Casino Fires “Teflon” Employee
By Myra Creighton (Atlanta)
Employers frequently believe that they cannot discipline or adversely
affect the employment of employees who have complained about violations
of various state or federal laws or who have played the role of whistleblower. Worse, there are employees who believe their employment is
“untouchable” if they complain or blow the whistle. In a recent case one
such employee got a rude awakening. Imbornone v. Treasure Chest Casino.
Timing Looked Bad, But...
Sylvia Imbornone had worked as a surveillance agent for Treasure
Chest Casino for seven years when the casino fired her. In 2002 she
complained that a female co-worker was sexually harassing her. After an
investigation the casino terminated Ms. Imbornone’s harasser.
Additionally, the company met with the entire surveillance department
and reviewed its harassment policy, which indicated the Company could
terminate employees who violated the policy.
Approximately three and one half months later, a male surveillance
agent complained that Ms. Imbornone had sexually harassed him.
Although Ms. Imbornone admitted the inappropriate behavior alleged,
she contended the man reciprocated her conduct. The company
suspended Ms. Imbornone pending additional investigation.
During Imbornone’s suspension her attorney sent the casino a letter
with a signed statement in which Imbornone admitted that she had
engaged in the inappropriate conduct but which also complained that her
co-workers were sexually harassing her. The company then terminated
Ms. Imbornone for violating its sexual harassment policy. She subsequently filed a lawsuit in federal court against the company alleging that
it terminated her for complaining about sexual harassment.
GIVE ME ONE ORDER OF HARASSMENT, WITH A
SIDE OF FAILURE TO REMEDY
Continued from page 2
to accomplish most activities on her own. But “lurking” disabilities,
particularly in the context of what the EEOC calls “intellectual
disabilities,” create a significant hazard for employers.
While it will usually be obvious whether harassment may be based
on a protected class (such as race, sex or national origin), the same may
not be true if a person does not present obvious indicators of a disability.
For that reason, your policy against harassment should prohibit all types
of offensive behavior, not just that based on a protected class. Train your
supervisors to intervene whenever employee conduct may be offensive,
even in cases of “horseplay.” Part of the necessary intervention includes
investigations of employee complaints.
You may determine that complained-of harassment does not affect
an employee’s rights. And your investigation will go a long way toward
protecting the company if a court later finds that you were wrong.
...Timing Isn’t Everything
The district court determined that Ms. Imbornone did not present
any evidence that her complaint and termination were related and
granted judgment to the casino.
In its holding, the court noted that Ms. Imbornone’s first
complaint had led to the termination of a co-worker’s employment, that
Ms. Imbornone had attended training, which indicated that termination
was a possible consequence of violating the harassment policy,
and that she had admitted engaging in inappropriate conduct.
Thus, Ms. Imbornone failed to show that the company’s decision to
terminate her employment was a pretext for retaliation.
Lay The Groundwork Early
The key questions then are when is an employer most at risk for
retaliation claims and how do you avoid them. First, adverse actions
on the heels of an employee’s complaint (even one made during the
disciplinary process) can make adverse action seem too risky because the
timing could lead a person to infer that there is a causal connection
between the complaint and the action.
The federal appellate courts currently are split on whether a
temporal nexus standing alone is sufficient to give rise to an inference of
retaliation. Nevertheless, if the basis for the decision is well-documented
then an employee’s chances of prevailing drop considerably – especially
if the decision was made before the protected activity took place.
One crucial point is to document decisions as they are made and not
just after they are communicated. For example, if you decide to terminate
an employee but want to wait until after the holidays or after a project is
complete, and the employee complains in the interim, the employee’s case
looks viable because communication of the decision was delayed. But if
the decision and basis for delay has been memorialized, then the
documentation can help negate the nexus between the complaint and
the decision.
Documentation can take some of the shine off a teflon employee.
For more information contact the author at 404.231.1400 or
mcreighton@laborlawyers.com.
attorneys at law
www.laborlawyers.com
Atlanta
Charlotte
Chicago
Columbia
Dallas
Fort Lauderdale
Irvine
Kansas City
Las Vegas
New Jersey
New Orleans
Oakland
Orlando
Portland
San Diego
For more information contact the author at 702.252.3131 or
shaley@laborlawyers.com.
4
FISHER &
PHILLIPS LLP
Tampa
© 2006 Fisher & Phillips LLP
© 2006 Fisher & Phillips LLP
Hospitality
Solutions at Work®
LABOR LETTER
September 2006
“That’s Not Harassment –
We Just Have A ‘Sexually Charged’
Atmosphere”
By Christian Zinn (Las Vegas)
The California Supreme Court recently unanimously held that sexual antics and sexual language by
the writers for the television show “Friends” was not
severe or pervasive enough to
create a hostile work environment in violation of California
State law.
