SHRM-certified HR professionals in the era of the #MeToo movement have the responsibility and obligation to design policies and educate our workforces on sexual harassment, retaliation, bullying and hostile work environments.

Sexual harassment is a serious problem in Australian workplaces: Employers are paying large sums to settle lawsuits out of court, and a human rights commission has launched a national investigation into the problem.

McDonald’s Corp was accused on Tuesday in 25 new lawsuits and regulatory charges of condoning sexual harassment in the workplace and retaliating against employees who speak up.

By Pamela Wolf, J.D.

Retaliation claims accounted for 51.6 percent of the total charges filed with the EEOC in FY 2018.

The EEOC took in 76,418 charges of workplace discrimination in fiscal year 2018, according to data released by the agency on April 10. Notably, the EEOC resolved 90,558 charges of discrimination and secured $505 million for victims in private sector, state and local government, and federal workplaces, the agency highlighted in a release.

Retaliation still at the top. As has been the case since 2009, retaliation claims accounted for the greatest percentage of total charges filed in FY 2018—51.6 percent. Back in 2009, there were 33,613 retaliation claims alleged and 33,579 race discrimination claims, both coming in at 36.0 percent of total charges filed.

The FY 2018 data also showed that sex discrimination was the second most frequently alleged claim in charges filed with agency, followed by disability and race discrimination.

Backlog reduced. As to its continuing backlog problem, the EEOC reduced its charge workload by 19.5 percent to 49,607. The agency said this was achieved by deploying new strategies to more efficiently prioritize charges with merit, more quickly resolve investigations, and improve the agency’s digital systems. The EEOC handled more than 519,000 calls to its toll-free number, 34,600 emails, and over 200,000 inquiries in field offices, reflecting the significant public demand for the agency’s services.

The statistics show that the EEOC has been handling its workload “in a more efficient manner, expanding tools to provide better, timelier service to the public while sharpening our focus on meritorious charges and those that advance the public interest,” according to EEOC Acting Chair Victoria Lipnic. “The statistics reflect the agency’s successes in taking advantage of new strategies to bring about the lowest inventory of private sector charges in a dozen years.”

Sexual harassment charges up. The EEOC also noted that in FY 2018 it received 7,609 sexual harassment charges—a 13.6 percent jump from FY 2017. The agency obtained $56.6 million in monetary benefits for victims of sexual harassment.

“[W]e cannot look back on last year without noting the significant impact of the #MeToo movement in the number of sexual harassment and retaliation charges filed with the agency,” Lipnic said.

By the numbers. The FY 2018 charge filing data breaks down as follows:

Retaliation: 39,469 (51.6 percent of all charges filed)
Sex: 24,655 (32.3 percent)
Disability: 24,605 (32.2 percent)
Race: 24,600 (32.2 percent)
Age: 16,911 (22.1 percent)
National Origin: 7,106 (9.3 percent)
Color: 3,166 (4.1 percent)
Religion: 2,859 (3.7 percent)
Equal Pay Act: 1,066 (1.4 percent)
Genetic Information: 220 (.3 percent)

(The percentages add up to more than 100 because some charges allege multiple bases.)

Lawsuits. EEOC legal staff filed 199 merits lawsuits in FY 2018, which included 117 individual suits and 45 suits involving multiple victims or discriminatory policies, and 37 systemic discrimination cases. At the end of the fiscal year, the EEOC had 302 cases on its active docket. The agency said it achieved a successful outcome in 95.7 percent of all district court resolutions.

The comprehensive enforcement and litigation statistics for FY 2018, which ended September 30, 2018, are posted on the agency’s website; a detailed breakdown of charges by state is included.

By Nicole D. Prysby, J.D.

Even though a physician was not directly employed by the hospital, it could be liable for his sexual harassment of a hospital employee, but not his sexual assault of the employee.

A hospital may have exercised sufficient control over a non-employee physician who held staff privileges at the hospital to be liable for claims of negligent hiring, retention, or supervision arising from his alleged sexual harassment of a hospital employee, held a federal court in Connecticut. However, the hospital was not vicariously liable for the physician’s sexual assault of the employee, as it fell outside the scope of the agency relationship between the physician and hospital. The court also found that the limitations period could be tolled under the continuing course of conduct doctrine because there were fact questions about whether the hospital was negligent in its initial decision to hire the physician, and about its duty to more closely supervise or terminate him (Henry v. Bristol Hospital, Inc., March 25, 2019, Underhill, S.).

