When Eminem Becomes A CNA:
Managing Employees In Today’s “Culture”
W. Jonathan Martin II
Constangy, Brooks & Smith, LLP
* Alabama * California * Georgia * Florida * Illinois * Massachusetts* Missouri * North Carolina *
* South Carolina * Tennessee * Texas * Virginia * Wisconsin *
Why’s This Stuff
Important?
• Jury Awards $13
Million in Disability Discrimination Case
(Las Vegas, Nevada 1999)
• Jury Awards $30.675 Million Verdict in Age
Discrimination Case (Youngstown, Ohio 2001)
• Mistubishi Motors Settles Sexual Harassment Lawsuit for
$34 Million (Normal, Illinois 1999)
• Coca Cola Settles Race Discrimination Lawsuit for $192.5
Million (Atlanta, Georgia 2000)
• Government Will Pay $508 Million to Settle Sex
Discrimination Suit (CNN – March 22, 2000)
What Do You
Think?
Janet and Frank work together. Frank likes to
sing all day long. He frequently recites the
lyrics to popular rap songs, which include the
“N” word and the term “trick” to refer to
females. Janet is offended by the lyrics and
complains. Is it a big deal? Why?
Business Week
April 23, 2007
What Has Our “Culture” Become?
Number One
Show on VH-1!
. . . Our Idols . . .
. . . Our Movies . . .
Highest Grossing R-Rated
Movie of All Time!
. . . Our Music . . .
Calvin Broadus, a.k.a.,
Snoop Dogg, a.k.a.,
“The Doggfather” with
“Drop It Like It’s Hot”
. . . Our Southern Culture . . .
. . . And It’s Only Getting Worse . . .
. . . What’s Next ?!
That Stuff Only
Happens on TV,
Right?
Cost of A Snoop
Dogg Song?
In September 2007, EEOC sued a San Jose-based manufacturer of
semiconductor production equipment because it failed to stop the
racial harassment of an African American assembly technician who
was forced to listen to a Vietnamese coworker play and rap aloud to
rap music with racially offensive lyrics and because it fired the Black
employee after he repeatedly complained about his work
conditions. In June 2008, the manufacturer settled the case for
$168,000 and agreed to amend its harassment policy to refer
specifically to harassment through the playing of music, and to
include offensive musical lyrics in its examples of racial harassment.
See EEOC v. Novellus Systems, Inc., C-07-4787 RS (N.D. Cal. settled
June 24, 2008).
Framework
for Analysis
Two Types of Violations
– Quid Pro Quo
• Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236,
1246 (11th Cir.1998).
– Hostile Work Environment
• Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)
The Distinction is Important !
– Vicarious Liability for Quid Pro Quo
– No Affirmative Defense for Quid Pro Quo
How Does Popular
Culture Fit In?
Courts routinely remind plaintiffs that “Title VII is not a federal civility code,”
Mendoza, 195 F.3d at 1245; see also Baskerville v. Culligan Int'l Co., 50 F.3d 428,
430 (7th Cir.1995) (“Title VII does not attempt to purge the workplace of
vulgarity”); R&R Ventures, 244 F.3d at 339 (“Boorish behavior may exist apart
from any propensity to discriminate”);
The modern notion of acceptable behavior -- as corroded by instant-gratification
driven, cultural influences (e.g. lewd music, videos, and computer games,
“perversity-programming” broadcast standards, White House “internal affairs”
and perjurious coverups of same, etc.) has been coarsening over time; therefore,
What courts implicitly ask the “Title VII victim” to tolerate as mere “boorish
behavior” or “workplace vulgarity" must, once placed in the contemporary
context, account for any “Slouch Toward Gomorrah” societal norms might take.
Breda v. Wolf Camera & Video, 2001 U.S. Dist. LEXIS 9328 (S.D. Ga. 2001)
There’s a Two Part Test to
Establish That Conduct Was
Sufficiently Severe & Pervasive
Subjective
– The employee must “subjectively perceive” the
harassment as sufficiently severe and pervasive to alter
the terms or conditions of employment
Objective
– This subjective perception must be objectively
reasonable. . . “the objective severity of harassment
should be judged from the perspective of a reasonable
person in the plaintiff's position, considering ‘all the
circumstances.’”
