Women Need to Know They Don't Have to Accept Bullying or Sexual Harassment in the Workplace

The recent national turmoil over the Supreme Court candidacy of Judge Kavanaugh and the completely broken way that we have dealt with allegations of sexual assault in this country has had one hopefully positive side effect — the number of women around the country who have felt confident enough to come forward with their own stories.

In the workplace, this issue most often takes the form of workplace harassment or bullying. Recently, writer Jessica Press was caught by surprise while working on an article about workplace bullying. When she posted to social media that she was looking for stories from women about their experiences of being bullied at work, she expected a sprinkling of replies. Instead, as she recounts in her feature article appearing in Redbook magazine’s October issue, she got a deluge:

“My inbox was flooded — overflowing with incoming mail. I’d put out the call to a handful of experts and Facebook groups for women’s stories of workplace bullying. I thought perhaps I’d hear from a dozen women.

Instead, within a week, nearly a hundred stories from around the country and around the world poured in, with a steady stream continuing in the days and weeks that followed. They worked in hospitals, academia, sales, food service — anywhere and everywhere. There were women still living in fear of retaliation. There were those who shared their journeys of deteriorating marriages, depression, anxiety, and PTSD-like symptoms. There were a surprising number who had involved lawyers and were limited in what they could even reveal due to nondisclosure agreements.”

The article contains a number of tips for dealing with workplace bullying and I commend it to your reading. I hope the national turmoil we are currently suffering will lead to real conversation and, ultimately, real change. Hopefully it will serve, if nothing else, to let people know that bullying, sexual harassment and assault occurs much more frequently than many believe.

I also hope that we can make progress in dispelling some of the false beliefs that many still hold about bullying and harassment in the workplace. Here are a few of the worst:

  1. That if bullying/sexual harassment/assault happened then the woman must have done something to put herself in peril.

  2. That it must always take more evidence than a woman’s word that something happened to be equal to a man’s word that it didn’t.

  3. That if sexual harassment/assault really happened the woman would have reported it immediately.

  4. That sexual harassment/assault is, any any time or context, normal male behavior (“boys will be boys”).

These are all 100% FALSE. And yet many people, including well-meaning women I meet in focus groups, will often state some version of one of these falsisms.

The #MeToo movement has helped to expose just how badly this country has been dealing with the treatment of women who suffer bullying/harassment/assault. But if the raging anger of a bunch of old, male senators last week showed us anything it is that this problem will not go away easily or quietly. We still have a long way to go.

Report: Gender Pay Gap Is Actually Getting Worse for Millennial Women

 Source: Alpha Stock Images - http://alphastockimages.com/ Creative Commons

Source: Alpha Stock Images - http://alphastockimages.com/ Creative Commons

Women between 25 and 34 years old are are actually slipping backwards when it comes to pay equality with men, according to data from the Bureau of Labor Statistics. Money.com reports that according to BLS, in that age group millennial women made just under 89 cents on a man’s dollar in 2016, down from a high of 92 cents in 2011. That means the gender gap in median weekly earnings is the widest in seven years.

The dip is surprising, given that millennial women are increasingly highly-educated relative to their male peers. According to the article, part of the explanation could be that in recent years, gender-wage parity had been improving because men’s wages weren’t doing well. Now that the economy is improving, the gap appears to be widening again.

IHOPe You Brought Your Checkbook!

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Two IHOP Restaurants to Pay Nearly $1 Million to Settle Sexual Harassment Suit

Teens Among Victims of Misconduct Including Simulated Sex Acts, Sexual Contact, Unwanted Sexual Comments and Physical Threats, Federal Agency Charged

Two southern Illinois International House of Pancakes (IHOP) franchises will pay $975,000 and furnish other relief to settle a systemic sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

The EEOC had charged that numerous employees at the locally owned Glen Carbon and Alton, Ill., restaurants were routinely sexually harassed by coworkers and managers, including offensive sexual comments, groping, physical threats, and, in one instance, attempted forced oral sex with a management employee.

The EEOC filed its lawsuit in September 2017 (Equal Employment Opportunity Commis­sion et al. v. 2098 Restaurant Group, LLC et al., Civil Action No. 3:17-cv-1002-DRH) in U.S. District Court for the Southern District of Illinois, seeking relief for more than 11 female employ­ees at the Glen Carbon IHOP and one male employee at the Alton IHOP. Some of the female employees were teenagers at the time of the alleged harassment.

