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WASHINGTONIAN Magazine named Lynne Bernabei and David Wachtel as among the top lawyers in Washington, D.C. in employment law and civil rights law, respectively. According to WASHINGTONIAN, the list was created primarily by peer recommendation -- asking attorneys 'who would you hire if you needed a lawyer?'
The US Court of Appeals for the Seventh Circuit decided EEOC vs V&J Foods Inc., Wednesday, November 7th. The EEOC had filed on behalf of Samekiea Merriweather, a 16 year old fast food worker who had been continually sexually harassed and given no help in reporting it. The Judge in the District Court who originally heard the case had ruled against Merriweather on the basis that she had not properly gone through the process of reporting the harassment. Judges Posner, Flaum and Williams were "astonished" when V&J lawyers argued the conduct of Merriweather's manager whom she had complained about was not sexual harassment. They were further astounded when the same lawyers attempted to argue Merriweather's age did not matter and that if a 40 year old college graduate could understand the procedure, so should a 16 year old in her first paying job.
The decision hinged on the muddled steps employees were supposed to follow when reporting such an incident. There was only a line in the employee handbook regarding reporting sexual harassment, no name and no contact number. Merriweather was never given a proper number to call, and even if she had reached the correct number to call at the company headquarters, she had no idea who to ask for, since she was told to talk to the district manager, a vague title not easily identified within the company.
Altogether, the path she was supposed to follow to report this constant sexual harassment was far too confusing, even for an adult. The judges ruled she should not be held accountable for V&J Foods' failure to provide a clear complaint process. It is perfectly reasonable, the court concluded, to assume the company should include a direct number to call in the event of sexual harassment and steps outlining how to handle the situation.
The case was reversed and remanded and sent back to District Court for further proceedings.
Justin Dreyfuss
In a letter to Samuel Collins, Nuclear Regulatory Commission Region I Administrator, David Lochbaum of the Union of Concerned Scientists called Collins' November 5th, 2007, letter to Exelon a lie. "I am truly amazed, move over David Copperfield, Sam Collins is here." Lochbaum pointed out that Collins completely ignored the 6 months between the time the inattentive security officer problem was brought to light, and the time Collins claims Exelon found out. "[David Copperfield] made an elephant disappear. Poof! You wiped 6 months off the calendar...The period between March 12, 2007, and September 10, 2007, may be missing from your calendar, but November 5th, 2007, is marked on my calendar and burned in my memory as the day you lied to the American public."
Justin Dreyfuss
In Greer v. Paulson, No. 06-5155 (D.C. Cir. Nov. 2, 2007), involving events at the IRS in the mid 1990's, the D.C. Circuit affirmed the grant of summary judgment on the plaintiff's hostile work environment claims. However, the court decision has useful language explaining that acts in the workplace while the plaintiff is away from work (e.g., on leave), can still constitute a hostile work environment, particularly if they discourage the plaintiff from returning to work.
http://pacer.cadc.uscourts.gov/docs/common/opinions/200711/06-5155a.pdf
Before: SENTELLE, ROGERS and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
. . . This court has not spoken on whether an employee's absence bars consideration of work-related incidents for purposes of exhausting a hostile work environment claim. But in Morgan, the Supreme Court recently reaffirmed that "[t]he phrase 'terms, conditions, or privileges of employment' [of 42 U.S.C. ยง 2000e-2(a)(1)] evinces a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women' in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment." 536 U.S. at 116 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations omitted)). Given this context, the Supreme Court explained that it is appropriate to consider any timely incident, even where there is a significant time gap between that incident and prior allegations, "so long as each act is part of the whole." Id. at 118. The five courts of appeals that have considered this issue agree that employee absence does not bar consideration of work-related incidents as part of a hostile environment claim. As the Eighth Circuit held in Jensen v. Henderson, 315 F.3d 854, 861-62 (8th Cir. 2002), a hostile work environment "can be a continuing violation even though the employee is not working" where the employee claims her employer drove her out of the workplace due to harassment and "she has received no indication that the environment of harassment has changed."
We join our sister circuits in rejecting a per se rule against considering incidents alleged to have occurred while an employee was physically absent from the workplace. There are various ways in which a hostile environment may extend beyond the physical workplace, and thus contribute to and form part of a hostile environment claim. For example, harassment and hostile incidents may occur by telephone or in person during an employee's communication with her employer while she is not working or away from the office. See, e.g., Richards v. Dep't of the Army, 2007 WL 579549, at *3 (6th Cir. Feb. 15, 2007) (unpublished per curiam). When an employee claims that her "inability to return to work resulted from the [employer's] ill treatment of her," the Eighth Circuit observed, communications while on leave may form an essential part of a hostile environment claim. Jensen, 315 F.3d at 861-62. A per se rule barring consideration of incidents during a workplace absence would provide an employer with a perverse incentive to place on leave an employee for whom it had created a hostile environment in order to insulate itself from liability. As the Second Circuit observed, there should be no reward for an employer "who sought to rid [the worksite]" of certain employees on the basis of sex or race, by driving them to take leave, or otherwise escape from the workplace. Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). Just as an employer's positive attempts to cure a hostile environment during an employee's absence may protect the employer from liability, any negative actions the employer takes during the absence should be considered. See, e.g., Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1049 (7th Cir. 2000). . . .
Kerry Beal, a client of the firm, will be featured in an upcoming CBS Evening News investigative report on inattentive security guards at nuclear power plants. The story will likely be broadcast Friday, November 2, 2007, and will discuss Beal's role in uncovering the problem and exposing it to the public light. Earlier this year, Beal videotaped several security guards at the Peach Bottom Power Plant sleeping while they were supposed to be alertand on duty.
Justin Dreyfuss
