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Connecticut Non-Compete Invalidated on Grounds of Unnecessary Protection Afforded to Employer

Sanford Hall Agency, Inc. v. Dezanni, 2004 Conn. Super. LEXIS 3574
Case Background

Ms. Lynne Dezanni worked for Sanford Hall Agency, an Avon, Connecticut based insurance company, from 1990 to 2004 where she served as a personal lines (primarily automobile and homeowners insurance) salesperson for clients whose last name started with “A” through “F”.  In 1994, Ms. Dezanni signed an employment agreement that included a non-compete covenant prohibiting the solicitation or attempted solicitation of Sanford Hall’s clients or the disclosure of the company’s confidential information.

In May 2004, Ms. Dezanni was contacted by a recruiter at Sinclair Insurance Group, a direct competitor of Sanford Hall based in Wallingford, Connecticut.  In the following weeks, Sanford Hall announced to its employees that it was engaging in a transaction to sell its assets.  Fearing that she would no longer have a job if the company were sold, Ms. Dezanni accepted employment at Sinclair on June 11, 2004.

The company was in fact sold to a New Jersey insurance company on November 1, 2004.  Sanford Hall commenced legal action alleging that Ms. Dezanni breached the written employment agreement and the non-compete covenant by soliciting its clients and disclosing confidential client information to Sinclair.

Court Ruling

Ms. Dezanni however argued that she was not in breach of the non-compete agreement because it contained unreasonable provisions and was therefore unenforceable.  Additionally, she argued that the employment agreement reserved the right for her to compete in the event that Sanford Hall sold its business.

The court in this case found in favor of Ms. Dezanni and held that the non-compete agreement was in fact unreasonable and unenforceable.  The court based this decision on the fact that Ms. Dezanni was not in a position at Sinclair to threaten Sanford Hall’s interests in its customer relationships and contracts.

Her job at Sanford Hall pertained to the initial contact with clients but her contact usually ended there.  She was not charged with entertaining, socializing with, or schmoozing clients over the phone or in person.  She would not review the contracts when they were due to expire, as the insurer and not the agent handled this business activity.  The court concluded, “Dezanni’s contact with the customers was too infrequent and irregular to pose any threat to the plaintiff’s relationship with its customers”.

The court also held that the agreement excessively restricted Ms. Dezanni from pursuing her occupation and instituted unnecessary limitations because it pertained not only to past and present clients, but to also future ones as well.  Ms. Dezanni was able to prove that the non-compete clause of the employment agreement afforded more protection to Sanford Hall than was reasonably necessary and as a result severely disadvantaged her and ran contrary to the interests of the public.  For these enumerated reasons, the court refused to enforce the non-compete clause of the employment agreement.

Contact Us

If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

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Connecticut Law Governs Non-Compete for Employee Based in Company’s Brazil Office

MacDermid, Inc. v. Selle, 535 F.Supp.2d 308

Mr. Raymond Selle worked for MacDermid, Inc. for thirty years in various capacities at facilities in Connecticut, Maryland, and Sao Paulo, Brazil.  MacDermid is a specialty chemical company engaged in a range of development, manufacture, and sale of chemicals and their corresponding processes.  Mr. Selle resigned from the company in 2007 while stationed in Brazil and immediately began work at Enthone, a West Haven based company with a presence in Brazil, as its South American New Business Development Manager.  MacDermid brought suit against Mr. Selle to enforce employment agreements from 1996 and 2002, seeking to prevent his employment at Enthone and the disclosure of confidential information.

MacDermid’s basis for legal action was two restrictive covenants signed by Mr. Selle and the vast amount of confidential information he acquired while employed at MacDermid.

Employment Agreement

The first “Employee’s Agreement” was signed November 24, 1996 and included a one-year non-compete agreement prohibiting employment with an industry competitor and an indefinite confidentiality agreement.  Mr. Selle signed a second non-compete and non-disclosure agreement on June 25, 2022 when he began his position at MacDermid’s Sao Paulo office.

Additionally, the agreement stipulated that its provisions were to be “construed and enforced in accordance with the laws of the State of Connecticut, without regard to conflict of law principles”.  MacDermid sought to enforce both the one-year non-compete clause and the indefinite confidentiality clause.  The company claimed that Mr. Selle was privy to considerable confidential information while employed there, including business strategies, research & development projects, and customer contact information and transaction history.

