What is sex harassment? Whatever it is, it must be severe or pervasive. In Royal v. CC&R Tres Arboles, No. 12-11022 (5th Cir. 11/21/2013), the Fifth Circuit found the following acts amounted to sex harassment: standing over and behind a woman and smelling her hair several times a day; one man sat in front of the woman with a visible erection and stared at her, saying nothing; smelling women as they emerge from the bathroom. The woman told the male co-workers she did not appreciate the smelling, but the actions continued. The woman reported the conduct to management, who ignored her concerns. The appellate court found that amounted to sexual harassment, but the lower court did not. See my prior post about that case here.

Now, the office of Congressman Blake Farenthold had the following occurrences: staff drinking liquor at work and discussed sex tapes, strip clubs and which anchors on Fox news had breast implants, lobbyists who tested shots of their genitals. A Congressman’s aide wanted to post a photo of a staff member attending an opening of a Twin peaks restaurant/bar ( a Hooter like chain) on Facebook as a promotion of Text business. Two female staffers lodged sex harassment complaints. See Politico report. Rep. Farenthold had an outside agency come investigate these incidents, as he should have. The investigation did not agree these incidents revealed sexual bias. But, the Congressman and the office did undergo sensitivity training.

Yes, in some courts, that conduct would indeed amount to sexual harassment. If there was also some otherwise unexplained personnel decisions that favored male employees. In other courts, it might not be severe or pervasive enough.

And, of course, before these two women complained about the sex talk at work, another female staffer, Lauren Greene, filed a lawsuit against Congressman Farenthold, which he settled for $84,000. Apparently, that training on sexual harassment came too late to avoid a lawsuit. The Congressman says he did not sexually harass Lauren Greene. But, people do not pay $84,000 to settle a claim that has no evidence.

And, look what happened in the Sanders v. Christus Santa Rosa case. In that case, the Western District of Texas found the incidents of alleged sex harassment was severe or pervasive. It rejected the employer’s argument that those incidents were just flirting or sexual bantering. It denied the employer’s motion for summary judgment. Yet, at trial the jury found for the employer. See my post about that case here.

Sometimes, what constitutes sex harassment is in the eye of the beholder. But, we can all agree there is no good reason for discussing sex tapes and genitals at work. And, is there any reason why work related outings need to occur at Hooter’s or Twin Peaks?

Employment cases are difficult for the employee. I have mentioned a couple of studies about the success rates for employment cases. See my prior posts here and here. Now, we have another study. In Rights on Trial: How Workplace Discrimination Perpetuates Inequality, the authors went to federal records and interviewed individual plaintiffs to study how well discrimination lawsuits achieve the simple aim of rectifying discrimination in the workplace. The authors included Ellen Berrey, professor of sociology, Robert L. Nelson, research chair in the legal profession and professor of sociology, and Laura Beth Nielsen, professor of sociology.

This study looked at not just reported cases, or cases that went to trial, but tried to review the gamut of cases, those that settled early and even some that did not see a lawsuit filed. The study focused on disability, sex, race and age cases. It studied four central steps in any lawsuit, dismissal, early settlement, late settlement and trial. The authors interviewed plaintiffs and their lawyers.

It found the filing of discrimination lawsuits is on the decline. Discrimination filings have decreased from high of 23,725 such lawsuits in 1998 to only 13,831 in 2014.

They found some 36% of such cases were dismissed or thrown out of court on summary judgment. 50% of plaintiffs settled for an average of $30,000. The median settlement amount was $30,000.  Rights, at p. 4. Only 6 percent of cases filed resulted in trial. Among those trials, only 33% resulted in a win for the plaintiff.

Apart from cold numbers, the authors found the plaintiffs paid a high emotional cost for his/her lawsuit. They generally faced ostracism from management and co-workers alike. Many plaintiffs reported depression, alcoholism and divorce in the wake of their lawsuits. Many hoped to get their jobs back. That almost never happens. That finding certainly jibes with my experience.

The study also found that employment lawyers typically accept one in ten of the cases that cross their desks. That does sound right. That screening process unfortunately works against plaintiffs with fewer resources and against African-Americans. African-American plaintiffs were less likely to find lawyers willing to accept their case. That lack of representation means they were more likely have their cases dismissed.

The EEOC employs codes to identify early on which filings are more likely to result in findings f discrimination. It is a triage system designed to identify the cases where the EEOC can have the greatest effect. The authors compared those early factors to eventual outcomes and found the EEOC analysis was not accurate. The EEOC priority codes had no apparent relationship to the actual outcomes, found the authors.

