PAY UP: CAN YOUR EMPLOYER WITHHOLD WAGES FOR WORKPLACE INCIDENTS?

Let’s say you work at a busy filling station. Hundreds of people a day stop by the station to get gas, food, beer, cigarettes, etc. In the bustle of business, one of your patrons filling up his car decides to drive off without paying, and you can’t catch him in time to prevent the theft, or at the very least, get his license plate number. Your employer gets angry with you, even though trying to stop a moving automobile from leaving is about as easy as catching lightning. As punishment the employer takes the cost of the driveoff out of your paycheck. Can they do that?

Or maybe you’ve got a long line of customers at the counter, waiting to pay for their items. Trying to move things along as quickly as possible, you accidentally sell a pack of cigarettes to a minor, who turns out to be an operative of the Tobacco Administration. Your employer gets slapped with a $100 fine. Your employer, upset with your mistake, makes you pay the fine. True, you should have been more careful about who you were selling cigarettes too, but can they make you pay the fine?

What about a construction worker, operating an expensive piece of equipment who accidentally breaks the equipment during use? Can the employer force the employee to pay for the cost of repair or replacement? Or maybe a clerk working for a retail store who accepts a check for payment, but the check turns out to be cold? Can the clerk’s paycheck be docked for the price of the item sold or the cost of the returned check?

The answer to these questions is a resounding NO. Kentucky law is very explicit in what employers can and cannot do when withholding wages. KRS 337.060 states:

[N]o employer shall deduct the following from the wages of employees:

(a) Fines;

(b) Cash shortages in a common money till, cash box or register used by two (2) or more persons;

(c) Breakage;

(d) Losses due to acceptance by an employee of checks which are subsequently dishonored if such employee is given discretion to accept or reject any check; or

Losses due to defective or faulty workmanship, lost or stolen property, damage to property, default of customer credit, or nonpayment for goods or services received by the customer if such losses are not attributable to employee’s willful or intentional disregard of employer’s interest.

Despite the dictates of KRS 337.060, many employers still choose to deduct losses from their employees paychecks. Unfortunately a number of these clear violations of law go unreported by employees, either because employers wrongfully inform them that they can legally take the money, or because employees may feel guilty that their actions resulted in a loss to the employer. Whatever the reason, an employer withholding wages from an employee for any of the above reasons remains illegal, and the resulting lost wages are recoverable from the employer. Furthermore, employees can recover liquidated damages equal to the amount of the unpaid wages, as well as attorney’s fees for bringing an action to recover the lost wages.

So if you find yourself in a position where your employer is forcing you to pay for a fine, or for theft, or even for breaking or damaging the employer’s equipment, you should immediately seek the advice of counsel to determine the legal options available to you. The actions being taken against you are likely illegal, and you’ll need help to recover what you are rightfully owed.

TURNING MINIMUM WAGE INTO A LIVABLE WAGE

LOUISVILLE METRO TAKES STEPS TOWARD INCREASING THE MINIMUM WAGE

Since 2008, the Federal minimum wage has remained at $7.25 an hour. Since that time, however, inflation has continued to rise, with a cumulative rate of 10.7%. Simply put, the current minimum wage isn’t as effective in reducing poverty and increasing the standard of living for workers as it once was. While the costs of goods and services have risen steadily over the years, wages for low income workers have remained stagnant, resulting in increased hardship for those in our communities with the least opportunities.

Members of the Louisville Metro Council, however, are taking steps to alleviate this predicament, introducing a proposal to raise the minimum wage for workers in Jefferson County to $10.10 an hour by 2017.

From the Courier-Journal:

As drafted, the ordinance — sponsored by [Councilwoman Attica] Scott and fellow Democratic council members Barbara Shanklin (2nd), Cheri Bryant Hamilton (5th), David James (6th) and Tom Owen (8th) — would boost the mimimum wage to at least $8.10 an hour on July 1; $9.15 on July 1, 2016; and $10.10 by July 1, 2017.

 

“Costs for gas, groceries, everything continue to rise. Everything has gone up, except wages,” Scott said. “The economic recovery has not helped people at the bottom.”

 

She said the higher guaranteed wage would increase consumer purchasing power and thus help business.

