Vigilance is the word

 

The word vigilance is derived from the Latin vigilare, which means to keep watch. It also means watchfulness or readiness for danger. Needless to say, these are the words to keep in mind when running an enterprise where people work together. When people, in particular people of opposite sexes, mix or have some form of social or professional interrelationship, there is the potential for impropriety. If the impropriety occurs in your business establishment, it may cost you a lot of money.

 

This is precisely what was recently experienced by Madison Square Garden, its CEO James Dolan, and Isaiah Thomas, the New York Knicks’ president and coach. On October 2nd a New York City jury found that Thomas and Madison Square Garden sexually harassed Anucha Browne Sanders, and ordered the Garden and Dolan to pay Browne Sanders the sum of $11.6 million in damages.

 

Browne Sanders was a high level official of Madison Square Garden with an annual salary of $260,000. She alleged that for several years Isaiah Thomas engaged in a pattern of sexual harassment and insulting behavior toward her, and that despite her frequent complaints to CEO Dolan about Thomas’ behavior, Dolan, remained oblivious to her protestations. She asserted that instead of taking any affirmative action to ameliorate her hostile work environment, she was fired in retaliation for complaining.

 

The jury concluded that the Garden owes $6 million for allowing a hostile work environment to exist and $2.6 million for retaliation. Madison Square Garden chairman James Dolan owes $3 million. Although Isaiah Thomas was the principal alleged harasser in this lawsuit, no monetary damages were assessed against him. Nevertheless, he ends up with a tarnished reputation. Both the Garden and Thomas announced their intentions to appeal the jury verdict.

 

The moral of this story is that employers must be forever vigilant of the potential dangers lurking in the midst of their workplace. Awareness of the potential is the first line of defense; the second line is the conduct of training programs for all employees. The third is to take remedial action at the first sign of inappropriate behavior. Retaliation is not remedial action. Retaliation, as seen in the Madison Square Garden case, is a serious exacerbation of the problem, with enormous legal consequences.

Retaliation bugaboo

 

As noted above, the subject of retaliation is one that should be of major concern to any employer who wants to avoid the headaches connected with employment discrimination charges.

 

The EEOC tells us that retaliation occurs when an employer takes an adverse action against a covered individual because he or she engaged in a protected activity. An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. A covered individual is anyone who opposes unlawful employment practices or directly or indirectly, participates in the said proceedings.

 

The protected activity may be opposing a practice believed to be unlawful discrimination. Filing a complaint is, of course, a protected activity; so is giving testimony or otherwise supporting a person who files a complaint. The person engaged in the protected activity does not have to belong to a protected class. For example, a Caucasian male under 40 may be engaged in a protected activity when he gives testimony in favor of a woman alleging sexual harassment. So, the under forty white male may not be retaliated against for providing such testimony.

 

Retaliation case before the Supreme Court

 

The United States Supreme Court agreed to hear a retaliation case out of the First Circuit Court of Appeals. The First Circuit decided early this year that the Age Discrimination in Employment Act (ADEA) does not provide a cause of action for retaliation for Federal employees. While the ADEA is clear in its coverage of the retaliation issue with respect to private industry employees, the First Circuit said, it does not contain a similar prohibition in the case of federal employees.

 

That decision of the First Circuit is in sharp conflict with the Court of Appeals for the District of Columbia. The latter Court decided in 2001 in Forman v. Small that it would be “difficult to imagine how a workplace would be ‘free from discrimination based on age’ if, in response to an age discrimination claim, a federal employer could fire or take other action that was adverse to the employee.”

The First Circuit disagrees, asserting that the issue is whether Congress intended to create a cause of action for retaliation in the provision of the statute that applies to Federal employees, as it did in the provision that applies to private employees. The First Circuit insists that Congress would have said so, if that had been its intention.

 

The United States Supreme Court will resolve this conflict between circuits in this year’s term of the Court. And the EEO Reporter will promptly inform ACBOA members of the decision when it is handed down by the Court.

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Constitutional History

 

John Jay was the first Chief Justice of the United States. John Jay collaborated with Alexander Hamilton and James Madison in the writing of the Federalist Papers. This document was written to persuade opponents of the proposed United States Constitution to favor its ratification.

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The rewards of being proactive

 

The courts and Title VII will reward an employer who is vigilant and takes preventive measures to forestall discrimination complaints. A recent decision of the Sixth Circuit Court of Appeals supports this good management principle. In that case the Court recognized that the “Impact of Title VII on an employer can be onerous.”

