Articles Posted in Hostile Work Environment

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Edgar M. Rivera, Esq.

On March 26, 2018, the U.S. District Court for the Northern District of Illinois granted summary judgment in favor of the defendant in Westbrook v. Illinois Department of Human Services, dismissing the hostile work environment claims brought by Velma Westbrook against her former employer, the Illinois Department of Human Services (IDHS). Ms. Westbrook, an African-American security therapy aide, alleged that a patient repeatedly made racially derogatory comments and once tried to attack her. The court held that, due to the nature of Ms. Westbrook’s job, the patient’s offensive comments and behavior were not sufficiently severe or pervasive to alter the conditions of Ms. Westbrook’s employment, meaning that Ms. Westbrook could not sustain a hostile work environment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”).

In 2001, Ms. Westbrook began working as a security therapy aide for IDHS’s forensic treatment programs, which house and provide treatment for individuals who have been found not guilty by reason of insanity in criminal court. As a security therapy aide, Ms. Westbrook’s job duties included documenting residents’ inappropriate behavior, de-escalating resident behavior in potentially dangerous situations, and preventing residents from harming themselves or others. At the beginning of her employment at IDHS, Ms. Westbrook received training on how to deal with disruptive residents, restrain combative residents, and defend herself against residents who became aggressive, and she testified that she knew when she took the job that she would be dealing with mentally ill individuals. Over the course of her nearly 10-year employment at IDHS, Ms. Westbrook observed patients assault others on a regular basis, and she regularly worked with patients who said hurtful or offensive things to staff members.

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Leah Kessler

This March we celebrate Women’s History Month (WHM) – an annual event highlighting the contributions of women to events in history and contemporary society. Congress designated March as National Women’s History Month in 1987, seven years after the National Women’s History Project (NWHP) was founded in Santa Rosa, California. The first observance of a Women’s Day, however, was celebrated on February 28, 1909, here in New York. A year later, March 8 was suggested by the 1910 International Socialist Woman’s Conference to become an “International Woman’s Day.”

According to the NWHP, “Today our aim is as clear and simple as it was 25 years ago: to teach as many people as possible about women’s role in history.” And while this goal of accrediting exceptional women for piloting reforms in a society obstructed by its own hatred and exclusionary practices is worthwhile, limiting this praise and tribute to one month out of the year does not feel like enough. This is perhaps due to the fact that this year, WHM comes on the heels of numerous, high-profile sexual harassment and sexual assault allegations—many, if not most, of which occurred in the workplace (see a previous blog on this topic here).

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Owen H. Laird

As we move into 2018, it is worth reflecting on one of the most significant developments of 2017: sexual harassment becoming a topic of national discussion. In the past year, scores of people—primarily, but not exclusively, women—came forward and told their stories of harassment, abuse, and assault. As a result, dozens of high-profile individuals were fired, suspended, or forced to resign. Politicians, business leaders, media personalities, actors, writers, and other celebrities all faced public disgrace for their actions.

While these cases focus public attention on the issue of sexual harassment in the workplace, the unfortunate reality is that these high-publicity cases represent only a miniscule fraction of the incidents of sexual harassment and assault that people in the workplace face. The media rarely covers the stories of people working in low-wage, low-profile jobs who face sexual harassment or assault. Restaurant workers, office workers, home health aides, and hospitality workers all face high levels of harassment, and—as many Americans cannot afford to lose their jobs—victims go silent out of fear of retaliation.

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Leah Kessler

On October 19, 2017, in John L. McKinney Jr. v. G4S Government Solutions, Inc., the Fourth Circuit affirmed the ruling of the district court, dismissing John McKinney’s hostile work environment, retaliation, and intentional infliction of emotional distress (IIED) claims against his former employer, G4S Government Solutions, Inc. (“G4S”). The Fourth Circuit concluded that Mr. McKinney failed to follow G4S’s procedure for reporting discrimination and his emotional distress lacked the necessary severity to sustain a claim.

In September 2005, G4S hired McKinney, who is Black, as a security officer at the Radford Army Ammunition Plant (RFAAP).  On May 23, 2013, McKinney observed four of G4S’s white superior officers laughing in a common area near his office. One of them, Shawn Lewis—a project manager and G4S’s highest ranking supervisor at RFAAP—asked McKinney “if he knew that there was a noose hanging on a nail inside a small closed cabinet outside the security captain’s office.” After showing McKinney the noose, Lewis directed McKinney to get rid of it, over McKinney’s objection.  As McKinney was walking away with the noose, another employee—who lived in a predominantly Black neighborhood—told McKinney, “I know what to do with [the noose]. I can use that around my house.” That same day, McKinney saw Lewis standing on a ladder in the supply room, holding a white sheet over another supervisor’s head to resemble a Ku Klux Klan hood.