This proposal follows on the heels of a recent push by the Obama administration to raise the Federal minimum wage in order to curb the growing gap in income inequality. On September 1, the President renewed his call to raise the Federal minimum wage at a speech in Milwaukee, Wisconsin. President Obama challenged Congress to enact legislation that would echo his recent executive order requiring Federal contractors to pay employees a minimum of $10.10 an hour. That executive order, which was issued by President Obama in February of this year, applies to new contracts entered into with the Federal government after January 1, 2015, as well as replacements for expiring contracts.

All of these developments point to good news on the horizon for low income workers: wages will be increasing soon. It’s likely only a matter of time.

We’ll keep you updated as these events develop further.

 

SEXUAL HARASSMENT WITHOUT “SEX”

THE EFFECT OF SEX-NEUTRAL CONDUCT ON HOSTILE WORK ENVIRONMENT ACTIONS

The terms “sexual harassment” and “hostile work environment” together can invoke a great deal of images and scenarios in the mind of the listener:  graphic language and gestures, sexual advances, propositions, leering, touching, groping – the list can go on indefinitely.  However, a work environment does not necessary need to include acts or statements that are explicitly sexual in nature to be considered hostile under Title VII.  Often, such an environment can be created through acts that courts have termed “facially sex-neutral.”  Essentially, this term applies to abusive conduct that, on its own, would not normally be considered to be based on sex, but taken in the “totality of the circumstances, is indicative of a sexually hostile atmosphere.

Take, for example, the case of Moll v. Telesector Resources Group, Inc., recently decided by the Second Circuit Court of Appeals.  The facts in that case state that the Plaintiff, Cindy Moll, was subjected to fairly frequent offensive sexual behavior from her supervisor for a number of years.  Ms. Moll’s supervisor left her a number of inappropriate notes, one of which suggested he “thought of her” while showering, and would try to persuade her to come to his hotel room while the two were on a business trip.  This was the entirety of her supervisor’s expressly sexual conduct.  However, a number of other actions were taken against Ms. Moll that were not sexual in nature.

For example, Ms. Moll’s supervisor only allowed her to communicate with him in person, and would not respond to or accept communication by phone or email.  Ms. Moll was also told that she would not be eligible for a promotion during a “company-wide” promotion freeze, although two male co-workers were promoted during this time.  Furthermore, Ms. Moll was placed on a performance improvement plan, was told she could no longer work from home despite male employees being allowed to do so, and was denied vacation time that male employees were granted.  This type of treatment even extended into extracurricular work activities, with Ms. Moll being excluded from a number of work-sponsored social events.

Ms. Moll filed suit in the Western District of New York, bringing a cause of action for hostile work environment on the basis of sex.  The Defendant moved for summary judgment, arguing that the statute of limitations had ran for all  sexually hostile actions taken against Ms. Moll.  The Defendant further argued that, although the incidents involving the lack of promotion, the performance improvement plan, the denied vacation, and the exclusion from social events, had occurred before the statute of limitations expired, those actions were not sexual in nature, and therefore weren’t actionable.  The District Court agreed and found for the Defendant.

The Second Circuit, however, reversed, holding that summary judgment was improper. The Second Circuit found that in the totality of Ms. Moll’s circumstances, the sex-neutral actions she had been subjected to could have been viewed as contributing to a sexually hostile work environment by a finder of fact:

To decide whether the threshold has been reached, courts examine the case-specific circumstances in their totality and evaluate the severity, frequency, and degree of the abuse. . . Facially sex-neutral incidents may be included . . . among the “totality of the circumstances” that courts consider in any hostile work environment claim, so long as a reasonable fact-finder could conclude that they were, in fact, based on sex.

This implications of the Second Circuit’s holding could have far reaching effects for people who are experiencing a hostile work environment, but the majority of the harassment is not sexual in nature.  This is a scenario we hear from our potential clients quite often.  While this case does not hold any authority in Kentucky state courts, or in the Sixth Circuit, it may be highly persuasive in a hostile work environment action.

If you feel you’ve been subjected to a hostile work environment, you should seek legal counsel immediately to learn more about the options available to you.

NEW EEOC CASE ILLUSTRATES THAT GENDER WAGE GAP IS STILL WIDE AS EVER

A recently settled EEOC case shines more light on the issue of unequal pay between male and female American workers.

