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Lapointe Law Firm provides a wide variety of employment-related services to both individual and business clients. For business clients these services include counseling on employment laws, drafting and reviewing employment policies and employee manuals, drafting employment contracts and non-competition agreements, and resolving employment discrimination claims, allegations of wrongful discharge, wage and hour claims, and other employment-related disputes. We also represent individual clients in employment negotiations and disputes. We have many years of experience in advising individuals on employment contracts, negotiating severance arrangements and representing employees in litigation related to termination of employment. Our employment attorneys also have extensive experience counseling both individual and business clients regarding compliance with federal and state employment laws, including:

• Wage and hour laws
• The Americans with Disabilities Act
• The Age Discrimination in Employment Act
• The Family and Medical Leave Act
• Title VII of the Civil Rights Act of 1964, which prohibits discrimination and harassment based upon sex, race, color, religion and national origin

Below are a few things you will want to become familiar with…

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Federal Minimum Standards Legislation

Introduction

Sexual harassment is prohibited by federal law under Title VII of the Civil Rights Act of 1964, and by state law under the Indiana Civil Rights Act. Under both of these laws, sexual harassment is considered a form of sex discrimination. Both laws are designed to impose liability on employers for sexual harassment that occurs in the workplace. Courts have applied both laws virtually identically in determining what constitutes sexual harassment. However, there are two main differences between the laws. First, the federal law applies to any employer with 15 or more employees, while the state law applies to any employer with six or more employees. Second, the damages that can be recovered by an employee who is the victim of sexual harassment differ dramatically under the two laws. As will be discussed below, while remedies under state law are limited primarily to backpay, remedies under federal law can include much greater penalties.

The term “sexual harassment” was coined in approximately 1976. However, it was not until the early 80’s that courts began to recognize sexual harassment as a form of sex discrimination prohibited by federal and state law. The hearings involving Anita Hill brought the problems of sexual harassment to the attention of the nation, after which the number of sexual harassment complaints filed with the federal and state agencies increased dramatically. However, employers have become better educated regarding prevention of sexual harassment, and methods for insulating themselves from liability, and courts and juries have tired of the rampant numbers of frivolous sexual harassment cases filed by disgruntled employees. Thus, over the years, the situations in which liability will be imposed upon an employer for sexual harassment have narrowed and become more well-defined.

The following are ten commonly asked questions on sexual harassment. The answers provided are guidelines; the answers cannot account for every contingency. Any employer who is faced with a sexual harassment problem or complaint should seek legal counsel.

What is the definition of sexual harassment?

The definition of sexual harassment comes from guidelines promulgated by the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII. These guidelines, adopted in 1980, provide that unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature can constitute harassment in three situations:

• When submission to such conduct is, explicitly or implicitly, a term or condition of employment;
• When submission to a rejection of such conduct is used as the basis for employment decisions; and
• When such conduct has the purpose or effect of unreasonably interfering with work performance or creating an intimidating, hostile or offensive work environment.

The first two types of sexual harassment are commonly referred to as quid pro quo harassment, which is a Latin phrase meaning “this for that.” This form of sexual harassment is typically easy to identify. In a quid pro quo situation an employee’s job is in some manner conditioned upon submitting to some sort of sexual demand or conduct.

The third form of sexual harassment is often more difficult to identify. However, in order to create a “hostile or offensive work environment,” courts have found that the offensive conduct must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

In all types of sexual harassment, the harassment must be “unwelcome.” Unwelcomeness is clear if the victim specifically states that the conduct is unwelcome, e.g., by stating “Quit harassing me.” Nevertheless, just because a woman has laughed at some dirty jokes does not mean she cannot claim harassment. While this may be some evidence that the conduct was welcome, it will not excuse extreme or persistent conduct once a woman has tried to put a stop to it.

If a male employee makes some obscene remarks to a female employee, is that sexual harassment?

