Articles Posted in Sexual Harassment

Our Boston employment attorneys recently wrote about the fact that unpaid interns can present a host of legal challenges to companies that aren’t careful in ensuring that the arrangement is appropriately established.
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When it’s done right, the unpaid internship arrangement is supposed to be more beneficial to the intern than the company. The law is pretty firm on the fact that if the company is essentially receiving free labor, the arrangement is not functioning properly.

However, there is one area of employment law in which the rights and protection of the intern is not as clear: sexual harassment.
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While working as an administrative assistant to the fire chief of a mid-sized, northern Massachusetts community, a woman has filed a sexual harassment lawsuit, claiming her treatment left her feeling embarrassed and humiliated.
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When she complained, she says, she was threatened with termination.

Our Boston sexual harassment attorneys firmly believe that every worker has the right to an environment free from unwanted sexual remarks, advances or aggression.

A misconception persists in certain workplaces that because they have historically been dominated by men, that sexually suggestive or demeaning remarks are acceptable. This kind of attitude is often what makes it so tough for victims of sexual harassment to come forward. In many cases, filing a complaint is a true act of strength and bravery. Not only are those individuals standing up to claim justice for what they endured, they are demanding better treatment for future workers.
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Our Boston sexual harassment lawyers know that many individuals who file a sexual harassment lawsuit find it difficult for the fact that it involves dredging up uncomfortable or painful memories.

It can also sometimes mean that defense counsel will delve into their personal lives. And, in an increasing number of cases, employee’s Facebook posts or other quasi-public forms of communication are being introduced into court as evidence. On the employer side, case law and legislation are quickly redefining the rules. In New Jersey, for instance, lawmakers are considering a proposal that would forbid employers from requesting access to an employee’s Facebook account. handonkeyboard.jpg

Regardless of your circumstances, it does not make sexual harassment acceptable – or legal. You are entitled by law to work in an environment that is free from harassment, sexual innuendos or quid pro quo demands.

That said, it’s also important for you to keep discussions about your case between you and your attorney. In particular, be wary of making posts on social media sites or in other electronic communications.

It’s long been known that law enforcement has gained access to such postings when they might be relevant in criminal cases. But now, a federal judge presiding over a sexual harassment case in Colorado has ordered the plaintiffs to hand over their Facebook passwords and text message records, in a move that has sparked uproar from privacy advocates.

Still, the judge isn’t backing down.

The approximately 20 plaintiffs, in conjunction with the Equal Employment Opportunity Commission, has alleged that a manager often groped female employees and made sexual requests of those who worked for him at a food chain distributor.

The judge’s order came in response to the food chain’s request, which purported that the women posted on the social media sites regarding details of the case and estimations of how much money they expected to win.

Additionally, the company alleged that one of the women was seen in a photo wearing a shirt emblazoned with a name she claimed the manager had called her, which she said had been highly offensive. There were also reportedly notes from one former employee about her positive outlook on life after she was fired, as well as her “self-described sexual aggressiveness,” and sexual commentary between her and others.

There were also reportedly text messages exchanged among plaintiffs regarding the case.

As the director of consumer privacy for the Center for Democracy and Technology was quoted as saying, “It’s an awful ruling.” He said not only does it mandate the disclosure of personal information that’s irrelevant to the case, but it’s horrible from a security perspective.

The judge, however, maintains that the women opened themselves up to this by putting such information on a “public” platform.

This case illustrates why it’s best to keep your electronic communications regarding any case, but particularly a case as sensitive as sexual harassment, to a minimum, until the conclusion of the litigation. You should disclose any such communications to your attorney promptly.
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Company holiday parties are rife with all kinds of opportunity for employers and employees to cross the line. cocktails.jpg

Boston sexual harassment lawyers realize that often, these functions are paired with alcohol. When inhibitions are lowered, it can create a hostile environment – or make a bad situation even worse.

That’s exactly what happened in Shiner v. State University of New York et al. , heard recently by the U.S. District Court in the Western District of New York. This was a federal case in which a female employee allegedly suffered extreme sexual harassment at more than one holiday function over the years. Eventually, she filed suit.

The defendant recently moved to dismiss the complaint based on the Federal Rule of Civil Procedure 12(b)(6), saying that the claims should be solely against the alleged offender – not the employer. However, the court dismissed that request, paving the way for the case to move forward.

We share this as a cautionary tale for both employers and employees. Higher ranking administrators need to exercise caution and a watchful eye at these events to protect the company from liability, while employees need to recognize their rights and not simply give offenders a pass because they may have been intoxicated – particularly if the actions are indicative of an ongoing pattern.