Amaani Lyle, the female
writers’ assistant who sued
Warner Brothers Television
Productions, interviewed for
her job with the television show
“Friends” in June of 1999.
Lyle’s duties included attending
all of the writers meetings,
taking notes of the discussions
held, and transcribing any jokes
or dialog that might be used for
the script. At the time of her
interview, the producers and
writers of the show warned her
that writers often discuss sex and tell sexual jokes during
the creative writing sessions. She accepted the job
anyway. Lyle was fired after just four months,
purportedly because of problems with her typing
and transcription. Lyle v. Warner Brothers Television
Productions.
“Let’s Just Be Friends”
Lyle, who is African American, sued Warner
Brothers – and a slew of others including the producers
and writers of the show – alleging race and sex discrimination, racial and sexual harassment, and retaliation for
opposing race discrimination against African Americans
in the casting of the show. Lyle testified at her deposition
that nobody on the show ever said anything sexually
offensive directly to her, or that they even sexually
propositioned her. However, she stated that the writers
regularly discussed their sexual preferences, experiences,
and fantasies in her presence.
She also alleged that the writers drew sexual
pictures, wrote sexually explicit words on scripts and a
calendar, made masturbatory gestures, talked about how
one of them missed an opportunity to have sex with one
of the show’s actresses, and made demeaning comments
about the sexual ability and fertility of another actress.
The producers and writers of the show testified that
writers used sexually coarse and vulgar language during
their meetings before and after
Lyle was hired. They also testified that both men and women
were present during all these
meetings, and that both men
and women discussed their
sexual experiences for the
purpose of generating material
for the show.
The Los Angeles County
Superior Court held that the
defendants could not be liable
because they were either
not Lyle’s employer or because
she could not prove her claims.
The California Court of
Appeals affirmed the summary
judgment on all but one count.
It held that the employee’s claims of racial and
sexual harassment against Warner Brothers, and other
individuals including the producers and writers, was
viable. The Appeals Court rejected the argument that
sexually coarse and vulgar language is necessary for the
creative process. The California Supreme Court agreed
to review only the sexual harassment claim.
Harassment Must Be Because Of Sex
An employee claiming sexual harassment based on
a hostile work environment must show that the conduct
was unwelcome, that it was because of sex, that it was
sufficiently severe or pervasive to alter the conditions of
employment so as to create a hostile or abusive work
environment, and that the conduct was imputable to
the employer. The standard is to be judged from
the perspective of a reasonable person in the plaintiff’s
position considering all the circumstances. The California Supreme Court emphasized that the disparate
treatment of an employee on the basis of their sex, not
the mere discussion of sex or use of vulgar language, is
the essence of a sexual harassment claim.
Continued on page 3
Give Me One Order Of
Harassment, With A Side Of
Failure To Remedy
By Shaun Haley (Las Vegas)
Houston-based restaurant chain
Luby’s, Inc. recently agreed with the EEOC
to pay a former employee $90,000 to settle
her claims that she was harassed based on
her disability. The settlement followed
closely on the heels of a federal district
court’s decision to allow the employee’s case
to be presented to a jury. Though the case
itself does not create new law, it does highlight the critical importance of investigating
employee complaints of disability-based
harassment. EEOC v. Luby’s Inc.
FISHER &
PHILLIPS LLP
attorneys at law
ATLANTA
1500 Resurgens Plaza
945 East Paces
Ferry Road
Atlanta, GA 30326
404.231.1400
CHARLOTTE
Suite 2020
227 West Trade Street
Charlotte, NC 28202
704.334.4565
CHICAGO
1000 Marquette
Building
140 South Dearborn
Street
Chicago, IL 60603
312.346.8061
COLUMBIA
1901 Main Street
Suite 1400
Columbia, SC 29201
803.255.0000
DALLAS
Thanksgiving Tower
Suite 4343
1601 Elm Street
Dallas, TX 75201
214.220.9100
FORT LAUDERDALE
450 East Las Olas
Boulevard
Suite 800
Fort Lauderdale, FL
33301
954.525.4800
IRVINE
18400 Von Karman
Avenue
Suite 400
Irvine, CA 92612
949.851.2424
The Hospitality Labor Letter is a periodic publication
of Fisher & Phillips LLP and should not be construed
as legal advice or legal opinion on any specific facts or
circumstances. The contents are intended for general
information purposes only, and you are urged to consult counsel concerning your own situation and any
specific legal questions you may have. Fisher &
Phillips LLP lawyers are available for presentations on
a wide variety of labor and employment topics.