The consent decree settling the suit, entered today by Judge David R. Herndon, requires the defendants to pay compensatory damages to 16 harassment victims. The decree also requires the com­panies to implement, distribute and enforce tougher policies prohibiting sexual harassment and establish procedures for promptly investigating and addressing sexual harassment complaints. The decree also requires the owner to be directly involved in preventing and correcting sexual harassment. The four-year decree further requires the defendants to provide sexual harassment training to employees, create and maintain documents regarding sexual harassment complaints, and post notices at their facilities. It also enables the EEOC to monitor the restaurants to determine whether harassment recurs, and, if so, that it is dealt with effectively. All the measures are intended to prevent further incidents of harassment.

The EEOC's Youth@Work website (at https://www.eeoc.gov/youth/ ) presents information for teens and other young workers about employment discrimination, including curriculum guides for students and teachers and videos to help young workers learn about their rights and responsibilities.

2nd Circuit Rules Title VII Protects Against Employment Discrimination Based on Sexual Orientation

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In an en banc decision, The US Court of Appeals for the 2nd Circuit in New York ruled on Monday that Title VII of the Civil Rights Act of 1964, a federal law that bans employment discrimination because of sex, also protects claims of discrimination based on sexual orientation.

"Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one's sex in relation to the sex of those to whom one is attracted," a 10-3 opinion issued by the 2nd US Circuit Court of Appeals stated.

The court, based in New York, becomes the second appeals court to rule that the civil rights law covers discrimination based on sexual orientation. Last year, the 7th Circuit Court of Appeals issued a similar ruling. The ruling means that employees in those two circuits can use existing civil rights law to sue for discrimination based on sexual orientation. 

Eventually, this issue will likely work its way up to the U.S. Supreme Court.  

You can read the 2nd Circuit’s opinion here

$1.1 Million Verdict to Woman in Gender Identity Case

The Case

Rachel Tudor, a transgender professor whose tenure and promotion was denied at Southeastern Oklahoma State University, was awarded $1.1 million by a federal jury on Monday in a landmark Title VII case.

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Tudor was hired by the university in 2004 as a tenure-track assistant professor in the English department and presented as male at the time. She began transitioning in 2007, becoming the university's first openly transgender professor.

According to the lawsuit, after notifying the university that she would be presenting as a woman at work for the 2007-2008 academic year, Tudor received a phone call from an unnamed human resources staffer who told her the school's vice president for academic affairs, Douglas McMillan, had inquired about firing her because her identity as a transgender woman offended his religious beliefs.

The lawsuit also states the director of the university's counseling center, Jane McMillan, Douglas McMillan's sister, told Tudor to take safety precautions, because some people were openly hostile to transgender people. She also reiterated to Tudor that her brother considered transgender people to be a "grave offense to his [religious] sensibilities."

In October 2009, Tudor applied for tenure and a promotion to an associate professor position. Her application was denied, while the application of a similarly qualified male coworker was approved, the lawsuit claims. After Tudor asked for an explanation as to why her application was rejected, according to the suit, Douglas McMillan and another dean refused to provide her with one. Tudor then filed a federal discrimination complaint in 2010.

In March 2015, the Justice Department, then under the Obama administration, sued the university, with former Attorney General Eric Holder declaring that federal prohibitions against sex discrimination include protections based on gender identity.

On Monday, an eight-person jury voted in favor of Tudor on three counts: that she was "denied tenure in 2009-10 because of her gender," that she was denied "the opportunity to apply for tenure in the 2010-11 cycle ... because of her gender" and that the university retaliated against her after she complained about workplace discrimination. The jury then awarded her $1.165 million in damages.

Why Is This Case Important

This case is important because it is one of the first times that a federal court has explicitly found that a plaintiff whose gender identity is transgender is a protected class under federal anti-discrimination laws. In the past, many courts have held that gender identities are not protected in and of themselves. Plaintiffs could only seek protection of federal anti-discrimination laws by arguing they were covered under traditional sexual discrimination statutes because they were mistreated due to application of a sexual stereotype. This argument has worked with varying degrees of success across the country but it is more convoluted and difficult to apply than it should be. 

The issue will certainly have to be decided by the US Supreme Court eventually but this court decision is a good start.

Tort Reform Is A Lie: Hot Coffee Still Being Used to Mislead

Here's the lie:

The lies used to support corporate efforts to continue to restrict regular people's access to the courthouse are powerful. And, sadly, they work. Routinely, potential clients who are sitting in my office will reference the famous McDonalds "Hot Coffee" case and try to assure me that their case isn't like the Hot Coffee case.  Their case is real. 