Sexual assault, sexual harassment. The employee was a patient of the physician and, during a June 2011 visit to his office in the hospital, the physician sexually assaulted her. He then continued to sexually harass her at the hospital during business hours. In September 2012, the employee reported the sexual assault to her boss. Human Resources opened an investigation and suspended the physician pending the outcome. He denied the bulk of the charges but did admit that he had kissed and fondled the employee. Based on this admission, the hospital terminated the physician.

The employee sued the hospital, alleging that it was negligent in hiring, retaining, and supervising the physician while he held staff privileges at the hospital, and that it was vicariously liable for his conduct. (Her Title VII sexual harassment claim had already been dismissed, and a default judgment entered against the physician.)

Continuing course of conduct. The employee filed her complaint within two years of the sexual assault but failed to serve the employer until five months later, outside the window. The employer thus argued that the claims were untimely because they were not brought within the two-year limitations period. The employee countered that the limitations period did not begin to run on the date of the assault but on the last date that the physician sexually harassed her, because her negligence claims arose out of the hospital’s “continuous course of conduct.” The employer also argued that the continuing course of conduct doctrine did not apply because there was no evidence it breached a duty owed to the employee.

The court held there were fact questions about whether the employer breached a duty to the employee when it hired the physician, as well as to its duty to fire or more closely supervise the physician after the date of the assault. The employee presented evidence that the hospital knew that the physician had been terminated from two previous positions for professional misconduct and that it had been warned about the physician’s misconduct toward female staff years earlier (as early as 2010) and failed to take action. Whether the hospital should have known that a sexual assault was foreseeable based on the prior claims was a question of fact.

There was also a question of fact as to whether the hospital should have fired the physician before the assault, given the numerous complaints detailing his sexual misconduct (which included allegations from a female employee that he had touched her inappropriately). His misconduct continued up until the time he was fired in 2012. Because the hospital’s duty not to hire, retain, or negligently supervise the physician continued until his termination, the continuing course of conduct doctrine applied.

Hospital may be liable for negligence. The hospital also argued that the negligence claims against it must fail because the physician was not employed by the hospital but merely had staff privileges there. However, the employee contended that the physician’s contract authorizing him to perform surgeries at the hospital binds his conduct to the hospital. The court sided with the employee, finding that a jury could conclude that the hospital exercised sufficient control over the physician to be liable for negligent hiring, retention, or supervision. The hospital was ultimately responsible for hiring and retention decisions made, and all accusations of misconduct against the physician were investigated by the hospital. Therefore, a reasonable jury could find facts sufficient to hold the hospital liable for the physician’s actions even though he was not directly employed by the hospital.

Hospital not liable for sexual assault claim. However, the employee’s claim that the hospital was vicariously liable for the sexual assault failed because the physician was acting outside the scope of his duties as a surgeon when he assaulted her. Sexual assault is outside the scope of an agency relationship between physician and hospital; therefore, the hospital could not be liable, the court held.

For city workers ousted over sexual harassment charges, “neutral reference agreements” help them hide bad behavior from prospective employers.

By Ronald Miller, J.D.

In declining to use the framework for analyzing sex discrimination in the employment context, the court noted the WLAD treats employment discrimination claims differently from public accommodation claims.

In an en banc decision, a divided Washington Supreme Court, in a 7-2 split, held that under the plain language of the Washington Law Against Discrimination (WLAD), employers are directly liable for the sexual harassment of members of the public by their employees. The court declined to import doctrines developed for the employment context into the public accommodations context. Rather, it concluded that the employer is liable if its employee caused the harm prohibited by the statute, even if it did not participate in the discrimination and was not negligent in training or supervising the employee. Justice Madsen, joined by Justice Wiggins, filed a separate dissenting opinion (Floeting v. Group Health Cooperative, January 31, 2019, Gonzalez, S.).

Sexual harassment of patient. The plaintiff was a member and patient of Group Health Cooperative, a health care system, for over 35 years. He alleged that beginning in July 2012, he was repeatedly sexually harassed by an employee of Group Health during his regularly scheduled medical appointments. He filed a complaint with Group Health and the matter was investigated. Two weeks later, Group Health terminated the employee.

