Posts tagged with "workplace harassment"

Proxy/Alter Ego Liability for Sexual Harassment

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Liability in Workplace Sexual Harassment

The United States Court of Appeals for the Second Circuit (that includes Connecticut and New York) addressed for the first time whether the so-called Faragher/Ellerth affirmative defense is available when an alleged sexual harassment attacker holds a sufficiently high position within an organization so as to be considered the organization’s proxy or alter ego.  The Second Circuit joined the other Circuits that have considered the issue in concluding that under those circumstances, the affirmative defense was unavailable to the employer.

By way of background, Faragher/Ellerth held that a company could escape vicarious liability for sexual harassment by taking certain steps directed toward reporting and eradicating sexual harassment in the workplace.  Left open was the issue of the employer’s direct liability where the actor was deemed to be the proxy/alter ego of the company.  Under that doctrine, an employer is liable in its own right for wrongful harassing conduct, as opposed to being vicariously liable for the actions of company agents.

A Company’s Proxy or Alter Ego

But who is the company’s proxy or alter ego?  Prior cases clearly place the company president and other sufficiently senior corporate officers within that category, and refer to “that class of an organization’s officials who may be treated as the organization’s proxy.”  Understandably, the courts do not want to draw a bright line around who may be considered an employer proxy, so that unusual cases can be determined on their peculiar facts without being constrained by particular titles.

All that is required is for the supervisor to occupy a sufficiently high position in the management hierarchy of the company for his actions to be imputed to the company.  When the official’s unlawful harassment is thus automatically charged to the employer, it cannot raise the Faragher/Ellerth affirmative defense, even if the harassment did not result in an adverse employment action.

The result is a settling of the law in the Connecticut federal court; the Faragher/Ellerth defense is unavailable when the alleged harasser is the employer’s proxy or alter ego.  Both employers and employees now know better where they stand.

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The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment 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 Title VII and 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.

Employer Not Liable for Doing “Stupid” or Even “Wicked” Things

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Case Background

Employment discrimination laws protect employees from discrimination.  They do not protect against “ordinary workplace experiences” that offend one’s sensibilities or result in hurt feelings.  A Connecticut woman found that out the hard way when a Court of Appeals affirmed the trial court’s grant of summary judgment against her.  There was no dispute as to any material fact and the employer was entitled to judgment as a matter of law.  Thus, there was no need for a trial on the merits.

The employee in question was fired from her “at will” position as Public Relations Coordinator for a large corporation because of her volatile workplace behavior spanning three years.  She claimed that she was fired because of her age, and that she had suffered intentional infliction of emotional distress as a result.

Establishing a “But For” Cause

Under the applicable law, the employee must first establish a prima facie case of discrimination.  If she does, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action.  Assuming such a reason, the employee may then prevail if she can show that the employer’s action was in fact the result of discrimination, i.e., that the stated reason is “pretextual.”

The employee must further prove that age was a “but for” cause for the challenged action and not merely a contributing or motivating factor.  In this case, the employee was unable to show that her age was the sole, i.e., “but for” cause of her termination.

Conclusions

In fairness to the employer, the employee’s insubordination was evident from the record.  On one occasion, the employee asked her manger if she had “stopped taking her medication.”  Nor did some favorable evaluations raise a genuine issue of material fact as to pretext.  The court concluded that isolated positive feedback was entirely consistent with the explanation for her termination: sporadic inappropriate behavior over the course of several years.  A reasonable jury would have no reason to doubt the employer’s explanation for the employee’s discharge.

The employee also complained about the “tone” that was used with her and that she was “distraught” about negative comments she received.  This formed the basis for her claim of intentional infliction of emotional distress.  The court had no trouble dismissing this claim, as well.  “These ordinary workplace experiences clearly do not rise to the level of being ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.’”

It was in this context that the court made the observation that employers are not liable for doing stupid or even wicked things in the absence of a sufficient connection between the employee’s age and termination of her employment.