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By Edgar M. Rivera, Esq.

On May 15, 2017, the District Court for the Northern District of Illinois denied the Township High School District 214’s motion to dismiss in Valdivia v. Township High School District 214, where Noemi Valdivia, a Hispanic high school secretary, claimed that co-workers’ derogatory comments about Hispanic students and their families forced her to resign.  She brings a hostile work environment claim based on race under Title VII of the Civil Rights Act of 1964 (Title VII) and an interference claim for defendant’s failure to inform her that she was eligible for 12 weeks of leave under the Family and Medical Leave Act (FMLA).

Ms. Valdivia began working at District 214’s Elk Grove High School in 2010. Although she claims that her coworkers had always made derogatory remarks about Hispanic students and their families, in September 2014, these remarks became more frequent. For example, one of her peers allegedly said that Hispanic people “came to America” and “want everything for free even though they have new cell phones and their nails done.” Another told Ms. Valdivia not to speak Spanish at work because they were in “America.” Ms. Valdivia claims that she complained to both the school principal and the assistant principal, but both told her there was nothing they could do since “the secretaries’ union was too strong.”

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On May 9, 2017, the U.S. Court of Appeals for the Second Circuit denied summary judgment in Ahmed v. Astoria Bank, where plaintiff Sherin Ahmed brought religion, race, and national origin discrimination claims against her former employer. The Second Circuit held that the district court had erred in concluding that Ahmed had not presented evidence of discrimination and harassment sufficient to meet the threshold for a hostile work environment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”). As such, the court vacated the lower court’s granting of summary judgment, allowing the case to proceed to trial.

Ahmed, who is originally from Egypt and immigrated to the U.S. in 2001, is a practicing Muslim woman and wears a hijab as part of her religious observance. In 2013, Ahmed interviewed for a quality control analyst position at Astoria Bank, a Long Island City­-based bank serving the New York metropolitan area, and was hired, conditional upon a 90-day probationary period. But, she alleges, Astoria Bank discriminated against her based on her race, religion, and national origin beginning as early as the day of her interview, when Anthony Figeroux, a Vice President at the bank, told her that she and two other Middle Eastern employees were “suspicious” and that he was glad he was “in the other side of the building in case you guys do anything.”

The offensive comments and discriminatory treatment continued throughout Ahmed’s employment; for example, Figeroux “constantly” told Ahmed to remove her hijab, which he referred to derisively as a “rag,” and Ahmed’s direct supervisor refused to allow her to take time off to observe a Muslim religious holiday. Astoria Bank abruptly terminated Ahmed’s employment at the end of her 90-day probationary period, purportedly because of “poor performance,” though her supervisors had never before raised any performance concerns to her. Ahmed complained to the bank that she believed the firing was discriminatory and, shortly afterward, filed suit in the U.S. District Court for the Eastern District of New York. Astoria Bank moved for summary judgment on all of Ahmed’s claims, which the district court granted; Ahmed then appealed the dismissal of her Title VII hostile work environment claim to the Second Circuit.

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On May 3, 2017, in Philpott v. State of New York, the U.S. District Court for the Southern District of New York refused to dismiss sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (Title VII). Judge Alvin K. Hellerstein of the Southern District of New York joined a growing number of courts across the country in finding sexual orientation discrimination cognizable under Title VII, stating, “I decline to embrace an illogical and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination.”

Plaintiff Jeffery Philpott was employed at the SUNY College of Optometry as Vice President of Student Affairs, where, according to his complaint, he was subjected to years of discrimination and harassment because he is gay. Philpott alleges that his supervisors and coworkers mockingly called him “sensitive” and “flamboyant,” told him that “separate but equal treatment of gay people might be best,” dismissively referred to his relationship with his long-term domestic partner as “this marriage, or whatever you want to call it,” and refused to let him meet their families because they did not “want our children to be around homosexuality.” In addition, SUNY allegedly excluded him from meetings and projects because of his sexual orientation and implied that he deserved a lower salary because he is gay, telling him that “your team [i.e., gay people] doesn’t have kids. You have more than you need.” Shortly after Philpott complained to SUNY of the ongoing discrimination, Philpott claims, SUNY terminated his employment. Philpott filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), then filed suit in federal court, alleging hostile work environment, wrongful termination, and retaliation claims under Title VII.

Title VII does not explicitly prohibit discrimination on the basis of sexual orientation. Yet the EEOC and a growing number of courts take the position that the statute’s provision against sex discrimination covers sexual orientation discrimination, as well. Most recently, as we reported in April, the Seventh Circuit became the first Court of Appeals to recognize sexual orientation discrimination under Title VII with its groundbreaking decision in Hively v. Ivy Tech Community College. While the Second Circuit (the Court of Appeals with jurisdiction over New York) has previously ruled that Title VII does not prohibit sexual orientation, the court recently addressed the topic in Christiansen v. Omnicom Group, Incorporated, and—as we noted in our post about the decision—seemed reluctant to endorse existing precedent, stating that “no coherent line can be drawn” between gender stereotyping and sexual orientation discrimination claims.