According to court records, the initial complaint was filed in December of last year. The plaintiff had been working as a clerk for the dental school, which holds an annual Christmas party for staffers. Two of those who host the event are supervisors in the department and have authority over the plaintiff, even though she didn’t report directly to them.

When it came time for the party in 2010, she was hesitant to go because she had allegedly been harassed by these two individuals at previous events. The reported harassment involved sexually inappropriate and explicit comments made to her in front of other employees. She reportedly even told her supervisor exactly why she didn’t plan to come.

However, she did attend the party. The event was held at a bar, and she was seated next to both men. Allegedly, both men behaved in a manner that not only clearly violates sexual harassment law, but potentially criminal law as well. Her complaint alleges that the worst of it was carried out by the lower-ranking administrator. According to her complaint, her boss:

  • Fondled her breasts;
  • Put his mouth on her ear;
  • Chased her around the table;
  • Grabbed both the plaintiff and another female employee by their necks and proceeded to bend them over a table;
  • Pushed the plaintiff’s and another female employee’s faces together and demanded that they begin kissing;
  • Told the plaintiff he wanted to engage in sexual activity with her and the other female employee;
  • Pulled the plaintiff onto his lap and asked her to meet him somewhere after the party;
  • Roughly pinched and squeezed her ribs when she tried to get away from him.

She further alleges that the higher-ranking administrator verbally encouraged all of this behavior.

The next day, she reportedly told her co-workers and her immediate supervisor about what had happened and indicated she was extremely upset and humiliated. The supervisor reportedly instructed her to take action, to which the plaintiff replied it was her boss who was supposed to take action.

The plaintiff did end up filing a complaint with the school, and disciplinary action was ultimately taken against against the lower-ranking administrator, but not the higher-ranking administrator.

The employee subsequently decided to file a lawsuit.

While this may seem an extreme example, holiday parties often provide just such an environment. Just because you are at an after-hours event, doesn’t mean you are not protected from such treatment under the law.
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A former employee of a city water department in Palmer, Massachusetts has filed a federal lawsuit alleging that she was subjected to sexual harassment and later fired for filing a complaint about it. sadsillouette.jpg

USA Today reported recently that the number of sexual harassment claims made to the U.S. Equal Employment Opportunity Commission have been on the decline, with about 11,700 claims being reported in 2010, down from roughly 16,000 in 1997. But we know that while some of this may be attributed to improving workplace conditions, a larger part is likely the economic slump. When the economy is not doing well, employees may be afraid of coming forward, for fear of losing their job.

Unfortunately, as this allegations made in this case may illustrate, that may sometimes be a risk. But that certainly does not mean you should have to suffer through it. If you’re being sexually harassed at work and are unsure how to proceed, contact an experienced employment lawyer first. This way, you may potentially avoid having to take the case to court at all. But if you do, the series of events leading up to that point will be well-documented by a firm that is familiar with the laws and your rights.

From an employer’s perspective, it’s important to have an updated sexual harassment policy, and a clear process for reporting violations. Consulting a Massachusetts employment law attorney when designing and enforcing such a policy can help protect your legal rights should allegations surface.

In this case, the woman was an administrative assistant with the city’s water department for about two decades when she allegedly began suffering the overtures of the department’s treasurer. She claimed he would ask her whether she was wearing a bra. He would allegedly reach down the middle of her shirt to pull it down. She claimed he would make sexual innuendos and ask for sexual favors. He allegedly would bring to work lingerie advertisements and show her the pictures, asking about her own anatomy.

If the assistant made a comment about being tired, the treasurer would allegedly respond with a remark about how she and her husband must have engaged in sexual intercourse the previous night.

The employee said the harassment began sometime in 2008 and continued until she was fired from her position.

She reportedly not only informed her superiors about the harassment – she went to the board of commissioners. In a public meeting, she raised her concerns about the treasurer’s behavior and comments toward her. Rather than acting upon her concerns, or even investigating, the commission did nothing, according to the allegations in her complaint.

A month later, the assistant said she gave the department superintendent a letter detailing the continued sexual harassment she claimed to have suffered, despite her many complaints. Again, no action was reportedly taken.

Instead, soon after, she said her hours of work were slashed from a full-time, 40 hours per week down to just 15 hours a week.

She then filed a complaint with the EEOC. Soon after that, she was fired.

Her lawsuit claims four counts of sexual harassment and four counts of retaliation.

