Recently, the Federal District Court for the Eastern District of Louisiana held that "severe obesity" qualifies as a disability under the Americans With Disabilities Act (ADA). The court also held that someone who is "severely obese" (defined by the EEOC as someone with a body weight of more that 100% over the norm) need not show that they have some underlying physiological disorder causing the obesity in order to be protected by the ADA. This is a signficant departure from many former court decisions which held that simply being obese did not constitute a disability under the ADA. The court notes that while being overwieght is not, in and of itself, a disability, those individuals who are severely obese or have an underlying physiological condition causing the obesity would qualify as disabled under the ADA.
The Louisiana Court applied recent amendments to the ADA that took effect in January 2009 which, among other things, signficantly broadened the definition of "disability." Prior to these amendments, the courts had interpreted the definition of "disability" in the ADA very narrowly, denying ADA protection to numerous individuals with very serious disabilities like diabetes, multiple sclerosis and cancer. The text of the ADA amendments specifically states that they were intended to overturn two U.S. Supreme Court opinions that excluded numerous individuals from the ADA's protection. An instructional chart setting forth some of the differences between the old version of the ADA as interpreted by the courts and the new ADA amendments can be found here. In sum, these new amendments were intended to move the focus away from whether the employee is disabled and turn attention to whether the employer was making discriminatory decisions based on an employee's impairment. In my experience, the amendments are having their intended effect.
There is one interesting side note to the enactment of the ADA amendments. The amendments clearly broadened the coverage of the ADA to many more people. This, in theory, could increase the number of employees (individuals) who may decide to sue their employers (businesses) for discrimination. While one would assume that typical political battle lines would be drawn in favor of, and in opposition to, the ADA amendments, that was not the case. Remarkably, as noted in various articles and elsewhere, the ADA amendments passed with overwhelming bipartisan support in Congress, were signed by President Bush and were born from a collaboration between disability, civil rights and employer groups. I wonder if these amendments would pass today?
Wednesday, December 21, 2011
Saturday, December 17, 2011
"They encourage you to report something and when you do, it seems as if it's taken out on you...."
According to the New York Times, those were the words used by Warren Glover, a former NBA security director and former police officer, in his attempt to explain his termination as a long time NBA security director following his reports of sex harassment and discrimination against female coworkers prior to his termination in July 2011. Glover has now sued the NBA and a number of individuals for retaliation.
Glover alleges that he had accumulated a "glowing performance record," but once he began reporting instances of harassment and discrimination of women in the workplace to his superiors, he received veiled and overt threats of retaliation and received poor performance reviews. Specifically, Glover states he communicated complaints from female employees to his superiors that they were shown pornographic material on the computer and were subject to offensive and intimidating remarks from male supervisors and coworkers.
In addition, Annette Smith, an administrative assistant who worked for Glover, complained to Glover that Bernard Tolbert, the NBA's then Senior Vice President for Security, engaged in a pattern of sexual harassment towards her. Smith complained that Tolbert exhibited a demeaning attitude and conduct towards women. As an example, Tolbert allegedly had shown Smith a photo of an obese, naked woman lying on top of a man who was barely visible in the picture. Tolbert, according to Glover, wanted Smith to incorporate the image in a presentation to NBA players warning them about the dangers of drinking. When Glover told Tolbert how offended Smith was by the conduct, Tolbert allegedly responded: "If she doesn’t like it, she can quit. One monkey don’t stop no show."
Smith prudently followed Tolbert's advice, quit her job and sued both Tolbert and the NBA. Following the initiation of Smith's lawsuit, Gregory Robinson, Glover's immediate supervisor, allegedly told Glover that he “was in trouble” and that any involvement in Smith's case “would be detrimental to his [Glover's] career.” I suspect that Robinson's statements, if true, had not been vetted by the NBA's general counsel.
Despite Robinson's overt threat of retaliation, Glover gave a deposition in Smith's case in May 2009 in which I suspect he substantiated many of Smith's allegations of harassment. Following his deposition, Tolbert allegedly stated to Glover: "It’s all your fault. You testified for your girl." Tolbert left the NBA near the end of 2010 following a "sizable settlement" that was paid to Smith, according to Glover. Glover was then terminated by James Cowley, Tolbert's replacement, for alleged performance reasons in July 2011. The termination, coincidentally, occurred one month after Glover had received a congratulatory letter and gold watch from the NBA Commissioner David Stern thanking him for his 10 years of dedicated service in June 2011.
Retaliation, or reprisal as it is called in the Minnesota Human Rights Act, is a form of workplace discrimination that is illegal under both federal and Minnesota law. In essence, it is illegal to retaliate against someone for reporting discrimination or harassment in the workplace. It is also illegal to retaliate against someone for participating in a discrimination investigation or testifying in a discrimination proceeding as Glover did here. Many employers, like the NBA, have written policies encouraging their employees to report discrimination or harassment to their supervisors or human resources department. Those policies also promise that the employee will not be retaliated against for making the report of discrimination.
The U.S. Supreme Court has held that retaliation can take many different forms depending on the nature of the job and the unique culture of each workplace. Terminations, demotions and pay cuts are obvious forms of retaliation. But the Supreme Court held that retaliation could, in certain circumstances, come in the form of a suspension, shift change or reassignment of job duties, among other things. In essence, the Court held that if the employer's retaliatory conduct would dissuade a reasonable person from making a complaint of discrimination in the first place, it can form the basis of a retaliation claim.
