San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

I first posted this a year ago.  But, this advice always applies at this time of year, when we all attend holiday parties.  Many times, bad conduct at office parties contributes to sex harassment lawsuits.  For example, telling a female subordinate that you admire her breasts can be good evidence of sex harassment.  See Dan Schwarzt's post.  

See Dan's suggestions:  

1) Discourage excessive drinking.  Yes, employers can be held liable in some states for negligence by employees driving home form an office party.  Do not allow an Elaine dance: www.youtube.com/watch?v=5xi4O1yi6b0

2) Have the party at a restaurant or bar, where the retail establishment will assume some liability.

3) Consider providing only beer and wine. No tequila shots.  Serve plenty of food. 

4) Invite spouses and family members. Tie the party to another event, so drinking is not the only activity.  Exchange gifts, collect for a charity, have a Santa Claus. 

5) Consider making the party a lunch event. 

6) Make attendance voluntary, truly voluntary.  if it is a required event, then liability will apply.  It will then become a work function with all that entails. 

See the rest of Dan's good suggestions. 

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Many potential plaintiff employees come see me about a discrimination case and first thing they say is they don't have evidence.  Really?  No evidence to show they suffered discrimination?  Often, they have evidence but do not realize it.

Yes, discrimination cases are the epitome of "he said, she said."  But, there are many forms of evidence that can buttress a claim.  Let's look at the claim against Herman Cain by Sharon Bialek.  She met with him to obtain help in finding a job.  If she was applying for a job with the National Restaurant Association, then she would meet the definition of an employee under Title VII.  In any event, let us assume she meets the requirements of Title VII and could have filed a claim back in 1997 when Mr. Cain allegedly abused her.  What evidence could she have have gathered to support her claims?  If she had mentioned the harassment soon after it occurred to close friends, that testimony would be admissible.  

Ms. Bialek claims Mr. Cain upgraded her room after her boyfriend made the reservation.  Anything, a receipt, a note from hotel management corroborating that upgrade would support her claim.  Evidence that other women had filed claims against Mr. Cain would be admissible.  This evidence would not be admissible to show Mr. Cain abuses women frequently.  Rather, it would be admissible to show that Herman Cain understands sex harassment and has discriminatory intent. 

Ms. Bialek claims Mr. Cain made advances, she resisted and he then responded, "you want a jpb, right?"  Simple testimony by Ms. Bialek regarding Mr. Cain's telling remark would be admissible.  His statement would not be hearsay.  It would fit an exception to hearsay.  Statements by supervisors which reflect sexist bias are admissible as statements against interest.  In fact, such statements are considered to be direct evidence of discrimination.  Since, such statements show discriminatory bias without need of any inference.  His statement has the legal effect of saying,I am treating you differently because you are a woman."  

Yes, these situations are "he said, she said."  They occur in closed rooms with no witnesses.  But, yes, these situations can be supported by circumstantial evidence and direct evidence.  

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 A fourth woman has accused Herman Cain of sexually inappropriate conduct in 1997.  See CBS news report.  The woman, Sharon Bialek, says the then head of the National Restaurant Association touched her inappropriately and suggested she cooperate if she wanted a job. 

She had contacted Mr. Cain after she was laid off from a part of the Restaurant Association.  She suggested they meet for coffee, so she could talk to him about helping her find employment.  Coffee lead to a drink and then dinner.  After dinner, he touched her inappropriately.  He slipped his hand under her skirt and pushed her head toward his crotch.  According to Ms. Bialek, she asked him what he was doing.  He responded, "you want a job, right?"  Mr. Cain has denied the accusation.   

Ms. Bialek asks that Mr. Cain "come clean" about the complaints against him.  It is long past time for her to file a complaint with any government agency.  She was not an employee at the time, so she probably could not have filed a complaint with the EEOC.  Ms. Bialek says she is a registered Republican. 

These allegations are dramatic.  If true, this conduct is the extreme sort of sex harassment we see.  Once you get to four complainants, the evidence begins to look rather strong.  In any discrimination case, similar allegations would be admissible - not to show that Mr. Cain is a serial harasser.  But, they would be admissible to show that Mr. Cain understands sexual harassment law and procedures better than he admits.  