LAS VEGAS
3993 Howard
Hughes Parkway
Suite 650
Las Vegas, NV 89169
702.252.3131
ORLANDO
1250 Lincoln Plaza
300 South Orange
Avenue
Orlando, FL 32801
407.541.0888
NEW JERSEY
Corporate Park III
580 Howard Avenue
Somerset, NJ 08873
732.560.7100
PORTLAND
111 SW Fifth Avenue
Suite 1250
Portland, Oregon 97204
503.242.4262
OAKLAND
501-14th Street
Suite 200, City Center
Oakland, CA 94612
510.763.4411
TAMPA
2525 SunTrust
Financial Centre
401 E. Jackson Street
Tampa, FL 33602
813.769.7500
NEW ORLEANS
201 St. Charles Avenue
Suite 3710
New Orleans, LA 70170
504.522.3303
SAN DIEGO
4225 Executive Square
Suite 950
La Jolla, CA 92037
858.597.9600
KANSAS CITY
104 West 9th Street
Suite 400
Kansas City, MO 64105
816.842.8770
Fisher & Phillips LLP represents employers nationwide in the areas of labor, employment,
civil rights, employee benefits and immigration law.
We’re interested in your opinion. If you have any suggestions about
how we can improve the Hospitality Labor Letter (or its sister
publication the Labor Letter), let us know by contacting your
Fisher & Phillips attorney or email the
editor at mmitchell@laborlawyers.com.
2
Case’s Case
Sally Case, who claims that she suffers from a developmental
disability and possesses an I.Q. of less than 70, was employed as a floor
attendant at one of Luby’s Phoenix restaurants beginning in 1998.
In 2000, Case filed a charge of discrimination with the EEOC, alleging
that the restaurant’s general manager told her to “shut up” on several
occasions, called her a “retard,” and even slapped her on the face.
Case also reported that Luby’s employees intentionally hid her
bicycle in the men’s room, blocked her way
out of the kitchen when she tried to pass,
barked like a dog at her when she entered a
room, and threatened to cut her arm with a
bread slicer. Case claimed that she resigned
her position because Luby’s management
failed to respond to her complaints about
this treatment.
The EEOC then sued the restaurant on
Case’s behalf under the ADA, alleging that
Luby’s subjected her to a hostile working
environment.
Did Luby’s Know?
Asking for a summary judgment, Luby’s
presented its defense, including that Case
was not actually disabled under the ADA,
and even if she were, that Luby’s did not
actually know that she was. Lacking any knowledge of a disability, Luby’s
argued it could not have harassed Case “based on a disability.”
The district court disagreed and found that the evidence could lead
a jury to determine that the restaurant was given notice of Case’s
disability. Why? Case’s sister met with the general manager approximately twenty times to discuss the alleged harassment, and told the
general manager that Case was a “special” girl who required more
patience on the part of her supervisors.
Also, Case’s sister asserted that she reported the alleged harassment
to the company’s employee complaint hotline at least twice. Finally, there
was evidence that a state social worker had visited with the general
manager to discuss Case’s employment.
If The Kitchen Is Burning, Put Out The Fire
After the district court denied Luby’s request for summary judgment,
the company entered into a settlement agreeing to pay Case $90,000 in
compensatory damages and an additional $60,000 in attorney’s fees and
costs. As a third condition of settlement, Luby’s agreed to do something
that could have helped the restaurant avoid any liability in this matter:
train its employees to ensure that disabled workers are accommodated
and not harassed.
One interesting question raised by the district court was whether a
harassment claim can even arise out of the ADA. The U.S. Court of
Appeals for the Ninth Circuit (which has jurisdiction over Arizona and
eight other Western States) has yet to specifically address the issue. But
in every circuit that has addressed it, the theory has survived. You can
pretty much take it as a given that a hostile environment theory under the
ADA will eventually gain universal acceptance. Consequently, employers
should understand that they have a legal obligation to prevent and
promptly correct any harassment.
Dishing Up The Answers
It could very well have been that Luby’s did not know that Ms. Case
was disabled – she adequately performed all of her job responsibilities
without an accommodation, and the evidence indicated that she was able
“THAT’S NOT HARASSMENT – WE JUST HAVE A
‘SEXUALLY CHARGED’ ATMOSPHERE”
Continued from page 1
The California Supreme Court found that the evidence showed the
sexual antics and sexual discussions during the writers meetings did not
involve, nor were they aimed at, Lyle or any other female employee present.
The Court also found that the conduct took place in group sessions where
both male and female writers were present, and where both male and
female writers participated in discussions of their sexual experiences to
generate materials for the television show. The Court found that the
comments made during these meetings were not sufficiently severe or
pervasive enough to create a sexually hostile work environment.