While the goal of prohibiting retaliation is a noble one, it is often very difficult for employers to follow in practice. Oftentimes, complaints of discrimination or harassment are directed at supervisors or coworkers we have to see and interact with every day. The accused get angry at their accuser for making what they often believe are baseless allegations and putting their employment in jeopardy. Their natural reaction is to lash out at their accuser. In some instances, when the accused is an important person in the organization, others will retaliate against the accuser because they don't want anything to jeopardize the employer's relationship with this key employee. The accused, or their supporters, often know retaliation is wrong and illegal. Nonetheless, they may say or do things that result in actionable retaliation claims. According to Equal Employment Opportunity Commission (EEOC), retaliation claims have become a much larger percentage of its workload, comprising over 36% of all claims made to the agency in 2010.
Employees are not protected for reporting any slight or injustice that may occur in the workplace. These anti-discrimination statutes clearly limit protection against retaliation to those who are reporting violations of those statutes that prevent discrimination against a individuals in a "protected class," i.e., discrimination on the basis of sex, race, national origin, age, religion, disability, sexual orientation, marital status, etc. Minnesota also has what is commonly referred to as the "Whistleblower Act," which also prohibits retaliation against an employee for reporting illegal conduct to the employer or governmental authorities.
One thing that is important to remember, however, is that there is no law prohibiting an employer from retaliating against an employee for reporting other types of unfair treatment in the workplace. I often receive calls from people who have complained to their employer that they are being treated differently than their coworkers, their reviews weren't fair, their boss is a jerk, or that their coworker is treating them disrespectfully, among a litany of other complaints. Unless you can show that the underlying conduct was directed at you because you belong to a "protected class" or have engaged in other protected conduct, you likely will not be able to bring a claim of retaliation. If you have any question about whether you have legal protection when making a report to your employer, it is always best to call a lawyer before making your report.
(Hat tip: Gillette-Torvik Blog)
Glover alleges that he had accumulated a "glowing performance record," but once he began reporting instances of harassment and discrimination of women in the workplace to his superiors, he received veiled and overt threats of retaliation and received poor performance reviews. Specifically, Glover states he communicated complaints from female employees to his superiors that they were shown pornographic material on the computer and were subject to offensive and intimidating remarks from male supervisors and coworkers.
In addition, Annette Smith, an administrative assistant who worked for Glover, complained to Glover that Bernard Tolbert, the NBA's then Senior Vice President for Security, engaged in a pattern of sexual harassment towards her. Smith complained that Tolbert exhibited a demeaning attitude and conduct towards women. As an example, Tolbert allegedly had shown Smith a photo of an obese, naked woman lying on top of a man who was barely visible in the picture. Tolbert, according to Glover, wanted Smith to incorporate the image in a presentation to NBA players warning them about the dangers of drinking. When Glover told Tolbert how offended Smith was by the conduct, Tolbert allegedly responded: "If she doesn’t like it, she can quit. One monkey don’t stop no show."
Smith prudently followed Tolbert's advice, quit her job and sued both Tolbert and the NBA. Following the initiation of Smith's lawsuit, Gregory Robinson, Glover's immediate supervisor, allegedly told Glover that he “was in trouble” and that any involvement in Smith's case “would be detrimental to his [Glover's] career.” I suspect that Robinson's statements, if true, had not been vetted by the NBA's general counsel.
Despite Robinson's overt threat of retaliation, Glover gave a deposition in Smith's case in May 2009 in which I suspect he substantiated many of Smith's allegations of harassment. Following his deposition, Tolbert allegedly stated to Glover: "It’s all your fault. You testified for your girl." Tolbert left the NBA near the end of 2010 following a "sizable settlement" that was paid to Smith, according to Glover. Glover was then terminated by James Cowley, Tolbert's replacement, for alleged performance reasons in July 2011. The termination, coincidentally, occurred one month after Glover had received a congratulatory letter and gold watch from the NBA Commissioner David Stern thanking him for his 10 years of dedicated service in June 2011.
Retaliation, or reprisal as it is called in the Minnesota Human Rights Act, is a form of workplace discrimination that is illegal under both federal and Minnesota law. In essence, it is illegal to retaliate against someone for reporting discrimination or harassment in the workplace. It is also illegal to retaliate against someone for participating in a discrimination investigation or testifying in a discrimination proceeding as Glover did here. Many employers, like the NBA, have written policies encouraging their employees to report discrimination or harassment to their supervisors or human resources department. Those policies also promise that the employee will not be retaliated against for making the report of discrimination.
The U.S. Supreme Court has held that retaliation can take many different forms depending on the nature of the job and the unique culture of each workplace. Terminations, demotions and pay cuts are obvious forms of retaliation. But the Supreme Court held that retaliation could, in certain circumstances, come in the form of a suspension, shift change or reassignment of job duties, among other things. In essence, the Court held that if the employer's retaliatory conduct would dissuade a reasonable person from making a complaint of discrimination in the first place, it can form the basis of a retaliation claim.
While the goal of prohibiting retaliation is a noble one, it is often very difficult for employers to follow in practice. Oftentimes, complaints of discrimination or harassment are directed at supervisors or coworkers we have to see and interact with every day. The accused get angry at their accuser for making what they often believe are baseless allegations and putting their employment in jeopardy. Their natural reaction is to lash out at their accuser. In some instances, when the accused is an important person in the organization, others will retaliate against the accuser because they don't want anything to jeopardize the employer's relationship with this key employee. The accused, or their supporters, often know retaliation is wrong and illegal. Nonetheless, they may say or do things that result in actionable retaliation claims. According to Equal Employment Opportunity Commission (EEOC), retaliation claims have become a much larger percentage of its workload, comprising over 36% of all claims made to the agency in 2010.
