Category Archives: News

Sexual Harassment in the Workplace – Will it Ever End?

With all the recent stories in the news, it should come as no surprise that sexual harassment and sex discrimination is still prevalent in the workplace.  Dozens of allegations of sexual harassment and sexual assault have now been brought forward against Harvey Weinstein of The Weinstein Company.  Roy Price, the Studio Chief of Amazon Studios, resigned from his position following allegations of sexual harassment by an executive producer.  Uber was just sued by three female employees for discriminatory pay practices at the company following allegations earlier this year of a work environment that fostered sexual harassment.  Uber’s CEO ultimately stepped down in the wake of a sexual harassment investigation.  

These recent news stories show sexual harassment from very large companies coming from the very top of their ranks.  With the claims made against The Weinstein Company, it has been publicized that the company and its board were made aware, as early as 2015, of several confidential settlements that had been reached with women who brought claims against Mr. Weinstein.  Not only does the company face countless moral and ethical questions about how Mr. Weinstein’s behavior was swept under the rug, but there is also a question about how much of an impact this will have on the company moving forward with numerous legal claims almost certainly in their future.  While these stories have been plastered over the news in recent months, these situations are far too common in today’s workplace.        

When an employee in Texas complains about sexual harassment or sex discrimination in the workplace, he or she files what is called a charge of discrimination with the Texas Workforce Commission or Equal Employment Opportunity Commission (EEOC).  While the numbers have not increased dramatically in recent years, the EEOC’s statistics show that nearly 27,000 charges were filed alleging sex discrimination during 2016, accounting for nearly 30% of all charges of discrimination.    So, is sexual harassment and sex discrimination coming to an end anytime soon?  The short answer: No. 

What to do if you are a victim of sexual harassment

Sexual harassment in the workplace can come in many forms.  An employee can be sexually harassed by his/her co-worker, client, vendor, boss, VP, President or CEO.  When you are the victim of this type of behavior, there are two steps you should always take: first, document the harassment as best you can and second, make a complaint.  The only way to put a stop to this illegal behavior is to voice your complaint to someone at the company (e.g. HR, a supervisor, etc.), and let it be known that you are not going to tolerate it moving forward.  This can be done over the phone or in person, but it is better to document it in writing via an email or letter. 

If you want to know more about what your legal options are prior to making a complaint, you should always feel comfortable reaching out to an employment lawyer in your area.  Additionally, if you make a complaint to your employer and the sexual harassment does not stop, you should immediately reach out to an employment lawyer to discuss your next steps.

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Is Sexual Harassment in the Workplace Still a Problem in this Day and Age?

The short answer: Yes. 

Many people believe that sexual harassment in the workplace is a thing of the past; something that only occurred back in the Mad Men era of yesteryear.  But the reality is that sexual harassment in the employment setting is still remarkably prevalent, and may even be more common now in the technology age.  Sexual harassment is not limited to male employees harassing female employees; it can certainly go both ways.  More recently, same-sex sexual harassment has become a more common complaint, although this may be due to the changes in the interpretation of the employment discrimination laws.  While many employers have attempted to implement policies to better educate employees and prevent sexual harassment, the problem certainly persists. 

Harassment Claims Against Roger Ailes

One of the most glaring recent examples of the widespread nature of sexual harassment in the workplace is the numerous accusations of sexual harassment that have been made against the now-former CEO of Fox News, Roger Ailes.  At this point, numerous women have come forward with various allegations of sexual harassment by Mr. Ailes following a lawsuit that was filed by former Fox News anchor, Gretchen Carlson.  Fox News took the appropriate step of removing Mr. Ailes as CEO, and they are now dealing with a massive investigation into what took place, who knew about the harassment, and whether certain actions were taken to cover it up.  While it is not all that common for such a high profile case to be so widely publicized, this sort of discriminatory behavior is still occurring all across the country and in all types of jobs.     

Another very interesting observation from the sexual harassment allegations at Fox News is the varying responses from political figures and members of the public.  As with allegations of sexual assault, there is oftentimes a sort of ‘blame the victim’ mentality.  That is why so many victims of sexual harassment are afraid to come forward.  Not only are they afraid that their story may not be believed, but in the workplace, they are fearful of retaliation and possibly losing a job. 

Donald Trump’s Statements on Sexual Harassment

For example, current Republican Presidential nominee, Donald Trump, recently spoke out in response to Ms. Carlson’s sexual harassment lawsuit.  In response to a question being asked about how he would feel if his daughter, Ivanka, dealt with similar issues of sexual harassment in the workplace, Mr. Trump stated to USA Today that he “would like to think she would find another career or find another company if that was the case.”  The clear implication from his statement being that it is the victim, and not the harasser, who should have to leave his/her job if they are experiencing sexual harassment.  These types of responses to allegations of sexual harassment in the workplace are both demeaning to the victim and tend to aggravate the problem.

