Susan Seybert sued her employer, the International Group, Inc. (IGI), claiming her supervisor sexually harassed her and retaliated against her. Allegedly, he made sexual comments to her, stared at her inappropriately and berated her in public after she complained.

The company isn’t denying what happened — however, it is claiming that Seybert should not have been offended by the manager’s actions.

Why not? The company pointed to a dozen e-mails Seybert had sent to workers containing sexual jokes.

Seybert asked the court to prevent the e-mails from being used as evidence, claiming she needed to protect her privacy. But the court disagreed, ruling that the messages were relevant to the question of whether she was “subjectively offended” by her boss’s conduct.

Now the case is headed to trial. We’ll keep you posted.

Cite: Seybert v. The International Group, Inc.

The latest trend in harassment: sending sexually explicit text messages, also known as “sexting.”

In one recently filed case, a former Hooters waitress in Florida is claiming her manager frequently sent inappropriate messages and video to her cell phone.

Lawyers have also warned about employees using cell phones to view pornography in the workplace, which could create a hostile environment for others in the office.

Why are text messages dangerous for employers? Some experts say people are more casual with texting than with e-mailing.

While most managers and employees have realized that e-mail creates a permanent legal record, they often fail to realize that text messages do the same thing.

Some steps attorneys recommend employers take:

• Update policies – Companies may want to add provisions about cell phones, e-mail, etc., to their harassment policies.
• Train employees and managers – Someone may think sending a flirtatious text message is “cute,” and not realize it could be considered harassment. Add some text messaging scenarios to your harassment training.
• Respond to complaints — It can be even harder for managers to witness and stop this new type of harassment than other forms. But as long as companies respond to complaints quickly and effectively, they should able to stay out of court.

Shortly after starting her job at an auto parts retailer, a female employee in Mesa, Arizona said she was subjected to sexual harassment over the course of a year by her store manager. The store manager allegedly forced the worker’s head down to his genitals, exposed himself to her and made crude sexual remarks toward her.

Allegedly, HR investigated these incidents, and even interviewed five witnesses. (Take note of the “allegedly.”)

The last of these incidents was fortunately caught on a security camera at the store, and the regional HR manager forced the store manager to resign.

The female employee filed suit with the EEOC. When the EEOC asked the company for the documentation of the investigation, the store had some bad news — they simply didn’t have records of the employee’s sexual harassment claim.

Okay, said the EEOC. How about the records of the employee interviews HR did with the five witnesses to the harassment? Sorry, said the company. We are unable to locate that document at this time.

And the videotape of the store manager sexually harassing the employee? You guessed it — lost as well.

With all the documentation missing, the jury wasn’t buying the company’s story — and hit it with a $65,000 verdict.

The lesson for managers here? No documentation is just as harmful as bad documentation. Stress to your managers the importance of not only keeping good documentation, but also keeping organized records — you never know when your company will need to produce the paperwork again.

One recent case involved a saleswoman for a trucking firm in Cleveland, who characterized her workplace as “like a guys’ locker room.”

She told the court her workday was filled with foul language, with male employees “openly and loudly” referring to female customers, truck drivers, co-workers and others as “bitches, whores” and other offensive names.

She complained to management, but no action was taken, she said. The woman quit and later filed suit.

In court, the company asked the suit be dismissed. The behavior wasn’t aimed at any specific person, company lawyers said. Therefore, it couldn’t be regarded as harassment.

A lower court agreed with the company, but an appeals court reversed.

The lower court focused too narrowly on the conduct rather than the effect on the individual, the appeals court said. The case was sent back for trial – which means an expensive legal battle or an equally expensive settlement.

Cite: Gallagher v. C.H. Robinson Worldwide

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Question:
We’re trying to prioritize our training on preventing sexual harassment. Can you give us an idea of where the biggest problem spot is for most companies?

Answer:

Of the roughly 5,000 sex-harassment complaints filed with EEOC last year, the majority of them were based on supervisors’ not responding to initial complaints. That comes from HR consultant Hunter Lott, who’s done harassment-prevention training for firms such as Anheuser-Busch and FedEx-Kinko’s.

Most firms get into trouble because supervisors don’t take complaints seriously, so employees feel forced to go outside the company to get someone to listen to them.

It depends, according to a study by the Society for Human Resource Managment. Some firms expect HR to referee the situation, while others say, “It’s none of our business.”

Here are the numbers from the study of responses by 493 HR managers:

• 28% said their employers expected them to enforce strict policies on workplace romances — meaning, of course, that 72% don’t have policies.
• Of those who had policies, 80% said the rules included restrictions on relationships between supervisors and subordinates.
• 39% of those who had policies said supervisors were required to report relationships with subordinates to managers or HR.

Various companies have their own wrinkles on relationship policies. For instance, some firms don’t apply the policy if the subordinate is at least two levels removed from the supervisor. That is, it’s OK if the supervisor supervises the subordinate’s supervisor. And Southwest Airlines is one of the companies that encourage employees to disclose boss/subordinate relationships so that the company can transfer people or rearrange duties to avoid conflicts and charges of favoritism.