Employees are not protected for reporting any slight or injustice that may occur in the workplace. These anti-discrimination statutes clearly limit protection against retaliation to those who are reporting violations of those statutes that prevent discrimination against a individuals in a "protected class," i.e., discrimination on the basis of sex, race, national origin, age, religion, disability, sexual orientation, marital status, etc. Minnesota also has what is commonly referred to as the "Whistleblower Act," which also prohibits retaliation against an employee for reporting illegal conduct to the employer or governmental authorities.
One thing that is important to remember, however, is that there is no law prohibiting an employer from retaliating against an employee for reporting other types of unfair treatment in the workplace. I often receive calls from people who have complained to their employer that they are being treated differently than their coworkers, their reviews weren't fair, their boss is a jerk, or that their coworker is treating them disrespectfully, among a litany of other complaints. Unless you can show that the underlying conduct was directed at you because you belong to a "protected class" or have engaged in other protected conduct, you likely will not be able to bring a claim of retaliation. If you have any question about whether you have legal protection when making a report to your employer, it is always best to call a lawyer before making your report.
(Hat tip: Gillette-Torvik Blog)
Monday, December 5, 2011
Your Friend Is Wrong: A Non-Compete Agreement Is Typically Enforceable in Minnesota
I probably get three or four phone calls a month from individuals who are unhappy at work, are thinking about making a change in their employment but wonder if that non-compete agreement they signed a year ago is really enforceable. The conversation generally goes like this:
Potential Client [PC]: "Everyone I've talked to says these things [non-compete agreements] aren't enforceable."
Me: "Well, who have you spoken with exactly?"
PC: "Everyone."
Me: "Have you spoken to another lawyer about whether your non-compete is enforceable?"
PC: "No. But how can it be enforceable? I have a right to work."
Me: "I wish it were that simple."
Indeed, as one recent article in the Minneapolis Star Tribune accurately stated, the increasing mobility of the workforce has resulted in an increase in the number and types of employees subject to non-compete agreements. As a general matter, non-compete agreement agreements are enforceable if its terms are reasonable and the employee is getting something a sufficient value in return.
When evaluating whether the terms of the non-compete agreement are reasonable, factors to consider include (1) what the employee did for the employer, (2) the type of work the employee will be prohibited from doing for a new employer, (3) the length of the time the employee is restricted from competing with the employer, and (4) the geographic scope of the restriction (i.e., whether you are prohibited from working in a particular town, state, country or the entire world). Generally, courts will uphold those agreements that are reasonable under the circumstances. The court also has the ability to unilaterally modify the restrictions to make them "reasonable" under the circumstances, which is often referred to as the "blue pencil doctrine."
A court also will look to see whether the employee received adequate consideration in exchange for signing the non-compete agreement. In other words, courts want to make sure the employee received something of sufficient value in exchange for giving up some of their post-employment rights. Typically, if a non-compete is signed at the beginning of the employment, the court will hold that the employment itself is of sufficient value to support the enforceability of the non-compete agreement. However, if the non-compete is being presented to a current employee after employment has began, the employer typically needs to offer more than the promise of continued employment. Courts typically find that a bonus, stock options, pay raise, promotion or other type of tangible benefit will, in most instances, be sufficient. In the end, the court will look at whether the consideration given was reasonable given the terms of the non-compete and all other circumstances.
Most people sign a non-compete without appreciating the implications to their future employment. A non-compete can be especially oppressive if you have specialized experience in a particular industry or have a particular expertise that you will not be able to utilize for a period of time following separation from your employer. This may result in a significant limitation in the types of positions you may be eligible to apply or may result in a decrease in your expected pay because you won't be able to use those skills that make you the most valuable in the job market.
My suggestion is that you spend time negotiating the scope of the non-compete with the potential employer to make sure it protects both the employer's legitimate interests while it allows you to be as marketable to future employers as possible.
Potential Client [PC]: "Everyone I've talked to says these things [non-compete agreements] aren't enforceable."
Me: "Well, who have you spoken with exactly?"
PC: "Everyone."
Me: "Have you spoken to another lawyer about whether your non-compete is enforceable?"
PC: "No. But how can it be enforceable? I have a right to work."
Me: "I wish it were that simple."
Indeed, as one recent article in the Minneapolis Star Tribune accurately stated, the increasing mobility of the workforce has resulted in an increase in the number and types of employees subject to non-compete agreements. As a general matter, non-compete agreement agreements are enforceable if its terms are reasonable and the employee is getting something a sufficient value in return.
When evaluating whether the terms of the non-compete agreement are reasonable, factors to consider include (1) what the employee did for the employer, (2) the type of work the employee will be prohibited from doing for a new employer, (3) the length of the time the employee is restricted from competing with the employer, and (4) the geographic scope of the restriction (i.e., whether you are prohibited from working in a particular town, state, country or the entire world). Generally, courts will uphold those agreements that are reasonable under the circumstances. The court also has the ability to unilaterally modify the restrictions to make them "reasonable" under the circumstances, which is often referred to as the "blue pencil doctrine."
