New Jersey Employment Law Blog

"I had some dreams, they were clouds in my coffee, clouds in my coffee . . ."

~  Carly Simon, "You're So Vain"

Coffee was a nightmare, not a dream, for Tamara Klopfenstein, a short-tenured, part-time receptionist and clerk for National Sales & Supply, LLC. 

Klopfenstein took offense at being asked to bring the bosses coffee, claiming that it wasn't in her job description and was based on an outdated gender-specific stereotype.

By the fateful day on which Klopfenstein was terminated, the court noted that "the controversy was really  brewing."  (OK, so it's an obvious joke.  You still have to love a judge who has a sense of humor and doesn't mind showing it.) 

The court found that the plaintiff could not prove either hostile environment or quid pro quo sexual harassment and entered summary judgment for defendant, which appears to have been the right decision.  The standard for sexual harassment includes the requirement that the allegedly harassing conduct be offensive to a reasonable woman.  You can read the opinion here, and an article from Law.com here, and decide for yourself, but it seems to us that Klopfenstein worked herself into a froth over some pretty innocuous behavior.

The plaintiff is considering an appeal.  We wouldn't expect a different result there.

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About 9 months ago we posted on the legal problems of the popular tourist restaurant Tavern on the Green.  Seems that male management was accused of being a little too handy with the female wait staff. 

Now the NY Times reports that the restaurant has settled with the EEOC for $2.2 million.  Ouch.

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The sexual harassment case against Madison Square Garden and New York Knicks General Manager Isaiah Thomas has been settled on the eve of the compensatory damages phase of the trial.  The terms of the settlement were not disclosed in this report from the AP.  For background, here and here are our previous posts on the case.

The settlement avoids the assessment of compensatory damages, and also the potential for a court-ordered award of attorney's fees that alone could have run into millions of dollars.

Employment discrimination cases are a species of what lawyers call "fee-shifting" cases.  That is, the loser can be ordered to pay the winner's attorney's fees.  Usually that means that losing defendants pay winning plaintiffs, and seldom the other way around.  In smaller discrimination cases, where less money may be in play in terms of compensatory and punitive damages, attorney's fees can become the "gorilla in the room."  Defendants must always be aware of the potential for an award of fees to a successful plaintiff.  It is quite possible that, depending on the cases, the fees could be greater than the damages awarded to the plaintiff.  Thus, a realistic evaluation of the likelihood of complete success should always be a part of the defense strategy and should be evaluated on a continuing basis.

This is particularly important for small and mid-sized companies, which may not have the financial resources to absorb an attorney's fees judgment.

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Today brings news of two developments featuring coaches of women's sports teams.  The first comes from California.  USA Today reports that the former coach of the Fresno State women's basketball team  has won a jury verdict of more than $19 million.  She claims that she was fired for promoting women's issues.  The university, her former employer takes a different view, claiming inappropriate conduct on the job and obtaining a prescription pain-killer from one of her players.

Local reports from the Newark Star-Ledger bring news of the criminal conviction of a former Immaculata High School girls basketball coach as a result of having what apparently was a "consensual" sexual relationship with a player.  Patricia Balogh was convicted on four of five counts, although she avoided the most serious, which charged aggravated first degree sexual assault.  A conviction on that charge could have landed her in prison for 40 years.  As it is, she's looking at 10.  There's no word whether the victim's family plans to pursue an action for civil relief against the coach or the school.

Educational employers must be vigilant.  Inappropriate relationships between players and coaches are not common, but neither are they rare.  When they occur they have the potential to cause significant liabilities and, just as important, reputational damage. 

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It's not New Jersey, but here's an article from The Birmingham (Alabama) News about a recent verdict of $250,000 in a same-sex harassment case.   The plaintiff claimed that "he was subjected to offensive touching and foul, vulgar and sexually explicit language in the workplace [and] saw other employees engaging in the activity."

The plaintiff reported the conduct to a supervisor but, according to the article, the company "did not have a sexual harassment policy" and wrote off the events as "horseplay."   You can buy a pretty good horse for the $250,000 verdict and (doubtless) six figure defense cost that this mistake in judgment cost the defendant.

We've said it before and doubtless will have the opportunity to make the point again, since companies continue to make the same silly mistakes.  If you don't have a harassment policy, get one.  Today.  It's some of the cheapest insurance you'll ever buy.