State law governing sexual harassment is found in Massachusetts General Laws, Chapter 151C, Section 1(e).
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There has been a great shift in our country from small business to big business. It is more common to see employers as large companies with thousands of employees, than the semi-extinct family businesses. In this environment, it can become challenging to identify who can be held liable for sexual harassment in the workplace.
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Having a knowledgeable and sympathetic Boston employment attorney helping you in your Boston sexual harassment case can be the difference between winning your case and losing it. Especially with the job market as bad as it is, you need to fully understand your rights to protect yourself and your family.

Dulaney v. Packing Corp. of America is a sexual harassment case coming out of Virginia. The trial court originally granted summary judgment to the employer in this case, and it recently came to the Circuit Court of Appeals. The original claim was of sexual harassment and gender discrimination against Dulaney by Packing Corp. of America (“PCA”) and PCA’s “managerial” employee.

Plaintiff sought compensatory and punitive damages and argued that her employer and her supervisor should be held jointly and severally liable. The main issue in this case is whether the employer can be held liable for sexual harassment committed by one of their managerial staff members to another employee. There are many intricacies to this determination for which the court addresses in this case.

Packing Corp. of America (“PCA”) is a company with a Virginia facility that manufactures cardboard boxes. The majority of their staff is male and working as temporary hourly paid employees. The plaintiff is a woman who was originally hired to work the night shift as a temporary hourly paid employee. As is the hope of most employees, Plaintiff wanted to obtain a permanent position with PCA.

The night shift at PCA had no designated manager within their employee pool. However, they did have an employee with significant supervisory job duties. Mr. Mills was the only night shift employee who maintained a set of keys to the administrative offices within the facility. Additionally, he was charged with assigning work to the night shift employees, sending any employee home early without pay, and disciplining the employees consistent with the company disciplinary manual. Mills was also responsible for reporting any employee misconduct or complaints to the company’s management staff.

In Plaintiff’s pursuit of seeking permanent employment she consulted with Mills, as he had the apparent authority of a supervisor. Although PCA contends the Mills was not a manager or supervisor, Mills offered Dulaney a position as a permanent employee for PCA. Upon her acceptance, PCA treated her as a permanent employee in every way.

After some time, Mills allegedly began to make sexual passes at Plaintiff. This included threats indicating that Mills would make her life unbearable if she did not engage in sexual conduct with him. Under an extreme fear of losing her job, Dulaney began a sexual relationship with Mills which primarily took place within the locked corridors of the facility to which Mills had a key. Whenever Plaintiff did not assent to these encounters Mills would scream at her in front of staff, spread horrible sexual rumors about her, and even send her home without pay. Dulaney alleged that because of the rumors spread by Mills, she was ostracized by other PCA employees, creating a very unproductive work environment.

Plaintiff finally reported her abuser to his direct supervisor and was allegedly told to be careful as she was considered a replaceable employee and would be fired if she spoke with anyone else from management. Finally, Plaintiff reported both men and soon after, Mills was fired. Plaintiff remained in a very uncomfortable work environment where she was bullied constantly by her co-workers. This led Plaintiff to look for work elsewhere and speak with the PCA management.

The facts surrounding the plaintiff leaving PCA and the severance agreement were found by the court to be material facts in dispute, thus the trial court erred in granting summary judgment for PCA.

PCA argued that they should not be held liable for the actions of Mills because of the Faragher-Elleth doctrine. This is a doctrine that arose out of two U.S. Supreme Court cases dealing with liability for sexual harassment.

Faragher-Elleth doctrine says that an employer can be protected from liability if the employer exercised reasonable care to correct any sexual harassment and they can prove that the victim failed to utilize the corporate safeguards established to protect them from harm. The Court agreed that this relief could be granted if it could be proved that the plaintiff did not suffer a “tangible employment action.” This is defined to include: being hired, fired, not being promoted when entitled, reassignment, or any significant change in employee benefits.

This court here found that the facts presented by both parties show that Plaintiff suffered a significant change in employment when she was emotionally forced to resign. Because this nexus was found between the sexual harassment plaintiff suffered and this “tangible employment action,” the lower court erred in granting summary judgment for PCA. This case will therefore be heard again by the trial court to determine what damages Plaintiff is entitled to.

Businesses small and large must have qualified employment counsel in Massachusetts. And an employee who believes an employer violated state or federal law must retain a law firm experienced in handling sexual harassment claims.
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Sexual harassment in Boston can take many different forms, as illustrated in the recent case of a former college student who is suing her alma mater over allegations regarding her roommate’s nighttime activities.

