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.

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.

HR’s new function: Standing up to workplace bullies. What used to be considered a good idea may now become law. 

And here’s the big problem: Someone is going to have to referee and figure out who’s a bully and who’s just a big pain in the butt who should be ignored. In short, you may have to play Civility Cop. That’s the assessment of attorneys who are looking at the proposed anti-bullying legislation, which in effect demands that employees play nice with one another.

Let’s look at the type of scenario that could pop up:

A white manager supervises a black employee. The white manager is a crusty type who criticizes the black employee in public, maybe even loudly uses insults like “stupid” and “lazy.” Under anti-discrimination laws, the black employee had no legal recourse — the law doesn’t demand that managers be civil to their employees.

But under proposed legislation, the employee could charge with manager with bullying — and charge the company with allowing it, unless you step in.

Start now
Your best bet: Start now to head off any bullying charges. For instance –

• Have policies in place that make it clear bullying behaviors will not be tolerated.
• If you have an employee handbook, emphasize in it that workers must treat each other with respect.
• Encourage employees who feel bullied to report the conduct, just as they would report charges of harassment or discrimination, and investigate those complaints seriously.
• If an investigation warrants it, take appropriate action.

Here are the states that are looking at anti-bullying legislation:

• California
• Connecticut
• Hawaii
• Kansas
• Massachusetts
• Missouri
• Montana
• New Jersey
• New York
• Oklahoma
• Oregon
• Vermont
• Washington

 And here’s sample legislation from New York.

The “association” provision of the Americans with Disabilities Act is one of those rules the EEOC slipped in under the radar – until employees started suing over it.

At this point, most people understand the ADA well enough to know what constitutes discrimination against disabled employees and applicants, and most employers closely guard against violations.

Problem is, when you poke your finger in one hole in the ADA dike, another pops open. This time, it’s the association provision.

In summary, it’s intended to prevent employers from taking adverse actions against an applicant or employee based upon stereotypes and assumptions about people who associate with others who have disabilities.

For instance, it’s unlawful for an employer to refuse to hire an individual associated with someone with a disability based upon the assumption that the individual will be out of work frequently to care for the person with the disability. Note: Unlike the rules of FMLA, the ADA doesn’t require a family relationship for an applicant or employee to claim protection under the association provision.

Probably the best way to understand how to comply with the association provision is to run down the list of major violations and examples from court cases:

• Refusing to hire the best qualified applicant based on the belief that the applicant’s need to care for a disabled individual, such as spouse or child, will have a negative impact on the applicant’s work attendance and performance. In an interview, for instance, an applicant might bring up the disability of a family member. If that happens, move on immediately to the next question or discussion.
• Denying an employee an opportunity for promotion or advancement based on the assumption that the employee will be stricken by the same disease as a family member and therefore, will become unreliable at work. Some illnesses are hereditary or present a higher-than-average likelihood that they’ll be passed from one generation to another. Such a possibility cannot be the basis for workplace decisions.
• Denying healthcare coverage to an employee’s disabled dependent because it will lead to increased health insurance premiums when that coverage is provided to other employees’ dependents. There’s no gray area here; you can’t do it.
• Denying an employee other benefits and privileges of employment that are available to other employees based upon their association with a person with a disability. For example, if you allow employees to bring their children into work on special occasions (such as when child care is unavailable), you cannot place limits or special rules on employees who have disabled children they bring into work.
• Failing to address a complaint of a violation of the association provision. Complaints about association violations fall under harassment, and failing to address them quickly and properly will leave an employer open to the same liability as if the employer failed to address any harassment complaint.
• Refusing time off to care for an associated disabled person when company policy allows others time off for family-care reasons. For example, an employer can’t allow one employee to take a leave of absence for a certain personal or family reason, but deny another employee from taking a leave of absence to care for a disabled individual under similar circumstances.

For more examples on violations of the association provision, go to: http://www.eeoc.gov/facts/association_ada.html

The case: EEOC v. V&J Foods, Inc.

The issue: Whether a fast-food chain’s process for fielding and investigating harassment complaints was adequate. The company pointed out that it had written policies informing employees to complain to their managers over any incident of harassment.

The argument: One of the harassment charges was against a manager, so the victim wasn’t sure who should hear the complaint. As a result, the victim didn’t complain and the harassment continued, until the victim filed a lawsuit.

What the judge said: The company was at fault for not making it clear that the first option for a victim should be to contact the company’s human resources department with the complaint, and that the company should have had such a process in place, including contact info for HR.

The lesson: Courts view HR as the advocate for the company and the employee, and as the key player in any complaint procedure.

Sometimes, the road to a lawsuit or other trouble can be lined with good intentions – such as implementing a diversity program that in the end satisfies no one and angers just about everyone

The problems often begin with the most innocent and well-meaning initiatives: for instance, a mentoring program for historically overlooked groups or an outreach effort to hire in low-income communities.

Some HR managers who’ve tried those approaches then had to battle against charges of “reverse discrimination” or favoritism. It’s at that point, they’ve said to themselves, “Wasn’t this supposed to be a good thing?”

Diversity can be a good thing when it’s implemented properly. As a guide to proper implementation – and a lesson in diversity do’s and don’ts – consider the analysis by employment-law expert David Haase of three recent landmark legal battles over diversity:

Bernstein v. St. Paul Companies
The battle in this suit swirled around a statement issued by the company’s CEO, who sought to make certain that employees knew he supported HR’s diversity efforts.

The CEO wrote a letter to all employees that stated, in part, that he “did not want the company to consist exclusively of white men.”

Right after that, the CEO and the HR manager found themselves on the wrong end of a lawsuit filed by white men at the company who said the statement was proof of intent to hold them back while promoting women and minorities.

The company ended up winning the suit, mainly because in the same letter the CEO also said the company was committed to hiring and promoting “the most talented people that are available … irrespective of whether they are of a certain gender or of a certain race.”

The lesson: Proclaiming support for diversity is OK, as long as it comes with the stipulation that everyone is going to get a fair shake.

Buonanno v. AT&T Broadband, LLC
What happens when an employee refuses to sign on to a diversity program and openly defies its intent? That question got answered in a lawsuit filed by an employee who said his religious beliefs blocked him from recognizing the “value” of some groups, such as homosexuals.

The employee asked for a religious accommodation resulting in an exemption from the policy to “value all individuals.” The company refused the accommodation and fired him.

In the end, a judge ordered the company to rehire the employee, with the stipulation that the employee would not engage in discrimination or harassment of the groups in question.

The lesson: Such disputes usually are decided on a case-by-case basis, but the important point is that even if an employee doesn’t fully sign on to a diversity program, he or she must commit to treating all people in the workplace equally and with respect.

Moranski v. General Motors
An employee claimed that he was discriminated against because he was not allowed to form his own religious affinity at work, even though the company sponsored affinity groups – as part of a diversity program — based on race, national origin, gender and sexual orientation, and provided those groups with meeting space and other resources.

The company’s affinity-group policy specifically did not allow any group that promoted or advocated any religious or political position.

What happened? A court dismissed the employee’s claim while noting that the company didn’t promote any religious group over another, so there was no discrimination in the policy of barring all religious groups.

The lesson: You don’t have to extend diversity programs to every group in the universe, but you do have to make certain that no one group is provided with an advantage or penalized with a disadvantage.