While there are surely negative examples that HR practitioners can learn from, many of which have been featured prominently in the media, what’s missing from the dialogue are positive case studies, which can be equally instructive. That’s why this article will focus on instances when HR professionals did the right thing—morally, ethically and legally—to protect both their workers and their employers.

For the first time in China, a province has detailed requirements for employers to establish internal policies and systems against sexual harassment.

The Department of Justice sues Michigan education contractor for sexual harassment

By Nicole D. Prysby, J.D.

A professor’s agreement to transfer to a different department was not voluntary where her university employer misled her about the potential effect on her career, held the First Circuit. The professor alleged that the chair of her department (also her direct supervisor) was sexually harassing her. She reported the behavior and the university gave her the choice of remaining in the department or moving to a different department. The dean told the employee she would be allowed to continue teaching her same classes, and the employee accepted the transfer on that condition, but after the transfer, she was reassigned to different, lower-level classes. The district court held that the transfer was voluntary and therefore not an adverse employment action, but the First Circuit reversed, holding that a jury could find the employee would not have accepted but for the misrepresentations and that the transfer was in retaliation for the employee’s activity in reporting the sexual harassment. And the university failed to provide a legitimate, nondiscriminatory reason for the transfer because its justification for the changes shifted several times (Carlson v. University of New England, August 10, 2018, Lynch, S.).

Transfer. The employee was a professor in the university’s Exercise and Sport Performance (ESP) Department. She alleged that the department chair began harassing her, and she reported the harassment to HR. After meeting with the HR director and her supervisor to discuss the harassment, a number of purportedly retaliatory actions were taken against her, including a transfer to another department. The professor contended that the transfer was in retaliation for her complaints of sexual harassment. She also argued that the transfer was an adverse employment action, as it prevented her from working in the area of her expertise and separated her from students who might otherwise serve as her research assistants.

Lower court proceedings. The district court granted summary judgment for the university on the employee’s Title VII and state-law claims, finding that the professor participated in the decision to transfer, and that the transfer was voluntary. The university, acting in response to the employee’s concerns, gave her the choice to either remain in the ESP Department or transfer. The employee argued that the transfer was not voluntary because she was forced to choose between two unacceptable alternatives. But the district court disagreed. If the university had maintained the status quo by keeping her in the ESP Department with the same supervisor, it would not be liable for retaliation because doing nothing is not a retaliatory act. It follows that giving the professor the choice to either maintain the status quo, or make a change if she wished, was not retaliatory. The decision not to provide the professor with her preferred solution of remaining in the ESP Department but working under a different supervisor also was not retaliatory, the lower court held. Therefore, the court found the professor failed to establish that the transfer was an adverse action.

Transfer. The First Circuit reversed, finding the employee demonstrated that the transfer was an adverse employment action. The transfer to the new department led to a change in her teaching assignments, her removal from the department website, and her removal as an advisor to ESP students. In finding that the transfer was voluntary and therefore not an adverse employment action, the district court overlooked the evidence that the dean had misrepresented to the employee how the transfer would affect her. The dean promised the employee that if she transferred, she could continue teaching in the ESP Department and the employee agreed to the transfer under the condition that she could keep teaching her classes.

After the transfer, however, the dean assigned the employee to teach different, lower-level courses. A jury could find the employee would not have accepted the transfer but for the misrepresentations and that the transfer was in retaliation for the employee’s activity in reporting the sexual harassment. The university failed to articulate a legitimate, nondiscriminatory reason for the transfer, because it provided shifting justifications for the change—stating first that the change was a natural result of the move to a new department, then that it was done because the employee was not communicating well with her former supervisor and because the university wanted to create distance between the two individuals.

Salary issues. The employee had also alleged retaliation based on her salary raises in 2016 and 2017, which were the lowest of her career. The district court held that she could not show a dispute of fact on this point because she presented no evidence on her accomplishments for those years versus prior years. The First Circuit upheld the district’s decision on this matter. The court also rejected the employee’s argument that the raises were retaliatory because a faculty member’s annual raise is based on the total amount of funding available for raises. Because the employee provided no evidence on the amount of funding available for 2016 or 2017, the court had no way to analyze the claim.

​The former head of HR at the Federal Emergency Management Agency (FEMA) has been accused of trading sexual favors for jobs at the agency. He and other government workers around the globe are being investigated following the #MeToo movement to end sexual harassment.