The Court’s Decision

The federal court found in favor of MacDermid, enjoined Mr. Selle from employment with Enthone or any other of MacDermid’s industry competitor until September 10, 2008 (the duration of the one-year prohibition), and enjoined him from disclosing any confidential or proprietary knowledge acquired during his employment with MacDermid.  The court found that there was “no basis for doubting the validity and enforceability of his [Selle’s] 1996 and 2002 employment agreements with MacDermid”.  Mr. Selle’s tried to make the claim that the restrictive covenants were too broad and favored the employer but the court concluded that the covenant’s provisions were narrow and limited in scope so as not to dramatically disadvantage the employee.

The court also discussed and decided what jurisdiction’s law to apply.  Mr. Selle argued that Brazilian law should govern the agreement and legal proceedings since that was where he found new employment at Enthone.  Mr. Selle made this assertion because he felt that Brazilian law reflects a fundamental public policy against the enforcement of restrictive covenants in employment contracts.  The court however held that Connecticut law superseded Brazilian law in this case and would govern the restrictive covenant, as specified and agreed to in the 1996 and 2002 agreements.

Conclusion

This case shows that in certain restrictive covenants, Connecticut law (or any state’s law) can be governing even when employment takes the employee out of the country.  The choice of law provision establishes the controlling legal principles (in this case, those of Connecticut) of the restrictive covenant and is characterized by global application.

If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Fired Teacher Sues for Wrongful Discharge and Defamation

A former middle school teacher who experienced wrongful termination suffered insult upon injury when he was defamed by his principal following his departure from the school, a new lawsuit alleges.

The physical education teacher – who previously had been praised as a “distinguished teacher” by the school – was continually harassed and berated by his supervising principal before ultimately being terminated, as the lawsuit sets forth.  Even after the teacher’s departure from the school, the abuse continued – culminating in the principal making a series of specific, baseless, outrageous statements to the teacher’s former colleagues.

What To Know About Your Severance Package

During these economic times, many companies big and small, are facing the hard reality of layoffs. As hard as it is for companies, it is even harder for employees. Faced with no job and a bare economy, accepting a severance package might seem like the best choice.  But before signing anything, it is important to understand the basics of the severance package and the potential rights that might be relinquished in the process.

(1)        Time to Consider the Severance Package:

A prevalent misconception is that all employees are entitled to twenty-one (21) days to review severance package offers. Unfortunately, that is not the case.  In the case where the employer is only offering a severance package to one employee, and that employee is under the age of forty (40), there is no specific time to review the documents that is required by law. However, as the severance package must be made “knowingly and voluntarily,” that allows the employee some time to consider the severance agreement.  There is no statutory minimum amount of time.

If, however, the employee being offered the severance agreement is forty (40) years or older, he or she is protected by the Age Discrimination in Employment Act (“ADEA”) of the Older Workers Benefit Protection Act (“OWBPA”). By law, when only one employee is offered the severance agreement and a release of ADEA claims is included, the employer must provide the employee with twenty-one (21) days to review and consider the proposed severance agreement. Moreover, if the employer and employee engage in negotiations, the consideration period commences on the date of the employer’s final offer.

If more than one employee is terminated at or around the same time, it is considered a “group layoff.”  By law, when a severance agreement is offered as part of a group layoff, and a single employee is over the age of forty (40), and a release of ADEA claims is included, then every employee regardless of age must be given forty-five (45) days to consider the agreement.

(2)        Release of Claims:

Most severance agreements contain a release of a variety of claims, including claims you may have based upon your age, race, national origin, gender, disability, religion, among others. It may also include a release of all claims, whether known to you or not at the signing of the agreement.

However, the United States Equal Employment Opportunities Commission (“EEOC”) has held that, although the severance agreement may restrict the employee’s ability to file a lawsuit, the release cannot restrict the rights of an employee to file a charge of discrimination with the EEOC, nor can the severance agreement limit an employee’s right to testify, assist or participate in an investigation, hearing or other proceeding conducted by the EEOC. Furthermore, the EEOC has declared that an agreement cannot waive an employee’s rights regarding acts of discrimination that occur after the signing of the agreement.

(3)        Seven (7) Day Revocation Period:

When a severance agreement contains an ADEA release of claims, by law, the employer must provide you with seven (7) days to revoke the agreement after signing it. This seven (7) day window cannot be waived or changed by either party.