The case involved Royal Tire, Inc., a Minnesota corporation, that was alleged to have paid a female executive tens of thousands of dollars less than her male counterparts. Not only was the female employee receiving a significant amount less than male employees, but the suit also charged that the woman was being paid $19,000 less than the minimum requirement for her title under Royal Tire’s compensation structure.

From the EEOC:

[B]etween January 2008 and June 2011, Royal Tire discriminated against its female human resources director, Christine Fellman-Wolf, by paying her lower wages than it paid a male employee who held the very same position. The EEOC’s investigation showed that when Fellman-Wolf became HR director she was paid $35,000 less per year than her male predecessor, and $19,000 less than the minimum salary for the position under Royal Tire’s own compensation system. Fellman-Wolf complained about the disparity and asked to be compensated fairly, but Royal Tire did not make up the difference.

The suit, which very correctly alleged violations of both Title VII of the Civil Rights Act of 1964, and the Equal Pay Act, was settled on July 31, 2014, with Royal Tire agreeing to pay $182,500 and submitting to a detailed consent decree:

In addition to substantial monetary relief to Fellman-Wolf, Royal Tire must comply with the three-year consent decree, which contains an injunction prohibiting the company from any future discriminating based on sex, paying men and women different wages for doing equal work, and retaliating against employees who exercise their rights under federal law. Additionally, the consent decree requires Royal Tire to evaluate its pay structure to ensure compliance with the Equal Pay Act and Title VII, and if it discovers employees who are being paid less than required by law, it must immediately raise the wages for those employees. The decree requires training for Royal Tire’s managers and employees under the Equal Pay Act and Title VII, and allows the EEOC to monitor Royal Tire’s compliance with the decree. Royal Tire must report to the EEOC any complaints it receives about pay discrimination and provide information on how it handles those complaints.

This case, which also follows an EEOC report made earlier this year about gender inequality in federal government positions, very clearly shows that the gender equality battle still has many more miles left to go. If you feel that you are not being compensated fairly, you should seek legal counsel immediately to learn what remedies you have available to you.

 H/t Workplace Prof Blog

Obama Administration Deals Blow to Mandatory Arbitration

Arbitration, an out-of-court form of dispute resolution, has rapidly become the go-to tool for employers attempting to avoid litigation for workplace legal disputes. Arbitration forces employees to waive their rights to bring legal action against their employers, and agree to be bound by the decision of, typically, a single arbitrator. These agreements are often presented to employees as a condition precedent for continued employment, leaving employees with no real bargaining power as to the terms of the agreement.

The rise of this form of dispute resolution has gone unfettered by both state and federal courts, despite the fact that the arbitration process is inherently favorable to employers. In fact, most courts express a favorable view of arbitration over the litigation process, extolling the “virtues” of resolving legal matters outside of the courtroom, while ignoring the plight of employees who have effectively been coerced into signing away their legal rights.

Things might be changing, however.

The Obama administration recently announced that the President is preparing to sign an executive order which would prohibit certain government contractors from requiring mandatory arbitration agreements with their employees. From the AP:

In a bid to allow potential victims to have their day in court, the president’s order will also prohibit companies pursuing government contracts from requiring their workers to agree upfront to mandatory arbitration, in which an intermediary hears both sides and then makes a binding decision. That provision, which applies to new contracts exceeding $1 million, will affect disputes brought under the anti-discrimination section of the Civil Rights Act or to accusations of sexual assault or harassment.

The Federal government currently contracts with over 24,000 private companies, who in turn employ over 28 million workers. That’s close to 20% of the American workforce. While the E.O. only applies to new contracts exceeding $1 million, the effect of President Obama’s mandate could be considerable, should it continue in force through subsequent presidencies.

This development represents a huge victory for American workers. Although the President’s order only currently affects government contractors, this could present a change in the tide about how the U.S. views arbitration agreements, and may invoke in some courts a desire to rethink their current opinion on the effects of arbitration for employees.

EEOC UPDATES PREGNANCY DISCRIMINATION GUIDELINES

Earlier this week the Equal Employment Opportunity Commission issued its first set of guidelines related to pregnancy discrimination in 30 years.  While these guidelines do not carry the full effect and force of law, they do have the potential to persuade courts in broadening the scope of pregnancy discrimination analyses.