Whether this is sexual harassment depends upon the circumstances. If the female employee “welcomes” the obscene remarks of the male employee, sexual harassment has not occurred. Further, the harassment must be severe or pervasive. The Seventh Circuit Court of Appeals (the appellate court covering Indiana) found in 1995 that a series of incidents spread over a seven month period did not create a “hostile work environment” when the conduct involved was merely distasteful and adolescent. In 1996, the same court that found that three comments made over a two and one-half month period were not severe enough that a reasonable person would have felt that she was subjected to a hostile work environment.

In general, stray obscene remarks are not going to be sufficient to create a hostile environment, because courts will not find that this is “pervasive” enough to taint the entire workplace for the victim. On the other hand, it is possible that only one incident, if sufficiently severe, can constitute sexual harassment. There is no bright-line test.

Can a woman sexually harass a man?

Sexual harassment laws apply equally to men and women. While men often have an “uphill battle” proving that the harassment was “unwelcome,” complaints of sexual harassment filed by men are not uncommon.

Can a man sexually harass another man?

The U.S. Supreme Court has recognized that male-on-male sexual harassment is unlawful. The Court was careful to point out that the harassment has to be “because of sex” rather than for some other reason. Further, conduct which is sexually harassing to a woman may not necessarily be sexually harassing to a man, e.g., it would generally not be sexual harassment for a coach to pat a male athlete on the rear end.

Homosexuality is not protected by Indiana law or federal law, however, In some situations it may be very difficult to determine whether harassment is occurring because the man is homosexual, or because of the man’s sex.

What can an employer do to protect itself?

All employers should have a clear and unequivocal anti-sexual harassment policy. The policy should provide that employees are encouraged to make complaints if they feel they have been sexually harassed, and should identify to whom the employees should complain. Alternative routes for complaining should be identified, in case the person assigned to accept the complaints is the harasser. All employees should be required to read and sign the policy, and should receive training on what conduct is unacceptable and how to make a complaint.

The U.S. Supreme Court has found that an employer has a defense to any claim of sexual harassment if it provides a reporting procedure, which the employee was aware of, and which the employee failed to use. However, the reporting procedure typically applies in the hostile working environment situation. If the harassment is of a quid pro quo variety, then an employer has more exposure to liability, even if there is a complaint procedure. According to the U.S. Supreme Court, if the sexual harassment results in a “tangible job detriment,” then the employer may have no defense based upon a complaint procedure.

What should an employer do to investigate complaints of sexual harassment?

An employer must take prompt corrective action immediately after any complaint is made. Typically the employer will discuss the matter with the complaining party, and with the alleged harasser, and interview any witnesses to the harassment. The employer should document all steps taken, and all interviews conducted.

Can an employer be liable if a male employee is falsely accused of sexual harassment?

In general, an employer has less exposure to liability if it takes an action against an alleged harasser, than if it does nothing, even if the employer believes that the accusations are false. If an employer does nothing in the face of a complaint, then the employer has undercut its defense to a claim of sexual harassment. In general, an employer cannot be liable for disciplining or terminating an alleged harasser, even if the employer does not know whether or not the allegations are true. The alleged harasser might sue the employer for defamation, but defamation requires that the alleged harasser prove that the allegations are false, that the employer knew they were false (or acted with reckless disregard as to their truth), and that the employer publicized the allegations outside of the context of those with a need to know about it. Therefore, if the employer takes pains to insure that the investigation and all matters related to it are kept confidential and discussed only among management with a need to know about the situation, then the employer has little exposure to liability for actions taken against the alleged harasser. Assuming an employee has no employment contract, has no union representation, and no other employment guarantees, then it is not illegal to terminate an employee, or otherwise discipline him, because he has been accused of sexual harassment. Often an employer simply cannot determine who is telling the truth, but the employer simply cannot afford to do nothing about it.

Can employees be individually liable for sexual harassment?

