Articles Posted in Sexual Harassment

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Lev Craig

On December 19, 2017, Microsoft announced that it was eliminating forced arbitration agreements for employees making sexual harassment claims and voiced its support for a recently proposed bill—the Ending Forced Arbitration of Sexual Harassment Act of 2017—that would make such agreements unlawful in many workplaces. The announcement makes Microsoft one of the first major corporations to eradicate mandatory arbitration agreements, which are at present nearly ubiquitous in the landscape of employment discrimination and harassment claims.

Earlier this year, we reported on the increasing prevalence of mandatory employment arbitration agreements, which approximately 55 percent of U.S. workers are now subject to, according to a recent Economic Policy Institute report. On its face, an arbitration agreement simply requires an employee to handle future discrimination and harassment claims in a private forum, rather than in court, and many employees don’t think twice about signing such agreements in the stack of onboarding documents they receive from HR at a new job.

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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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Edgar Rivera, Esq. and Leah Kessler

On December 18, 2017, in Swiderski v. Urban Outfitters, Inc., Judge J. Paul Oetken of the Southern District of New York denied the majority of defendant Urban Outfitters’ motion for summary judgment. Although Judge Oetken ruled that there was insufficient evidence for a reasonable jury to find that Plaintiff Tatiana Swiderski was constructively discharged from her position as a sales associate at Urban Outfitters, he allowed her hostile work environment and retaliation claims to proceed to trial. This decision is important because it reaffirms an employer’s responsibility under the New York City Human Rights Law (NYCHRL) to take proactive measures to prevent discrimination from customers where the discriminatory conduct is previously known to the employer’s managers.

Tatiana Swiderski was hired as a sales associate at a Manhattan Urban Outfitters store in 2013.  Shortly after her hire, a male customer was caught photographing or videotaping up Ms. Swiderski’s skirt while she was on the stairs. Brian McCabe, a loss prevention agent employed by Urban Outfitters, escorted the customer out of the store and deleted all the pictures and videos of Ms. Swiderski from the customer’s phone. Mr. McCabe, however, repeatedly refused to give Ms. Swiderski the customer’s identification information so that she could file a police report. Later, an assistant store manager told Ms. Swiderski candidly that Urban Outfitters was aware of least one other customer that used to come in and regularly sit under the stairs to look up the skirts and dresses of female employees. Ms. Swiderski then went to Emily McManus, a manager, who confirmed this to be the case. Ms. Swiderski made repeated complaints to Ms. McManus about how both Urban Outfitters and Mr. McCabe had handled the incident, and, after Urban Outfitters reluctantly gave her the customer’s contact information, she filed a police report against the customer.

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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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Owen H. Laird, Esq.

On July 26, 2016, the New York Times reported on allegations of improper employment practices concerning Bridgewater Associates, an organization commonly considered to be one of the largest hedge funds in the world, if not the single largest. The Times article refers to a complaint filed against Bridgewater by a Bridgewater employee with the Connecticut Commission on Human Rights and Opportunities, a complaint filed against Bridgewater by the National Labor Relations Board, and interviews with former Bridgewater employees.

The article describes a culture of surveillance and control at Bridgewater, with video and audio recordings, security patrols, and even some employees who are required to lock up their phones before heading to their desks. In and of itself, such allegations would not be surprising. Hedge funds are notoriously secretive and controlling over their internal goings-on and strive to protect any advantage they might have over the competition; policies and practices intended to protect internal information are the norm in the financial industry.

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Edgar M. Rivera, Esq.

“Dating on the job is like eating at your desk: Invariably, it’s going to get messy,” said Mark Oldman, co-founder and director of Vault.com. Title VII prohibits employers from discriminating against an employee with respect to compensation, terms, conditions, or privileges of employment because of such individual’s sex. In Meritor Savings Bank, FSB v. Vinson, the U.S. Supreme Court recognized sexual harassment as a type of sex discrimination. “[W]hen a supervisor sexually harasses a subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.” Under Title VII, there are two cognizable claims of sexual harassment: hostile work environment and quid pro quo. A sexually hostile work environment occurs where the harassment is so severe or pervasive that is “alter[s] the conditions of [the plaintiff’s] employment and create[s] an abusive working environment.” Quid pro quo sexual harassment occurs where a boss coerces a subordinate to participate in a sexual relationship or retaliates against her by punishing her for refusing sexual advances. But what about a consensual sexual relationship between a boss and a subordinate? Is that permissible under Title VII?

