discrimination

When does Flirting, Inappropriate Comments, or Repeated, Unwelcomed Requests for a Date Become Sexual Harassment at Work?

Ohio recognizes two types of actionable Sexual Harassment: (1) ‘quid pro quo’ sexual harassment and (2) ‘hostile environment’ harassment. Let us start by examining both types to determine when what may seem initially as unprofessional but ‘harmless’ comments become sexual harassment prohibited under Ohio and Federal Law. 

‘Quid pro quo’ sexual harassment, from the Latin term for "this for that," is just what it sounds like in English – an employer or supervisor makes unwelcome advances or requests a sexual favor and the employee’s submission to the unwelcome advances is an express or implied condition for advancement or favorable job conditions. Another case of quid pro quo sexual harassment occurs where rejection of the sexual advances results in a tangible job detriment, such as termination or demotion. Under Ohio Law the company is strictly liable for the offender’s misconduct.

sexual harassment at work

‘Quid pro quo’ sexual harassment is frequently obvious, where, for instance, a supervisor fires an employee for refusing his sexual advances. In other cases, the supervisor’s misconduct may be more subtle, such as if a supervisor tells an employee that in order to receive a promotion she must dress more revealing or provocatively. 

Hostile work environment sexual harassment occurs when the harassing conduct was sufficiently severe or pervasive to affect the ‘terms, conditions, or privileges of employment,’ or any matter directly or indirectly related to employment. The harassment must have been committed by a supervisor or the employer knew or should have known of the harassment and failed to take immediate and appropriate corrective action. Unlike quid pro quo sexual harassment, the offender does not have to be a supervisor for an employee to have a claim – only that the supervisor knew or should have known but did nothing to stop it. 

In the case of Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998), the US Supreme Court held that while Title VII is not general civility code, and that therefore offhand comments, teasing and even verbal or physical harassment are not necessarily prohibited, conduct that affects the employee’s ‘terms, conditions, or privileges of employment’ is prohibited and actionable. So, for example, if a coworker makes one offhand comment on the job a court may not find sexual harassment. However, if the conduct is so severe or pervasive that it affects the employee’s performance of the job itself, a case may be made for sexual harassment. So, in the previous example, if the coworker makes sexual jokes repeatedly or regularly, engages in unwanted touching, or repeatedly asks the coworker out after being turned down there may be a case of hostile work environment if the employer knew or should have known of the actions of its employee but took no action to stop it. 

Victims of sexual harassment at work often initially explain a boss, superior, or coworker’s inappropriate conduct as the offender just being flirty, trying to be funny or cute, or justify the coworker’s advances because he’s “harmless.” However, conduct at the workplace amounting to sexual harassment is inherently destructive and is prohibited by Title VII and the Ohio Laws Against Discrimination. 

Are you or have you been in a situation at work where initially innocuous teasing or [attempted] flirting by a coworker, superior or boss is starting to hinder the performance of your job or affect you personally? There may be a case of Sexual Harassment for which Ohio Law gives you remedies. 

If you are a victim of sexual harassment or were discriminated against at the workplace, and would like to discuss your options with an Ohio Attorney, contact Kevin M. McDermott II of McDermott Law LLC at (216) 367-9181. Mr. McDermott will personally assess your case. Call (216) 367-9181 for a Free Consultation.

EEOC Files First Gender Bias Suits Based on Sexual Orientation

On March 1, 2016, in the case of EEOC v. Scott Medical Health Center, P.C., No. 2:16-cv-00225 (W.D. Penn. March 1, 2016), the Equal Employment Opportunity Filed one of the first suits alleging discrimination based on sexual orientation in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). Section 703(a)(1) provides that it is unlawful to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

While Title VII does not expressly prohibit discrimination based on sexual orientation, the EEOC claims that the Defendant violated the employee's rights on the basis of his sex, created a sexually hostile work environment, and unlawfully constructively discharged him in violation of the Statute.

