Lens Crafters Sexual Harassment Case: Am I Seeing This Clearly?

She pursues him.  He resists.  She's pissed.  She false claims he sexually harassed her.  Company investigates.  He claims she harassed him.  Company does not investigate.  She later admits false claim.  Lens Crafters settles his claim for nearly $200,000.

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

An Underused Remedy for Harassment by Non-Employees

A creative new area of anti-harassment law is ripe for use if workers were informed.

When Law Firms Break the Law

Stats show gender bias at management level in law firms.  I have a number of cases of gender harassment by law firms.  I love these cases.  These firms know better, but don't care.

"If the pink slip doesn't fit, get redressed!"
Click to see my wardrobe of social media links. Link

Sherlock Holmes Would Be Appalled: Workplace Investigations?

Federal and state statutes and case law generally anticipate that a workplace investigation is an important employer tool that will prevent discrimination and harassment, and even result in some discipline of offenders.  I'm sorry to say I have a different impression of just how these investigations actually work.  They are more often used by employers as "weapons of defense" rather than as "tools of prevention."

Federal law has long given an employer an affirmative defense that an employer is not liable for harassment which is not reported by the alleged victim [at least in cases where there has been "no tangible economic harm."].  California follows an affirmative defense of "Avoidable Consequences."  To the extent the harassment victim could have herself or himself prevented the harassment by reporting it to the employer, the employee is barred from recovery of damages for the period of non-reporting.  Bottom line:  the courts want employers to police themselves.

Instead, many Human Resource departments place their priority on creating legal documents under the direction of legal counsel. The result is an nearly inevitable conclusion of "no evidence" to support the allegations or at best, that there is "some information" of inappropriate conduct but not sufficient to find discrimination or harassment.  These findings, unsurprisingly, seem more likely to be made when the accused is high in the management hierarchy.   In my 17 years of employment law practice, I have not seen one investigation conclude that sexual harassment or other discrimination have occurred.

I really wonder what standard many so called "investigators" actually use in reaching conclusions of "no harassment.".  While proof by admissible evidence in court is not required (or desirable), it seems to me that the standard, at least in California, is whether the employer "acted reasonably" in making a decision to discipline (or forego discipline) of an accused.  That "reasonableness" standard has to be examined in the context of the legal definitions of harassment.  An investigator who does not at least know what "harassment" and "discrimination" are under the law is in a very poor position to reach conclusions.

I have had situations where my clients explain to me that they felt they were under cross-examination by the "investigator" who seemed to challenge their accusation by demanding that my client must have a direct statement by the discriminator of dislike of persons of my client's age, race, or gender.  That is not the law itself, which allows for indirect and circumstantial evidence, such as different treatment, and lack of evidence to support disciplinary action against the protected employee.

Also, many investigators seem to think that by surprising the employee with the investigation, they somehow get better, more reliable information.  Surprising an employee simply serves to get unreliable and incomplete information because the employee has not had time to recollect and organize the information.  The situation is even worse then an attorney is selected to conduct the investigation.  Then the questions seem even more adversarial.

For example, one client shared with me that the interrogator asked repeatedly:  "Is that all the information you have to support your charge of harassment?"  or  "Is there anything else you can think of that would support your charge?" or even:  "What evidence do you have that discrimination occurred?"  These are "deposition style" questions used to "lock in" a witness early to a position to prevent more information coming to light later as the employee remembers other matters.  The questions are not intended or designed to elicit all the facts impartially.   The reason the questions are unfair is that most employees do not know the legal definitions of discrimination and harassment, and think they must have direct evidence, and so will answer:  "Well, I guess that's all.  I don't know of anything else."  If you are an employee in such an "investigation" be sure to say "I may think of more later, and I will let you know," or "I felt these actions were discriminatory, and so I'm listing them all, even if you don't agree."

Another gripe of mine is that an investigation delayed is no investigation at all.  The investigation is part of a general duty to prevent discrimination and harassment, and to take prompt corrective action.  There are two goals:  protect employees from discrimination, and yes, let the harasser and others like him or her know that such conduct is punished.  I have seen many H.R. departments simply ignore or casually respond to complaints that the law requires to be promptly investigated.  The result is liability upon the employer for failure to prevent harassment or retaliation that may thereafter occur.

In conclusion, if Sherlock Holmes were asked why many workplace investigations fail to meet the requirements of the law, I suspect he would answer:  "Elementary my dear Watson."  

Does the Way She Dresses Invite Sexual Advances?

"Today" video 9-15-10 .   This MSNBC link addresses that question in the context of a female sports caster covering the NFL.  Legally, the perception of the "harasser" as to what constitutes harassment is irrelevant.  The issue is determined from the viewpoint of the alleged victim:  Does she personally experience the advances as unwanted and offensive and would a reasonable woman in her place also feel that way?



"If the pink slip doesn't fit, get redressed!"
Click to see my wardrobe of remedies. Link

More Men Filing Sexual Harassment Claims

Percentage of complaints filed by men has doubled over last 20 years

By Sam Hananel

The Associated Press

updated 1:14 p.m. PT, Thurs., March. 4, 2010

WASHINGTON - Jonathan Pilkington's boss wouldn't take no for an answer.

During more than two years as a food runner at an upscale steakhouse in Scottsdale, Ariz., Pilkington says his male supervisor groped, fondled and otherwise sexually harassed him more than a dozen times.

"It was very embarrassing," Pilkington said. "I felt like I had to do something because the situation was just so bad."

Now Pilkington, a married father of two, is the star witness in a federal lawsuit against Fleming's Prime Steakhouse & Wine Bar and one of a growing number of men claiming they are victims of sexual harassment in the workplace.