By Brandi O. Brown, J.D.

In a case that had wound its way up to the Tenth Circuit at least once before, the appeals court again visited issues related to a lawsuit by a court administrator who alleged that she was sexually harassed by a judge for whom she worked and subsequently fired for complaining. A jury had rendered verdicts for the employee on her equal-protection harassment claim against the judge, individually, but the court had dismissed her punitive-damages claim against him. In agreeing that the employee’s punitive damages claim against the judge should not have been dismissed, the appeals court noted that the jury could reasonably infer that he knew the conduct described by the employee constituted unlawful harassment (Eisenhour v. Weber County, June 27, 2018, Hartz, H.).

Court closed after complaint. The court administrator had worked for the county for 24 years when, in 2009, three county commissioners voted to close the court where she worked and merge it with a court in another county, leaving her without a job. According to the employee, this decision was made only a short time after she went public with unresolved complaints about her sexual harassment by the judge for whom she worked. According to the employee, prior to going to the press she had complained to the county attorney and the matter had been referred to the state’s Judicial Conduct Commission, which found no misconduct had occurred. Within a week of the first news article that followed that dead-end, however, the county began its discussions to close the court.

Jury ruled against judge. After an appeal to the Tenth Circuit overturned the district court’s grant of summary judgment against her on all claims, several of the employee’s claims were heard by a jury, including a claim under Section 1983 against the judge individually for sexually harassing her in violation of her equal protection rights and her claim against the county and the county commissioners under the same law for retaliating against her under the First Amendment. At trial, the jury heard evidence that the judge had written an erotic poem about the employee, which he had handed to her, that he had told her he dreamed of her coming to work topless, and that his conduct has escalated to physical contact that included pressing his groin against her while she was working. He also was possessive of her, asking other employees about her activities and restricting her leave time based on where she was going, what she was planning to do, and with whom she was going. The jury rendered a verdict in the employee’s favor on the equal-protection harassment claim against the judge.

At a second trial on the claims against the commissioners and the county, the district court granted the commissioners judgment as a matter of law on the retaliation claim against them and the jury found for the county on the claims against it. Both the employee and the judge appealed.

Jury verdict upheld. On appeal the judge argued that the court below should have granted his motion for judgment as a matter of law on the sexual harassment equal protecting claim the employee had pursued against him. He argued that there had been insufficient evidence that his conduct was sufficiently severe or pervasive. However, the appeals court explained, to adopt the judge’s argument would mean it would have to disregard the employee’s testimony, including her testimony about the erotic poem, physical contact, and him telling her about his erotic dream about her.

It also rejected the judge’s argument that it was the employee, and not him, who created a hostile or abusive environment because of her behavior in the office, which he argued was supported by a coworker’s testimony about the office atmosphere. However, the appeals court responded, that evidence supported the employee, rather than the judge, considering that the difficult working atmosphere about which the coworker had complained post-dated the judge’s sexual harassment of the employee and her complaint about it. The jury could reasonably have found, as it did, that the judge’s actions created a hostile working environment for the employee.

The appeals court also rejected the judge’s argument that admission of the erotic poem into the evidence had been erroneous. The poem was relevant and there was no unfair prejudice to its admission.

Punitive damages. With regard to the employee’s appeals, the court agreed with the employee that her punitive damages claim against the judge should not have been dismissed. Under Kolstad v. American Dental Ass’n, the court explained, eligibility for punitive damages focuses on the defendant’s mental state, rather than the scope of harm, and the defendant must “have acted ‘in the face of a perceived risk that its actions will violate federal law.’” Thus, in order for the judge to be liable for punitive damages it was necessary for there to be evidence that he perceived he was violating the employee’s federal rights against sexual discrimination. There was evidence of such knowledge. Not only was he a lawyer, but he was also a judge and the law of sexual harassment had long been well established by the U.S. Supreme Court. Moreover, he received repeated special training on the subject by his employer. The jury could reasonably infer that he knew the conduct described by the employee, especially the physical assaults, constituted unlawful harassment.

Sexual harassment in the workplace is “widespread and commonplace” in the United Kingdom, a report says, but it is a global issue.

LabourStart headline – Source: IUF

A Dollar General employee who complained that her supervisor solicited sex from her and sent her lurid text messages had a sexual harassment claim that could go to trial because a district manager did not react promptly to her complaints.

LabourStart headline – Source: Rank and File