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Shelby Krzastek

On March 8, 2017, Anita Poe-Smith filed suit against Epic Health Services, Inc. (“Epic”), and Leo and Sherrie Weigand, alleging sexual harassment and retaliation. Ms. Poe-Smith works for Epic as a home health aide.

In February 2015, Epic assigned Ms. Poe-Smith to work for a client residing in the home of Leo and Sherrie Weigand. Ms. Poe-Smith claims that from February 2015 to May 2015, Mr. Weigand sexually harassed her by directing sexual innuendos and inappropriate comments toward her and, ultimately, physically assaulting her when, according to Ms. Poe-Smith, Mr. Weigand pushed her down and hit her on her buttocks. After reporting the incident to Epic, Ms. Poe-Smith was offered a new assignment, which she was unable to accept because it interfered with her familial obligations. Several weeks later, Epic offered her another full-time assignment, which she accepted. Ms. Poe-Smith then sued Epic Health Services and the homeowners for sexual harassment and retaliation.

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Shelby Krzastek

Bikram Choudhury is an Indian yoga teacher and the founder of Bikram yoga. In recent years, Choudhury has been surrounded by controversy amid allegations of discrimination, harassment, and sexual assault, resulting in multiple lawsuits. On Tuesday, December 13, 2016, a California judge ordered that Bikram Choudhury’s income and ownership of his signature yoga college be turned over to Minakshi Jafa-Bodden to satisfy a $6.7 million judgment in her sexual harassment case against him.

Minakshi Jafa-Bodden, Choudhury’s former in-house attorney, filed a sexual harassment and wrongful termination suit against Choudhury in 2013. According to Jafa-Bodden’s complaint, Choudhury degraded and harassed female students and employees, forced Jafa-Bodden to meet with him in his hotel room at night while female students massaged him, and, on one occasion, insisted that Jafa-Bodden join him on his bed during a meeting. Jafa-Bodden claims that, in addition to the sexual harassment she faced, Choudhury retaliated against her for investigating sexual assault allegations against him. In recent years, Choudhury has been surrounded by controversy amid allegations of discrimination, harassment, and sexual assault, resulting in multiple lawsuits.

In January, after a 12-day trial resulting in a verdict in Jafa-Bodden’s favor, a jury awarded Jafa-Bodden $4.6 million in punitive damages and nearly $1 million in compensatory damages for harassment she experienced while working at Choudhury’s Los Angeles headquarters. The jury also found in Jafa-Bodden’s favor with respect to her unlawful termination claim, finding that her complaints to higher-ups at Choudhury’s organization about the ongoing sexual harassment and gender discrimination had been a substantial reason for her termination.

Yet after the trial verdict, Choudhury refused to pay any of the award—and, in fact, fled the United States to avoid payment of this judgment. Earlier this month, on Tuesday, December 13, 2016, Los Angeles Superior Court Judge Mark A. Borenstein approved Jafa-Bodden’s request to divert to her the income Choudhury receives from agreements with vendors, yoga studio franchise agreements, and royalty and licensing payments based on his trademark, copyrights, and other intellectual property. The Court also granted a charging order to give Jafa-Bodden her former employer’s ownership interest in Bikram Yoga College of India.

Judge Borenstein also signed off on the appointment of a post-judgment receiver tasked with seizing and selling Choudhury’s trademarks, copyrights, and web domain names. Jafa-Bodden is also seeking several dozen luxury vehicles allegedly owned by Choudhury to satisfy the judgment, along with his diamond-encrusted watch and any remaining stocks or other investments of which he retains control.

All employees have the right to a workplace free of sexual harassment and gender discrimination. If you have been the victim of sexual harassment or gender discrimination in the workplace, contact the experienced employment attorneys at The Harman Firm, LLP. Continue reading →

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Yarelyn Mena and Edgar M. Rivera, Esq.

Women of color are leaving large firms at an alarming rate. According to the ABA Commission on Women in the Profession (the”Commission”), 85 percent of minority female attorneys in the United States leave large firms within seven yeas of hiring. This high attrition rate is largely due to the unique problems that women of color face at large law firms.

The Commission’s research concludes that women of color leave lucrative large firm jobs because they feel forced out due to discrimination, isolation and constant microaggressions. In 2003, it found that “in both law firms and corporate legal departments, women of color receive less compensation than men and white women; are denied equal access to significant assignments, mentoring and sponsorship opportunities; receive fewer promotions; and have the highest rate of attrition.” These problems force women of color to leave big law, resulting in the same problems for future generations, causing perpetual underrepresentation.

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