From 1990 to 2009, the percentage of sexual harassment claims filed by men has doubled from 8 percent to 16 percent of all claims, according to the Equal Employment Opportunity Commission.

Women still file the overwhelming majority of sexual harassment claims with the EEOC and state and local agencies. But lawyers at the commission say they've noticed the increase in complaints by men — more than 2,000 were filed in 2009 out of about 12,700 cases.

Male claims made up about 12 percent of all cases a decade ago, but the percentage has continued to rise even as the overall number of sexual harassment complaints has declined. And last year, the percentage of lawsuits the EEOC filed on behalf of male victims hit an all-time high, making up 14 percent of all cases.

"It's certainly possible that there's more sexual harassment of men going on, but it could just be that more men are coming forward and complaining about it," said Ernest Haffner, an attorney in the EEOC's Office of Legal Counsel.

While some cases allege harassment by female supervisors or co-workers, most charges involve men harassing other men. Sometimes it's unwelcome romantic advances. Other times, men are picked on because they are gay, perceived as being gay or not considered masculine enough for the work setting.

In the past, some employers might have shrugged off such antics as "boys will be boys" horseplay or fraternity-type behavior. But the EEOC has been filing more lawsuits involving male victims, saying it wants to send a message that such behavior is unacceptable and unlawful.

In November, for example, the Cheesecake Factory restaurant chain agreed to pay $345,000 to six male employees who claimed they were repeatedly sexually assaulted by a group of male kitchen staffers at a Phoenix-area restaurant.

The EEOC said the abusers would drag some victims kicking and screaming into a walk-in refrigerator, touching and grinding against the victims' genitals and take turns simulating rape. The company denied the allegations but agreed to make a financial settlement and educate its employees and managers about sexual harassment.

Susan Strauss, a consultant who advises companies about how to avoid sexual harassment in the workplace, said she's seeing more cases in which men are subject to a sexualized form of hazing.

"If you don't fit the masculine stereotype or are viewed as effeminate, you get picked on in a sexual way to demean you," Strauss said.

Cases involving women making unwanted advances toward men may also be rising as women make up a growing part of the work force. Last year, the Regal Entertainment Group, which operates a national chain of movie theaters, agreed to pay $175,000 to settle a lawsuit by a male employee who claimed a female co-worker repeatedly grabbed his crotch at work.

When the employee complained to his supervisor and the theater's then-general manager, he claims, she failed to stop the harassment and instead retaliated against the victim with unfair discipline and lower performance evaluations.

The number of cases filed by men has grown steadily since a landmark Supreme Court ruling in 1998 held that same-sex harassment is a valid claim under federal anti-discrimination laws. That ruling involved an offshore oil rig worker who said he was subject to humiliating sex-related treatment by other workers, including being sodomized in the shower with a bar of soap.

In Pilkington's case, he claims the restaurant's chef would grope and pinch his genitals or grab his backside when Pilkington walked to the kitchen or stock room. Despite his complaints to the restaurant's operating partner, he says the conduct didn't stop.

After one incident, Pilkington lost his composure and yelled at the chef, making a scene. Days later, he was fired — an action he claims was retaliation for his complaints. An EEOC lawsuit on behalf of Pilkington and three other current and former employees is pending.

"I think maybe it's just harder for males to come out and file a complaint because of how embarrassing it is," Pilkington said. "When I talk about it I get this nauseous feeling in my stomach."

The restaurant has denied the charges. In a statement, the company that owns Fleming's said the restaurant "has always been committed to providing a safe and healthy workplace free of harassment for all of its associates."

Many victims are hesitant to come forward because they are afraid of being considered unmanly or being derided by co-workers, said Mary Jo O'Neill, a regional attorney in the EEOC's Phoenix District office.

"All sexual harassment victims feel humiliated, lacking control and power," O'Neill said. "This has a different twist because everyone expects that they would be able to handle it and take care of it themselves."

Pilkington has since moved on to another job. While he is embarrassed by the publicity his case has received, he says it was the right thing to do. The EEOC lawsuit seeks damages for him and other workers alleging harassment, along with back pay and compensatory and punitive damages.

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

MSN Privacy . Legal

© 2010 MSNBC.com

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.
Link

Crazy for Love -- UCLA Psychiatrists in Litigation

He's handsome, he's charming, and maybe he's sexually harassed. Currently on file with L.A. Superior Court is a sexual harassment case by a UCLA male resident against his female supervising physician. He claims he lost a coveted position because he broke off sexual relations with her. He was to be the chief resident of his supervisor's clinic, he alleges, but she denied him that opportunity when he broke it off. Her defense is that he is obsessed with sex, and that the liaison never occurred. [I assume the defense attorney thought the "obsessed with sex" defense was a pretty safe position to take regarding a healthy intelligent male in his 30s.]

To add to the drama, she has filed a separate sexual harassment suit against another UCLA psychiatrist, and she claims UCLA administrators retaliated against her when she complained of his sexual harassment.

Now back to the first drama, the one of him vs. her. In that one, UCLA states it did not allow him to become a chief resident because of the "appearance" that if you sleep around with the supervising physician, you will be more likely to get promoted. This defense, you will note, does not admit the "sex for jobs" relation exists, just that there is a feared appearance--something like a "ghost" of a chance.

Now, as a lawyer, I think resolving these convoluted allegations is best done in a public court of law, so that everyone becomes a public spectacle, and people can "act out" through their lawyers, which is much safer than acting out directly. On the other hand, these folks know the power of medication, and perhaps a little sedation would work just as well, while keeping things more private. The problem seems to be that old adage: "Physician, heal thyself".

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.