So what do you do if you experience sexual harassment in the workplace?

First, you want to make sure that you voice your concerns to your employer.  

  • Send an email to your supervisor (if he/she is not the harasser) or human resources. 
  • You want to make sure that your complaint is documented.  Unfortunately, there are not always witnesses or evidence of the harassment (text messages, emails, voice messages, etc.).  Do what you can to document the behavior, whether that is taking notes of when things happen or recording sexually harassing comments on your cell phone (in Texas you can legally record a conversation if you are a party to that conversation – you do not have to tell the other person that you are recording it). 
  • If you are not getting an appropriate response from your employer, it may be time to reach out to an employment attorney and discuss your legal options. 

Ultimately, if the sexual harassment continues, or if you are retaliated against for making a complaint, you have the legal right to file a Charge of Discrimination with the Texas Workforce Commission and Equal Employment Opportunity Commission.

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Is Alcoholism a Disability Under Texas State or Federal Law?

The former head football coach for the University of Southern California, Steve Sarkisian, has filed a state lawsuit in California alleging, among other claims, that he was discriminated against based on his alcoholism.  Not only does he claim that he was terminated because of his alcoholism, but he has also alleged that USC failed to provide him with a reasonable accommodation.  The lawsuit has only recently been filed, but USC has already released a statement characterizing much of it as “patently untrue.”

Is Alcoholism Considered a Disability in Texas?

While this lawsuit was filed under a state law in California, it is an interesting example of what may be considered to be a disability under state law in Texas or federal law, the Americans with Disabilities Act (ADA).  While the ADA does not list every possible disability, the EEOC has determined that alcoholism is a recognized disability under the ADA.  However, an evaluation must be done on a case by case basis to determine whether or not an employee does, in fact, suffer from alcoholism and whether or not the employer was aware of the disability and discriminated against the employee.  Additionally, the ADA protects employees from discrimination when the employer regards the employee as disability.

Alcoholism and the ADA

Under the ADA, “disability” is defined as (a)

  • “a physical or mental impairment that substantially limits one or more major life activities”
  • “a record of impairment; or 
  • “being regarded as having such an impairment.”  42 U.S.C. § 121012

Major life activities include, but are not limited to, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 

Once an employee has shown that he/she has a disability under the ADA, the employee must next show that he/she is qualified to perform the essential functions of the position.  This can be a much more difficult burden for someone, like Coach Sarkisian, trying to pursue a claim of discrimination based on alcoholism as a disability.  Essential functions of a job may include regular attendance and being on time to work.  For someone suffering from alcoholism, these may be difficult requirements to meet. 

Finally, an employee pursuing a claim of discrimination based on alcoholism must be able to show that the employer could have provided a reasonable accommodation.  While there is not an exhaustive list of what accommodations are reasonable, one of the most common accommodations for someone suffering from alcoholism is allowing the employee to take paid or unpaid leave for medical treatment or counseling.  Additionally, under the Family and Medical Leave Act (FMLA), an employee suffering from alcoholism may be eligible to take up to 12 weeks of unpaid job protected leave in order to deal with his/her alcoholism.  Figuring out if an accommodation is reasonable and if an employer is even obligated to provide an employee with an accommodation is a very fact specific question and must be done on a case by case basis.    

Protect Your Job

Alcoholism can be a very debilitating disease that affects a person’s family, friends, job, and life in general.  In addition to getting the help one needs to treat the alcoholism, it is important to take the necessary steps to best protect one’s job.  If you believe that you have been discriminated against in the workplace because of your alcoholism, or if your employer is refusing to provide you with what you believe to be a reasonable accommodation, it is imperative that you understand your legal rights.  An employment lawyer in your area can advise you of those rights.

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City of Austin Passes Fair Chance Hiring Ordinance

The City of Austin is “banning the box” with its new employment Fair Chance Hiring Ordinance that was approved by an 8-2 vote on March 24, 2016.  The new Ordinance will prohibit companies with 15 or more employees from questioning a job applicant about his/her criminal history until after a conditional job offer has been made.  The purpose of the Ordinance is to give all individuals with criminal histories an equal opportunity in obtaining employment.  

What is the Current Law in Texas?

Currently, Texas law does not prohibit discrimination towards an employee or job applicant because of that individual’s criminal background.  Therefore, an employee in Texas has no legal recourse under state law if he/she is denied employment based on something in his/her criminal record. 

While there is no state or federal law in Texas explicitly prohibiting discrimination based on an applicant or employee’s criminal history, the Equal Employment Opportunity Commission has issued guidance regarding the use of arrest and conviction records in employment decisions based on the discriminatory impact that criminal background check policies often have.  Because minorities are imprisoned at a disproportionate rate, minorities tend to suffer more based on background check policies.  However, this EEOC guidance does not prohibit the use of criminal background checks in employment decisions. 