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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 employment-related disputes and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield in resolving such issues. Please contact our Westport office at 203-221-3100.

For Want of a Comma, Wal-Mart Can Fire Medical Marijuana User

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Case Background

Medical marijuana is legal in Michigan.  When Joseph Casias was 17, he was diagnosed with sinus cancer and an inoperable brain tumor.  When Michigan legalized medical marijuana in 2008, Casias’ oncologist recommended he use marijuana for relief of pain and side effects of other pain medications.  Casias used marijuana while employed at a Wal-Mart in Battle Creek, Michigan, although he made sure never to be under its influence while at work.

When Casias was injured on the job, company policy required that he be administered a drug test.  He tested positive for marijuana and was fired a week later.  Michigan’s Medical Marijuana Act states that “a qualifying patient . . . shall not be subject to arrest or . . . disciplinary action by a business or occupational or professional licensing board or bureau . . . .”  Casias sued Wal-Mart for wrongful discharge and violation of the Act, claiming that the law proscribes “disciplinary action [against a medical marijuana patient] by a business.”

The Court’s Decision

A federal District Court and Court of Appeals disagreed, holding that the statute, as written, refers to three types of licensing boards or bureaus—business, occupational, and professional.  The appellate court reasoned that the statute precluded disciplinary action by only the specified licensing boards, and not by a private business.  Since the law offered Casias no protection from termination, the court saw no reason to overturn Wal-Mart’s firing of Casias notwithstanding his immunity from criminal prosecution related to possession or use of marijuana.

This is a case of the court’s holding that a legislature meant what it said, irrespective of what it might have meant to say.  More careful drafting or punctuation of the Michigan Act might have saved Casias’ job.  Perhaps the Michigan legislature will amend its Medical Marijuana Act to state more clearly that an employee who is a legally permitted user may not be disciplined by an employer for its use.  Until then, casually drafted statutes will remain a trap for the unwary.

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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.  (203) 221-3100.

Only Connecticut Employees Count Toward CFMLA Threshold

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What is the CFMLA?

The Connecticut Family and Medical Leave Act (CFMLA) requires employers who employ 75 or more employees to provide eligible employees with 16 weeks of leave during any 24-month period for a variety of reasons, most concerning a serious health condition of a family member.  The Connecticut Supreme Court has recently held that Connecticut employers are not subject to the CFMLA unless they employ at least 75 employees within the state.  In this day and age of “virtual workplaces,” the decision of the Court offers certainty to employers but may deprive employees working remotely of CFMLA coverage.

Valez v. Commissioner of Labor

In Valez v. Commissioner of Labor, Nos. SC 18683-84 (Sept. 25, 2012), the plaintiff worked as a full-time office manager at a Hartford apartment complex.  Her actual employer had over 1000 employees nationwide, but fewer than 75 within the State of Connecticut.  The plaintiff requested and received 12 weeks of leave under the federal Family and Medical Leave Act but when she was unable to return to her job due to medical restrictions, she was terminated.

A complaint to the Connecticut Department of Labor alleging violation of the CFMLA was unavailing as the hearing officer determined that the employer had fewer than 75 employees in Connecticut and was therefore exempt from the statute.  An appeal to the Superior Court was successful, as the Judge ruled that the CFMLA applied to employers that employ 75+ employees irrespective of their geographic location.

On appeal, the Connecticut Supreme Court reversed, holding that the CFMLA applies only to employers with 75+ employees physically within the State.  The Supreme Court felt that the lower court had failed to demonstrate appropriate deference to the Connecticut Labor Commissioner’s interpretation of the statutory term “employer” and his interpretation of who constitutes an “employee” for purposes of the CFMLA.