From the EEOC press release:

“Among other issues, the guidance discusses:

  • The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant;

  • Lactation as a covered pregnancy-related medical condition;

  • The circumstances under which employers may have to provide light duty for pregnant workers;

  • Issues related to leave for pregnancy and for medical conditions related to pregnancy;

  • The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave;

  • The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;

  • When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and

  • Best practices for employers to avoid unlawful discrimination against pregnant workers.”

There are a number of points of interest in the new guidelines, particularly the EEOC’s expanded definition of pregnancy discrimination, its recognition of lactation as a medical condition, and that the Pregnancy Discrimination Act requires employers to make reasonable accommodations for pregnant employees.

EXPANDED DEFINITION OF PREGNANCY DISCRIMINATION

The EEOC states specifically that the Pregnancy Discrimination Act prohibits discrimination against women because of current, past, and future pregnancies.  Courts have long recognized this concept of discrimination, but the EEOC expands the scope of the term “future pregnancies” by including infertility treatment and contraceptive use as protected activities under the PDA.  The guidelines state that under Title VII “an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo [infertility treatment],” and that “a health insurance plan facially discriminates against women on the basis of gender if it excludes prescription contraception but otherwise provides comprehensive coverage.”

LACTATION IS A MEDICAL CONDITION RELATED TO PREGNANCY

The EEOC also address what has recently become a hot button topic here in Kentucky — lactation and nursing.  The EEOC now classifies lactation as “medical condition,” and states that “[a]n employee must have the same freedom to address such lactation-related needs that she and her co-workers would have to address with other similarly limiting medical conditions.”  The EEOC provides an example of how lactation needs should be accommodated:

[I]f an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions,55 then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.

REASONABLE ACCOMMODATIONS

Finally, the EEOC guidelines present a new requirement for employers:  providing reasonable accommodations to pregnant workers.  Reasonable accommodations are typically reserved for workers with disabilities through the Americans with Disabilities Act, or through on-the-job injury scenarios.  While pregnancy is neither a disability or injury, the EEOC recognizes that pregnancy carries with it limitations on life activities similar to some disabilities.  Under that reasoning, the EEOC has now determined that a violation of the Pregnancy Discrimination Act can be established when a pregnant worker is denied light duty or other accommodations, but the same or similar accommodations were provided to similarly situated disabled workers.

As noted above, these guidelines are not law, and do not supplant existing law as it relates to pregnancy discrimination.  However, the guidelines do represent a giant step forward in how we tend to view issues related to pregnancy discrimination, and will almost certainly be persuasive to courts when ruling on PDA cases.  The EEOC has the entire set of guidelines up on its website,  as well as a Q&A and Fact Sheet regarding the new guidelines.

With the issuance of these new guidelines, the law regarding pregnancy discrimination may begin to shift.  Therefore, it is imperative that you seek legal counsel immediately if you believe you have been the victim of pregnancy discrimination, in order to fully understand the options available to you.

National Origin Discrimination Still Alive and Well

One aspect of Title VII of the Civil Rights Act of 1964 that doesn’t often receive that much attention is discrimination based on a person’s national origin. As you could probably guess from the term “national origin,” this particular subset of discrimination involves the unfavorable treatment of a person because they hail from a certain country or part of the world. It can also involve a person’s accent or ethnic appearance.

Seeing as how America is often touted as the “Great Melting Pot,” one would assume that discrimination of this sort would be uncommon. However, national origin discrimination unfortunately persists as the ethnic makeup of our country continues to rapidly evolve.

In recent years, persons of Arab descent have quickly become a prominent target of discrimination in the American workplace. Take for example the case of EEOC v. Rizza Cadillac. The facts of this case show that three Arab Muslim employees working for a car dealership in Illinois were subjected to incredibly offensive and hateful treatment from the dealership’s management. Managers often used offensive slurs when speaking to the employees, calling them “terrorists”, “sand n—-ers”, and “Hezbollah” (a reference to the group labeled as a terrorist organization by the U.S. Government). The employees were also ostracized by their managers about the Qur’an and the manner in which Muslims pray.

The Equal Employment Opportunity Commission brought suit against the dealership on behalf of the employees, alleging hostile work environment on the basis of national origin and religion.  Before trial, the dealership settled with the EEOC for a sum of $100,000.00 to be provided to the employees.