(4)        Ability to Consult with an Attorney:

Severance packages generally contain more than just the release of ADEA claims, but also claims under Title VII of the Civil Rights Act, Americans with Disabilities Act, Employee Retirement Income Security Act, retaliation, whistle blowing, breach of contract, invasion of privacy, among others. Given the breadth of the claims released, before the signing of a severance agreement, it is extremely important to consult with an attorney prior to its execution.

Moreover, when the severance agreement contains a release, the agreement must specifically advise the employee to seek the advice of any attorney.  Faced with financial distress because of the layoff, you may not be able to think objectively concerning your rights and options. It is best to consult an attorney.

(5)        Consideration:

Consideration is required for every agreement. That means that an employee must receive something of value in exchange for giving up certain rights. That “something of value” must be above and beyond what the employee would otherwise be entitled to.

(6)        Ability to Negotiate:

Despite the “take it or leave it” undertones of an employer, generally, many employers will negotiate severance on some level. Given that, there is also a risk that an employer will revoke the offer of severance if negotiation is attempted.  Your chances of negotiating successfully increase if there is a claim that your particular severance package is not fair in light of your industry, your position, or the circumstances of your employment.  Additionally, the negotiations do not need to focus on the dollar amount connected with the severance agreement.  Employers might be willing to extend insurance coverage, disability benefits, or other items.

(7)        Gather All Information:

Before deciding to accept, negotiate, or reject a severance package, it is important to understand completely what is being offered to you, including compensation, benefits and insurance.  If you are in an industry that provides for deferred stock options or bonus, it is important to understand whether you would still be entitled to it.   You should gather information concerning your employer’s welfare plans, health plans, vacation and sick leave policies, as well as any structured bonus plans or stock options.  If the severance package is only offering you what you would be entitled to, the agreement may lack adequate consideration.

(8)        Restrictive Covenants:

Many employers will place some kind of restrictive covenant into the severance package. These range from confidentiality clauses, to non- disclosure agreements, to non-solicitation agreements, to non-compete agreements.  Therefore, it is important to understand how signing the severance agreement may restrict your ability to find new employment.

Before you sign a severance agreement, it is important to fully understand your rights and the consequences of accepting the offer. The attorneys at Maya Murphy, P.C., have years of experience in all sectors of employment law. If you have any questions relating to your severance agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

What to Know About Your Offer Letter

In Connecticut, an employment relationship is “at will,” unless governed by a contract. Employment at will grants both parties the right to terminate the relationship for any reason or no reason, at any time. But what about employment pursuant to an offer letter?  Here are a few things you need to know about an offer letter and its terms.

(1)        At-Will Employees:

Most employees are “at-will” employees and an offer letter will most likely confirm that the employment is “at-will.” When an offer letter states that employment will be “at-will” it means that the employer or employee may terminate the employment for a good reason, a bad reason, or for no reason at all, at any time.  In a 2006 case, Petitte v. DSL.net, Inc., the Superior Court held that the employer could terminate an “at-will” employee, in which it offered employment pursuant to an offer letter, prior to the commencement of the employee’s duties.  2006 Conn. Super. LEXIS 915, J.D. of New Haven, Docket. No. CV-04-0489777-S (2006).

(2)        Position and Duties:

When reviewing or drafting an offer letter, you want to make sure that the employer stated the initial position the employee is being hired for and what duties or responsibilities are included as part of that position.  This way, everyone will have a better understanding of what is expected from the employee.  A well-drafted offer letter will often include a reservation of rights for the employer that could include a clause that allows for a change in position, assignment of additional duties and/or the elimination of duties.

(3)        Compensation:

An offer letter should set forth clearly what the base salary is and how that base salary will be paid. For example, is it to be paid out weekly, bi-weekly, or annually? More importantly, any bonus or compensation should be clearly defined as well, including how and when such bonus or commission will be paid.  Generally, in a skillfully drawn up offer letter, there will be a clause reserving the employer’s rights to alter or rescind these arrangements. If the bonus or commission structure is highly complex, an employment agreement or schedule to the offer letter should be considered.

(4)        Benefits:

As an employee, you would want your employer to outline the specific benefits you are expected to receive, including vacation, sick days, personal days, health benefits, pension benefits, 401(k) plans (or the similar), and any other comparable matters.  Generally, the employer will reserve the right to rescind or alter these benefits, in accordance with the corresponding plan.  An employer must provide notice to the employee if it makes any changes to these benefits. Conn. Gen. Stat. §31-71f.

