Posts tagged with "sexual-harassment"

Court Gives Plaintiff in Bullying Case Green Light to Proceed to Trial

In August 2006 Robert and Louise Dornfried filed suit against the Berlin Board of Education, its former and current superintendents,  the principal, the athletic director and the coach of Berlin High School football team on behalf of their minor son, Robby.  Robby’s parents alleged on their son’s behalf that, while a student at the high school and a place-kicker on the varsity football team, he was subjected to “incessant bullying, harassment, intimidation and was the victim of threats and/or acts of violence” by his teammates.

The parents further alleged that they complained of the misconduct to various school administrators, who, despite their knowledge of the behavior, did nothing to stop it.  As a result, Robby was allegedly forced to seek “medical care and treatment” and, halfway through his sophomore year, transferred to Northwest Catholic High School. Robby’s parents brought suit alleging negligence against the various defendants, claiming they knew or should have known that Robby was subjected to incessant bullying, harassment, intimidation, threats and/or acts of violence, but failed to take any action to prohibit, prevent, or even deter such conduct.

In a separate count, the parents claimed the principal, the athletic director and the football coach were reckless in their failure to stop the inappropriate behavior of Robby’s teammates, claiming they exhibited “a blatant and utter disregard for [Robby’s] safety and wellbeing.”  Notably, as permitted by Connecticut law, the plaintiff sought punitive damages under this count. The defendants initially attacked the plaintiff’s suit filing a motion to strike the negligence claims.

Granting the defendants’ motion, the Court held that the principal of governmental immunity barred the negligence claims because, as a general rule, a municipal employee has qualified immunity in the performance of acts that are discretionary in nature.  Although there is an exception when the injured party is an “identifiable person subject to imminent harm,” the Court held that Robby did not fall within that exception, explaining the only identifiable class of foreseeable victims the courts have recognized is that of school children attending public schools during school hours.  The Court ultimately held that, although participation in school sponsored athletic programs is most likely encouraged, participation is on a purely voluntary basis and, therefore, any resulting liability is barred by the doctrine of governmental immunity.  Significantly, although Robby was foreclosed from pursuing his negligence claims, his claim under a theory of recklessness, allowing for the recovery of punitive damages, was left intact. More recently, however, the defendants filed a motion for summary judgment attempting to eliminate that cause of action as well.  The defendants essentially claimed that, with respect to the plaintiff’s recklessness count, there are no factual issues in dispute and that as a matter of law, they are entitled to a judgment in their favor.

The court denied the defendants’ motion, however, preserving the plaintiff’s case, as well as the potential for punitive damages.  Explaining its decision, the Court first noted that Robby’s parents alleged the defendants had actual knowledge of the bullying yet failed to act, resulting in further escalation of the bullying, and that the defendants knew their failure to act would result in further harm to Robby.  Significantly, the Court then explained that summary judgment should not be used in cases that concern important public issues or questions of inference as to motive or intent, or ones that involve subjective feelings and reactions.

Citing various factual disputes in this particular case, the Court ultimately held that it is “suffused with subjective impressions, intent, motive and pubic issues which do not easily conform to the standards of summary judgment.” This ruling is significant, in part, because, as mentioned, the plaintiffs alleged that the school system, as well as various administrators, were not just negligent, but were actually reckless in their failure to respond to the bullying in question, thus exposing the school system not only to actual or compensatory damages, but punitive damages as well.  This decision is also significant because, although there is always a potential that such rulings will be appealed, the Court effectively gave the plaintiffs a green light to proceed to trial.

By:       Michael DeMeola, Esq.

If you have any questions regarding a school bullying case, or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

 

What is Sexual Harassment in Connecticut?

What is sexual harassment?

Sexual harassment is a form of illegal discrimination that comprises unwelcome sexual conduct affecting the terms and conditions of a person’s employment or that creates a hostile work environment. Examples of such conduct include: obscene communications such as emails or texts; the display or distribution of pornographic or otherwise offensive materials; unwanted or uninvited touching; sexual propositions with implied or explicit threats to your job security; and lewd comments or gestures. For sexual harassment to exist, the offending conduct must be sexual in nature or be based on hostility because of gender. The conduct also must be unwelcome, severe or pervasive, and affect the victim’s pay, benefits, work conditions or work environment.

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What is Sexual Harassment in Connecticut?

What is sexual harassment?

Sexual harassment is a form of illegal discrimination that comprises unwelcome sexual conduct affecting the terms and conditions of a person’s employment or that creates a hostile work environment. Examples of such conduct include: obscene communications such as emails or texts; the display or distribution of pornographic or otherwise offensive materials; unwanted or uninvited touching; sexual propositions with implied or explicit threats to your job security; and lewd comments or gestures. For sexual harassment to exist, the offending conduct must be sexual in nature or be based on hostility because of gender. The conduct also must be unwelcome, severe or pervasive, and affect the victim’s pay, benefits, work conditions or work environment.

