When the Equal Employment Opportunity Commission recently sued a company for harassment, the case came to a strange and extraordinary ending.

The case involved an Iowa-based trucking company, CRST Van Expedited, Inc. A female driver with the company filed a complaint about the company’s permitting of sexual harassment by male drivers. The EEOC picked up the complaint and filed a suit against CRST in federal district court.

This time, the EEOC picked the wrong judge.

U.S. District Judge Linda Reade rejected the EEOC’s claims, threw out the charges and accused the EEOC lawyers of taking a “sue first, ask questions later” approach.

Further, the judge decided, the EEOC must pay the employer $4.5 million to cover legal fees and other costs associated with the case because the agency “acted unreasonably” and failed to conduct a “proper investigation.”

Cite: EEOC v. CRST Van Expedited, Inc.

There’s a misconception that e-mail can ever be truly private. As this recent case shows, there’s always a chance that messages will find their way into the hands of unintended recipients.

A female sales manager at a car dealership was involved in a long-running dispute with a male co-worker. The woman routinely closed more sales than the man — she felt his belief that a women shouldn’t earn more money than him was the root of the problem.

One day, the two got into a verbal fight that culminated in the man calling her a “bitch” and walking out of the dealership. Rather than let the employee quit, the company called him and convinced him to come back to work.

The woman somehow gained access to the man’s e-mail account without his permission. She stumbled across an e-mail the co-worker sent to another employee, talking about her in insulting and sexually charged language (we won’t reprint it here — as the company itself admitted, the e-mail was “vulgar and offensive”).

She showed her boss a copy of the message, and the two employees got a verbal reprimand.

Shortly after, the dealership announced a new payment plan for sales managers. Under the new system, the managers would share a portion of their commissions. As the female employee saw it, the plan was basically a pay cut for her and a raise for the man, since she regularly received more in commissions than him.

That was the last straw for her. She quit and sued the company for gender bias and sexual harassment.

The company claimed the new pay plan was just an effort to save money and argued there was no evidence of any discrimination or harassment.

Regarding the e-mail, the dealership said the woman was never meant to see the message, so it couldn’t be seen as harassment.

The court disagreed. The e-mail showed what kind of environment existed in the workplace, and it didn’t matter if the offensive message was sent directly to her.

That, combined with the company’s tolerance when the male co-worker used a sexually derogatory term during their fight, sank the dealership’s case.

The lesson for managers: E-mail rarely stays private, and anything written can leave a permanent trail of evidence for an employee’s legal claims.

The e-mail in this case was something that obviously should never be said or written in the first place, but even seemingly innocuous comments can come back to haunt the company.

Cite: EEOC v. PVNF, LLC

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.