(5)        Restrictive Covenants:

An offer letter will generally not include non-solicitation clauses or non-compete clauses.  However, an offer letter can condition employment upon the signing of these documents at commencement of employment. What is generally found in offer letters are confidentiality clauses and non-disclosure clauses.  By signing the offer letter, the employee (depending on the clause) may agree to refrain from disclosure of certain information, such as salary or client lists. Moreover, the employee may be requested to affirmatively acknowledge that he or she is not currently subject to any restrictive covenants, such as a non-compete clause.

(6)        Conditions of Employment:

While in most circumstances, the employment is “at-will,” the employer can still make the offer of employment contingent of other items, such as satisfactory references, drug screening, background check, valid driver’s license, or proof of authorization.

As with any employment related document, complex issues can arise.  Careful drafting and review is necessary to protect the interests of the employee and employer.   If you have any questions relating to any offer letter or employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com

Connecticut Courts Strike Down Unreasonable Non-Compete Agreements

Connecticut Courts Strike Down Unreasonable Non-Compete Agreements

Have you lost your job?  Your career? This economy is brutal and has affected millions of Americans.  Countless people have been fired or laid off, and a lot of folks are struggling to regain their livelihood, especially in the banking industry.  The current job market is lean and extremely competitive, and as a result, finding a replacement job to make ends meet has become difficult.  Remarkably, in some instances, it is not the economy that is preventing these folks from rejoining the ranks of the employed, but rather it is their former employers!

Assume this scenario for a moment.  Stock-Broker was working for JPMorgan in New York City, and her employment ended. She was either let go because of the economy or she just wanted a change in scenery.  After her employment with JPMorgan came to end, she received an offer from Morgan Stanley in Stamford, a competitor with JPMorgan in the investment banking industry.  Morgan Stanley is great.  They give free bagels out for breakfast on Wednesdays.  Stock-Broker decides she wants to take the job with Morgan Stanley, but there is a caveat.

When Stock-Broker began working for JPMorgan she signed an agreement that she would not work for another investment bank within a 60-mile radius for a year. The question then becomes not whether Stock-Broker wants to work for Morgan Stanley, but does the law allow her?  Does this scenario seem familiar to you?  If it does, please continue reading.

What is a Non-Compete Agreement

Typically, when an investment banker begins a career with a new employer, he or she signs a “non-compete” agreement.  This agreement essentially bars a former employee from engaging in a business that competes with the former employer.  This is certainly the case with hundreds of New York investment banks who require their bankers to sign a non-compete before they begin working.  When determining whether Stock-Broker in our hypothetical above can work for another investment bank, the legality of her non-compete agreement must be examined.

How Connecticut Approaches Non-Compete Agreements

In Connecticut, courts take a hard-line approach to non-compete agreements, and usually view them as against public policy.  This does not mean that all non-compete agreements are struck down, however they must be reasonable in order to survive.  To determine the reasonableness of a non-compete agreement, Connecticut courts take numerous factors into account such as the length of time the restriction lasts, the extent of the geographic area the former employee is barred from working in, and the public interest. See Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 529 n.2, 546 A.2d 216 (1988).

Under this multiple factor test, if any restriction is found to be unreasonable, then the agreement fails, and the employee is free to work where he or she will.   A non-compete agreement usually fails because the time-limit or geographic boundaries are unreasonable.  Typically, if the agreement restricts the former employee from engaging in a competing business within one year of termination and within a five-mile radius, a Connecticut court will not overturn it.  In contrast, during a non-compete agreement dispute, a Connecticut court quickly struck down a 50-mile radius restriction. See generally Braman Chemicals, Conn. Super. Ct.  LEXIS 3753 (2006).

Furthermore, Connecticut courts have routinely struck down non-compete agreements that restrict anything more than a 35-mile radius.  See e.g., Nesko Corp. v. Fontaine, 19 Conn. Super.  Ct. 160, 110 A.2d 631 (1954); see also Trans-Clean Corp. v. Terrell, Conn. Super. Ct. LEXIS 717 (1998) (court noted that the 60-mile radius from the employer’s home office in Stratford encompassed approximately 75% of the state); see also Timenterial, Inc. v. Dagata, 29 Conn. Super. Ct. 180, 277 A.2d 512 (1971) (50-mile radius restriction held invalid).