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What is Sexual Harassment in Connecticut?

What is sexual harassment?

Sexual harassment is a form of illegal discrimination that comprises unwelcome sexual conduct affecting the terms and conditions of a person’s employment or that creates a hostile work environment. Examples of such conduct include: obscene communications such as emails or texts; the display or distribution of pornographic or otherwise offensive materials; unwanted or uninvited touching; sexual propositions with implied or explicit threats to your job security; and lewd comments or gestures. For sexual harassment to exist, the offending conduct must be sexual in nature or be based on hostility because of gender. The conduct also must be unwelcome, severe or pervasive, and affect the victim’s pay, benefits, work conditions or work environment.

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What is Sexual Harassment in Connecticut?

What is sexual harassment?

Sexual harassment is a form of illegal discrimination that comprises unwelcome sexual conduct affecting the terms and conditions of a person’s employment or that creates a hostile work environment. Examples of such conduct include: obscene communications such as emails or texts; the display or distribution of pornographic or otherwise offensive materials; unwanted or uninvited touching; sexual propositions with implied or explicit threats to your job security; and lewd comments or gestures. For sexual harassment to exist, the offending conduct must be sexual in nature or be based on hostility because of gender. The conduct also must be unwelcome, severe or pervasive, and affect the victim’s pay, benefits, work conditions or work environment.

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Do I need an attorney if I am harassed at work in Connecticut?

Being a victim of harassment at work puts you in a very difficult position. You may enjoy your job, but someone’s unwanted behavior is interfering with your work performance or someone may be creating a hostile work environment for you. Perhaps your supervisor is the one harassing you, and has made a tangible change in your employment status or benefits (such as in a demotion, a termination or failure to promote). You know you need to do something, but you may be afraid it will cost you your job and future prospects.

First of all, you should know what constitutes harassment. Harassment on the job can take many forms. It may include use of racially derogatory words or comments about someone’s skin color. It may be pictures or gestures that offend a particular racial or ethnic group. Harassment occurs when disparaging comments are made about someone’s gender, religious beliefs (or lack of), birthplace, ancestry, age (someone over 40) or mental or physical impairment. Sexual harassment may include staring in a sexually suggestive manner, making offensive remarks about looks, clothing or body parts, touching in a way that makes someone feel uncomfortable (patting, pinching or brushing up against someone), telling sexual or lewd jokes, displaying sexual posters, making sexual gestures and sending, forwarding or soliciting sexually suggestive letters, notes, emails or images.

Your first course of action is to report an incident of harassment to your supervisor, any member of management and/or the Director of the Office of Workplace Diversity. Your employer should take your complaint seriously, and you should notice some form of action that is meant to stop the harassment.

If you are not satisfied with the results of your complaints to your employer and the harassment continues, the attorneys at Maya Murphy have extensive experience with employment law, including sexual harassment cases. We can assess your case and guide you through the litigation process. Please call us at 203-221-3100, or e-mail us at Ask@Mayalaw.com to schedule a complimentary consultation.

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Do I need an attorney if I am harassed at work in Connecticut?

Being a victim of harassment at work puts you in a very difficult position. You may enjoy your job, but someone’s unwanted behavior is interfering with your work performance or someone may be creating a hostile work environment for you. Perhaps your supervisor is the one harassing you, and has made a tangible change in your employment status or benefits (such as in a demotion, a termination or failure to promote). You know you need to do something, but you may be afraid it will cost you your job and future prospects.

First of all, you should know what constitutes harassment. Harassment on the job can take many forms. It may include use of racially derogatory words or comments about someone’s skin color. It may be pictures or gestures that offend a particular racial or ethnic group. Harassment occurs when disparaging comments are made about someone’s gender, religious beliefs (or lack of), birthplace, ancestry, age (someone over 40) or mental or physical impairment. Sexual harassment may include staring in a sexually suggestive manner, making offensive remarks about looks, clothing or body parts, touching in a way that makes someone feel uncomfortable (patting, pinching or brushing up against someone), telling sexual or lewd jokes, displaying sexual posters, making sexual gestures and sending, forwarding or soliciting sexually suggestive letters, notes, emails or images.

Your first course of action is to report an incident of harassment to your supervisor, any member of management and/or the Director of the Office of Workplace Diversity. Your employer should take your complaint seriously, and you should notice some form of action that is meant to stop the harassment.