A court also will look to see whether the employee received adequate consideration in exchange for signing the non-compete agreement. In other words, courts want to make sure the employee received something of sufficient value in exchange for giving up some of their post-employment rights. Typically, if a non-compete is signed at the beginning of the employment, the court will hold that the employment itself is of sufficient value to support the enforceability of the non-compete agreement. However, if the non-compete is being presented to a current employee after employment has began, the employer typically needs to offer more than the promise of continued employment. Courts typically find that a bonus, stock options, pay raise, promotion or other type of tangible benefit will, in most instances, be sufficient. In the end, the court will look at whether the consideration given was reasonable given the terms of the non-compete and all other circumstances.
Most people sign a non-compete without appreciating the implications to their future employment. A non-compete can be especially oppressive if you have specialized experience in a particular industry or have a particular expertise that you will not be able to utilize for a period of time following separation from your employer. This may result in a significant limitation in the types of positions you may be eligible to apply or may result in a decrease in your expected pay because you won't be able to use those skills that make you the most valuable in the job market.
My suggestion is that you spend time negotiating the scope of the non-compete with the potential employer to make sure it protects both the employer's legitimate interests while it allows you to be as marketable to future employers as possible.
Tuesday, November 22, 2011
Petition To "Save Thanksgiving" Delivered To Target
The online petition started by a Target employee in Omaha, Nebraska, to push back the time that Target's retail stores opened on "Black Friday" was delivered to the company's corporate offices today. I previously wrote about the petition which seeks to have Target push back its scheduled opening from midnight until later that morning. The employees are upset that they have to come in and work on Thanksgiving in order to have the stores ready for customers by midnight. They believe they should be able to spend the holiday with their families. It is reported that the petition has more than 190,000 signatures.
A Target spokeswoman was quoted as stating: "Our guests have expressed that they would prefer to kick off their holiday shopping by heading out after their holiday celebrations rather than getting up in the middle of the night."
I wonder if Target can identify 190,000 customers who are demanding to have access to the stores by midnight?
A Target spokeswoman was quoted as stating: "Our guests have expressed that they would prefer to kick off their holiday shopping by heading out after their holiday celebrations rather than getting up in the middle of the night."
I wonder if Target can identify 190,000 customers who are demanding to have access to the stores by midnight?
Thursday, November 17, 2011
Protests, Petitions and Employment: Retail Workers Call For Black Friday Reprieve
Two giant Minnesota-based retailers - Target and Best Buy - face a groundswell of protest and online petitions from their own employees who are objecting at having to work on Thanksgiving and the early morning hours of "Black Friday." These employees have begun petitions on a website called change.org that allows users to start a petition online. The employee-petitioners believe "A full holiday with family is not just for the elite of this nation -- all Americans should be able to break bread with loved ones and get a good night's rest on Thanksgiving!" To date, the petition related to Target has over 160,460 online supporters, while the Best Buy petition has over 9,300 supporters.
Unfortunately for these employees, they can be required to work the hours dictated by their employer. Granted, they are entitled to receive additional pay for having to work on a holiday and would also be entitled to overtime pay if they were to work over 40 hours that week. However, they likely would have no legal protection if their employers chose to terminate them for starting and/or signing these petitions. Moreover, the employees could not make a "freedom of speech" argument because the Constitution constrains the government from trampling on your First Amendment rights, not private employers.
My guess, however, is that these two companies are sophisticated enough to recognize the PR backlash that may ensue if they terminated these folks for raising these issues. My guess is this will all blow over. Until next year...
Unfortunately for these employees, they can be required to work the hours dictated by their employer. Granted, they are entitled to receive additional pay for having to work on a holiday and would also be entitled to overtime pay if they were to work over 40 hours that week. However, they likely would have no legal protection if their employers chose to terminate them for starting and/or signing these petitions. Moreover, the employees could not make a "freedom of speech" argument because the Constitution constrains the government from trampling on your First Amendment rights, not private employers.
My guess, however, is that these two companies are sophisticated enough to recognize the PR backlash that may ensue if they terminated these folks for raising these issues. My guess is this will all blow over. Until next year...
Wednesday, November 16, 2011
The Penn State Sex Scandal and You: Are You a Mandated Reporter?
Recent allegations that Jerry Sandusky, a famous assistant football coach at Penn State University who worked under "Legendary" Head Coach Joe Paterno for years has been charged with numerous counts of sexually abusing young boys on and off the Penn State University campus. At least one of Sandusky's assaults was witnessed by a graduate assistant and was reported to Coach Paterno who then relayed it up the University's chain of command. None of these individuals, however, notified the authorities despite the graphic and explicit nature of the report. Now, Paterno and other officials at Penn State have been terminated for their failure to notify the police.
One interesting aspect of this case is the discussion around who had a legal obligation to notify the authorities of the alleged abuse. These individuals are typically referred to as "mandated reporters." It seems that authorities do not believe Paterno had any legal obligation to report the abuse allegations that were reported to him, but many, including me, feel he fell short of his moral obligation to report what he understood to be the sexual molestation of a young boy(s). This fact has led many to suggest there is a need to broaden the legal requirements as to who must report child abuse to the authorities.
Minnesota has its own mandated reporter statute, Minn. Stat. § 626.556. It is a criminal statute that requires any person engaged in the practice of the healing arts, social services, hospital administration, psychological or psychiatric treatment, child care, education, correctional supervision, probation and correctional services, law enforcement, or clergy to report any neglect, physical or sexual abuse of a minor that the mandated reporter knows or has reason to know occurred within the last three years. The report may be oral, but must be followed by a written report within 72 hours of the oral report, unless the agency receiving the oral report notifies the mandated reporter that the verbal report was sufficient.
If you are a mandated reporter it is very important to report the suspected abuse right away. Failure to notify the proper authorities may constitute a gross misdemeanor, which is punishable by up to a year in prison and a $3,000 fine.