The highest number of cases filed included race discrimination at 40%. Sex discrimination wa next at 37%. Then came age (22%) and disability (20%). See ABA Bar Journal report about the book here.

I will discuss later their observations about looking for lawyers and how well that process works.

There are many things an interviewer can ask a job applicant. But, you do need to be careful about some questions. Here are some things to consider.

1. How old are you? Be very careful about asking this question. There are very few jobs where someone can ask you your age and the question itself not serve as evidence of age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the US Army.

2. Are you married? If you ask this only of female applicants, then this question could cause you problems. Why would this question be helpful? Unless this is a ruse to discover whether a female applicant might quit when she wants to have a baby. This question serves little purpose.

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked of Hispanic or Hispanic-appearing applicants.

4. Do you have a disability? Do not ask this specific question. But, an employer can ask something similar if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire department make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5. Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial transgression, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex, color, religion, race, and national (ethnic) origin. Other statutes prohibit discrimination based on age and disability. But, the statute does not apply to all businesses. An employer must have 15 or more employees for Title VII to apply. For the Age Discrimination in Employment Act to apply, an employer must have 20 or more employees.  That means thousands of small employers are not covered by Title VII or the other discrimination statutes.

The intent behind this number of employees was to not burden smaller employers, the “mom and pop” shops. Small businesses employ a huge percentage of workers. It was felt at the time that new rules and statutes was more than the small businesses could handle. We might not feel that way, today. And, certainly, for those folks working for smaller employers who may be fired due to race, age, etc., this is not a good thing. A young man came to see me, once. He had a steady girlfriend, someone he cared about very much. But, his older female boss and sole proprietor kept “making moves” on him. She just would not stop. He was very upset. He loved his work. But, this steady pressure to cooperate was taking a toll. I had to break the bad news to him. Even with part-time employees, his employer was way short of 15 employees.

He left my office knowing he would have to quit or risk losing his job. He was not ready to give up his girl friend. And, his girlfriend was not happy with him for staying there as long as he had. We often assume today that we are entitled to a discrimination-free work place. But, that is not always true.

The American Bar Association hs been reviewing proposed judges’ qualifications for decades. The President nominates a federal judge, and the ABA reviews and assigns a rating. For the first time since 2006, it has publicly rated a judge “not qualified.” It found Leonard Steven Grasz, a Nebraska lawyer, unqualified for the the position of judge on the Eighth Circuit Court of Appeals. The ABA’s standing committee found that it did not believe Mr. Grasz could set aside a “passionately held social agenda” to respect precedent, including Roe v. Wade. See ABA Bar Journal report here and here.

Some senators, such as Ted Cruz, respond that the ABA is a liberal advocacy organization. Cough Cough. No, not quite. The ABA is composed of hundreds of volunteer lawyers who’s serve in various capacities. The ABA is composed of dozens of various volunteer committees and organizations. Yes, some activities or committees of the ABA are more liberal than others. But, the standing committee on judicial nominations is not and never has been. It is a nonpartisan committee. It is unfortunately a reflection of these very partisan times that the President has been nominating some extremist judges.

The standing committee on judicial nominations has assigned four not qualified ratios so far this year out of 53 nominations. The ABA standing committee has found other judges not qualified in years past, but sometimes, those nominations were withdrawn and the “not qualified” rating was not made public.This is the first time since 2006 that the “not qualified” rating has been made public, not just with Mr. Grasz but with three other nominations. Ultimately, it will be the American public who will suffer when they have to appear in front of marginal judges.

There are reasons why Presidents never comment on pending criminal prosecutions. Anything they say will be amplified across the country and could undermine the prosecution. But, precedent never hinders Pres. Trump. Two days after the attack in New York City, Pres. Trump called for the attacker to be given the death penalty. He called for “strong” justice. Certainly, if anyone deserves “strong” justice, it is Sayfullo Habibullaevic Saipov. He killed eight people with a rental truck. But, in making those comments, Pres. Trump actually makes it more difficult to achieve those aims. Defense lawyers will not hesitate to ask for a change in venue if the local jury pool is tainted. But, since the publicity about the attacker and the President’s comments are national, there may not be a jury pool that is not tainted.

As one former federal prosecutor said, “Mr. President, your tweet takes it harder for DOJ to impose the death penalty, not easier.” See CNN news report.

