Gray Areas Keep Emerging in the Field of Sexual Harassment

Sexual harassment cases have remained quite numerous during recent years. Lawsuits involving Fox News, the late Roger Ailes and the transportation giant Uber have kept our judicial system very busy. In fact, in early July of 2017, the Los Angeles Times reported that Fox News had just fired the head of its L. A. sports programming division due to new allegations of workplace sexual harassment.

Perhaps it’s not surprising that while so many claims were being filed during the past five years, courts were being asked to evaluate some newer types of allegations. Several of them involve employees who were fired because their bosses said they were too attractive to have around or interact with on a regular basis. Equally odd are recent workplace problems caused by male employees trying to distance themselves from female co-workers who they claim harbor romantic feelings for them.

Before examining these new issues closer, it’s important to review what constitutes modern sexual harassment.

The EEOC’s Definition of Sexual Harassment

On its website, the EEOC states that it’s simply wrong to harass a person (such as a job applicant or employee) based on that person’s sex. Harassment can include someone making unwanted sexual advances or requests for sexual favors from another worker. While both men and women can suffer sexual harassment, statistics reveal that women file 83% of these claims. Some surveyed workers have said that they believe that this is probably true since men are often  overrepresented in positions of power in the American workplace.

Harassment doesn’t always involve any touching. In fact, offensive remarks about the opposite sex can be enough to constitute sexual harassment. What courts are often looking for is whether various workers’ words and actions have created a hostile working environment. When simple teasing and offhand comments become quite regular, they can legally be viewed as sexual harassment. Even consensual office romances can cause legal problems because when they end, one of the two participants may often wind up fired or demoted.

Relatively new sexual harassment claims involving bosses who fire employees for being too attractive provide new dilemmas for our courts. Likewise, employees distancing themselves from others because they think their co-workers harbor hidden romantic feelings for them are also uniquely troubling. These types of “gray area” claims are discussed further below.

Should It Be Lawful to Fire Someone Who Is Too Attractive – Or a Female?

Oddly enough, one or two courts have allowed bosses to simply dismiss women because they’re so attractive that the men fear they can’t control themselves if they remain in the workplace. One such case was filed by Melissa Nelson against her dentist employer in Iowa. This 33-year-old office assistant had worked for this dentist for many years. However, she was let go after he claimed that his wife had learned that her husband was sharing improper text messages with the young woman.

Of course, this type of employer claim clearly implies that the woman will make poor choices and should therefore be dismissed as some type of precaution. Perhaps the employer just wanted to dismiss her but couldn’t come up with a better excuse. Nevertheless, the Iowa Supreme Court later reaffirmed its decision, denying this fired young woman any type of compensation. The court even tried to dodge its questionable “logic” by saying that the firing was based on feelings – and not the young woman’s gender.

Unfortunately, that Iowa case is not unique. A similar case was filed due to the 2013 firing of a Manhattan yoga instructor who worked in a chiropractor’s office. She was told she was “too cute” — and that her ongoing presence in the office would make her boss’ wife jealous. A judge dismissed her case back in 2016. However, that case isn’t over. In August 2017, an appeals court ruled that the Manhattan yoga instructor can proceed with her case and sue the chiropractor.

What About Men (or Women) Who Want to Avoid Working with the Opposite Sex?

Can an employee refuse to spend legitimate work time with a woman because he believes she has a crush on him? Can this be viewed as some type of sexual harassment? This issue came up recently in an Austin, Texas workplace. William Manno, who had been refusing to work alongside a specific female — is now having to reevaluate and change his behavior.

Thomas Kochan, a Massachusetts Institute of Technology professor and co-director of the M.I.T. Sloan Institute for Work and Employment Research says that when workers inappropriately refuse to interact with others due solely to their sex or presumed romantic feelings – employers may need to intervene. In fact, it can prove very useful and instructive for employees who want to isolate themselves from members of the opposite sex to begin participating in group work activities so they can develop healthier work habits.

Regardless of how one views some of these newer issues, it’s important for all workers to stand up for their rights when any serious harassment behaviors develop.