Analyzing a Hypothetical Non-Compete Agreement

Apply these factors to our Morgan Stanley hypothetical.  Remember, Stock-Broker signed a non-compete agreement with JPMorgan that provided she would not work for a competing investment bank within a 60-mile radius. Unfortunately for Stock-Broker, Stamford is in Connecticut and only 40 miles away.  Stamford’s location falls within the 60-mile radius in JPMorgan’s non-compete agreement, and thus Stock-Broker would be violating the agreement if she took the job.

Stock-Broker takes the job anyway and JPMorgan sues her.  Stock-Broker argues that her non-compete agreement is unreasonable and therefore invalid.  The Connecticut court will apply the five factor test, and based on past rulings, most likely find that a 60-mile radius is too large of a geographic area.  Subsequently, Stock-Broker will then be allowed to take the position with Morgan Stanley.

Now, let us assume that JP Morgan is also in Stamford, and Stock-Broker signed a non-compete that restricted her from working with a competing business within a 15-mile radius.  JP Morgan sues Stock-Broker and she again argues to invalidate the non-compete for unreasonableness.  This time however, the outcome will be different.  The geographic distance of a 15-mile radius is negligible compared to a 60-mile radius, and Connecticut courts have routinely upheld non-competes that contain such a distance.

Conclusion

Non-compete agreements prevent thousands of stock-brokers from regaining employment in investment banking.  A lot of former employees believe there is nothing that can be done; when in reality a lot of non-compete agreements would most likely not hold up in court.  If you’re a stock-broker who was fired or laid off, and is struggling to find a replacement job in the investment banking world because of your employment contract, call us here at Maya Murphy P.C. and we’ll give you free advice.

Burough Notified of Lawsuit by Officer

Woman Charges Discrimination

NAUGATUCK — A Naugatuck Police officer has notified the borough she intends to file a discrimination lawsuit against the police department, according to a letter filed at Town Hall.

Police Officer Caroline O’Bar intends to sue the Police Department and Police Chief Dennis “Ned” Clisham for “poor and inaccurate performance evaluations,” failing to consider her for a promotion and special assignments, denying her overtime and special schooling, and for slander, according to the letter signed by Tracy L. Norris, an attorney with the New York-based firm Maya & Associates, P.C.

Case Background

O’Bar has worked at the department for several years, but according to Norris’ letter, the alleged discrimination she suffered occurred starting in Oct. 24, 1999. The attorney added that the instances of discrimination violated the officer’s civil rights as well as the Family Medical Leave Act.

The letter also states that O’Bar has filed complaints with the U.S. Department of Labor, the Connecticut Commission on Human Rights, and the Equal Employment Opportunity Commission. Both the human rights commission and equal opportunity commission are investigating O’Bar’s accusations. Clisham could not be reached for comment.

O’Bar, a patrol officer, has said she will not comment on the lawsuit, and referred all questions to her attorney, Joseph C. Maya. Maya, who has handled well-known discrimination lawsuits involving women, would not comment on O’Bar’s lawsuit.

O’Bar is one of fewer than five women among 53 sworn officers at the Naugatuck Police Department.

By Ann Marie Somma
© 2000 Republican-American

Sexual Orientation Can Give Rise to Hostile Work Environment Claim

By now, most employees are aware that they may not be discriminated against in the workplace based upon such considerations as race, gender, national origin, age, or disability.  In a recent decision, the Connecticut Supreme Court added to that list workplace harassment because of sexual orientation.

Patino v. Birken Manufacturing Co., 304 Conn. 679 (2012)

In Patino v. Birken Manufacturing Co., 304 Conn. 679 (2012), the Connecticut Supreme Court held that the section of the Connecticut General Statutes prohibiting employer discrimination against employees because of their sexual orientation additionally creates a cause of action for hostile work environment where employees suffer harassment from their co-workers based upon their sexual orientation.

In Patino, the plaintiff claimed that he was harassed by co-workers because of his sexual orientation and that his employer did nothing to remedy the situation.  Specifically, the plaintiff’s co-workers uttered derogatory multi-lingual slurs against homosexuals while in the plaintiff’s presence.  Initially, the plaintiff did not report the incidents to his employer choosing, instead, to record them in a diary.  Later, the employee complained to a supervisor about the derogatory slurs and an “all hands” meeting was held to address the problem.