If you are not satisfied with the results of your complaints to your employer and the harassment continues, the attorneys at Maya Murphy have extensive experience with employment law, including sexual harassment cases. We can assess your case and guide you through the litigation process. Please call us at 203-221-3100, or e-mail us at Ask@Mayalaw.com to schedule a complimentary consultation.

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Medical Marijuana Use in the Connecticut Workplace

The news this week that Connecticut has given its approval to four medical marijuana growers in Simsbury, West Haven, Portland, and Watertown, inches the state that much closer to full implementation of the medical marijuana law that was passed in 2012.

The state also reported that over 1600 individuals in Connecticut have been certified by the state to receive medical marijuana. That number is expected to grow once production begins in earnest.

Add to that news, the recent legalization of marijuana in Colorado and Washington and employers now have a whole new area of law to familiarize themselves with.

It would be easy to just write some puns on the matter (and who can resist it in the headline) but it’s not such a laughing matter to employers struggling to figure out what the rules of the road are.

There are 5 important takeaways from CT’s medical marijuana laws:

Employers may not refuse to hire a person or discharge, penalize or threaten an employee based solely on such person’s or employee’s status as a qualifying patient or primary caregiver.

Employers may discriminate if required by federal funding or contracting provisions.

Employers MAY continue to prohibit the use of intoxicating substances, including marijuana, at work.

Employers MAY continue to discipline employees for being under the influence of intoxicating substances at work.

But employers MAY NOT presume that a drug test result that is positive for marijuana means that the employee used at work or was under the influence at work.

While it is clear under [state law] that an employer may terminate or discipline an employee who reports to work impaired on account of his/her medical marijuana use, the law does not address how employers are to treat employees … who use marijuana during non-work hours, but will inevitably fail routine drug tests administered pursuant to a drug-free workplace policy.

If the employer terminates [the employee] for violating its policy, it risks liability if she proves she was not under the influence at work. On the other hand, if it does not terminate …, the employer risks liability should [the employee] report to work under the influence and injure herself or others.

Another novel issue that is arising? Suppose your employee is on a business trip in Colorado. After a sales meeting, on the way back to his hotel, the employee legally purchases and then consumes some Rocky Mountain marijuana. Can you discipline the employee for engaging in a legal activity while on “company business”?

As long as we have disparate state laws on the subject, we’re not going to get clear cut answers. For employers, be sure to stay up to date on the developments and talk with your legal counsel about the implications for your business now that we are on the outskirts of implementation.

Credit to Daniel Schwartz of Shipman and Goodwin LLP.

If you are the victim of workplace harassment, wrongful termination, or any other labor law crime, it is imperative that you consult with an experienced employment law practitioner. The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. 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

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Deliberate Indifference Required for School to be Liable under Title IX for Student-Student Harassment

In a New York District decision earlier this year, a student’s cause of action under Title IX of the Civil Rights Act against the Monroe-Woodbury School District was denied because it did not show deliberate indifference in response to the student’s claim of student-to-student sexual harassment.[1]

Parents on behalf of their fifteen year old daughter brought suit against Monroe–Woodbury Central School District pursuant to Title IX of the Civil Rights Act of 1964, alleging that she was deprived of an educational environment free from sexual harassment as required by federal law.

Beginning in January 2010, when she was in the eighth grade, the student was subjected to teasing, taunting, and physical bullying by other students, which she reported to her guidance counselor.  She was sexually assaulted by a male classmate who requested a handjob and subsequently ran her  hands over the genital area of his pants and attempted to shove her hands down his pants.[2] As a result of the incident, the student alleges that she was subjected to more taunting and name-calling by other students and in response began to engage in self- injurious behavior by cutting herself. When she began attending Monroe–Woodbury High School in September, another student and friend of the first continued to harass her and in November sexually assaulted her by pinning her against a locker and pushing his hands down her pants and blouse, touching her genital area and breast.[3]  The student began missing school frequently to avoid continued harassment.  At some point she confided in her guidance counselor that her absenteeism and self-injurious behavior was the result of the persistent teasing and the two incidents of sexual assault by her classmates.[4]

The School District recommended that she attend the GO Program, an out-of-district academic program, to which her parents agreed. After her first day there, CF reported to her parents that she was uncomfortable with this placement because the students there were “in many cases, not attending their regular high schools due to serious disciplinary records and incidents.”[5] When her parents again met with the principal, they requested that their daughter be transferred to another public school to continue her high school education.  The principal refused saying there were no other options besides the GO program.[6]

The parent brought suit alleging the school failed to: (1) initiate an investigation upon the parents’ verbal complaint; (2) conduct a prompt, equitable, and thorough investigation of the charges; (3) ensure that immediate corrective action be taken, including subjecting the offending individuals to appropriate disciplinary measures; and (4) inform CF of her right to pursue legal remedies.