Although co-workers in sexual relationships may knowingly or subconsciously give each other preferential treatment, favoritism is not usually sex-based discrimination, even if it is bad for business. A “paramour” claim occurs where a supervisor promotes their in-office lover before other more qualified employees, raises their salary, or otherwise grants them benefits not awarded to other employees. However, almost universally, courts have held that a co-worker that is disadvantaged by an employer’s in-office sexual relationship cannot bring an action against that employer for the simple reason that such discrimination is not because of “sex” within the meaning of Title VII. Instead, it is because of a personal relationship; therefore, it is not actionable.

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Edgar M. Rivera, Esq.

Working Americans spend a significant amount of time at work; in many cases, workers spend more time with their co-workers than with family and friends. It should be no surprise, then, that among millions of workers spending billions of hours a year with their co-workers, workplace romances are not uncommon. Numerous studies bear this out: A study released in 2006 by the Society for Human Resources Management and CareerJournal.com found that forty percent of employees had reported being in an office romance; in a highly publicized 2012 study by CareerBuilder.com, thirty-nine percent of employees surveyed said they had dated a co-worker at least once and (of those thirty-nine percent, nearly a third went on to marry a co-worker); and in a more recent study by Vault.com, half of the respondents had engaged in office romance. The research makes clear that office romances exist throughout the country, though they are more prevalent in some sectors than others. The Vault.com survey found that employees in hospitality and tourism were the most likely to have engaged in an office relationship (sixty-one percent), while biotech and pharmaceutical workers were the least likely (twenty-four percent).

Deborah Keary, director of human resources at the Society for Human Resources Management, says, “The workplace is the new neighborhood. People spend an enormous amount of time in the office, and if romance is going to happen, it will happen there.” As the average age of marriage is increasing, young employees are more likely to be single. As women continue to join the workforce and rise through the ranks, they are more likely than ever to be working shoulder to shoulder with men. Longer work hours and popular culture celebrating office dating add to the phenomenon.

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Edgar M. Rivera, Esq.

How governments regulate workplaces varies from country to country. On June 20, 2016, we covered a sexual harassment case in the United Kingdom EPLI Gender Discrimination Claims Makes Waves in the U.K., in which a coach for a prominent English soccer team sued her employer, alleging sexual harassment. In this blog, we look at how the People’s Republic of China, the largest country in the world by population, deals with workplace sexual harassment.

In China, the female workforce is an important element of the country’s economic competitiveness, constituting 45 percent of the working population. Yet 80 percent of working Chinese women report experiencing sexual harassment at some stage of their career. On August 28, 2005, the Standing Committee of the National People’s Congress amended the Law for the Protection of Women’s Rights and Interests of the People’s Republic of China to prohibit sexual harassment against women. Although the law does not explicitly impose an obligation on the employer to protect women from sexual harassment, many provinces have subsequently enacted local rules that do create such an obligation. Under these local rules, an employer may be liable if it fails to take actions to prevent or prohibit sexual harassment in the workplace. Under the PRC Labor Law and Women’s Protection Law, if the employer fails to take effective measures to prevent or prohibit sexual harassment, the relevant labor or other department may impose a fine or demand that the employer correct the situation.

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Owen H. Laird, Esq.

In a reminder that gender discrimination is not only a problem in the United States, the former team doctor for a top English Premier League football team recently settled her gender discrimination claim against the club on the eve of trial. Eva Carneiro was the lead doctor for Chelsea Football Club until a feud with the team’s manager over her decision to take the field to tend to an injured player triggered a series of events that ultimately led to Chelsea demoting Ms. Carneiro, at which point she resigned.

Ms. Carneiro sued Chelsea and the manager, alleging that she had been constructively dismissed (i.e., forced to resign), sexually harassed, and discriminated against because of her gender. Specifically, she alleged that Chelsea subjected her to a sexist atmosphere, that the manager made sexist and derogatory comments, and that the Club subjected her to disparate treatment as a woman. Given that the incident began with a highly public confrontation during a match, involved a very popular club, and the sensationalist nature of the British press, the case received immediate attention in the media.