This case demonstrates a hopeful step forward for the issue of national origin discrimination, but also exposes the fact that national origin discrimination still exists. If you feel that you’ve been discriminated against or subjected to a hostile work environment because of your national origin, you should seek the advice of counsel immediately to learn about the legal options that are available to you.

H/t: Workplace Prof Blog.

Workplace Bullying: What Protections Do You Have?

The term bullying has been used commonly for decades now, but recently, has taken on new life in our nation’s social dialogue. While in the past, bullying was looked upon by many as some sort of rite-of-passage for our youth, the cold reality of bullying’s effects on our society is now coming to light. Every day, more and more tragic cases of bullying are being featured in the media, making evident what victims of bullying have known for years: bullying and harassment causes real pain and psychological damage to its recipients.

Take, for example, the case of 13-year-old John Carmichael, a young boy in Texas who took his own life after being subjected to horrendous treatment from his fellow students. According to an article from the ACLU:

[F]ootball players at his middle school in northern Texas had attacked him in the locker room, stripped him nude, tied him up, placed him in a trash can, and called him a “fag,” “queer,” and “homo,” while the whole event was videotaped and later posted on YouTube.

A teacher stood by as the attack occurred and did nothing to stop it. In fact, several teachers at the school had, for months, witnessed Jon being attacked and bullied.

This sort of behavior had been going on for months, and no one at John’s school attempted to stop it. The ACLU article goes on to state:

On almost a daily basis, classmates assaulted him in the locker room and forcibly removed his underwear, shoved him in the hallways, pushed him to the ground on the athletic field, flushed his head in the toilet, or stuffed him into a trash can. But no one stopped it because, in the words of one teacher, “Boys will be boys.”

The tacitly approving attitude of John’s teacher is not uncommon. But it’s an attitude that will hopefully become antiquated, as devastating situations like John’s are beginning to become the subjects of civil actions across the country. While such suits will never erase the pain John endured, and that his family continues to endure from their loss, the successes of these suits will likely usher in a new era of vigilance in school districts for the protection of their students.

But what about when bullies grow up and continue their campaigns of harassment in adult life? The issue of workplace bullying has barely broken through to the public consciousness, although we are all aware that it exists. Most people can likely name one or more former co-workers or bosses who have exhibited harassing behaviors towards others on the job. Many have been the target of these co-workers, and some have even possibly been severely affected by the harassment being leveled against them.

What can be done about this type of harassment? After all, it isn’t illegal for someone to be a jerk, right?

While that may seem to be the conventional wisdom, there may actually be civil remedies available for targets of workplace bullying in the Commonwealth of Kentucky. Kentucky has two criminal statutes in its Penal Code that prohibit certain harassing conduct: KRS 525.070 and KRS 525.080.

KRS 525.070 states:

(1) A person is guilty of harassment when, with intent to intimidate, harass, annoy, or alarm another person, he or she:

(a) Strikes, shoves, kicks, or otherwise subjects him to physical contact;

(b) Attempts or threatens to strike, shove, kick, or otherwise subject the person to physical contact;

(c) In a public place, makes an offensively coarse utterance, gesture, or display, or addresses abusive language to any person present;

(d) Follows a person in or about a public place or places;

(e) Engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose […]

KRS 525.080, on the other hand, prohibits harassing communication:

(1) A person is guilty of harassing communications when, with intent to intimidate, harass, annoy, or alarm another person, he or she:

(a) Communicates with a person, anonymously or otherwise, by telephone, telegraph, mail, or any other form of written communication in a manner which causes annoyance or alarm and serves no purpose of legitimate communication;

(b) Makes a telephone call, whether or not conversation ensues, with no purpose of legitimate communication […]

As you can see, the behavior proscribed in these statutes easily fits with much of the behavior we have come to understand as defining the term “bullying.” These statutes obviously provide a criminal penalty for such conduct, but under KRS 446.070, these statutes may also provide a civil remedy for the target of the behavior prohibited within their provisions. KRS 446.070 allows a person to recover any damages suffered for the violation of any Kentucky statute that doesn’t provide any civil remedy, and since the above criminal statutes do not provide for any such remedy, they would fall under that umbrella. Therefore, these criminal statutes, in conjunction with KRS 446.070, likely provide a cause of action to victims of workplace bullying, if the behavior those victims have been subjected to matches the behavior listed in these Harassment statutes.

