company’s action was to “recommend,” but not require, that the chiropractor take some harassment training and seek counseling. The harassment continued and the therapist quit, and then sued. The court found a lack of the “prompt and effective remedy” required by the law. The appellate court upheld a $100,000 jury award and attorneys’ fees. Sheriff v. Midwest Health Partners PC (8th Cir., 2010).
Disability
ADAAA standards starting to take effect—condition in remission requires accommodation. The ADA Amendments Act was passed in 2009, but only now are cases under the new standards beginning to come to trial. Hoffman v. Carefirst of Fort Wayne, Inc., (N.D. Ind., 2010) was filed by a service technician who had beat renal cancer and been symptom-free for years. The company increased his work hours, requiring overtime. He did the work. Then the company told him of an even more substantial increase in work hours. The employee presented a doctor’s opinion that the greater work, and resulting stress, was detrimental to the cancer and could take it out of remission. The company told him he could either work the increased hours or quit. The employee eventually did quit and then sued under the ADAAA. The company defended by claiming that the employee did not have a disability because he had no present restrictions, no present impairment of any major life activities and needed no accommodation. This seems to match the pre-amendment ADA. However, even under the regular ADA, the company seems to have disregarded the “interactive-process” requirement to at least consider and communicate about any request for accommodation before deciding it is either unreasonable or not required. Under the ADAAA, one does not have to be presently incapacitated; “an impairment in remission is a disability if it would substantially limit a major life activity when active.” The court found that cancer is clearly a disability. If work duties could create a reactivation or any other issue regarding the disability, the employer has a duty to consider reasonable accommodations.
Administrative Action
Change of terms: “intellectual disabilities” is in; “retardation” is out. The U.S. Senate has mandated a change to delete the term “mental retardation” or “retarded” from all federal law, regulations and publications and replace it with “intellectual disabilities.” The new term covers a broader array of cognitive conditions than just retardation. The reasoning is that the term “retardation” is “anachronistic, insensitive and stigmatizing.”
Bob Gregg, partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at [email protected].