Unfortunately, after the meeting, the harassment continued, leading to the transfer of one of the offending employees to another facility.  The remaining workers, however, continued with the derogatory references.  For several years thereafter, the plaintiff wrote numerous letters of complaint to his employer and filed five Complaints with the Connecticut Commission on Human Rights and Opportunities (the state administrative agency charged with initial investigation of claims of employment discrimination).  The last of these Complaints proceeded to trial where the plaintiff won, and a jury awarded him $94,500 in noneconomic damages.

The Employer’s Appeal

On appeal, the company claimed that the statute in question (C.G.S. § 46a-81c) made no reference to “hostile environment” or “hostile workplace” and the plaintiff was therefore not possessed of a viable claim arising from a hostile work environment.  The employer also argued that to be actionable, the offending slurs would have to be spoken directly to the plaintiff notwithstanding the fact that federal courts have ruled that discriminatory statements made outside the employee’s presence can be actionable.  Finally, the employer argued that derogatory slurs spoken in languages other than that of the employee could not form the basis for liability.

The Connecticut Supreme Court was uniformly unimpressed with the employer’s arguments and unanimously affirmed the decision of the trial court.  Thus, the highest court of this state has spoken about the scope of the prohibitions contained in a state statute and the issue appears well-settled: an employee can sue his or her employer for failing to remedy a hostile work environment emanating from derogatory statements concerning sexual orientation.

The employment law attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the negotiation and litigation of all sorts of workplace-related claims and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield and resolving such issues.  Should you have any questions about workplace discrimination or any other employment law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

In Sexual Harassment Claims, Court Will Consider the Totality of the Circumstances

By: Michael D. DeMeola, Esq.
Title VII

Working in a hostile environment can be a very traumatic experience.  Indeed, victims of sexual harassment often experience a pattern of mistreatment over an extended period of time.  This may include physical or verbal abuse, and often includes overtly gender-specific conduct as well as behavior which on its face appears to be gender-neutral (behavior that while abusive, when considered independently, may appear to have nothing to do with one’s gender).

When considering whether a victim of sexual harassment is entitled to judicial redress, it is important to take both types of conduct into account.  In fact, when considering a claim brought under Title VII, a court will consider the totality of the circumstances, including both facially gender-specific behavior as well as behavior that is facially gender-neutral.

Generally speaking, Title VII prohibits, “discrimination against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s… sex.” 42 U.S.C. § 2000e-2(a)(1).  Title VII is not limited to “’economic” or “tangible” discrimination, however.  The phrase “terms, conditions, or privileges of employment” evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment. 

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)

As the Court explained in Harris, Title VII is violated, “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” Id.  Importantly, an employer is presumed to be responsible where the perpetrator of the harassment was the plaintiff’s supervisor. See, e.g., Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998).

In determining whether an environment is “hostile” or “abusive,” the Court in Harris stated that one must consider all the circumstances surrounding the alleged discrimination. 510 U.S. at 23.  This may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is also relevant to determining whether the plaintiff actually found the environment abusive.

Notably, while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Id.  Because the analysis of severity and pervasiveness looks to the totality of the circumstances, the crucial inquiry focuses on the nature of the workplace environment as a whole.  To that end, a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim. Cruz v. Coach Stores, Inc., 202 F.3d 560, 567 (2d Cir. 2000).

Gender Discrimination in a Hostile Work Environment

It is fairly well settled that to prevail on a claim of hostile work environment based on gender discrimination, the plaintiff must establish that the abuse was indeed based on his or her gender. See, e.g., Raniola v. Bratton, 243 F.3d 610, 621 (2d Cir. 2001).  However, facially neutral incidents may be included among the “totality of the circumstances” that courts consider. Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002).  In determining whether facially sex-neutral incidents were part of a pattern of discrimination on the basis of gender the Court may consider, for example, whether the same individual engaged in multiple acts of harassment, though some may have been overtly sexual and some not. Id.  

Gender Hostility Cases

In Raniola, supra, the Court concluded that, given proof of instances of overt gender hostility by the supervisor of the female plaintiff, a rational juror could have permissibly inferred that his entire alleged pattern of harassment against her was motivated by her gender, even though some of the harassment was not facially sex-based. Thus, the relevant circumstances in Raniola included not only offensive sex-based remarks, but also one facially gender-neutral threat of physical harm by the supervisor who had made the remarks.