Furthermore, other traditional causes of action, such as Intentional Infliction of Emotional Distress, Negligent Retention, and Negligent Supervision, are also available for targets of workplace bullying.

Workplace bullying can have detrimental effects on the health, both physically and psychologically, of those subjected to it. Studies performed by the Workplace Bullying Institute show a correlation between bullying and stress-related diseases and health complications, as well as depression, anxiety, and post-traumatic stress disorder. If you have been subjected to workplace bullying, you should be compensated for the damages you have sustained. Seek counsel immediately to learn more about the options you have available to you.

TALES FROM THE WORKPLACE: SEXUAL HARASSMENT EXPOSED, PT. 5

Today’s entry in our continuing series on workplace harassment comes from the case of Slone v. Toyota Motor Mfg., 2005 Ky. App. Unpub. LEXIS 560. This case deals with a woman who reported the harassment she was experiencing on multiple occasions to her supervisor, who in turn did nothing to stop the harassment from recurring. The facts in the following story are recounted directly from those found in the Court’s opinion.

Paula Slone began working as a temporary worker for Toyota in November 1999. When she began working, one of her co-workers, Dwayne Covey, was off work on leave. Covey returned to Toyota in December, and upon meeting Paula, proceeded to ask her if she would ever consider dating a married man. Paula turned Covey’s advances down and reported the conversation to her team leader, asking “what’s up with Dwayne? I didn’t think Toyota would allow something like that.”

A number of incidents occurred after that initial conversation, with each incident growing progressively more offensive and inappropriate. One day, while Paula was bending over to grab a pair of gloves from the floor, Covey sidled up behind her and began acting as if he was spanking her, proclaiming, “I’m going to spank that ass,” while a number of their co-workers watched. Paula reported the incident to her supervisor, Dave Howard, requesting that he bring a stop to Covey’s behavior.

Following her report, Paula was approached again by Covey, who poked her buttocks with a wooden handle. Paula brought up this incident a few days later during a daily team meeting at which Howard was present. Howard did nothing in response, but simply lowered his head when the topic was being discussed.

About a week later, Covey attempted to pull Paula’s shirt up to expose her breasts. Paula slapped Covey and told him to leave her alone. Covey walked away, but only a few minutes later returned, asking Paula if she “had any Covey in her?” Paula, believing that Covey was asking about her lineage, replied that she did not. Covey responded, “Do you want some,” crudely alluding to sexual intercourse between the two. A number of co-workers standing near Paula overheard the exchange and began laughing. Paula walked to the break room for a team meeting, where the laughter continued, prompting Paula to tell her co-workers to stop laughing about Covey’s infantile joke, and to leave her alone. Dave Howard, sitting at his desk in the break room, overheard the entire incident, and again did nothing.

Later, in February 2000, Paula fetched a couple of supervisors to assist her with a mechanical problem on the production line. While the supervisors were working on the line, Covey approached Paula and began pulling at her shirt, asking if she’d kiss him. Paula walked over to the supervisors and informed them of Covey’s actions. One of the supervisors responded by simply stating that Covey was “off the clock,” and then returned to fixing the machine.

That same day, when Paula was leaving work, Covey ambushed her as she was about to get into her car. Covey prevented Paula from opening her car door, and stated that he wasn’t going to let her leave until she kissed him. He then asked if she would meet him at another location so they could have sex. When Paula started running back towards the building for help, Covey finally retreated, telling her that he would leave her alone.

On the next business day, Paula reported the incident to Howard, but Howard again refused to acknowledge the problem, or do anything to help Paula. Over the next few weeks, Covey would occasionally walk by Paula and slap her buttocks. Paula again went to Howard for help, but his response was the same as it had been during her prior complaints. Finally, understanding that Howard was not going to put an end to the harassment, Paula asked a co-worker to report Covey’s behavior to another supervisor, which, after months of abuse, resulted in an investigation by Toyota, and ended with Covey being terminated.

After filing suit against Toyota, the trial court handling the action initially dismissed Paula’s claims for sexually hostile work environment on summary judgment. The Kentucky Court of Appeals reversed that decision, and allowed Paula’s suit to proceed to trial. The issue in this case wasn’t whether Paula had been harassed by Covey, which she obviously had been, but rather revolved around the question of whether Toyota had taken the appropriate action once it became aware of Covey’s behavior. While Toyota eventually got around to investigating Paula’s complaints, and ultimately fired Covey, these were actions that arguably should have been taken when Paula first reported harassment to her supervisor, Dave Howard. Because of this issue, the Court of Appeals felt that the case should be decided by a jury, rather than dismissed by the trial court.