The state and federal sexual harassment laws are designed to impose liability on employers, not individual employees. However, employees could be sued individually on other grounds. For example, if the sexual harassment involved improper touching, an employee could be sued for assault and battery or rape. If the conduct was severe and outrageous enough, the employee could be sued individually under state law for “intentional infliction of emotional distress.”

How does the administrative process work?

In Indiana, the time limit for filing a Charge of Sexual Harassment with the Equal Employment Opportunity Commission (EEOC) is 300 days. The time limit for filing a Charge of Sexual Harassment with the Indiana Civil Rights Commission (ICRC) is 180 days. Any employee who fails to file with one of these administrative agencies forever waives his or her right to pursue a lawsuit in court.

The vast majority of Charges are filed with the EEOC rather than the ICRC. The EEOC first attempts to get the parties to agree to mediation. Mediation is totally voluntary, and will not go forward unless both parties agree. If the employer feels that it has no exposure whatsoever to liability in court, then the employer should refuse to mediate. However, if the employer thinks that there is some exposure or that the issues are somewhat “gray,” then mediation can be a good idea, since cases can be settled early on before significant attorney fees are incurred.

Due to some recent changes in the agency procedures, the EEOC now holds every Charge until completion of its investigation or for 180 days, whichever occurs first. After 180 days expire, if the EEOC has not completed its investigation, the charging party can request a “right to sue” letter. This would allow the charging party to remove the complaint from the EEOC, obtain a private attorney, and sue in federal court. Suit must be filed in federal court within 90 days of the time that a Notice of Right to Sue is received from the EEOC. Failure to file a lawsuit within the 90-day period also waives any further resort to litigation. If the EEOC finds “cause” to believe that discrimination occurred and the case is not settled, then it will be referred to the EEOC legal department for filing a lawsuit, unless the employee retains a private attorney. If the EEOC finds “no cause,” then the employee still has the option of retaining private counsel and suing within 90 days.

The EEOC is authorized to interview witnesses, obtain documents, and pursue a complete investigation. If an employer fails to cooperate, the EEOC can obtain subpoenas have them enforced. Therefore, it is always in the employer’s best interests to cooperate fully with the EEOC and to provide complete information from the outset. Obtaining legal counsel for the purposes of responding to a Charge of Sexual Harassment is advised.

What damages can be recovered for sexual harassment?

Under the Indiana Civil Rights Act, damages sexual harassment are limited to backpay and other out-of-pocket expenses. However, damages under federal law are much more significant. While under Title VII, employees who are victims of sexual harassment can also collect backpay and out-of-pocket damages, they may also collect damages for the emotional distress, as well as punitive, or penalty, damages. Under the federal statute, damages for emotional distress and punitive damages, combined, are subject to certain caps based upon the size of the employer, which range from $50,000 to $300,000.

In addition to all of the other damages, federal law allows recovery of attorney fees and costs if a sexual harassment victim prevails. (Attorney fees are not recoverable under state law claims.) It is not unusual for attorney fees in federal court to exceed the amount of damages actually awarded by the jury to the sexual harassment victim. Often cases are settled because the employer has to spend significant amounts on its own attorneys, plus face the possibility of paying attorney fees to a prevailing plaintiff as well. In sexual harassment cases, it is not unusual for attorney fees in federal court to range from $50,000 to $100,000 for each side, if a case goes to trial.

Conclusion

Employers simply cannot afford to ignore sexual harassment complaints, or take them lightly. However, employers who are well-prepared well educated, and who have explicit anti-sexual harassment policies that have been disseminated to each and every employee, can help protect their businesses.

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When an Employer Should Consult Legal Counsel Before Firing an Employee

The easiest thing to do is to hire an employee; the hardest thing to do is to fire one. But your business will lose money if you fail to fire unproductive employees. You cannot afford to retain employees based upon sympathy.