What All Workers Must Do When They Believe They’re Being Sexually Harassed

  • Keep detailed notes about the offensive incidents. Be sure to write down the specific facts, the dates and times involved — and whether there were any witnesses. Keep this log at home and not in your place of employment;
  • Carefully review any employee handbook you’ve been given. Try to follow your company’s recommended way of handling suspected sexual harassment. If reporting the incident to your immediate supervisor won’t work – you may want to confide in a senior employee you believe you can trust. However, you should first review all the steps named here – before taking any action;
  • Immediately contact your local Houston employment law attorney. Once you’ve scheduled an appointment, gather together all relevant employee handbooks, training materials and other pertinent documents regarding your sexual harassment claim. Your lawyer will tell you exactly which steps to take in the proper order to fully preserve your claim in a timely manner;
  • Be prepared to contact the EEOC (Equal Employment Opportunity Commission). You normally have 45 days from the date of the event to obtain help and advice from an EEOC counselor. Your lawyer can inform you how such claims are normally processed and tell you about other legal remedies you may need to pursue;
  • Seriously think about what you may lose if you don’t file an EEOC claim and consider other litigation. As most women know, some of the worst instances of sexual harassment are never reported. After all, no one wants to become the subject of office gossip if the employer fails to honor your privacy. Likewise, concerns about retaliation are common. Fortunately, there are legal remedies for retaliation. However, if you don’t file a claim, it may become much harder for you to protect your career in the future against the negative repercussions of the current sexual harassment.

Everyone Should Benefit When an Employee Is Properly Fired

While most people don’t enjoy being fired from a job, everyone can benefit if the process is handled properly. To understand how this result is possible, it’s important to remember that your employees must be able to work together as a team. When one member is completely out of sync with the others or simply cannot do the assigned work in a timely manner, everyone suffers. So, once you’ve efficiently moved through the firing stages, most staff members will finally get the chance to perform at their highest level again.

The following information provides a brief overview of important goals to keep in mind when firing an employee. It also provides tips for protecting your company from wrongful termination lawsuits and describes the best way to meet with people while firing them.

How to Display Good Character and Protect the Business from Lawsuits

  • Be sure to clearly explain all employee management and firing guidelines in an employee handbook. Always hand one of these out to all new-hires on their first day at work and have them sign a simple form noting that they’ve received the booklet and will carefully review it right away. It’s even better to gather together “new hires” within a week or two of their starting at your company and covering basic information in the handbook;
  • Carefully investigate all the facts involved with possibly firing a specific employee. Also, make sure all supervisors are regularly interacting with each employee and telling them when their performance needs improvement – in writing (be sure to have the employee sign and date this form before placing it in a permanent file);
  • Review all applicable state and federal laws regarding termination. If necessary, speak with your attorney if you have any major questions – or believe the employee is likely to sue. Always remember that some employees are very sensitive to issues involving race, gender, ethnicity, religion, nationality, veteran status, disability, age and sexual orientation;
  • Gather together all pertinent, written evidence concerning the employee’s work record. Be prepared to keep this file in a very safe place in case a lawsuit is later filed. While doing this, rethink all the hiring practices that may need to be revised so you can avoid hiring a similar person in the future;
  • Treat the employee with dignity and respect. Don’t gossip about your firing plans. Meet with the employee in a private office setting with at least one other staff member present to serve as a witness. Respect the fact that the process of being fired may be hard on the individual. Unless the employee is guilty of terrible misconduct, remain open to paying a later unemployment insurance claim. Consider offering a severance package in exchange for the employee signing a waiver not to sue for wrongful termination. Be polite yet firm when simply stating the reasons for your decision. Finally, let the individual speak briefly about how they feel about the event. And be sure to pay all monies owed for accrued sick leave and vacation time;
  • Know that you may face sociological repercussions among other workers after the firing. If what you have done in firing a specific person is considered unfair, you may have a problem regaining the respect of many co-workers and superiors. It’s always wise to meet briefly with all concerned employees and simply state that the individual is no longer with the company and that you would prefer to not discuss it further for privacy reasons;
  • Be sure to retrieve all company property prior to providing a last check to the fired employee. You’ll also want to ask for the company laptop and any keys to office property. Be sure to immediately notify your computer and building security forces so they can block the employee’s future access to the company database and email system.  You’ll also need to collect all company I.D. cards and uniforms.

Finally, try to part on pleasant terms with outgoing employees, perhaps noting that you believe that they’ll find a better fit in other positions soon. Everyone really can benefit from a properly handled firing since it can eventually improve workplace morale. In fact, even the fired employee may soon find an equal or better position somewhere else.

Be sure to call our firm if you need any specific advice about preparing an employee handbook, interacting with troublesome staff members — or any other employment law issue.

Hurricane Harvey: Avoiding Fraudulent Repair Contractors

Fortunately, many first responders and volunteers nobly rushed out to help residents of Houston and surrounding areas after this catastrophic hurricane unleashed torrential rainfall and flooding. However, too many people lost their lives during the lengthy onslaught and far more suffered extensive property damage. As survivors try to reclaim their lives, they must exercise great caution when hiring repair contractors so they can properly repair and rebuild their homes.