Supervisors are agents of the companies for which they work. When a supervisor becomes aware of unlawful harassment occurring towards an employee, it is as if the company itself has become aware of the harassment. Therefore, supervisors have a duty to take corrective action against harassment in the workplace, and if they fail to, their company could be liable for the harm that results.

If you feel as if you are being sexually harassed at work, you should report that harassment to the appropriate person, whether it be your supervisor or a designated Human Resources employee. If that report fails to result in any action that puts an end to the harassment, like in Paula’s case, you likely have legal remedies available to you. In that case, it is extremely important to seek legal counsel in order to learn what those remedies are.

TALES FROM THE WORKPLACE: SEXUAL HARASSMENT EXPOSED, Pt. 4

This week, we’re examining the story of Sandra Fuller, taken from the case Custom Tool & Manufacturing Co. v. Fuller.  The allegations that were presented in that case are as follows:

Sandra Fuller began working for Custom Tool & Manufacturing Company as a quality control employee, inspecting wire harnesses for defects in their manufacturing.  In her department, it was common for her to hear sexually-themed jokes and comments, but Sandra was never subjected to direct sexual harassment during her work in that department.  Things changed however, when Sandra was promoted to the position of Plant Manager for the wire harness division.

As plant manager, Sandra reported directly to Custom Tool’s President and sole shareholder, Rodney Cunningham.  Almost immediately after accepting the promotion, Cunningham began making inappropriate sexual comments to Sandra.  For instance, once when Sandra was kneeling down to retrieve an item off a low shelf, Cunningham remarked that he “liked women in that position.”  On another occasion, while Sandra was walking in front of Cunningham, he stated that “the view is really good from back here.”  Cunningham would also often comment on Sandra’s body, asking her, “Where do your legs stop?”

Cunningham started ratcheting up his offensive behavior as time went on, asking Sandra to “bend over further” when she was reaching over her desk.  He also started to bring up the subject of pornographic videos at odd times in conversation, and would make sexually charged comments to her when he personally delivered her paycheck.  Throughout this time, and although she felt extremely uncomfortable, Sandra attempted to maintain a professional attitude by changing the conversation when Cunningham would approach these topics.

One afternoon, Cunningham called Sandra and requested that she stop by his office before leaving the plant.  When Sandra arrived, Cunningham asked her to wait around for a few minutes until the office employees cleared out.  As the last employee was leaving, Cunningham instructed the employee to lock the building door on the way out.  Cunningham then shut his office door, and approached Sandra, telling her that he had been dreaming about her.  He then stated that he wanted her to watch a pornographic video that he had cued up on his office television, because he believed the performer looked like Sandra.  Sandra was dumbstruck and disgusted, watching in terror as Cunningham played the video.  Cunningham quickly began playing another pornographic video, leaned back in his chair and began rubbing his groin.

Sandra told Cunningham that he was “gross” and attempted to leave the office.  As she made her way towards the door, Cunningham grabbed Sandra around the waist, forcibly pulling Sandra toward him against her will.  She pleaded with Cunningham to stop, and demanded he let her leave.  Before Cunningham released Sandra, he begged her to go away with him on an overnight trip.  Finally, Sandra was able to escape Cunningham’s office and retreat home.

After this incident, Sandra discussed Cunningham’s actions with her husband and with the company’s office manager.  She was an emotional wreck, afraid to continue working in an environment in which her boss would act in such a disgusting, threatening manner.  Ultimately, she decided she could no longer work at Custom Tool without constant fear of being harassed by Cunningham again.

Sandra brought suit against Custom Tool & Manufacturing soon after that, and at trial, the jury agreed that she had been subjected to sexual harassment in the form of a hostile work environment.  She was awarded almost $75,000.00 as a result.

If you’ve been subjected to the type of behavior that Sandra experienced, you don’t have to live in fear or worry.  You can, and should, stand up like Sandra did, and confront your harasser.  Sexual harassment is absolutely unlawful, and as is demonstrated in Sandra’s case, you have legal remedies available to you.  In order to fully understand those remedies, you should seek counsel immediately.