If a mandated reporter makes a good faith report of suspected abuse, the employer of that individual may not retaliate against them for making the report. This is important because an employer will often times apply direct or indirect pressure on an employee to not report outside the organization to avoid any negative publicity or other consequence. This internal pressure can serve as a powerful deterrent to someone who is required to report abuse under the law. In addition to receiving protection under the mandated reporter statute, the employee would most likely be protected under Minnesota's Whistleblower Statute, Minn. Stat. § 181.932, as well. Under these statutes, an employee who proves she was retaliated against for making a report can recover damages for her wage loss, emotional distress, attorneys' fees and costs, as well as a penalty against the employer of up to $10,000.
The bottom line is that if you are a mandated reporter you should immediately report any suspected neglect, physical or sexual abuse of a minor to the authorities immediately.
One interesting aspect of this case is the discussion around who had a legal obligation to notify the authorities of the alleged abuse. These individuals are typically referred to as "mandated reporters." It seems that authorities do not believe Paterno had any legal obligation to report the abuse allegations that were reported to him, but many, including me, feel he fell short of his moral obligation to report what he understood to be the sexual molestation of a young boy(s). This fact has led many to suggest there is a need to broaden the legal requirements as to who must report child abuse to the authorities.
Minnesota has its own mandated reporter statute, Minn. Stat. § 626.556. It is a criminal statute that requires any person engaged in the practice of the healing arts, social services, hospital administration, psychological or psychiatric treatment, child care, education, correctional supervision, probation and correctional services, law enforcement, or clergy to report any neglect, physical or sexual abuse of a minor that the mandated reporter knows or has reason to know occurred within the last three years. The report may be oral, but must be followed by a written report within 72 hours of the oral report, unless the agency receiving the oral report notifies the mandated reporter that the verbal report was sufficient.
If you are a mandated reporter it is very important to report the suspected abuse right away. Failure to notify the proper authorities may constitute a gross misdemeanor, which is punishable by up to a year in prison and a $3,000 fine.
If a mandated reporter makes a good faith report of suspected abuse, the employer of that individual may not retaliate against them for making the report. This is important because an employer will often times apply direct or indirect pressure on an employee to not report outside the organization to avoid any negative publicity or other consequence. This internal pressure can serve as a powerful deterrent to someone who is required to report abuse under the law. In addition to receiving protection under the mandated reporter statute, the employee would most likely be protected under Minnesota's Whistleblower Statute, Minn. Stat. § 181.932, as well. Under these statutes, an employee who proves she was retaliated against for making a report can recover damages for her wage loss, emotional distress, attorneys' fees and costs, as well as a penalty against the employer of up to $10,000.
The bottom line is that if you are a mandated reporter you should immediately report any suspected neglect, physical or sexual abuse of a minor to the authorities immediately.
Tuesday, November 15, 2011
He Said / She Said: More lessons from Herman Cain
A fourth woman has come forward and publicly accused GOP presidential candidate Herman Cain of sexually inappropriate conduct that allegedly took place in July 1997 while he was president/CEO of the National Restaurant Association (NRA). Sharon Bialek, a former employee of a foundation associated with the NRA, allegedly contacted Cain at that time in an effort to request his help seeking new employment after she lost her position with the NRA related foundation. From various reports, it appears that she was seeking both advice about employment with the NRA as well as seeking possible advice for jobs with other entities.
Bialek claims that when she came into town and checked in at her hotel, she discovered Cain had upgraded her room to a very expensive suite. They then went out to dinner and presumably discussed employment prospects. When they got back in the car following the dinner, Bialek alleges Cain placed his hand up her skirt and pushed her head towards his crotch. When Bialek rebuffed Cain's advances, Cain allegedly stated: "You want a job, right?" Reviewing the definition of sexual harassment contained in my prior post, these allegations, if true, would likely constitute sexual harassment.
While Bialek was the first to make her accusations publicly, another one of the three "anonymous" accusers has now come forward. Karen Kraushaar recently came forward and claims that she has documentation setting forth the details of Cain's harassment of her while she was employed by the NRA. It now appears she was paid $46,000 - a year's salary - in exchange for a release and agreement to keep the details of her claim private. She has since been released from the confidentiality provision of her agreement.
Also, Ms. Bialek's former boyfriend, a pediatrician named Dr. Victor Zuckerman, has come forward and confirmed that at immediately after Bialek returned from the meeting with Cain that she told him that Cain had groped her in her car.
Cain has unequivocally denied he ever engaged in sexual harassment ever at any time. He has also publicly stated that when he saw Ms. Bialek on television that he could not recall ever meeting her. One person, however, claims to have seen Cain and Bialek together only a few weeks before she went public with her allegations. Moreover, Bialek's former boyfriend also disputes Cain's claims that he never met Bialek.
Cain has also come up with a number of different hypotheses as to the motivation behind these four women's allegations. He has claimed at various times that that his GOP rival for the presidential nomination, Rick Perry, was behind the allegations. He now is blaming the "Democratic machine" for prompting these women to come forward. He has also claimed that Bialek was motivated to come forward for money and provided the press with a laundry list of details about her alleged financial problems. The problem with Cain's accusations, however, is that Bialek could not bring a legal claim against Cain at this time because too much time has passed since the alleged assault.
I thought this might be a good opportunity to discuss the so-called "he said / she-said" case where there are no other witnesses to the harassment or discrimination other than those two individuals who were in the room together. I often have people who call for advice and ask if there is anything they can do if they were subject to sexual harassment but no one else witnessed the conduct. The answer is yes!