Title IX of the Civil Rights Act of 1964 states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a)[7]. Title IX contains an implied private right of action for plaintiffs who bring suit against educational institutions that receive federal funding, and liability may be imposed upon a school district if it is found to be in violation of this law.

Title IX funding recipients may be held liable for student-on-student harassment if the plaintiff can establish damages only where the school district: (1) was deliberately indifferent; (2) to sexual harassment; (3) of which it had actual knowledge; (4) that was so severe, pervasive, and objectively offensive that it deprived the victim of access to the educational opportunities or benefits provided by the school.[8] A showing of deliberate indifference requires that the school had actual knowledge of the sexual harassment and either responded in a “clearly unreasonable manner in light of the known circumstances,”[9] or responded with remedial action only after a “lengthy and unjustified delay.”[10]

The Court rejected the plaintiff’s assertions that the GO Program was an “inappropriate” placement for her because it did not provide her with a “regular high school environment.” Saying even if it was inappropriate, “Title IX simply does not require recipient school districts to provide students with a ‘regular high school environment.’ Title IX does not prescribe any particular educational experience at all. Rather, Title IX merely prohibits schools from excluding anyone, on the basis of sex, from participating in an educational program that receives federal assistance; or denying the benefits of such programs on the basis of sex; or subjecting anyone in such programs to discrimination on the basis of sex.”[11]  Finding that the school did not cause the discrimination and the School District took some remedial action (not clearly unreasonable under the circumstances) in response to the student’s complaints, the Court dismissed the action.

Bullying and harassment in school should never be tolerated.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable education law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions about bullying, student harassment, school liability or any other 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.

 


[1] KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist., 12 CIV. 2200 ER, 2013 WL 177911 (S.D.N.Y. Jan. 16, 2013)

[2] Compl.¶¶ 10-11

[3] Compl.¶¶ 12-13

[4] Id.

[5] Compl.¶¶ 14

[6] Id.

[7] Title IX of the Civil Rights Act of 1964, 20 U.S.C. § 1681(a)

[8] Williams v. Bd. of Regents of the Univ. Sys. of Georgia, 477 F.3d 1282, 1293 (11th Cir.2007)

[10] Hayut v. State Univ. of N.Y., 352 F.3d 733, 751 (2d Cir.2003)

[11] KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist.

 

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Faragher-Ellerth Defense Applied to Protect Employer from Liability for Sexual Harassment

In a recent 11th Circuit Court case decided this year, that Court applied the Faragher/Ellerthdefense to bar an employee’s sexual harassment suit under Title VII and state law.[1]

There, a male hairdresser filed suit against his employer alleging sexual harassment in violation of Title VII and the Florida’s Civil Rights Act.  The employee alleged that his employer Creative Hairdressers was liable for allowing his former manager at a Hair Cuttery salon to sexually harass him. The United States District Court for the Southern District of Florida granted the employer’s motion for summary judgment, finding that there were no genuine issues of material fact that Hair Cuttery exercised reasonable care to prevent and correctly promptly any sexually harassing behavior, and that White unreasonably failed to take advantage of preventive or corrective opportunities or to avoid harm.

The Supreme Court in Faragher v. City of Boca Raton[2] and its companion case Burlington Industries, Inc. v. Ellerth[3] recognized certain affirmative defenses an employer can assert to preclude liability when an employee alleges sexual harassment by a supervisor.  Even if an employee establishes a prima facie case of sexual harassment, an employer can avoid liability under the Faragher/Ellerth defense if the employer shows (1) that it exercised reasonable care to prevent and promptly correct harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer, or to otherwise avoid harm. Both elements must be satisfied for the employer to avoid liability, and the employer bears the burden of proof on both elements.

In affirming District Court’s grant of summary judgment in favor of the employer, the 11th Circuit held that the Faragher/Ellerth defense applied to bar the employee’s claims under Title VII and the FCRA.  The Court recognized that the undisputed evidence demonstrated that Hair Cuttery had promulgated and adequately disseminated sexual harassment policies and complaint procedures to its employees.  Further, the court held that the employee failed to promptly take advantage of Hair Cuttery’s sexual harassment policies and complaint procedures by not promptly notifying the company of his harassment.[4]

Failure to follow employer harassment policies can prevent a valid harassment claim.  If you are the victim of sexual harassment or discriminatory treatment in the workplace, it is imperative that you consult with an experienced employment law practitioner.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in New York City, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions 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.



[1] White v. Creative Hairdressers Inc., 11-16121, 2013 WL 203312 (11th Cir. Jan. 18, 2013)

[4] White v. Creative Hairdressers Inc. at 11-16121

 

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