The Valez decision introduces a degree of certainty for employers with fewer than 75 employees in Connecticut.  Before, some national employers were following CFMLA even though they were exempt from the federal FMLA as a result of having fewer than 50 employees within a 75 mile radius.  Employees, too, can now be sure of their rights as it is settled that only employees within the state of Connecticut will count toward applicability of the CFMLA.

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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 employment-related disputes and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield in resolving such issues.  203-221-3100.

Bullying in the Workplace—the Next Litigation Frontier?

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Workplace Bullying

The Connecticut General Assembly enacted legislation to address student bullying in the school setting.  Now some states have turned their attention to bullying in the workplace.  The new statutes, if enacted, would create a new cause of action for employment discrimination—bullying.

Since 2003, 21 states have proposed legislation to rein in workplace bullying.  Many states have been working off of a model act (the Healthy Workplace Bill) authored by Suffolk University Law School professor David Yamada.  The bill defines workplace bullying as the “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms: verbal abuse; offensive conduct/behaviors (including nonverbal) which are threatening, humiliating, or intimidating; work interference—sabotage—which prevents work from getting done.”

Adopting Legislation 

According to a 2010 study, 35% of U.S. workers claim to have been bullied at work.  Absent a statutory cause of action, victims have claimed that employers have breached the terms of an employee handbook that requires employees to act professionally.  Such arguments are a stretch and a bullied employee would be much better served by a clearly stated statutory claim.

Anticipating adoption of the proposed legislation, many companies are incorporating anti-bullying training into in-house sexual harassment and anti-discrimination training.  There is a huge collateral benefit to ridding the workplace of bullies—they are extremely detrimental to employee morale and productivity.  As with other anti-discrimination statutes, an employer can avoid vicarious liability by instituting and enforcing a reasonable bullying prevention and protection policy.  In addition, a successful claimant must show demonstrable harm as a result of workplace bullying or an adverse employment action for reporting such activity.  Hurt feelings are not enough.

Reportedly, New York and Massachusetts are on the verge of passing anti-bullying statutes.  Connecticut has yet to weigh in on the issue.

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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 employment-related disputes and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield in resolving such issues.  Please contact our offices at 203-221-3100.

Employee Files Retaliatory Discrimination Suit Against Yale University

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Case Background

A Yale employee filed a retaliatory discrimination suit against Yale University, in which she alleged that after Yale hired her in 1999 as a “security education coordinator” to ensure the university’s compliance with Title IX, which is the federal law that prohibits sex discrimination in education, the university ignored her solutions, responded with indifference, and cut her pay.  Ultimately, Susan Burhans alleged that Yale University made it impossible to do her job, which was to “develop campus safety programs and strategies to ensure Yale’s compliance with Title IX and related laws,” according to the complaint.

Burhans stated that throughout the tenure of her employment, she brought to the attention of school administrators concerns about Yale’s “non-compliance with the Title IX and related laws.”  In April 2011, sixteen students filed a complaint alleging that the university had allowed a hostile sexual environment to persist on campus. According to Burhans’ complaint, “Yale responded to Ms. Burhans’ concerns with indifference, hostility and retaliation in many forms including job termination, initially in March 2010, despite ten years of service with excellent performance evaluations.”

Though Burhans was re-hired as a part-time, contract employee, the complaint alleges that she had no authority to oversee compliance with Title IX in this capacity, and was ultimately terminated, effective November 2012.  The action seeks at least $10 million in damages.

Retaliatory Discrimination Under Title IX

According to the United States Supreme Court, “retaliation against individuals because they complain of sex discrimination is ‘intentional conduct that violates the clear terms of [Title IX].’”[1] To properly allege a retaliatory discrimination case under Title IX, a plaintiff must demonstrate: (1) protected activity by the plaintiff; (2) knowledge by the defendant of the protected activity; (3) adverse school-related action; and (4) a causal connection between the protected activity and the adverse action.[2] Once a plaintiff has established those four elements, the burden shifts to the defendant “to articulate a legitimate, non-discriminatory reason for its actions.”[3]

In an unofficial response, a university spokesman stated in an email that the lawsuit is “baseless.”[4]

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If you are faced with discrimination in the workplace, whether it be gender, sex, religious, or ethnicity based, you should consult with an employment attorney.  The attorneys at Maya Murphy, have represented employees in the Fairfield County region and are knowledgeable and experienced in the employment field.  Contact Joseph C. Maya, Esq., at 203-221-3100, or at JMaya@mayalaw.com.