#1
Case: AT&T Corp. v. Hulteen

Issue: Pregnancy discrimination

Summary: The Pregnancy Discrimination Act of 1978 mandates that employees receive time-in-service credit — for purposes of retirement and other benefits — for all pregnancy-connected absences. The employer maintains that any pregnancy-related absences prior to ‘78, when the law was passed, cannot be added to time-in-service credit. The employee says pre-’78 pregancy absences must be credited.

#2
Case: Crawford v. Metropolitan Government of Nashville

Issue: Retaliation

Summary: ”Employee A” was called upon to provide information in an internal investigation involving a charge of sexual harassment against “Employee B,” a member of upper management. Eventually, Employee A was fired supposedly for poor job performance. Employee A sued the employer, charging the firing was in retaliation for cooperating with the investigation of Employee B. The employer argued that Title VII protections against retaliation apply only to formal investigations by the Equal Employment Opportunity Commission and not to an employer’s internal investigation.

#3
Case: 14 Penn Plaza LLC v. Pyett

Issue: Arbitration clauses

Summary: As part of a collective-bargaining agreement’s arbitration clause, an employee was obligated to waive his right to sue under the Age Discrimination in Employment Act. The employee argues that such clauses cannot be enforced because federal law guarantees the right to sue for age discrimination, and that no arbitration agreement can void that right.

The facts: 
An employee filed a complaint at her company charging a manager with sexual harassment. While HR’s investigation into the complaint was still ongoing, the manager rearranged department work schedules, and the woman ended up having to work a less-desirable schedule for her — including work on weekends. She noted that up to that point, she’d been exempt from the weekend schedule because she was a single parent who needed to be home on Saturdays and Sundays. She then sued, claiming the sudden schedule change was a clear case of retaliation for her having filed the sexual-harassment complaint.

The employer said:
While the schedule change did come shortly after the complaint, that was a coincidence. The change had been planned for a while, and it involved all the employees in the department, not just the woman who filed the complaint. Some employees ended up with less-desirable schedules, and some ended up with better schedules. The employer also noted that exempting the woman from weekend work in the past was a courtesy, and the company wasn’t bound by that in making future schedules.

Who won the case? 

Answer: The employer. 

Why:
A court ruled a change in schedule doesn’t meet the standard for retaliation. The case hinged on the definition of “adverse action” – something done by an employer that harms an employee’s career. Such an action is illegal when it’s in retaliation for filing a harassment or discrimination complaint.

In this case, the court said, a schedule change doesn’t amount to an adverse action, especially since other employees were expected to follow the schedule, too.

Had the complaining employee been sngled out for termination, demottion, or transfer to a less desirable job or location, her argument would have been stronger, since any of those clearly could be considered an adverse action.

Not special – just fair
When an employee complains about harassment or discrimination, sometimes there’s a tendency to tiptoe around the employee to make sure there’s no appearance of retaliation.

But the law says you don’t have to give that person special treatment; you just have to be fair and treat the employee the same as any other.

If demotion or termination is in order for a complaining employee and with good reason, make sure your managers have thorough documentation for the action.

Cite: Duncan v. Delta Consolidated Industries.

Supervisory trainer Lynne Curry often hears the three reasons managers give for overlooking harassment that seemingly goes on right under their noses:

1. “No one ever asked her for sex.” That defense is common because too many supervisors think sexual harassment is only about sex. Of course, it’s not, nor is it about “romance.” Supervisors need to be aware that the category includes comments, innuendo, insults and so-called “harmless” physical contact.
2. “She never complained.” Victims do have some responsibility for ringing the alarm, but in many court cases, judges and juries have warned that supervisors have responsibility, too. The reason: The law recognizes that victims often are intimidated and reluctant to make waves for fear of losing their jobs or just being branded as troublemakers. That means the supervisor has a responsibility to be proactive about suspicions, and not wait until the victim pleads for help.
3. “He’s a great employee who’d never do something like that.” Good people do dumb things all the time. And sometimes a supervisor may be reluctant to take action against a high-performing or well-liked employee, for fear of losing the employee’s services or having to find a good replacement. Here’s how that looks to a court: You let someone victimize another employee because of business convenience. Then things start to get really expensive for the employer.

Question:
Like a lot of companies, we get bulk e-mail (”spam”) that could be called offensive. We have spam-filtering software, but of course it doesn’t catch everything.  Also, sometimes outsiders send sexually explicit jokes, cartoons, etc.

What’s our liability in these instances regarding employees who find the material offensive and demand that we stop it? Could our failure to do so be cited as sexual harassment?

Answer:
One of the keys here is whether you’re making a good-faith effort to stop the spam, explains Hunter Lott, a partner with the HR consulting firm HCap International. Using modern spam-filtering software appears to meet the good-faith standard.

As for individual e-mails (jokes, etc.) that people may find offensive: Once people report the problem and the source, you must take reasonable steps to prevent further incidents, such as informing the sender to stop or, if technically possible, blocking e-mails from that sender.