Thereafter, the plaintiff sued Group Health for the unwelcome and offensive sexual conduct he experienced. The trial court dismissed the claim on summary judgment. The appeals court reversed, and the Washington Supreme Court granted review. Group Health challenged employer liability for the discriminatory actions of its agents and employees and challenged the legal test used by the Court of Appeals.

Public accommodation claims test. Under RCW 49.60.030(1)(b), WLAD secures the right to “full enjoyment” of any place of public accommodation, including the right to purchase any service or commodity sold by any place of public accommodation “without acts directly or indirectly causing persons of [a protected class] to be treated as not welcome, accepted, desired, or solicited.” Similarly, WLAD prohibits “any person or the person’s agents or employee [from committing] an act which directly or indirectly results in any distinction, restriction, or discrimination” based on a person’s membership in a protected class, RCW 49.60.215. This broad standard focuses the liability inquiry on whether actions resulted in discrimination, not whether the proprietor of a place of public accommodation intended to discriminate.

In Fell v. Spokane Transit Auth., the Washington Supreme Court established that in order to make a prima facie case of discrimination under RCW 49.60.215, a plaintiff must prove that (1) the plaintiff is a member of a protected class, (2) the defendant’s establishment is a place of public accommodation, (3) the defendant discriminated against the plaintiff when it did not treat the plaintiff in a manner comparable to the treatment it provides to persons outside the class, and (4) the plaintiff’s protected status was a substantial factor that caused the discrimination.

Instead of the traditional public accommodation claims test, Group Health argued that the framework developed to analyze sex discrimination committed by an employee against a coworker should apply. In the employment context, a plaintiff alleging workplace sexual harassment must show (1) the conduct was unwelcome, (2) the conduct was because of sex, (3) the conduct affected the terms or conditions of employment, and (4) the harassment can be imputed to the employer because the employer (i) authorized, knew of, or should have known of the harassment and (ii) failed to take reasonably prompt and corrective action.

Different treatment under WLAD. However, the Washington high court concluded that it treats employment discrimination claims differently from public accommodation claims because the WLAD treats them differently. Employees alleging employment discrimination must show that the misconduct affected the “terms or conditions of [their] employment.” The employment discrimination statute is limited to unfair practices by an “employer.” In contrast, the WLAD provisions prohibiting discrimination in public accommodation do not limit themselves to the “terms or conditions” of a public accommodation. The person subject to the WLAD broadly includes, among others, individuals, corporations, owners, proprietors, managers, and employees, RCW 49.60.040(19).

The plaintiff’s claim was more of a consumer claim than a claim between employee and employer, and his claim was not limited by the employment discrimination statute. The WLAD’s broad definition of “full enjoyment” extends beyond denial of service to include liability for mistreatment that makes a person feel “not welcome, accepted, desired, or solicited.” RCW 49.60.215 imposes direct liability on employers for the discriminatory conduct of their agents and employees. Thus, imputing liability on an employer only where the employer “authorized, knew, or should have known” of the discriminatory conduct and “failed to take reasonably prompt and adequate corrective action,” would significantly undermine the legislature’s clear language.

Rather, the high court agreed with the appeals court’s reasoning that to be actionable, the asserted discriminatory conduct must be objectively discriminatory, meaning that it must be of a type, or to a degree, that a reasonable person who is a member of the plaintiff’s protected class, under the same circumstances, would feel discriminated against. This is the reasonable person test applied in the public accommodations context.

Strict liability. In this instance, taking the employee’s allegations as true, the high court concluded that the plaintiff alleged more than subjective rhetoric from Group Health’s employee. He alleged that he “objectively received substandard treatment.” Repeated, express, and outrageous sexual harassment, as alleged here, satisfies the objective standard. The test adopted by the court imposes strict liability to the extent it does not allow an employer to escape liability by asserting a lack of fault.

In this case, Group Health will be liable if its employee caused the harm prohibited by the statute, even if it did not participate in the discrimination and was not negligent in training or supervising the employee. Therefore, Group Health is subject to strict liability for the discriminatory conduct of its employees in a place of public accommodation.

Dissent. Justice Madsen disagreed with the majority’s holding that workplace harassment doctrines do not apply in places of public accommodation. She argued that the majority erroneously subjects employers to a strict liability standard for discriminatory actions on nonsupervisory employees without justification and based on language that does not support such a result. The dissent favored the same balanced, workable approach applied in the workplace harassment cases, holding employers vicariously liable when they know, or should know, of the discriminatory behavior.

LabourStart headline – Source: IUF