When you fire an employee, you must think about what that employee will say when questioned by a plaintiff’s employment attorney. When that fired employee goes to an employment attorney and says, for example, “I was told that I was being fired because I wasn’t performing well enough,” the attorney will ask:

• Did you have a written employment contract?
• Were you a union member or engaged in any union organizing activities?
• Are you age 40 or older?
• Is your race or national origin anything other than Caucasian born in the U.S.?
• Have you had any medical problems or disabilities?
• Are your religious beliefs or practices different from others at the office?
• Did the company you worked for have 50 or more employees?
• Have you taken time off work for the birth or adoption of a child, a serious health condition, or a serious health condition of a member of your family?
• Was the employer engaged in any illegal activity?
• Did you ever blow the whistle on the employer for breaking the law?
• Does the employer have any history of paying severance to employees?
• Has the employer failed to pay you all your wages or earned vacation?
• Are you a veteran?

If the employee can answer “Yes” to any of these questions, then various state and federal laws could affect the likelihood that the employee will pursue legal action against your company. Although Indiana is an “at-will” employment state and generally employees can be fired for any reason or no reason, there are a number of significant exceptions.

It should not be embarrassing to ask for help in deciding whether or how to terminate an employee. You may be able to save your business hundreds of thousands of dollars by simply stopping to make that phone call to legal counsel to talk through the situation before taking final action. The attornies of Lapointe Law Firm have over 20 years of experience working in all aspects of labor and employment law and are well-versed in all the current state and federal laws that could affect your business. They take pride in providing a straightforward practical perspective on the realities of dealing with problem employees.

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Should an Employer Provide Reasons for Termination and How Doing So Will Effect Obtaining Unemployment Compensation

I advise that you tell the employee why he or she is being fired. You are not legally obligated to do so. However, Indiana law requires that you provide reasons for termination upon written request of the employee. Further, telling the employee the reasons for termination can prevent lawsuits. Assuming you have a good reason, you are doing the employee a favor by providing an explanation. In some cases, the reason may not be the fault of the employee, and you could provide a positive recommendation to assist the employee in obtaining alternative employment. In other cases it may well be the employee’s fault, and the employee will benefit from understanding how to improve and avoid the pitfalls that caused the termination.

Of course I have never heard of an employee who agreed with the reasons provided for termination. I do not recommend that you provide an exit interview, which would simply allow the employee to vent frustrations. Rather, you should politely explain the reasons for termination in general terms, and you should not permit or engage in any argument-once the decision is made, it must be final.

Often employers fear that what they say when terminating an employee could later be used against them. This may be true if the reasons for termination are not legitimate and are merely a “cover-up” for an improper motive such as to discriminate against the employee based upon race, sex, age or disability. The normal honest employer, however, can provide a simple truthful statement without providing specific details.

It is entirely possible that a simple truthful statement of the grounds for termination could be used to support an employee’s claim for unemployment compensation. However, employers are often under the mistaken impression that if they have a good reason for termination, the employee cannot collect unemployment compensation. Actually, under Indiana law governing unemployment compensation, the employee will generally receive unemployment benefits unless the employee quit, or the employee engaged in willful misconduct. Willful misconduct means that the employee deliberately (and not merely negligently) violated a work rule of which the employee was aware. The deliberate nature of such misconduct means that even if the employer had a rule on attendance, for example, and the employee knew that he or she was violating it but did not do so deliberately but because of some unavoidable circumstances, then the employee will likely be awarded benefits.

In my experience, employers who oppose granting unemployment compensation when termination was for any performance-related issues will lose. Further, in my experience, the administrative law judges who determine whether unemployment compensation will be awarded in contested cases are pro-employee and most often award benefits.

Therefore, while I advise providing employees with reasons for termination, I also recommend that employers consult legal counsel and “rehearse” the final meeting with the employee. If you wish to avoid payment of unemployment compensation, the explanation of your reasons could make a difference, and I have regularly worked with employers to determine how best to handle such difficult situations.

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