Year End Employment Contract Bonus Payments in Connecticut: Enforceable Promises?

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Employment Contracts in Connecticut: When is a promise to pay a year-end bonus enforceable against an employer?

Given the downturn in the economy, millions of employees lost their jobs at the end of 2012. Many of those jobs were based upon a compensation structure including a base salary and a bonus to be paid at the end of the year, or early this year, as in now. If you are one of those individuals who lost your job, you are probably wondering whether you are entitled to the bonus you thought you were promised. The Connecticut Appellate Court answered this question in favor of employees.

Case Background

Here are the facts of the case. An employee worked for a small Connecticut employer for several years. At the outset of the employment relationship, the employee agreed to accept a lower salary in consideration for the employer’s promise to pay a year-end bonus. This arrangement continued for several years. Eventually, the employee left the firm and the employer decided to pay only his base salary, but no year-end bonus. The employee sued.

In the lawsuit, the employee alleged breach of contract and wrongful withholding of wages. After trial the court entered judgment for the employee on the breach of contract count awarding damages.  In reviewing the case, the Connecticut Appellate Court found that the trial court properly looked at the employment contract, and parole evidence – circumstances outside of the employment contract – to determine the appropriate compensation, including a bonus payment, for the employee during the last year of his employment. The Connecticut Appellate Court determined the parties entered into a written employment contract setting forth the criteria upon which annual compensation would be based and therefore, the employee had a viable claim to a bonus payment.

The Court’s Decision

The Court found the written employment contract only set forth the timing and basis for calculating the amount of annual compensation. The written employment contract did not set forth the expression of the parties intent as to the timing, form and amount of payment, which are essential terms to an employment contract.

The trial court concluded that the employer had agreed by either words or deeds pursuant to the compensation clause in the contract to pay a bonus to the employee for that portion of the year the plaintiff was employed with the employer. The Appellate Court further found that even though the employer and the employee were indefinite as to the amount of the bonus, this did not render the bonus promise unenforceable. The employer’s promise of a yearly bonus was supported by the consideration of the employee accepting a lower salary throughout the year.

The Appellate Court also reversed the trial court and found that the claim for wrongful withholding of wages should not have been dismissed. The Court determined that under the employment agreement the bonus could have been classified as wages under Connecticut Labor Law.

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If you have any questions regarding this article, or would like to discuss an employment contract, severance package, non-competition agreement, non-solicit agreement, or any other issue related to your employment, please contact Joseph C. Maya, Esq. at JMaya@Mayalaw.com or (203) 221-3100.

Circuit Court Vacates Decision Holding Insurance Company Must Indemnify Employer Liable in Sexual Harassment Claim

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The First Circuit of the U.S. Court of Appeals vacated a decision by the District Court granting summary judgment for an insured employer, requiring its insurance company to defend and indemnify it against sexual harassment claims.[1] The First Circuit held that there was a factual dispute as to whether the underlying sexual harassment charges began before the insured employer’s insurance policy took effect.