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As our Boston sexual harassment attorneys understand it, the case is not so much about what the roommate did – although much is being made of that. It has more to do with what the school did or did not do about the allegations following several complaints.

According to New York Daily News and a number of news outlets, the student has filed a lawsuit accusing the school – Stonehill College, a Catholic university – of breaking the law through violation of the Rehabilitation Act and the Fair Housing Act. She claims the school refused to offer an alternative to her living situation, which involved a roommate who was reportedly openly sexually active.

The plaintiff in this case alleges that her roommate kept her up at night and also engaged in video chats that were sexually inappropriate. She says this caused her not only great discomfort, but also deepened her pre-existing depression into a tailspin of suicidal thoughts.

Apparently, roommate mediation did not work, and the student didn’t want to be subjected to additional problems by moving in with another roommate she didn’t know. The school refused to offer her a single room.

It’s not clear yet how the court will rule on this issue. The school may have a point in that it did try to offer her other accommodations. At issue will be whether the court finds the former student’s request of a single room reasonable or burdensome.

The bottom line, though, is that having an experienced Boston sexual harassment attorney on your side can help you determine what your options are in such a situation.

Another recent example of schools involved in litigation of a sexual nature involves a more serious and direct allegation. In this case, an exclusive private school in the western part of the state was accused of covering up an alleged sexual assault of a student by a teacher.

The lawsuit was originally filed two years ago. The student, who was 16 at the time of the alleged incident, said she was raped by her biology teacher when she was a sophomore in high school.

The teacher had reportedly groomed the girl, building a relationship with her for some time, before sexually assaulting her, the lawsuit claimed.

When the girl reported the incident to school authorities, they in turn indicated that she was probably lying and slapped her with a “mentally unstable” label.

While the teacher had denied that anything inappropriate occurred, text messages he had sent to the girl proved to the contrary.

Recent news reports indicate the school has reached a settlement in the case, though the terms of that agreement are confidential.

Schools, perhaps even more than other employers, hold a great amount of responsibility because they are charged with protecting not only their employees from sexual harassment, but vulnerable and impressionable young students as well. You may think you are doing the right thing by reporting an incident directly to school administrators. But often, school officials want to keep such situations quiet, because a stain on their reputation is going to hurt their prospects of new students and future funding. This is why if you believe you may have been subjected to sexual harassment or sexual assault on campus, your first call should be to an experienced attorney.
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CNNMoney is reporting that for the first time ever, every company on the Fortune Best Companies list has a policy in place aimed at ending discrimination based on sexual orientation.

Cases of discrimination in Boston have no place in business. Discrimination at work can range from disability to age and gender all the way to race, sexual orientation and pregnancy.
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Boston employment lawyers applaud these companies for including a sexual orientation discrimination policy, but recognize this doesn’t mean employees will remain unaffected by potential sexual-orientation discrimination while they work.

Companies can have the best-worded policies and scores of training sessions, but still have employees who choose to break these rules. That puts the company at risk for liability and also puts the victim in a difficult position at work. It would be a perfect world if we could eliminate problems for all parties.

According to the news article, the improvement of all companies having a sexual orientation non-discrimination policy in place has been a gradual development. In 2008, 95 of the top 100 companies had such a policy and that number climbed to 99 last year.

Perhaps the next policy to change is that of benefits for same-sex couples. Currently, 89 of the 100 companies provide benefits, which is a large increase compared to five years ago, when 70 of the 100 companies had such a rule in place. Currently, 86 percent of Fortune 500 companies have non-discrimination policies in place that deal with sexual orientation, an increase from 61 percent in 2002.

These are important procedures to have in place. Still, such policies don’t always stop these forms of discrimination from happening. If employees or supervisors fail to hire someone and make comments that he or she wasn’t qualified based on their sexual orientation, the company can be opened up to legal problems. This can also happen in cases of choosing employees for promotions and training as well.

The way to stop discrimination in Boston businesses is to create an environment where it isn’t tolerated. This can sometimes be accomplished by in-house procedures and firings. Sometimes, though, that’s not enough.

Often, bringing a formal discrimination complaint and subsequent legal action is the only way to make sure that company leaders aren’t allowing this behavior to continue. Policies are one thing, but making sure employees are aware of the rules is a whole other thing. The company must protect itself, but it also must treat workers fairly.