Unlike a criminal trial where the prosecution has to prove guilt "beyond a reasonable doubt," a plaintiff in a civil discrimination claim needs only to prove their claim by a "preponderance of the evidence." Proving something by a preponderance of the evidence simply means that the plaintiff was able to prove a fact by the "greater weight of the evidence." Another way of looking at it is to say that if you credit the plaintiff's version of the facts at 51%, then the plaintiff has met their burden of proof. On the other hand, if you only credit the plaintiff's version of the facts at 50%, they have not met their burden because they have not proven their case by the greater weight of the evidence.
It is also important to consider what types of evidence a court will consider. Typically, a court will allow the introduction of "relevant evidence," that is, evidence that tends to make the existence of any fact that is of consequence to the determination of the case more or less probably than it would be without the evidence. Evidence typically takes the form of witness testimony and documents. One witness' testimony, if credible, can be enough to prove discrimination or harassment.
So despite the fact that this has been characterized by some as a "he said / she said" type of situation, is that the reality here? Remember, the credibility of the two people involved - Bialek and Cain - would be what a jury likely would base their decision upon. Here, Bialek's allegations are not bare. There are three other women who also have claimed he engaged in sexual harassment towards them in the same time period. It is difficult for the average person to believe that four different women would make the same allegation against Cain if it didn't happen. It also would undermine any claim by Cain that Bialek "misinterpreted" anything that allegedly happened between them.
The statement by Bialek's former boyfriend also shows she is likely not making up these allegations. Her contemporaneous statement to her boyfriend makes it much less likely that she is now making this up for political or financial gain. The fact that she has repeatedly alleged Cain sexually harassed her over a period of time would likely make her a more credible witness.
While Bialek's credibility has arguably been bolstered, Cain has likely experienced a significant amount of self-inflicted damage to his own credibility. First, Cain's changing statements as to the motives of these women detracts from his credibility. It's the Democrats. No its Perry. Now its money. Which one of these women is doing it for money? Which one is the Democratic stooge? And which one works for Perry? Or do they all fall in every camp? And is there any evidence to support any of these allegations? None yet. Cain's changing narrative as to the motivations of these women has severely damaged his credibility and made him look desperate.
Moreover, Cain's unequivocal statement that he had never met Bialek before is also harmful to his credibility. Her former boyfriend and at least one other source claim that he did in fact meet Biaelk. And again, one has to ask how Bialek can recall details such as the hotel she stayed at, where she and Cain went for dinner, etc. if they had never met. Is she really that good of a liar? There are likely a number of ways to corroborate her story with credit card receipts, transportation tickets, hotel reservation information, that the likelihood that she is making up the meeting between the two is highly unlikely. Moreover, the statements by two other people that they know for a fact Cain and Bialek have met before also does damage to Cain's credibility.
What this shows is there are often other things, or circumstantial evidence, that tend to bolster one party's credibility or weaken the credibility of the other. Given the "preponderance of the evidence" standard necessary to succeed in a civil harassment claim, it is possible to win in a case of sexual harassment where there are no other witnesses to the harassment.
There is one other thing to consider that likely would not be allowed into evidence in court. The amounts paid to the former NRA employees to settle their harassment claims are typical of the settlements paid in these types of claims. Cain's claim that these were some type of paltry or token severance amounts is not supported by the facts. Food for thought.
Bialek claims that when she came into town and checked in at her hotel, she discovered Cain had upgraded her room to a very expensive suite. They then went out to dinner and presumably discussed employment prospects. When they got back in the car following the dinner, Bialek alleges Cain placed his hand up her skirt and pushed her head towards his crotch. When Bialek rebuffed Cain's advances, Cain allegedly stated: "You want a job, right?" Reviewing the definition of sexual harassment contained in my prior post, these allegations, if true, would likely constitute sexual harassment.
While Bialek was the first to make her accusations publicly, another one of the three "anonymous" accusers has now come forward. Karen Kraushaar recently came forward and claims that she has documentation setting forth the details of Cain's harassment of her while she was employed by the NRA. It now appears she was paid $46,000 - a year's salary - in exchange for a release and agreement to keep the details of her claim private. She has since been released from the confidentiality provision of her agreement.
Also, Ms. Bialek's former boyfriend, a pediatrician named Dr. Victor Zuckerman, has come forward and confirmed that at immediately after Bialek returned from the meeting with Cain that she told him that Cain had groped her in her car.
Cain has unequivocally denied he ever engaged in sexual harassment ever at any time. He has also publicly stated that when he saw Ms. Bialek on television that he could not recall ever meeting her. One person, however, claims to have seen Cain and Bialek together only a few weeks before she went public with her allegations. Moreover, Bialek's former boyfriend also disputes Cain's claims that he never met Bialek.
Cain has also come up with a number of different hypotheses as to the motivation behind these four women's allegations. He has claimed at various times that that his GOP rival for the presidential nomination, Rick Perry, was behind the allegations. He now is blaming the "Democratic machine" for prompting these women to come forward. He has also claimed that Bialek was motivated to come forward for money and provided the press with a laundry list of details about her alleged financial problems. The problem with Cain's accusations, however, is that Bialek could not bring a legal claim against Cain at this time because too much time has passed since the alleged assault.
I thought this might be a good opportunity to discuss the so-called "he said / she-said" case where there are no other witnesses to the harassment or discrimination other than those two individuals who were in the room together. I often have people who call for advice and ask if there is anything they can do if they were subject to sexual harassment but no one else witnessed the conduct. The answer is yes!
