Tag Archives: Equal Employment Opportunity Commission

Male-Male Sexual Harassment Claims On The Rise; The Cheesecake Factory Settles

Newsweek published an interesting article online today about sexual harassment, entitled “Abuse of Power” which you can link to here.

The article discusses a 2008 suit filed by the EEOC against restaurant giant, The Cheesecake Factory.  The suit alleged sexual harassment at the chain’s Chandler Mall location in Phoenix, AZ, including incidents of fondling, simulated rape, and employees being forcibly dragged into a restaurant refrigerator.  The Cheesecake Factory has recently settled the suit, agreeing to pay each of the plaintiffs in the case $340,000.

What makes the article – and, indeed, the EEOC action – most interesting, however, is that the suit was brought by a group of male employees, alleging sexual harassment by other men in the workplace.  According to the EEOC, such claims are on the rise.  Their office has witnessed a doubling of such claims between 1992 and 2008.  Male to male sexual harassment claims now comprise approximately 16 percent of all sexual harassment claims.  However, it is thought that such claims may actually represent an even higher percentage because the EEOC does not always maintain records of the harasser’s gender.

Male to male sexual harassment cases illustrate a fact not often understood about sexual harassment cases.  Sexual harassment cases are about power – not sex, flirting, or seduction.  In The Cheesecake Factory case, for example, no allegations were made that the harassers were actually attracted to men.  Rather, the behavior of the harassers in the case was a form of intimidation.

In 1998, the U.S. Supreme Court recognized a cause of action for same-sex sexual harassment in the landmark case of Oncale v. Sundowner Offshore Services.  I have placed a PDF copy of the case in the Box.  The Court’s decision was unanimous.

Oncale arose out of a suit for sex discrimination by a male oil-rig worker, who claimed that he was repeatedly subjected to sexual harassment by his male coworkers with the acquiescence of his employer. The Court held that Title VII‘s protection (Title VII of the Civil Rights Act) against workplace discrimination “because of… sex” applied to harassment in the workplace between members of the same sex.  Oncale was heralded as a major “gay rights” case, even though all the parties in the case were heterosexual.

In Oncale, the plaintiff was subjected to horrific acts of violence in the workplace, including being sodomized with a bar of soap.

According to the Newsweek article, “tough economic times have also been known to foster an environment of increased sexual harassment,” quoting human-resources consultant Michele Paludi. Harassment escalates when those in power feel threatened, either by an influx of female workers or a challenge to the traditional gender expectations.

Title VII law requires supervisors or employers to act promptly to investigate and remedy sexual harassment once they become aware of it.  Failure to do so can lead to employer liability.  In December 2009, for example, the U.S. Court of Appeals for the 2nd Circuit ruled in Duch v. Jakubek, 2009 WL 4421267 (2d Cir. 2009), that a jury reasonably could find that a supervisor who ignored facts regarding suspected workplace sexual harassment had constructive knowledge of the harassment and, thereby, exposed his employer to liability under Title VII.

Reblog this post [with Zemanta]
Advertisements

Discrimination In Employment Claims Hit Record High In 2009

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that 93,277 workplace discrimination charges were filed with EEOC during Fiscal Year (FY) 2009, the second highest level ever.  The EEOC is responsible for prosecuting federal administrative charges of discrimination under various federal laws, including the Americans With Disabilities Act (ADA).

Monetary recovery by plaintiffs in those cases totaled over $376 million.  The data released by the Commission shows that private sector bias hit an all-time high in 2009, not surprising considering the sluggish U.S. economy.

For further information about the data release by the EEOC, you can link to the EEOC’s information here.

Reblog this post [with Zemanta]

Genetic Information Nondiscrimination Act (GINA) Goes Into Effect

November 21, 2009 saw an important new employment law go into effect.  Commonly referred to as GINA, the Genetic Information Nondiscrimination Act was signed into law on May 21, 2008, after 10 years of attempting to pass the law.  GINA is designed to prevent two main problems.  The first problem involves the use of a person’s genetic information by insurance companies to deny health care coverage or determine how much coverage will cost.

Second, and relevant for employment law purposes, GINA prohibits certain employers from discriminating against individuals based on genetic tests and information.  GINA’s provisions apply to employers covered by Title VII of the 1964 Civil Rights Act and are similar to many provisions of Title VII. For example, employees must file a charge with the Equal Employment Opportunity Commission (EEOC) before filing a discrimination lawsuit. Additionally, GINA provides for the right to a jury trial, compensatory and punitive damages patterned after Title VII, and recovery of attorney fees for prevailing plaintiffs under the general fee-shifting statute applicable to federal civil rights act claims  However, GINA does not create a disparate impact cause of action for genetic discrimination.

GINA provides six exceptions to the statutory sections prohibiting employers from acquiring genetic information, which are:

(1)   where the employer inadvertently obtains genetic information (sometimes referred to as the “water cooler” exception);

(2)   where the employer offers qualifying health or genetic services, including such services offered as part of a voluntary wellness program;

(3)   where the employer requests family medical history to comply with the certification provisions of the Family and Medical Leave Act (FMLA) or state or local family and medical leave laws;

(4)   where the employer acquires genetic information from documents that are commercially and publicly available, including print and Internet publications, except that an employer may not research medical databases or court records for the purpose of obtaining genetic information about an individual;

(5)   where the employer acquires genetic information for use in the genetic monitoring of the biological effects of toxic substances in the workplace, provided that the employer complies with monitoring restrictions provided in the proposed regulation; and

(6)   where an employer that conducts DNA analysis for law enforcement purposes requires genetic information of its employees, apprentices, or trainees for quality control purposes to detect sample contamination.

Employers are required to update all posting in the workplace to reflect the new law.

If you are interested in this new development, or have concerns about what GINA’s provisions, I have included a GINA table in the Box from the Genetics and Public Policy Center.  You can also listen to an audiocast about GINA on NPR by following this link.

Reblog this post [with Zemanta]