Elements of the
Objective Part
(1) The frequency of the conduct;
(2) The severity of the conduct;
(3) Whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and
(4) Whether the conduct unreasonably interferes with the
employee's job performance.
Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir.1997)
How It All Fits
Together
The courts should examine the conduct in context,
not as isolated acts, and determine under the totality
of the circumstances whether the harassing conduct
is sufficiently severe or pervasive to alter the terms
or conditions of the plaintiff's employment and
create a hostile or abusive working environment.
Mendoza, 195 F.3d at 145.
Let’s Expand Our
Analysis
After All Title VII
Applies to . . .
•National Origin – Miller v. Kenworth of Dothan, Inc., 277
1269, 1278 (11th Cir. 2002)
•Race – Chambers v. Walt Disney World Co., 132 F. Supp. 1356,
1370 (M.D. Fla. 2001)
•Gender – Smith v. First Union, 202 F.3d 234 (4th Cir. 2000)
•Religion – EEOC v. Univ. of Chicago Hosp., 276 F.3d 326 (7th
Cir. 2002)
What’s Not
Harassment?
•Requiring Work
•Regular Attendance
•Normal Discipline
•Gruff & Abrupt Behavior
Employee Relations
– Practical
Guidance
• Be respectful. Be consistent. Have policies to promote respect
and consistency.
• Make decisions based upon legitimate business reasons. Have
practices which support and encourage business-based decision
making.
• Cover Your Assets (also known as “CYA”). This means document,
document, document. And document some more.
• Protect others’ privacy, their confidential information, their
reputations. But don’t promise “confidentiality.”
• When you are over your head, avoid “winging it.” Get help.
Investigations Practical Guidance
Case Analysis
–
–
–
–
–
–
–
–
Conduct “Because Of” Protected Class
Frequency of Conduct (Daily vs. 3x in 10 Years)
Severity of Conduct (Asking Out vs. Sexually Graphic)
Effect of Conduct on Ability to Make Living
Supervisory Action
Tangible Action
Retaliation
When did Plaintiff File a Charge with the EEOC
Harassment Policy Practical Guidance
“Sexual Harassment Policy”
– Is it limited to “sexual harassment” only?
– How was it communicated to employee?
• In writing?
• In handbook?
• Employee Seminars?
Reporting mechanisms clear?
– Are there alternatives to reporting to supervisor?
– What is the extent of management training (i.e.,
mandatory supervisory training)?
– Is there a “reason” not to report?
Four Key
Points To
Remember
Know and follow all policies & procedures that prohibit
unlawful harassment, discrimination or retaliation.
Remember the Golden Rule.
Treat others with dignity and respect.
If you think your action might be improper, it probably is –
so don’t do it!
Let’s Talk About the
Getting The Most Out of
Your People!
3 Rules for Managing People
Leading
7 “Leaders” You Can’t Afford
• I’m The Boss . . . Don’t You Forget It!
• Uncertain (“My Boss Is Telling Me . . .”)
• Inconsistent “Leaders” (Favoritism)
• Deceptive (Promises They Don’t Intend To Keep)
• Foul Language “Leaders”
• Negative “Leaders”
• Absent “Leader” (Always In Office)
ABC’s Of Employment Law
•
•
•
•
•
A - Always
B - Be
C - Consistent
D - Document
E - Everything
Practice # 1
Make
Common
Sense
Common
Practice
Practice # 2
Take a Second
Look At
First
Impressions
Final Practice
Follow The Golden Rule
And The Gold Will Follow!
It’s Not the Big Things . . .
Maintaining Morale:
6 Ways to Reward Employees
•
•
•
•
•
•
Volunteer to do Person’s Least Desirable Work for an Hour
Paychecks Go Out –Write a Note Concerning Employee’s
Accomplishment
Have Lunch or Dinner with an Employee or Group of
Employees You Don’t Normally Spend Time With
Look for Opportunities to Recognize Employees
Visit Employees in Their Time of Need
Praise Employee in front of Spouse or Children
I’m No Rocket Scientist . . . But
Insanity: doing the
same thing over and
over again and
expecting different
results.
Albert Einstein
US (Germanborn) physicist
(1879 - 1955)
Questions?