M.G.L.c. 151B, §4 states that it is unlawful for an employer to discriminate against a worker based on his or her sexual orientation. As LGBT rights are increased throughout the country, undoubtedly more and more conflicts will arise. Issues dealing with gender discrimination had to be dealt with. Same with race and national origin. After litigation on these matters, along with pregnancy, disability and other issues, sexual orientation may well be the next battleground.
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A recent poll by ABC News and The Washington Post found that 1 in 4 American women report that they have been sexually harassed on the job, Forbes reports.

Allegations of sexual harassment in Boston can vary widely. They can be as simple as sexual comments, or comments designed to hurt a person’s reputation, or those regarding their appearance or weight. Sexual harassment can be as obvious as asking for sexual favors, inappropriate touching or other openly suggestive sexual situations.
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Either way, it is unlawful. According to the Massachusetts Commission Against Discrimination, sexual harassment is labeled as quid pro quo harassment or hostile work environment harassment. Quid pro quo sexual harassment generally means that a person in power asks for sexual favors in order to offer a promotion, hire someone or provide a perk for their career.

Hostile work environment sexual harassment means that the atmosphere is uncomfortable and there are unwelcome sexual advances or banter involved.

And as Boston employment lawyers well know, this isn’t something that is applicable only to women. While people generally associate sexual harassment with a female victim, it can happen to men as well. According to the U.S. Equal Employment Opportunity Commission, the federal agency that enforces employment law issues, 16.4 percent of sexual harassment claims made in 2010 were by men. That is the highest ever and up from 11.6 percent in 1997.

One case of sexual harassment in the news is that of Republican presidential candidate Herman Cain, who has faced a firestorm in recent weeks after news reports surfaced that he had been accused of sexual harassment in the 1990s when he was in charge of the National Restaurant Association. Initial reports showed that two women made allegations — two more have come forward since the initial allegations surfaced.

The allegations center around him making inappropriate comments and implying that he was asking for sexual favors in order to provide jobs at the organization. He has denied all allegations, but the scandal has cost him in the polls.

The Forbes article reports that many American women feel they have faced sexual harassment, yet that has been the case for decades. There were more than 11,000 claims of sexual harassment nationwide in 2010, the EEOC reports, with cases settling for $48.4 million.

The problem may be that only 64 percent of people see harassment as a serious workplace challenge, a drop from 88 percent in 1992. This may explain why workplaces have cultures where sexual harassment is tolerated. In the 1990s, sexual harassment claims were higher than they are today.

But the article goes on to state that many women may not report the harassment because they fear it could hurt their standing in the company and that of other women. They sometimes get pressure from female co-workers not to report it because it could look bad for everyone. There’s also a mantra, Forbes claims, that businesswomen feel they should be “tough” enough to handle discrimination.

This is a misnomer, however. No one should have to endure harassment at work. It adds stress, makes work uncomfortable and ruins the atmosphere. Not reporting it simply allows it to continue without consequence. If bosses are openly harassing employees and no one steps up and stops it. it will continue until someone does. Being the victim of sexual harassment and not reporting it opens up co-workers to endure it in the future.
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Two 2010 cases show that even comments that aren’t specifically sexual can still amount to sexual harassment.

In one case, EEOC v. Fairbrook Medical Clinic, a female doctor who worked at a clinic sued over crude comments made by a male doctor. She claimed that over the course of several years the doctor repeatedly made inappropriate comments about her weight gain while pregnant and about breastfeeding.

A federal judge threw the case out, saying that “general crudity” didn’t amount to sex discrimination. But an appeals court in Virginia reinstated the woman’s suit. It said that sexual harassment could include “highly personalized comments designed to demean and humiliate” the doctor and “ridicule her in the eyes of patients and drug salespeople.”

In a 2d Circuit case, a federal appeals court in New York ruled that a male supervisor’s threats against a female employee could amount to illegal sexual harassment even if the threats themselves weren’t explicitly sexual or gender-related. The supervisor managed an engineering project for a company that built nuclear submarines for the U.S. Navy. A female employee claimed that he made advances toward her when his marriage began to break up.

When she complained, he said he wanted to kill her, choke her and “see her in a coffin.” A judge dismissed the suit, saying that the threats were highly inappropriate but didn’t amount to sex discrimination because a threat to kill someone has nothing to do with sex. But the appeals court allowed the woman’s lawsuit to go forward. It said that the threats were related to sex because they were the result of the fact that the woman spurned the man’s sexual advances. See Kaytor v. Electric Boat Corp., No. 09-1859-CV.
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