 

The Sixth Circuit, in Vicky Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, concluded that “employers who proactively [choose] to launch an internal investigation” protect themselves from the effects of the retaliation clause of Title VII. This clause may be invoked only in the context of EEOC proceedings. The Vicky Crawford case illustrates this point.

 

Vicky Crawford had been an employee of the Metropolitan Government of Nashville (METRO) for thirty years before she was fired in 2003. She then filed an EEO complaint claiming that she was fired in retaliation for having participated in an internal investigation of informal allegations of sexual harassment against Gene Hughes, a METRO official. These allegations had not been filed anywhere, they merely came to the attention of the METRO Director through the rumor mill; he proceeded to order an investigation.

 

The person conducting the investigation interviewed a number of employees who worked with Hughes. Vicky Crawford was one of them. Crawford told the investigator that Hughes had sexually harassed her and several other employees. The investigation concluded that Hughes had engaged in inappropriate behavior, but did not recommend any disciplinary action against him. (The investigator did recommend training and education for the staff.) Vicky Crawford was fired approximately six months later under charges of embezzlement and drug use, which she denied. She thereafter filed her complaint with the EEOC and this lawsuit followed.

 

Crawford’s action was dismissed by the U.S. District Court and she appealed to the Sixth Circuit. The latter Court affirmed the lower court’s decision finding that Crawford could not invoke the retaliation clause of Title VII because the investigation in which she participated was not in the context of Title VII. That is, no Title VII charge had been filed; it was merely an internal investigation conducted by the employer, based on informal allegations of sexual harassment by an employee.

 

This employer’s prompt action averted potentially serious problems emanating from the alleged misconduct of the employee. The employer did not remain oblivious to the rumors that inappropriate behavior was taking place in the workplace. The internal investigation conducted by METRO preempted a possible investigation by the EEOC with uncertain consequences.

Think before you speak

 

Unwise remarks often make the speaker pay a price. This is particularly so if the remarks tend to disparage a member of a protected class. On October 15, 2007 the Sixth Circuit Court of Appeals ruled that an employer who refers to an employee as “the old man in the sales force;” removes him from a profitable account because he is “too old;” and tells another employee that “he needs to set up a younger sales force,” before firing the employee, may have violated the Age Act.

 

Richard Blair was employed in 1986 by Henry Filters, Inc., as a sales engineer. Blair was 40 years old at the time. Henry Filters, Inc., was a manufacturer of industrial liquid filtration systems in Bowling Green, Ohio. Between 2001 and 2003, the company reduced its work force due to financial difficulties. However, there was no structured reduction in force program.

 

During this period, John Tsolis, one of the officials at Henry Filters embarked in an apparent campaign to ease Richard Blair out of his job. In 2001 he removed Blair from his profitable Ford account because Blair was “too old” to engage in the youthful activities the young Ford buyers were known to engage in.

 

Tsolis often referred to Blair as “the old man in the sales force.” In August, 2007, just after telling another employee that he (Tsolis) “need[ed] to set up a younger sales force,” Blair was terminated. He was fifty-seven years old at the time. The appellate court reversed the dismissal of Blair’s suit by the district court, concluding that Blair had presented triable issues.

 

The key learning principle here is to avoid making disparaging remarks about subordinates in the workplace. Actually one should always avoid such practice; it doesn't pay, and it may lead to grim consequences. In the workplace the consequences can be pecuniary substantial. The art of diplomacy has found its way into the most arcane areas of our lives, including the workplace

EEOC Settles Age Bias Suit Against Chicago Firm for $27.5 Million

 

On October 4, 2007, the Equal Employment Opportunity Commission (EEOC) and the law firm of Sidley Austin signed a consent decree settling an Age Discrimination Act suit filed by the EEOC in 2005. At issue was the law firm’s requirement that partners retire at a certain age or accept losing their partnership status in the firm

 

The consent decree includes an injunction that prohibits the law firm from “terminating, expelling, retiring, reducing the compensation of or otherwise adversely changing the partnership status of a partner because of age.”

 

Ronald S. Cooper, the EEOC’s General Counsel, stated, in a press release dated October 5, 2007, that this action “shows that [the] EEOC will not shrink from pursuing meritorious claims of employment discrimination wherever they are found.” Cooper added, “The demographic changes in America assure that we will see more opportunities for age discrimination to occur. Therefore, it is increasingly important that all employers understand the impact of the Age Discrimination in Employment Act on their operation and that we re-emphasize its important protections for older workers.”