Unlike a criminal trial where the prosecution has to prove guilt "beyond a reasonable doubt," a plaintiff in a civil discrimination claim needs only to prove their claim by a "preponderance of the evidence." Proving something by a preponderance of the evidence simply means that the plaintiff was able to prove a fact by the "greater weight of the evidence." Another way of looking at it is to say that if you credit the plaintiff's version of the facts at 51%, then the plaintiff has met their burden of proof. On the other hand, if you only credit the plaintiff's version of the facts at 50%, they have not met their burden because they have not proven their case by the greater weight of the evidence.
It is also important to consider what types of evidence a court will consider. Typically, a court will allow the introduction of "relevant evidence," that is, evidence that tends to make the existence of any fact that is of consequence to the determination of the case more or less probably than it would be without the evidence. Evidence typically takes the form of witness testimony and documents. One witness' testimony, if credible, can be enough to prove discrimination or harassment.
So despite the fact that this has been characterized by some as a "he said / she said" type of situation, is that the reality here? Remember, the credibility of the two people involved - Bialek and Cain - would be what a jury likely would base their decision upon. Here, Bialek's allegations are not bare. There are three other women who also have claimed he engaged in sexual harassment towards them in the same time period. It is difficult for the average person to believe that four different women would make the same allegation against Cain if it didn't happen. It also would undermine any claim by Cain that Bialek "misinterpreted" anything that allegedly happened between them.
The statement by Bialek's former boyfriend also shows she is likely not making up these allegations. Her contemporaneous statement to her boyfriend makes it much less likely that she is now making this up for political or financial gain. The fact that she has repeatedly alleged Cain sexually harassed her over a period of time would likely make her a more credible witness.
While Bialek's credibility has arguably been bolstered, Cain has likely experienced a significant amount of self-inflicted damage to his own credibility. First, Cain's changing statements as to the motives of these women detracts from his credibility. It's the Democrats. No its Perry. Now its money. Which one of these women is doing it for money? Which one is the Democratic stooge? And which one works for Perry? Or do they all fall in every camp? And is there any evidence to support any of these allegations? None yet. Cain's changing narrative as to the motivations of these women has severely damaged his credibility and made him look desperate.
Moreover, Cain's unequivocal statement that he had never met Bialek before is also harmful to his credibility. Her former boyfriend and at least one other source claim that he did in fact meet Biaelk. And again, one has to ask how Bialek can recall details such as the hotel she stayed at, where she and Cain went for dinner, etc. if they had never met. Is she really that good of a liar? There are likely a number of ways to corroborate her story with credit card receipts, transportation tickets, hotel reservation information, that the likelihood that she is making up the meeting between the two is highly unlikely. Moreover, the statements by two other people that they know for a fact Cain and Bialek have met before also does damage to Cain's credibility.
What this shows is there are often other things, or circumstantial evidence, that tend to bolster one party's credibility or weaken the credibility of the other. Given the "preponderance of the evidence" standard necessary to succeed in a civil harassment claim, it is possible to win in a case of sexual harassment where there are no other witnesses to the harassment.
There is one other thing to consider that likely would not be allowed into evidence in court. The amounts paid to the former NRA employees to settle their harassment claims are typical of the settlements paid in these types of claims. Cain's claim that these were some type of paltry or token severance amounts is not supported by the facts. Food for thought.
Friday, November 4, 2011
Herman Cain and Sex Harassment
The media has been abuzz about the sex harassment allegations made against GOP presidential candidate Herman Cain while he was head of the National Restaurant Association back in the late 1990's. Reports now say that one of the women who has made the allegations was paid $35,000, which was a years salary. Political pundits, campaign staffers and many others have bantered about whether the allegations are true, what really happened and what really motivated these women to make these claims. While I can't say whether the allegations are true, I thought it might be beneficial to provide the legal definition of sex harassment and my perspective on the situation.
The Minnesota Human Rights Act (MHRA) defines sexual harassment in the workplace to include:
unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when: (1) submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining employment...; (2) submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual's employment...; or (3) that conduct or communication has the purpose or effect of substantially interfering with an individual's employment ... environment.
Details of one of the alleged victim's allegations include that Cain made unwanted sexual advances towards her at a company sponsored event and possibly inviting her up to his hotel room. She also allegedly told more than one person about the incident and that she felt it constituted harassment. This woman's attorney is reportedly looking to release a more detailed statement of her allegations to the press, but is subject to a confidentiality provision in her settlement agreement.
If Cain did in fact make unwanted sexual advances towards this woman, he arguably engaged in sexual harassment that may have violated state and federal law. However, without additional details, it is difficult to say. We will have to check back in on this one.
I can state, however, that in my experience, paying a woman a full year's salary in exchange for a release of claims is not the norm when an employer truly believes that the harassment allegations are baseless, as Cain has repeatedly stated. While $35,000 is not enough to retire on, back in the 1990's it wasn't peanuts either.
If you have questions about sexual harassment, feel free to contact me or my firm for additional information and advice.
The Minnesota Human Rights Act (MHRA) defines sexual harassment in the workplace to include:
unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature when: (1) submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining employment...; (2) submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual's employment...; or (3) that conduct or communication has the purpose or effect of substantially interfering with an individual's employment ... environment.