What Does the Ordinance Do?

  • The City of Austin Fair Chance Hiring Ordinance will only apply to those businesses within the City of Austin that have 15 or more employees. 
  • The Ordinance only applies during the application process. 
  • There is no prohibition against an employer firing an employee based on the discovery of some criminal history. 
  • The law also does not prohibit an employer from revoking a job offer based on information obtained after a conditional offer has been made.     

The Ordinance is not a state or federal law, so it does not give a job applicant the legal right to file a lawsuit if a company is in violation.  An individual who believes that a company is in violation of the Ordinance will have the ability to file a complaint with the City.  Ultimately, a company found to be in violation could face a $500 penalty.   

Employee Rights

While the City of Austin Ordinance will potentially have an impact on the questions that applicants in Austin, Texas see when applying for jobs, it will do little to expand on the legal protections that employees in this State have from discriminatory treatment.  If you believe that you have been discriminated against based on a company’s use of criminal history information, it is important that you speak with an employment lawyer to understand your rights. 

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Bev Kearney files $1 million suit against Texas

Beverly Kearney Files Lawsuit Against UT Austin

By Kirk Bohls and Suzanne Halliburton, Austin American Statesman Staff
AP Photo/Statesman.com, Ralph Barrera

Former Texas women’s track coach Beverly Kearney filed a $1 million lawsuit in state district court today alleging the school discriminated and retaliated against her based on gender and race.

The lawsuit filing was provided to the American-Statesman this morning. Derek Howard, Kearney’s lawyer, now has confirmed to the Statesman that the suit has been filed. Howard declined further comment.

Patti Ohlendorf, UT vice president for legal affairs, called the allegations “unfounded.”

“When the university reviews inappropriate behavior by its employees, each case is evaluated on its individual facts,” Ohlendorf said in a statement to the Statesman. “In this case, it was evident that Ms. Kearney displayed a serious lack of judgment by having an inappropriate, intimate, long-term relationship with a member of her team. The team member later reported it to university officials who pursued all appropriate action.”

The lawsuit said that UT showed a double standard by punishing Kearney for an inappropriate relationship with a student athlete, but hired former volleyball coach Jim Moore, who married one of his athletes. Moore now is head coach at Oregon. He worked at UT from 1997-2000. Moore’s bio with Oregon says he’s married to Stacy Metro. The two have two children, ages 16 and 14. Metro, an assistant coach at Oregon, played at Northern Michigan.

The suit said there are others who had inappropriate relationships: “Based on information and belief, other University employees (all of whom are white males) have been involved in relationships with students or direct subordinates and have not been subjected to termination, let alone any meaningful disciplinary actions.

“These University employees include Major Applewhite, other coaches within the University’s Athletic Department, current and former law school professors, current and former professors within the University’s undergraduate school, and a department chairperson. Based on information and belief, a high level administrator within the University’s Athletic Department has carried on a prolonged intimate relationship of approximately three years with a subordinate employee with whom he has direct involvement in setting her pay.”

Applewhite had his pay frozen for nearly 20 months as discipline for having a brief affair with a student staffer on the football team at the 2009 Fiesta Bowl.

Kearney is asking the court for damages that include payment for lost and future wages, loss of enjoyment of life, mental anguish and court costs.

The suit says the damages would be at least $1 million.

Kearney resigned Jan. 5, eight days after she was informed that she would be terminated for having an inappropriate relationship with one of her athletes in 2002. Kearney, who led Texas to six national titles, had admitted to the relationship in meetings last fall with UT. The woman, who is now 30, has not been identified.

On March 8, Kearney filed a five-page complaint with the Texas Workforce Commission and the U.S. Equal Employment Opportunity Commission, stating that she’d experienced a “severely hostile work environment at Texas over the past decade.

Had she completed the school year, Kearney would have been the third highest paid track coach in the country with a total benefits package of $304,000. Texas A&M’s Pat Henry, who has won 33 career NCAA titles coaching both men and women, is the highest paid nationally at $475,000. Oregon’s Robert Johnson, who also oversees both the men’s and women’s squads, will make $400,000 for the academic year.

Kearney had been recommended for a substantial pay raise last fall. The complaint said the raise was supposed to be nearly $150,000 a year. But the raise was put on hold, and she was placed on administrative leave in October, when UT learned of the relationship with the athlete.

Before she was placed on leave, Kearney was the highest paid head coach, outside of football, basketball and baseball, at UT. Her salary included an extra month’s pay for coordinating an annual minority symposium in conjunction with the Texas Relays. She also received an annual payment of $50,000 for product endorsements, the largest salary supplement received by any coach of a non-revenue sport.

http://www.statesman.com/weblogs/bevo-beat/2013/nov/14/bev-kearney-files-suit-against-texas/

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