Case Background

Beginning in 1997 to 2006, Mrs. Burgess was a human resource manager at Jasmine, a clothing retailer of whom Manganella was the president and sole shareholder.  In 1998 another former employee filed claims against Jasmine based on Manganella’s offensive conduct. In response, Jasmine purchased from the insurance company, Evanston, an employment liability insurance policy.   The Policy covered damages, including monetary settlements, “which [Jasmine] shall become legally obligated to pay as a result of [timely made claims], by reason of any Wrongful Employment Practice.[2]”

The Policy stated that Wrongful Employment Practice includes, “conduct of an Insured with respect to … [an] employee that allegedly culminated in … violation of any state, federal or local civil rights or anti-discrimination law and/or fair employment practices law.[3]”  According to the contract, for a claim to be covered, a Wrongful Employment Practice must have happened in its entirety during the policy period or after the retroactive date, which was April 28, 1999.

Burgess’s Accusation

On March 19, 2007, Burgess filed a charge of discrimination against Manganella and Jasmine with the Massachusetts Commission Against Discrimination. Burgess’s MCAD charge alleged that, “throughout her employment with Jasmine, Manganella subjected Ms. Burgess to nearly constant physical and verbal sexual harassment,” including “inappropriate comments about Ms. Burgess’ body, inappropriate touching,” and, eventually, coerced sexual activity on five separate occasions.[4]

Ten days after Burgess filed her charges Manganella notified Evanston of her claims and requested coverage. Less than two weeks later, Evanston sent a letter to Jasmine, denying coverage for Burgess’s claims on the ground that the harassment alleged by Burgess in “did not happen in its entirety subsequent to the retroactive date,” as required for coverage.[5]

The Court’s Decision

While the District Court granted the employer’s action for declaratory judgment that the insurance company had a duty under the insurance policy to defend and indemnify it against charges of sexual harassment, the Court of Appeals found that statements made by the former employee could support the inference that the harassing conduct giving rise to her claim did include inappropriate comments before the Policy’s April 1999 retroactive date.

After analyzing the insurance policy and the statements made by Manganella’s, the Court held that a reasonable factfinder could conclude that Manganella’s offensive sexual comments, while perhaps “not … serious enough for complaint” when made, were ultimately part of the broader pattern of harassing, unlawful conduct that gave rise to Burgess’s claims.[6]  The Court thus vacated and remanded the case to determine if any of Manganella’s harassing conduct toward Burgess predated the insurance policy.

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Employers and businesses need Employment Liability Insurance to insulate them from the inherent risks and unpredictable events that arise from owning and running a business, but coverage requirements and policy details are often complex.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment 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 Employment Liability Insurance, coverage and policy requirements, workplace sexual harassment 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.

Employment Contracts and Non-Compete Agreements in Connecticut

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Employee Representation

Our firm enjoys a strong national reputation for representing employees, executives and partners in all areas of employment law. From representing senior executives in employment contract and severance negotiations, to protecting individuals’ civil rights in the workplace. Maya Murphy is a recognized leader in the field of employment law. As employment lawyers, we take great pride in our innovative approach to the practice of law and our firm’s focus on protecting and promoting employee rights.

Employer Representation
We represent employers in connection with all the various problems and issues involving their relations with their employees.

Our clients include every form and size of organization, ranging from multinational corporations to local public schools, and cover the spectrum of the nation’s economy. We are particularly active in the financial, cultural, transportation, retailing, entertainment, professional sports, telecommunications, manufacturing, health care, publishing, philanthropic, governmental, and educational sectors.

On a daily and continuing basis, we provide advice and participate in strategic planning concerning all aspects of the employment relationship, including:

·         collective bargaining

·         reductions-in-force and other corporate restructurings

·         employee discipline and discharge

·         development of employment policies and procedures

·         preparation of employee handbooks

·         negotiation and drafting of employment agreements

·         equal employment opportunity, affirmative action and occupational safety and health requirements

·         compliance with immigration regulations and procedures

·         wage and hour practices and audits

·         delicate employment situations, such as allegations of sexual harassment; workplace drug abuse and.              employee privacy

Our employment and labor law experience is frequently sought in connection with corporate transactions, mergers, acquisitions, reorganizations and bankruptcy proceedings.

Fired Teacher Sues for Wrongful Discharge and Defamation

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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.