Lessons from the Mavericks Sexual Harassment Scandal: Specific Steps Your Company Can Take to Avoid a #MeToo Situation

Mavericks Presser CH Monday KDFWBCME01.mpg_16.14.49.12_1519684038394.png_5007658_ver1.0_640_360On Wednesday, Mavericks released a 43-page report containing the results of a seven-month investigation into the allegations of a pervasive culture of sexual harassment that permeated the organization over the past 20 years.  The allegations first came to light in an article published by Sports Illustrated in February of this year.  The investigation report largely substantiates many of the facts described in the article and provides many recommendations for changes within the Mavericks organization. 

If your company is worried about the #MeToo movement (hint, every company should be) and is attempting to make sure that it eliminates sexual harassment among its employees, the recommendations from the Mavericks’ investigation report provide a good road map for doing so. 

Ask yourself, is your company doing the following: 

  • Increasing the number of women through the organization including in leadership and supervisory positions. 
  • Improving formal harassment reporting process and creating paths for victims to report misconduct
  • Evaluating, and holding accountable, all executives, managers, and supervisors on their efforts to eliminate harassment and improve diversity of all kinds throughout the organization
  • Conducting anonymous workplace culture and sexual harassment climate surveys on regular basis to understand the culture of the organization and whether problems exist
  • Establishing clear hierarchies and lines of decision-making authority within the organization
  • Strengthening and expanding Human Resources, and implementing clear protocols and processes for evaluating and adjudicating workplace misconduct issues. This should include providing clear communication to employees on the anti-harassment policy and how to report harassment. 
  • Providing “prompt and proportionate” and “consistent” discipline across the organization when harassment or misconduct has been substantiated. 
  • Providing regular training for all employees on sexual harassment (including bystander intervention training), and special training directed at managers and supervisors.  Leaders across the Company should participate in the training and take an active leadership role in providing trust and safety in the workplace. 
  • Adopting clear, transparent, office-wide processes for hiring, on-boarding, promotions, lateral transfers, performance valuations, salary increases, and discipline within the organization. This should include centralizing key employment functions within the Human Resources department. 
  • Collecting and using data to add value to the company and to identify weaknesses. 
  • Requiring that all leaders, managers, and supervisors engage in efforts to improve workplace culture and to ensure a diverse inclusive workplace.

BOTTOM LINE:  Eradicating sexual harassment in the workplace requires commitment from the upper echelons with the company, creation of clear anti-harassment policies, effective training, and consistent enforcement of such policies. If your company is committed to making a change, but not sure where to begin, the above recommendations provide a good starting check list for making such changes. 

Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice Her practice includes commercial, intellectual property and employment litigation.  You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108 or fill out the form below.

 

 

Employers Are Responsible for Stopping Sexual Harassment by Non-Employees

imagesIn the wake of the #MeToo movement, many employers remain unaware that they must investigate sexual harassment allegations and take appropriate measures if sexual harassment is perpetrated by non-employees, such as customers  or vendors.

A recent opinion from the Fifth Circuit Court of Appeals addressed just this issue when the court considered whether a nurse at a nursing home facility who repeatedly complained of sexual harassment by a patient with dementia presented a strong enough claim to go to trial.  The Fifth Circuit found that she did. And although Gardner v. CLC of Pascagoula, L.L.C. involved a rather common and pervasive problem of patient-nurse sexual harassment, the Court’s analysis is usefull for all companies where employees have interaction with customers or third parties on a regular basis.

The Court of Appeals reminded that pursuant to the Regulation issued by the Equal Employment Opportunity Commission (EEOC): 

An employer may [] be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees. 29 C.F.R. 1604.11(e)

In Gardner, the patient who suffered from a host of mental disorders, had a documented history of grabbing the female nurses’ “breasts, butts, thighs, and trying to grab their private areas,” and asking them to engage in sexual activity with him as well as making lewd sexual comments.  Several nurses routinely recorded this behavior on the patient’s chart and made complaints to their supervisors. Additionally, at least one of the supervisors observed the patient behaving in a sexually inappropriate manner.  

When the plaintiff-nurse attempted to discuss her concerns about the patient’s behavior, her supervisor and the nursing facility administrators allegedly laughed and told her to “put [her] big girl patients on and go back to work.”  Eventually, after the patient punched her in the breast while she was trying to assist him, she asked to be reassigned.  Her request was denied.  The patient was soon transferred to an all-male facility but only after he had punched a male resident. 

The district court granted the employer’s summary judgment finding that a hostile work environment did not exist because it was “not clear to the court that the harassing comments and attempts to grope and hit [were] beyond what a person in the [nurse’s] position should [have] expect[ed] of patients in a nursing home.”  