In the Complaint, the EEOC alleges that the Defendant’s employees’ acts, including allowing and permitting a supervisor to call an employee a “fag,” “faggot,” and “queer,” violate Title VII and amount to unlawful discrimination. The EEOC contends that the supervisor's conduct directed at the employee was motivated by his sex (male), that sexual orientation discrimination necessarily entails treating an employee less favorably because of his sex that the employee, by virtue of his sexual orientation, did not conform to sex stereotypes and norms about males to which the supervisor subscribed; and in that the supervisor objected generally to Plaintiff’s lifestyle, causing a violation of Title VII.

The decision of the EEOC to take up such a case has been long expected since the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which held in a 5-4 decision that marriage is a fundamental right to same-sex couples under the Due Process and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. It will be interesting to see how this case and others filed concurrently move through the courts as the Supreme Court has not yet held that sexual orientation is a protected class when interpreting Title VII.

                                 

Jury awards former Wal-Mart employee $31.22 million for Sex Discrimination

On Wednesday, January 27, 2016, a federal jury in New Hampshire ordered Wal-Mart Stores Inc. to pay $31.22 million for, among other things, gender discrimination. While results like these are not typical, it has become obvious that juries are less and less willing to allow companies to get away with what they perceive as discrimination against employees on the basis of sex and gender.

Appeals Court Holds Disability Discrimination and FMLA Claims against the State of Ohio are Subject to Two Year Statute of Limitations.

In Coleman v. Columbus State Community College, No. 15AP-119 (10th Dist. Nov. 12, 2015), Belinda J. Coleman brought a lawsuit against Columbus State for discriminating against her because of her disability and under the Family and Medical Leave Act. Ms. Coleman suffered from fibromyalgia and polymyalgia rheumatic and argued that Columbus State harassed her, retaliated against her, and fired her for her disability. Ms. Coleman ultimately filed an action against Columbus State in the Court of Claims and Columbus State filed a motion to dismiss in the trial court arguing the claims are barred by the two-year statute of limitations as set forth in R.C. 2743.16(A), which allows for certain actions against the State of Ohio to be commenced no later than two years after the date of accrual of the cause of action. Ms. Coleman argued that the trial court should apply the 3-year statute of limitations for willful violations of the FMLA the 90 day statute of limitations under the ADA after the EEOC dismisses a charge. In addition, Ms. Coleman argued that the court should apply the doctrine of equitable tolling to her claims for her intentional infliction of emotional distress, negligent infliction of emotional distress, and state law discrimination claims.

            Ms. Coleman argued that R.C. 2743.16(A) was inapplicable to the ADA and the FMLA because the Supremacy Clause of the “mandates that federal law governs when litigants must file those claims, and that a state cannot alter the substantive features of claims established under federal law, including the applicable statutes of limitations.” In other words, Ms. Coleman argued that the federal limitation periods to her federal claims superseded those set by Ohio Law.

            The Tenth District was unconvinced, stating that “the Supremacy Clause does not confer authority upon Congress to abrogate a state's immunity from suit in its own court without its consent,” and that the State of Ohio has not consented to being subjected to the federal limitations periods for the ADA and FLMA. “[T]his court has consistently found that litigants cannot pursue claims against the state more than two years after the claim accrued ... Because federal law does not preempt or abrogate R.C. 2743.16(A) 's two-year filing requirement as to Coleman's FMLA and ADA claims, the trial court properly concluded Coleman's federal claims were untimely.”

            Addressing Ms. Coleman’s equitable tolling argument, the Tenth District noted that “[t]he doctrine is generally limited to circumstances in which an employee is intentionally misled or tricked into missing the filing deadline,” and here no exceptional circumstance warranted equitable tolling.

            This case underscores that Employees must pay particular attention to the Statute of Limitations in all contexts including when pursuing claims against the State. While Ms. Coleman, as she argued, was a victim of discrimination and retaliation, her failure to timely assert her rights as required under the Ohio Revised Code ultimately rendered her claims unattainable. The bottom line, Plaintiffs must be swift to assert their rights and remember that sometimes the nature of the Defendants, not the claims themselves, is determinative when deciding when to file suit.

            Are you a victim of discrimination or retaliation under the ADA, FMLA, or other State or Federal law at your place of employment? Kevin M. McDermott II can help. Call (216) 367-9181. I charge nothing for the opportunity to meet you and hear your story.