Until several years ago, in order to prevail on a claim of sexual harassment under Title VII, plaintiffs in the Fourth Circuit Court of Appeals' jurisdiction (including North and South Carolina) had to demonstrate that the alleged hostile environment consisted of acts directed at them because of their gender.
Recently, the Fourth Circuit changed this view, allowing sexual harassment claims to proceed to trial where the plaintiff was exposed to a culture of sexual and denigrating behavior towards women in the workplace, even if that conduct was not directed at her personally. Last month, the court further extended this principal, finding a hostile work environment based largely on sexist and demeaning attitudes and opinions toward women expressed by co-workers.
In Mosby-Grant v. City of Hagerstown, the plaintiff was a police academy cadet, who contended that her failure to graduate was caused by the behavior of her fellow recruits. She alleged a wide range of complaints, most of which involved explicit and derogatory references to women in general. Cadets and instructors used the word "bitch" to refer to women, and male recruits complained about domestic violence training. The plaintiff alleged that she was subjected to scorn and ridicule by her co-workers based on her gender.
In a 2-1 decision, the Fourth Circuit concluded that the plaintiff's allegations were sufficient to state a claim of hostile environment harassment under Title VII. The court concluded that the cumulative effect of comments demeaning to women is equivalent to an environment where women are subject to unwanted sexual advances.
ParkerPoe, EmployNews,Issue 602, January 14, 2011
Thursday, February 24, 2011
NLRB Prohibits Pre-Emptive Strike Against Concerted Activity
The National Labor Relations Act protects the rights of employees to engage in concerted activity, such as collective discussion of wages or other terms and conditions of employment with their employers. Last month, the National Labor Relations Board extended the Act's coverage to preliminary activities by employees that do not yet constitute concerted activity.
In Parexel International, LLC, a terminated employee alleged that he was fired after preliminary discussions with other employees regarding wages and wage discrimination. The employer allegedly caught wind of these discussions before the employee raised them with the employer. The administrative law judge who heard the matter concluded that the employee had not yet engaged in any concerted activity with regard to these wage issues, and therefore could not contend that his termination violated the NLRA.
The Board reversed this decision, concluding that the underlying policies behind the Act mandate that employee discussions that could lead to concerted activity are also legally protected behavior. Employers cannot conduct pre-emptive strikes to prevent concerted activity at early stages before employees gain clear statutory protection against retaliation.
When combined with last week's Facebook settlement, this decision demonstrates the NLRB's shift to strong protections of employee rights to criticize employers and the terms and conditions of their employment, regardless of the forum used, and regardless of the stage in which this criticism arises.
Employers should exercise caution before disciplining or discharging any employee who could be considered to have raised questions regarding their employment conditions on behalf of themselves and other employees.
ParkerPoe, EmployNews, Issue 607, February 18, 2011
In Parexel International, LLC, a terminated employee alleged that he was fired after preliminary discussions with other employees regarding wages and wage discrimination. The employer allegedly caught wind of these discussions before the employee raised them with the employer. The administrative law judge who heard the matter concluded that the employee had not yet engaged in any concerted activity with regard to these wage issues, and therefore could not contend that his termination violated the NLRA.
The Board reversed this decision, concluding that the underlying policies behind the Act mandate that employee discussions that could lead to concerted activity are also legally protected behavior. Employers cannot conduct pre-emptive strikes to prevent concerted activity at early stages before employees gain clear statutory protection against retaliation.
When combined with last week's Facebook settlement, this decision demonstrates the NLRB's shift to strong protections of employee rights to criticize employers and the terms and conditions of their employment, regardless of the forum used, and regardless of the stage in which this criticism arises.
Employers should exercise caution before disciplining or discharging any employee who could be considered to have raised questions regarding their employment conditions on behalf of themselves and other employees.
ParkerPoe, EmployNews, Issue 607, February 18, 2011
NLRB Settles Facebook Case
On Monday, the National Labor Relations Board announced settlement of a landmark case dealing with employees' ability to criticize and complain about their employers on Facebook and other social networking sites. The case involved an employee of a Connecticut ambulance service who complained about her supervisor on her Facebook page, and engaged in an on-line discussion with co-workers about the supervisor's behavior.
The employer fired the employee, claiming violation of the social networking policy contained in its employee handbook. The employee filed an administrative complaint with the NLRB, contending that the National Labor Relations Act protects her ability to criticize the employer and to engage in discussions with other employees regarding work issues.
The NLRB contended that these legal protections extend to employees' use of social networking sites, even where these sites can be accessed by the general public. The employer claimed that the employee's conduct in this case was not protected, because her postings were intended to hold the supervisor up to ridicule rather than engaging in a discussion over working conditions.
In the settlement, the employer agreed to revise its social networking policy to make clear that it does not prohibit legitimate discussion or criticism of terms and conditions of employment.
This settlement preserves the employer's right to take appropriate disciplinary action in the event that employees engage in taunting, ridicule, harassment, or conduct that goes beyond complaints about work, even if their conduct contains elements of such complaints.
The NLRB and federal courts are likely to struggle with the exact line between legitimate criticism of working conditions and inappropriate or insulting behavior.
Employers should review their social networking policies to make sure they cannot be construed to prohibit any discussion among employees of work or working conditions.
ParkerPoe, EmployNews, Issue 606, February 11, 2011
The employer fired the employee, claiming violation of the social networking policy contained in its employee handbook. The employee filed an administrative complaint with the NLRB, contending that the National Labor Relations Act protects her ability to criticize the employer and to engage in discussions with other employees regarding work issues.
The NLRB contended that these legal protections extend to employees' use of social networking sites, even where these sites can be accessed by the general public. The employer claimed that the employee's conduct in this case was not protected, because her postings were intended to hold the supervisor up to ridicule rather than engaging in a discussion over working conditions.
In the settlement, the employer agreed to revise its social networking policy to make clear that it does not prohibit legitimate discussion or criticism of terms and conditions of employment.
This settlement preserves the employer's right to take appropriate disciplinary action in the event that employees engage in taunting, ridicule, harassment, or conduct that goes beyond complaints about work, even if their conduct contains elements of such complaints.
The NLRB and federal courts are likely to struggle with the exact line between legitimate criticism of working conditions and inappropriate or insulting behavior.
Employers should review their social networking policies to make sure they cannot be construed to prohibit any discussion among employees of work or working conditions.
ParkerPoe, EmployNews, Issue 606, February 11, 2011
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