Based on Texas Attorney General website information, and on our country’s recent storm history, we now know that many dishonest “scam artists” tend to show up (often from out of town) right after natural disasters like Hurricane Harvey. They eagerly try to convince desperate homeowners that they alone know how to repair their homes quickly and for far less money than their competitors.

Our general advice to you is to do your homework and carefully check out each contractor’s business reputation before signing on any dotted line. As we stated in our Labor Day email, we will review any contracts from contractors who want to perform work on your property.  We will do this free of charge limited to contracts that are presented to you by the contractor. Please call us for assistance.

Basic Considerations When Planning to Repair Your Home

To help you obtain the quality repairs you need, we’ve summarized some key steps below that can help you hire a competent repair contractor. Specific warnings have also been added so you can spot some of the many “red flags” indicating that someone either isn’t properly skilled or licensed as required under Texas law. Hopefully, you can avoid being swept up in what “60 Minutes” has called “The Storm after the Storm” when disreputable contractors sweep in to make a fast buck while you’re still grieving various losses.

Key Steps to Take While Getting Your Home Repaired

1. Only hire a contractor who has a fixed, local business address (or one nearby) and who offers fair terms of service. You need to hire someone who has lengthy experience doing the type of work you require and who can provide you with local references. This person must be willing to accept partial payments as the job progresses, while regularly paying all subcontractors for their labor and materials as the project moves forward;

2. Search for a contractor who has worked for someone you know and quotes reasonable fees. Whenever possible, only hire someone who has worked for a family member, close friend or business associate. If you cannot find someone that way, then at least call the Houston Better Business Bureau to check on the company’s reputation. Don’t let anyone pressure you into quickly signing a contract so you won’t lose a special price break.

3. Take the time to solicit several bids before choosing the best one (which may not be the lowest). Those who bid too low are often hoping to trap you into later adding other fees that aren’t properly covered in your repair contract.

4. Check online websites to see if you can learn more about each contractor. When you contact the Houston Better Business Bureau, ask if there are any recent negative or unresolved complaints on file. Remember, no listing at all is not necessarily a positive sign. You might also consider visiting such websites as HomeAdvisor.com and the Angie’s List website. The latter one now allows everyone access to most general information for free. Also check the name of the owner(s) of the company. Many times, unscrupulous contractors form new companies to hide their real reputation. Check with the Secretary of State in the state in which the company is incorporated and get the names of individuals shown as officers and directors;

5. Get every contract term in writing – never agree to a mere oral contract for this type of work. Also, avoid signing a contract that’s missing key terms, due dates, or estimated amounts for materials. You can be sure that if you let any lines remain blank, they’ll often be filled in later with terms that greatly benefit the contractor at your expense. Also, keep in mind that if the main contractor fails to pay all subcontractors, they can place liens on your home until you pay them. If the contractor disappears, most courts will hold you liable for the unpaid wages and materials;

6. Find out if the contractor is fully licensed to do the type of work you want, based on Texas law. If you’re unfamiliar with the laws in this area, call your Houston business law attorney here at Murray Lobb for timely advice. Also, make sure the contractor will be securing all required permits before the two of you sign a contract and let the work begin. Keep in mind that it can be a a negative “red flag” if the company says it’s your responsibility to obtain the permits;

7. Inquire about the type of insurance the contractor carries. The company should normally be carrying worker’s compensation, personal liability, and property damage coverage. Don’t just take the company’s word – ask to see proof (insurance certificates) clearly indicating that all such policies are currently in force;

8. Request the inclusion in your contract of a “sign-off checklist” tied to all payments. This will help you hold on to your property and hopefully avoid the placement of any liens upon it because your general contractor left the area, without paying all subcontractors.

9. Obtain your own financing if you can’t pay with a check or credit card. Never sign up for financing through a lender suggested by the contractor. It’s never wise to go through a lender who is a close associate of your contractor since critical terms may be hidden from you. If you can’t pay “cash” – and many people cannot – carefully review the interest rates and fees various banks or credit unions are offering before hiring a contractor

10. Move forward cautiously if you still have a mortgage on your home. Be sure to contact the bank holding the mortgage and obtain its written approval of the contractor you are hiring. (It’s always possible that the bank may already have a short list of reputable contractors that you can choose from when making repairs).

The attorneys here at Murray | Lobb, PLLC would like to help you sort through this daunting task by offering to review any contracts from contractors who want to perform work on your house. 

Please remember that our firm is here to help you as you try to rebuild your home and your life. (If you’re in need of immediate financial or other emergency assistance due to the hurricane, please visit this federal government website.) We look forward to helping you when you call.