Details of one of the alleged victim's allegations include that Cain made unwanted sexual advances towards her at a company sponsored event and possibly inviting her up to his hotel room. She also allegedly told more than one person about the incident and that she felt it constituted harassment. This woman's attorney is reportedly looking to release a more detailed statement of her allegations to the press, but is subject to a confidentiality provision in her settlement agreement.
If Cain did in fact make unwanted sexual advances towards this woman, he arguably engaged in sexual harassment that may have violated state and federal law. However, without additional details, it is difficult to say. We will have to check back in on this one.
I can state, however, that in my experience, paying a woman a full year's salary in exchange for a release of claims is not the norm when an employer truly believes that the harassment allegations are baseless, as Cain has repeatedly stated. While $35,000 is not enough to retire on, back in the 1990's it wasn't peanuts either.
If you have questions about sexual harassment, feel free to contact me or my firm for additional information and advice.
Job Protections Are Sometimes Hard to Come By
Four secuirty guards who were employed by the City of Minneapolis recently won a lawsuit against the City in which they argued they could not be fired under a 1903 law designed to prevent political patronage in city employment. In reading the article from the Minneapolis Star Tribune, it reminded me how few protections most of us have to our jobs. When civil servants are required to go back to a law passed in 1903 in order to protect their jobs, you realize just how lopsided the power dynamic is between employer and employee.
Employment in Minnesota is generally "at-will," which means that your employer can let you go for almost any reason or no reason at all. Your length of service, good performance or loyalty to your employer does not entitle you to any additional rights to keep your job.
Your "at-will" employment status may be modified in some instances by an employment contract that guarantees you will be employed for a specific period of time or that states you may only be fired "for cause." It also may also be modified by other contracts such as your union's Collective Bargaining Agreement. However, the vast majority of us in Minnesota are employees at-will and have no meaningful job protections.
There are, of course, limited exceptions to the at-will employment doctrine that apply to all of us. It is illegal for an employer to discriminate against you in Minnesota because of your sex, age, race, national origin, marital status, disability, sexual orientation, taking certain leaves of absence and other protected classes. It is also illegal in some instances for an employer to terminate your employment in retaliation for reporting a violation of your civil rights or other illegalities.
This article reminds us that none of us should take our jobs for granted. If you have any questions or concerns regarding your employment rights, please feel free to contact me or my firm. We are happy to answer your questions.
Employment in Minnesota is generally "at-will," which means that your employer can let you go for almost any reason or no reason at all. Your length of service, good performance or loyalty to your employer does not entitle you to any additional rights to keep your job.
Your "at-will" employment status may be modified in some instances by an employment contract that guarantees you will be employed for a specific period of time or that states you may only be fired "for cause." It also may also be modified by other contracts such as your union's Collective Bargaining Agreement. However, the vast majority of us in Minnesota are employees at-will and have no meaningful job protections.
There are, of course, limited exceptions to the at-will employment doctrine that apply to all of us. It is illegal for an employer to discriminate against you in Minnesota because of your sex, age, race, national origin, marital status, disability, sexual orientation, taking certain leaves of absence and other protected classes. It is also illegal in some instances for an employer to terminate your employment in retaliation for reporting a violation of your civil rights or other illegalities.
This article reminds us that none of us should take our jobs for granted. If you have any questions or concerns regarding your employment rights, please feel free to contact me or my firm. We are happy to answer your questions.
Monday, October 31, 2011
What does an employee have to do to garner the protections of Minnesota's Parenting Leave Act?
That is the question the Minnesota Supreme Court is scheduled to hear on November 1, 2011. At issue in the case is whether the plaintiff, Ms. Hansen, sufficiently put her employer on notice that she was requesting leave under Minnesota's Parental Leave Act (MPLA), which provides for a minimum of six weeks of unpaid leave to certain employees in Minnesota for pregnancy and childbirth. It also requires that those employees be returned to their former position upon completion of their leave. It is undisputed that Ms. Hansen's leave request forms identified "maternity" as the reason for her leave. I assume that she also discussed the fact she was pregnant with her supervisors and that her physical appearance may have provided a hint as to the type of leave she was requesting. The Defendant, Robert Half International, Inc. (RHI), claims that Ms. Hansen did not do enough to put it on notice that she was requesting leave under the MPLA. At issue is what is necessary to put an employer on notice that an employee is requesting leave under the MPLA.
I suspect that the court took this case because many other cases involving requests for leave and accommodations in the workplace do not require the type of formality the lower courts in this case required of the employee to invoke the MPLA. For example, an employee is only required to give the employer enough information to put them on notice that an employee is requesting leave under the Family Medical Leave Act or seeking a reasonable accommodation under the Americans with Disabilities Act. Moreover, the United States Supreme Court recently held that a verbal report under the Fair Labor Standards Act was sufficient to invoke the anti-retaliation provisions of that statute.
Stay tuned and we will find out how this one comes out.
If you have any type of employment problem or question, feel free to contact me or visit my firm's web site.
 |
| I'm happy to provide in-person consultations. |
Welcome!
Welcome to The Minnesota Employment Law blog! I am an attorney in Minneapolis who represents employees in their claims of workplace discrimination, retaliation, sexual harassment, failure to pay wages and commissions, and whistleblower violations. I also regularly represent employees in shareholder and partnership disputes, contract claims, claims for misappropriation of trade secrets, breach of fiduciary duty and defamation.
I plan to use this site to inform Minnesota employees about work related legal issues that may pertain to them. Welcome and enjoy the site!
I plan to use this site to inform Minnesota employees about work related legal issues that may pertain to them. Welcome and enjoy the site!
Subscribe to:
Posts (Atom)