But, this is what happens when you have a President who is anxious to change the topic of the news day.

The “outing” of celebrity sexual harassers continues. John Besh, the celebrity chef from New Orleans, has admitted to an improper sexual relationship. A female employee filed a complaint with the Equal Employment Opportunity Commission alleging he pressured her for a relationship. The New Orleans Times Picayune has reported that 25 current or former female employees reported various instances of sexual harassment by male managers at the Besh Group. John Besh resigned from the restaurant group that bears his name.

The Times Picayune reported that two EEOC charges were filed. One woman accuses Mr. Besh of pressuring her into a relationship. See Times Picayune report. Mr. Besh responds that he believed the relationship was consensual. Like in the Army, no relationship between a higher ranking person and a lower ranking person is truly consensual.

Harrah’s New Orleans casino said it would sever relations with the Besh Group and rename its restaurant, now known as Besh Steak restaurant. A Besh Group spokesman said none of its thousands for current and former employees had ever filed a sexual harassment complaint during its 12 years before now. But, the Besh Restaurant Group had never had a Human Resources department until Oct. 11, just a few weeks ago.

John Besh, who talks about his family frequently on his television show, said he was resigning, so he could focus on his marriage. He publicly apologized to his employees. See CBS news report. The Besh Restaurant Group operates some 11 restaurants and employs 1200 persons.

The Texas Supreme Court heard oral arguments in the Clark v. Alamo Heights Independent School District case. The San Antonio Court of Appeals recognized same sex harassment in that case. The school district has now appealed the matter to the Texas Supreme Court. The lawyer for the district appears to be trying to un-do that decision. He argued that there was no evidence that the harassing coach, Anne Monterrubio, was gay or that she felt sexual attraction toward Coach Clark. I previously white about that Fourth Court decision here.

The Supreme Court is notoriously pro-employer. During the oral arguments, Justice Eva Guzman, asked as crude as Coach Monterrubio’s comments were, is there evidence that her comments were, is there evidence to indicate the comments were based on Coach Clark being female? That question suggests Justice Guzman is not ready to recognize same sex harassment. The comments were very crude, and clearly based on sex. The two female coaches discussed Coach Clark’s buttocks and breasts almost daily. If the justice has to ask whether those remarks were focused on the coach’s gender, then she will likely side with the employer.

See San Antonio Express News report here.

In Whitley v. Dr. Pepper Snapple Group, Inc., 2017 LEXIS 68040 (E.D. Tex. 2017), the Plaintiff’s son was diagnosed with autism spectrum disorder in September, 2015. Amy Whitley claimed Dr. Pepper discriminated against her because it denied coverage for Applied Behavior Analysis treatment, a form of therapy for autism spectrum disorder. Dr. Pepper’s Summary Plan Description initially made no reference to ABA treatment. The Plan did not list ABA treatment as excluded from coverage. In September, 2015, Amy Whitley met with an HR person for Dr. Pepper. The HR person said the Plan did not cover vocational rehabilitation training.

On Jan. 29, 2016, Dr. Pepper amended the Summary Plan Description to specifically exclude ABA treatment. The new Summary Plan Description was posted in May, 2016. Plaintiff Whitley filed an EEOC charge and later filed suit.

The employer moved for summary judgment and argued the amendment was intended to clarify the Plan. The Americans with Disabilities Act prohibits a denial of benefits due to a disability. The court found the plaintiff had an association with a person with a disability, her son. Dr. Pepper became aware of her son’s diagnosis in September, 2015. The court found the denial of coverage amounted to a denial of benefits, which is prohibited by the ADA. A term or provision of a health benefit plan may violate the ADA if it singles out a particular disability. The 2016 Amended Plan did single out and exclude from coverage ABA treatment.

The burden then shifted to the employer to provide a non-discriminatory reason for the exclusion. The court was not satisfied with the reason offered by the employer. The court found there was substantial issue of material fact regarding why the treatment was excluded. The court denied the motion for summary judgment, finding that the employee showed mgenuine issue of fact regarding whether the employer’s actions amounted to retaliation. See the decision here.

So, Eric Bolling is out at Fox News. Yet another Fox News personality is gone due to allegations of sex harassment. See CNN news report. I previously wrote about Mr. Boling’s troubles here. Mr. Bolling was accused of sending lewd text messages to several female co-workers.

The Fox News boys club may be nearing its end.