Once you have the policy, follow it.  Rigorously. 

Taking those two simple steps will help to avoid potentially catastrophic judgments.  Which in the case above probably have some corporate executives feeling like the south end of a horse going north.

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The news has been all over the media, so we won't bother with anything detailed.  Here's a link if you're interested the details of the Knicks' latest loss, this one in the courtroom to the tune of $11 million in punitive damages. 

And the damage to the team will just get worse.  Compensatory damages still have to be decided, which could tack millions more onto the judgment.

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Sexual harassment can be a problem anywhere, including the "classiest" of places.  New York's famous eatery, Tavern on the Green, has been sued by the EEOC for severe and pervasive sexual harassment of employees.  According to the complaint, as quoted in the New York Times, the manager got a little grabby with some of the waitresses. Guess that's what can happen when boys and girls work together on the sidewalks of New York.  And for good measure he threw in racial epithets directed at blacks and Hispanics.  While the worst allegations target the restaurant's manager, the business itself is potentially liable because, the EEOC charges, it knew or should have known what was happening.

For the record, the defendants deny the allegations.

They had better be right, since the complaint is looking for seven figure money.  That's a lot of meals served to tourists.

The point of this little tale is one that we frequently make: businesses must be vigilant to guard against unlawful mistreatment of employees by other employees, and especially managers.  There's likely not a business around that actually condones the kind of conduct in which the manager here allegedly engaged.  But people sometimes do bad or stupid things that can spill over onto an employer that is trying to comply with the law.

And, as this case shows, unlawfully discriminatory conduct can occur where it might not be expected.  Every employer needs to keep a sharp eye out for such conduct, and when it is found, it must be dealt with swiftly and firmly.  

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Here's an article from Forbes.com that remind us of the consequences that can attend incidents of sexual harassment.  The case comes to us from idyllic Hawaii.  An airline flight attendant claimed that the pilot of a flight that she worked grabbed her buttocks after the flight and continued to harass her for the rest of the day.  She complained to her employer which, she said, did nothing.

The jury agreed.  It awarded her $120,000 in compensatory damages, $250,000 in punitive damages against the airline, and $140,000 in punitive damages against the pilot personally.  That's $510,000 plus attorney's fees and court costs.

We tell this to our clients and friends all the time, but it's worth repeating here.  Every claim of sexual harassment should be taken seriously and investigated impartially.  Failure to follow this simple rule can cost businesses a lot of money and embarrassment, as the defendants here learned the hard way.

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The Supreme Court has declined to review a sexual harassment case filed by a 16 year old girl who was employed as an ice cream scooper.  Summary by the Workplace Prof Blog here.  The issue was whether the girl could "welcome" the advances of an older male co-worker with whom she had "consensual" sex.  If the advances could be "welcomed," a sexual harassment charge would not stick. 

The Supreme Court's decision leaves in place an appeals court ruling that since the sex involved a minor and thus was statutory rape, by definition the male's advances could not have been welcomed.

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This is a quick reminder that it pays to look at the people behind your policies. Good policies, good training, and consistent investigation and enforcement are an employer's best defenses against lawsuits that can arise from an employee's claims of harassment.

But the best enforcement policy is only as sound as the person who is on the firing line of the investigation. We are all human, and we all bring unique perspectives, preconceptions, and biases to our roles as investigator and decision maker. The same is true for those who bring complaints and information to investigators.

How can you protect against these biases in an investigation? One way is to be cognizant of your own biases, and sensitive to those of witnesses. These can arise from gender, race, educational level, power, and many other factors.

Another way is to involve more than one person in the investigation. Ensure that a variety of perspectives are brought to bear upon asituation and you will help to prevent internal complaints from blossoming into lawsuits.

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Whatever you may think about the now infamous backrub that President Bush gave to German Chancellor Angela Merkel, it has some people talking about how much physical contact is appropriate in the workplace. Forbes.com has a recent article that defines three acceptable touch zones: upper back, forearm, and wrist. But even these are not free from controversy. Some think they're too lenient, others too strict.

So what's a business owner to do? One answer: get sexual harassment training for your employees. It's good, cost-effective insurance against harassment lawsuits. And it will help to define appropriate standards of conduct in your business and contribute to a more harmonious workplace.

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