The Court of Appeals disagreed, however, ruling that while inappropriate comments from patients with reduced cognitive abilities may not rise to the level of legally-actionable sexual harassment, where a patient crosses the line into physical contact, which progresses from occasional inappropriate touching or minor slapping to persistent sexual harassment or violence with the risk of significant physical harm, the employer must take steps to try to protect an employee. 

BOTTOM LINE: If a company becomes aware that its employees are being harassed by a third party, such a customer or vendor, the company has an obligation to take steps immediately to get the harassment to stop. This may include reassignment of the employee, adding security, conversations with a customer or a vendor, and a host of other measures.  Ignoring the situation once the employer becomes aware of it may result in a liability under Title VII. 

Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice Her practice includes commercial, intellectual property and employment litigation.  You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108 or fill out the form below.

 

 

 

 

 

 

 

Lunch Invitations Are Not Sexual Harassment – Says the Texas Supreme Court

lunchLast week, the Texas Supreme Court reversed a $1 million award to a former San Antonio Water System (SAWS) employee, who claimed that she was terminated because she confronted a male vice president about his repeated lunch invitations to two female employees outside his department. The Supreme Court in San Antonio Water System v. Nicholas, held that “no reasonable person could have believed” that the lunch invitations constituted sexual harassment in this case.

Under the Texas Commission on Human Rights Act (TCHRA), an employer may not retaliate against an employee who opposes a discriminatory action (such as sexual harassment), makes or files a charge, files a complaint, or testifies, assists, or participates in an investigation, proceeding, or hearing. Tex. Lab. Code §§ 21.051, 055(1).  However, the employee’s actions must be based on a good-faith reasonable belief that discrimination is taking place, even if a later investigation shows that no such discrimination actually occurred.

The question in this case was whether Nicholas’s belief that sexual harassment had occurred was a reasonable good-faith belief? If so, then firing her for complaining about the VP’s conduct would have been retaliation and would have violated the TCHRA.  However, if her belief that the lunch invitations constituted sexual harassment was not reasonable, then she was not entitled to damages under the statute.

The Supreme Court concluded that Nicholas’s belief that the lunch invitations equaled sexual harassment was not reasonable:

“Flores’s lunch invitations may have been unwelcome, but no reasonable person could believe they constituted sexual harassment actionable under the law. We do not mean to say that lunch invitations can never be a component of a viable sexual-harassment claim, but under the facts of this case the lunch invitations were not so severe or pervasive as to alter the conditions of employment or create an abusive work environment.”

The Court then compared the facts of this case to other instances where offensive but isolated conduct by employees was found to be insufficient to form the basis of good-faith reasonable belief that the law had been violated, and noted that this case “paled in comparison” to the following claims of sexual harassment that the Court had previously rejected:

  • a single incident of male employee reading aloud sexual innuendo contained in a psychological evaluation, at which he and another male employee chuckled, could not reasonably been seen as violating the law;
  • a single instance of male employee entering women’s restroom and “gawking” at undressed women could not create objectively reasonable belief that claimants suffered illegal sexual harassment;
  • a female employee could not reasonably believe she had been sexually harassed when male supervisor commented on her underwear being visible under her uniform;

The Court concluded that because Nicholas could not have reasonably believed that Flores’s lunch invitations constituted an unlawful employment practice, her retaliation claim against SWAS failed.

TAKEAWAY FOR EMPLOYERS: Sexual harassment claims, even those that are baseless, can cause significant business disruption, lower morale, and cost a lot in attorney’s fees. Having the following at your workplace can significantly reduce such claims: (1) sexual harassment training; (2) having a process that allows employees to report their complaints; (3) documenting the complaints and subsequent investigation properly; and (4) reacting to those complaints that have merit.

The above case went all the way to the Texas Supreme Court because the three key persons involved in the investigation – the CEO, the general counsel, and Nicholas – had different memories about what the female employees told them about the lunch invitations.  It is possible, that Nicholas’s claim could have been shut down much earlier if the investigation notes contained a uniform and consistent account of what occurred.

TAKEAWAY FOR EMPLOYEES:  To make out a statutory sexual-harassment claim, an employee must prove more than that she found the harassment offensive.  Sexual harassment is actionable only if it is so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment.  Offhand comments and isolated incidents, unless extremely serious, typically will not amount to discriminatory changes in the “terms, conditions, or privileges of employment.”

Leiza Dolghih frequently advises employers on how to handle troublesome employees, assists with responding to EEOC charges and investigations, and litigates employment disputes. For more information, Ms. Dolghih for a confidential consultation at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108.