In Kaytor v. Electric Boat Corporation, 609 F. 3d 537 (2d Cir 2010), the United States Court of Appeals for the Second Circuit adhered to this principle.  In that case, the plaintiff, an administrative assistant in the defendant’s engineering department, brought suit under Title VII alleging that the department manager sexually harassed her.  The plaintiff alleged that in addition to constantly staring at her and making suggestive advances, the manager also threatened her with physical harm.  For example, the manager allegedly told the plaintiff he wished she was dead, saying, “I’d like to see you in your coffin.”

Additionally, on six occasions, the manager allegedly told the plaintiff he wanted to choke her.  In overturning the trial Court’s decision which effectively dismissed the plaintiff’s case, the Appellate Court explained, “…the court should not have excluded from consideration [the plaintiff’s] testimony as to [the manager’s] stated desires to choke her, to see her in a coffin, and to kill her.”  According to the court, one could permissibly infer that the manager’s harsh treatment of the plaintiff was the result of his spurned advances and that the facially gender-neutral threats he directed at the plaintiff were, in fact, because of her sex.

Bridgeport DJ Says Spit Cost Her Her Job

BRIDGEPORT –

As Prozac Girl on the controversial, syndicated “Star & Buc Wild Morning Show,” Keysha Whitaker often had to deal with sophomoric abuse thrown at her. But when it came to being spit at, Whitaker drew the line. That cost Whitaker her job, she claims.

As a result, Whitaker, who according to court papers lives on Avalon Drive in Milford, filed a multimillion-dollar lawsuit claiming intentional infliction of emotional distress, assault, defamation, and violation of the Americans with Disability Act. Her on-air character, Prozac Girl, was based on her real-life bout with depression.

U.S. District Judge Janet C. Hall rejected Clear Channel Broadcasting’s request to dismiss the case against the company; Troi Torain, better known as hip-hop shock jock DJ Star; and Miguel Candelaria, the show’s producer. The judge listened to the two sides argue their cases for about an hour before ruling from the bench. Hall dismissed the assault charge after finding the suit claims only an oral threat was made and that Star did not actually attempt to spit on her.

However, Hall said Bryan Carmody, Whitaker’s lawyer, could resurrect that claim if he can show Torain did attempt to spit on his client.

Case Background

The syndicated show began broadcasting on Clear Channel’s WPPH-FM 104.1 in Hartford in April 2004. More recently, it called WWPR-FM Power 105.1 in New York home. But Torain’s actions led to Clear Channel pulling the show from the air and dropping its $4 million Star from the payroll.

On that day, Torain made on- the-air comments about the 4-year-old daughter of DJ Envy, a rival morning host on Hot 97, which once broadcast Torain’s show. DJ Envy’s real name is Rashawn Casey.

Torain maintained his comments were in response to earlier ones made against his mother by Casey.

On May 13, 2006, Torain was arrested on charges of endangering the welfare of a child as a result of his comments. The charge carries a maximum 2-year sentence. He was released on $2,000 bond.

Whitaker was just one of a number of characters on the show. Others included Buc Wild, Torain’s real-life half-brother; “White Trash” Helene, from Hamden; and “Chris the Queer,” the show’s gay newsman.

In February 2004, Clear Channel hired Whitaker to play the role of Prozac Girl at a salary of $60,000 a year, the suit claims. Additionally, she was to be paid a $20,000 lump sum each time the show was syndicated to a new locale, according to the suit.

The show began airing on 104.1 WPHH in Hartford in April 2004.

The Incident

During the May 24, 2004, broadcast, Torain spat on Candelaria and said, “all of you in here are going to get anointed with my spit,” the suit alleges.

Following the show, the suit claims, Whitaker told Candelaria she would resign if Torain insisted upon “anointing her with his saliva.”

Three days later, the suit claims, Candelaria shot a “phlegm-laden” launch at a character named “Crossover Negro Reese,” a newsman. Torain then threatened to spit on Whitaker, who again objected, the suit charges.

After the show, the suit says, Candelaria demanded a letter of resignation from Whitaker, stripped her of her office keys and walked her out of the building.

The suit further claims Torain called Whitaker after she left and told her she was fired because she “is sick,” “disabled” and has depression.

Since then, Carmody said, his client has suffered severely.

“She’s not working,” he said.

The parties in the suit could not be reached for comment Wednesday evening.

Connecticut Post
By: Michael P. Mayko