Indeed, Mr. Cain has responded to the general allegations saying they are the result of a long, successful career.  He mentions that he has engaged in "banter" many times in many situations over the decades of his business career.  Anyone seeking complaints about him will surely find them, he adds.  See CBS news report.  Interesting.  Mr. Cain is accused of sex harassment because he was so successful.  I suppose Bill Gates and Warren Buffett have ten times as many similar accusations against them......

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Herman Cain says the ten year old sex harassment allegations against him are baseless.  He denies any wrongdoing.  See CBS news report.  Yet, he admits the National Restuarant Association paid a settlement on the two separate chareges against him.  One news report said the two settlements were in the five figures.  

Who truly knows what happened.  But, I find it doubtful any employer would pay out settlements in the five figures if the claims truly lacked any basis.  Discrimination cases are always emotional and difficult.  A breakdown of the employment relationship causes both sides to feel much anger and resentment.  Employers are angry anyway, but especially so if they believe the charges truly lack basis.  Settlements in discrimination cases are rare compared to other sorts of lawsuits.  

Virtually all settlements require the complaining party to agree to keep the terms of the settlement confidential.  So, I am sure whoever accused Mr. Cain of sex harassment agreed they would not discuss the terms of any settlement.  So, we will probably not hear their side of the story. 

But, as I have told my employee clients many times, the employer would not be paying out large sums of money if the claim truly had no merit.  

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Jamie Lee Jones, the KBR employee who claimed she was raped in Iraq and subjected to a hostile work environment has been ordered to pay $145,000 in court costs to KBR.  See Houston Chronicle report.  Ms. Jones acquired some fame when she testified before Congress about the need for reform regarding employment arbitration agreements.  Ms. Jones' lawsuit was initially barred by an arbitration agreement.  She eventually won her right to file suit, after appealing to the Fifth Circuit.  See my post here.  But, she lost her trial.  See my post about her trial here. 

The judge denied the motion by KBR's lawyers to assess attorney's fees of $2 million against Ms. Jones.  The judge found that Ms. Jones' case was not frivolous.  To obtain an award of lawyers fees, the defendant would have to show the employee's case was frivolous.  The judge pointed out that Ms. Jones did articulate a prima facie claim of sex harassment and hostile work environment.  That is, she did provide evidence of the basic elements of such claims.  In reality, she did more than provide bare bones evidence of her claims.  She had what appeared to be a strong case.  Her case was probably undermined by her prior mental health history.  

The result is unfortunate.  But, this should serve as a lesson to potential claimants (which I am sure is KBR's goal) that good cases can lose and if you lose, you will certainly be liable for the employer's costs of defending the lawsuit.  And, those costs could include the attorney's fees.  In federal court, the loser is automatically assessed the costs of the lawsuit.  

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Often, the way an employer defends itself against a lawsuit reflects on the underlying claims of the employee.  Look at the lawsuit filed by Priscilla Agosto against a Brooklyn, New York real estate company.  Ms. Agosto claims the male workers rubbed themselves against her, made crude remarks and even asked for oral sex.  So, in defense to the lawsuit, one of the owners at People's Choice Realty say no way, Ms. Agosto is too unattractive to harass.  Yes, they really said that.  See New York Daily News report.  

Odelia Berliashik, one of the owners of the firm, responded to the lawsuit, "Who would touch her?  She's an ugly girl anyway."  Ms. Agosto endured repeated abuse and only quit when one of the co-workers slapped her.  Ms. Agosto says she went crying to Odelia but was waved away. 

Odelia Berlianshik said she told the co-worker to apologize.  The two other co-owners, Mickey and Richard Berlianshik are named in the lawsuit along with Odelia. 

This may be a creative defense, but it will surely only help the plaintiff win the sympathy of the judge and jury.  You just cannot make this stuff up.....

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A federal jury in Houston has returned a verdict against a former County Judge of $3.2 million.  James Blackstock, a former Brazoria County Court-at-Law Judge and former head of the Juvenile Probation Board was sued for sexual harassment by three female employees of the Juvenile Probation department.  The jury found the judge had created a hostile work environment and had physically assaulted one of the employees. 