Here's the thing, the story everyone knows about the Hot Coffee case is a myth. It's a lie pushed by big business and their tort "reform" groups to poison the minds of potential jurors and make it harder for those who have been legitimately injured to received fair compensation. 

So, What Happened?:

In 1992, 79-year-old Stella Liebeck bought a cup of takeout coffee at a McDonald’s drive-thru in Albuquerque and spilled it on her lap. She sued McDonald’s and a jury awarded her nearly $3 million in punitive damages for the burns she suffered.

Before you hear all the facts, your initial reaction might be "Isn’t coffee supposed to be hot?" or "McDonald’s didn’t pour the coffee on her, she spilled it on herself!" But that would be before you hear all the facts.

Here are the facts:

Mrs. Liebeck was not driving when her coffee spilled, nor was the car she was in moving. She was the passenger in a car that was stopped in the parking lot of the McDonald’s where she bought the coffee. She had the cup between her knees while removing the lid to add cream and sugar when the cup tipped over and spilled the entire contents on her lap.

The coffee was not just “hot.” It was very dangerously hot. McDonald’s policy was to serve it at an extremely hot temperature that could cause serious burns in seconds. Mrs. Liebeck’s injuries were far from minor. She was wearing sweatpants that absorbed the coffee and kept it against her skin. She suffered third-degree burns (the most serious kind) and required skin grafts on her inner thighs and elsewhere. (See the video above for pictures.)

Importantly Mrs. Liebeck’s case was far from an isolated event. McDonald’s had received more than 700 previous reports of injury from its coffee, including reports of third-degree burns, and had paid settlements in some cases.

Mrs. Liebeck offered to settle the case for $20,000 to cover her medical expenses and lost income. But McDonald’s never offered more than $800, so the case went to trial. The jury found Mrs. Liebeck to be partially at fault for her injuries, reducing the compensation for her injuries accordingly.

But the jury’s punitive damages award made headlines — upset by McDonald’s unwillingness to correct a policy despite hundreds of people suffering injuries, they awarded Liebeck the equivalent of two days’ worth of revenue from coffee sales for the restaurant chain. Two days. That wasn’t, however, the end of it. The original punitive damage award was ultimately reduced by more than 80 percent by the judge. And, to avoid what likely would have been years of appeals, Mrs. Liebeck and McDonald’s later reached a confidential settlement for even less than that.

Here is just some of the evidence the jury heard during the trial:  

  • McDonald’s operations manual required the franchisee to hold its coffee at 180 to 190 degrees Fahrenheit.
  • Coffee at that temperature, if spilled, causes third-degree burns in three to seven seconds.
  • The chairman of the department of mechanical engineering and biomechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor-in-chief of the Journal of Burn Care and Rehabilitation, the leading scholarly publication in the specialty.
  • McDonald’s admitted it had known about the risk of serious burns from its scalding hot coffee for more than 10 years. The risk had repeatedly been brought to its attention through numerous other claims and suits.
  • An expert witness for the company testified that the number of burns was insignificant compared to the billions of cups of coffee the company served each year.
  • At least one juror later told the Wall Street Journal she thought the company wasn’t taking the injuries seriously. To the corporate restaurant giant those 700 injury cases caused by hot coffee seemed relatively rare compared to the millions of cups of coffee served. But, the juror noted, “there was a person behind every number and I don’t think the corporation was attaching enough importance to that.”
  • McDonald’s quality assurance manager testified that McDonald’s coffee, at the temperature at which it was poured into Styrofoam cups, was not fit for consumption because it would burn the mouth and throat.
  • McDonald’s admitted at trial that consumers were unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s then-required temperature.
  • McDonald’s admitted it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not.

After the verdict, one of the jurors said over the course of the trial he came to realize the case was about “callous disregard for the safety of the people.” Another juror said “the facts were so overwhelmingly against the company.”

That’s because those jurors were able to hear all the facts — including those presented by McDonald’s — and see the extent of Mrs. Liebeck’s injuries.

But that's not the story that the public has heard. Tort reform advocates lied about the facts of the case and the fake story gained traction. It went viral. So viral that now this story is what is most often cited by jurors and others when explaining why they don't trust lawyers, why they don't like lawsuits, and why they think plaintiffs are just out for a quick buck. 

And it's all a lie.

 

 

If you want to read more, start here.