The three women had complained the judge had hugged, groped, fondled, kissed them, and he had emailed them explicit photos.  In their lawsuit, they claimed the judge had preyed upon female employees for years with no repercussions.  Brazoria County and the Juvenile Board had previously settled with the plaintiffs for $135,000.  See Houston Chronicle report.  

The former judge had previously resigned his Board position after pleading no contest to charges of official oppression, a Class A misdemeanor. 

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A federal district court jury in St. Louis found in favor of a woman claiming sexual harassment. They then awarded her $95 million, an unheard of amount in a single plaintiff case. The unlucky defendant was aaron's Inc. formerly known as Aaron's Rent-to-Own.  See St. Louis Today report.  The amount includes $15 million for compensatory damages and $80 million in punitive damages.  The plaintiff, Ashley Alford, was subject to crude jokes and frat boy behavior by her supervisor, Richard Moore.  Mr. Moore was General manager for one of the Aaron's stores. He hit her in the head with his penis, groped her, pinched her. The harassment lasted a year. Finally, he threw her down, masturbated over her and was arrested.  

The employee complained but the company did nothing - at one point, even warning Mr. Moore to watch his back.  The jury found the company negligently supervised Mr. Moore and that he had assaulted and battered Ms. Alford. 

With caps on damages, the amount will be reduced to about $41.6 million. The company called the verdict a classic "runaway jury."  

In my experience, the juries "runaway" only when they get very angry at a particular party. It looks like they became very angry with Aaron's for some reason. 

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In a recent decision, a federal court in Southern indiana ordered two plaintiffs to turn over their Facebook entries, wall postings, photos, groups joined, etc.  See report.  Mike Maslanka reports that the EEOC filed suit alleging sex harassment on behalf of two women.   See EEOC v. Simply Storage Management, LLC.  The Court ordered the women to produce the Facebook updates, wall postings, groups joined, etc. that related to their emotional status.  As the court noted, any posting by the two women is capable of leading to admissible evidence regarding their emotional state for the time period in which they claim severe emotional distress.   The court limits its order to this particular case in which the two women claim post-traumatic stress disorder.  The women do not claim "garden variety" emotional distress.  

The ruling is in keeping with prior decisions that do allow for great discovery when victims claim severe emotional suffering.  The new aspect is that the judge orders production of password protected or "friend protected"  information.  

As I have had to explain to a few clients, when you file suit, you do give up some privacy rights.....

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 The Hewlitt Packard CEO, Mark Hurd, resigns in the middle of a sex harassment investigation.  The investigation found other violations of other company policies.  See report.  It turns out that his expense reports were not accurate.  Mr. Hurd admitted to integrity issues.  Yet, the sex harassment probe supposedly found no infraction by Mr. Hurd. 

All too often, folks who violate discrimination laws also violate other laws.   

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 Many employers completely prohibit relationships between management and subordinates.  The military has some complicated rules regulating relationships and it too prohibits relationships between those with very different ranks.  But, studies show, nevertheless, that relationships continue in the workplace.  The workplace remains a prime source of marriage partners.  But, the problems developing in the wake of David Letterman's revelation about his relationships at CBS show the danger involved.  Even after ending the relationship, they can fester and develop into sexual harassment.  Co-workers can take sides in some perceived conflict and start a hostile work environment.  

Such relationships can become sexual discrimination if the employer takes adverse personnel action against one party but not both.  There are many traps for the uneducated.  That is why most large employers simply prohibit them.  CBS prohibits them, as this story explains.  So, yes, it is fair to say that Mr. Letterman could lose his job over this.  If CBS punishes no one, then it risks that no one will take its policies seriously.  If they punish the female subordinates but not the male manager, then it looks like gender based discrimination.  Looks like a no win situation for CBS, at this point. 

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 You're a woman in a managerial position.  You might think you are more removed from sexual harassment issues than your blue collar counterpart.  No, says a recent study.  a University of Minnesota Sociologist finds that sexual harassment is 137% more common among female managers than among blue collar women.  Ms. McLaughlin concludes that because of gender norms, people are still not accepting women in power positions.  

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 Sexual harassment becomes more subtle in today's climate, reports MSNBC.  Instant Messaging, texting now allow more options to pursue an inappropriate relationship in more subtle ways.  But, speaking as a lawyer, that might make things easier to prove, if the victim thinks to save the IM's or text messages.  

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