In reaching its conclusion, the Court
emphasized that it did not suggest that use of
sexually coarse and vulgar language can
never constitute harassment because of sex.
Indeed, the Court stated that language
similar to that at issue in the case at hand
might well establish actionable harassment
depending on the circumstances. The Court
also found that although California State law
prohibited harassing conduct that created a
work environment hostile or abusive on the
basis of sex, it did not outlaw sexually coarse
and vulgar language or conduct that would
merely offend.
The “Friends” case does not give
employers a free pass to use coarse or vulgar
language at work in every scenario. The
Court went to great lengths to point out that
the work environment was a “creative
workplace, focused on generating scripts for an adult oriented comedy show
featuring sexual themes.” The Court’s conclusion was that no reasonable
trier of fact could find that the language used, and the manner in which it
was used during the show’s writing sessions constituted harassment against
Lyle because of her sex within the meaning of the California statutes.
“You’re Actually Going To Wear That?”
So, can companies use sexually coarse and vulgar language any time
they want to sell sexual themes aimed at adults? Let’s take a look at the
example of American Apparel. American Apparel is a company on the
cutting edge, which makes clothing emphasizing sexuality. In order to
maintain its racy image, the company maintains a sexually charged work
environment. American Apparel translates that sexual charge into
advertisements that tie its products with sexuality.
The message conveyed in American Apparel’s advertisements about
sexuality are mirrored by those of its CEO Dov Charney. Charney’s
persona and the image he created for the company have opened him up to
charges of exploitation and sexual harassment. Charney vehemently
denies the charges, but it has clearly led to problems.
Last year American Apparel, and Charney himself, were sued three
times by three former employees and an independent contractor, all for
sexual harassment. None of the lawsuits accused Charney himself of
untoward sexual behavior, but instead concentrated on the sexualized work
environment and the sexual language that Charney casually uses. One of
the lawsuits was dismissed and the other settled out of court. The third is
still pending.
One result of these lawsuits was the creation of a document
which all American Apparel employees now must sign. The document
declares that “American Apparel is in the business of designing and
manufacturing sexually charged T-shirts and intimate apparel, and uses
sexually charged visual and oral communications in its marketing and sales
Continued on page 4
© 2006 Fisher & Phillips LLP
© 2006 Fisher & Phillips LLP
activities. Employees working in the design, sales, marketing and other
creative areas of the company will come into contact with sexually charged
language and visual images. This is a part of the job for employees working
in these areas.”
Of course, individual companies like American Apparel cannot
dictate what is and isn’t sexual harassment. But American Apparel’s use of
a sexually charged work environment has created incredible business
success. With this success, it is not hard to see why companies like
American Apparel are trying to push the envelop on what is and isn’t
sexual harassment.
Sex Versus Sex: Comparing American Apparel And Friends
Is American Apparel the new benchmark? When do language and
actions like the ones used in the “Friends” case
become pervasive enough to support a claim
for sexual harassment? The California
Supreme Court in the “Friends” case was
interpreting a California statute, but every
employer in every state needs to carefully
analyze its own state’s laws before allowing
any such coarse and vulgar language.
In fact, the “Friends” case can easily be
distinguished. The Court itself pointed out
that it was particularly important that it was
a creative workplace focused on generating
scripts for an adult oriented comedy show
featuring sexual themes. Although American
Apparel is a sexually charged workplace
whose self-imposed mantra is that of creating
a “new normal” in designing, manufacturing,
and selling of sexually charged T-shirts and
intimate apparel, this may not be enough to
withstand a sexual harassment lawsuit.
A reasonable person may conclude, like the California Supreme Court,
that sexual language is needed to allow the “creative juices” to flow for an
adult oriented comedy show. But the same reasonable person may easily
think that a charged sexual environment at a clothing design and
manufacturing employer is not needed, and is sufficiently vulgar and
pervasive to sustain a claim for sexual harassment.
So, Who Sets The Standard?
While not all workplaces could even consider legitimately
arguing that their atmosphere was “sexually charged” for business reasons,
there are some who might, especially in the hospitality and entertainment
areas, where lounge acts and wait staff are frequently chosen to create a
particular ambience.
For now the standard remains the same. What constitutes sexual
harassment based on a hostile work environment must still be looked at
from the perspective of a reasonable person in the employee’s position.
But as more and more companies push the envelope on the “sex sells
mentality,” what is unreasonable in some scenarios might well be
reasonable in others.
For more information contact the author at 702.252.3131 or
czinn@laborlawyers.com.
3
Give Me One Order Of
Harassment, With A Side Of
Failure To Remedy
By Shaun Haley (Las Vegas)
Houston-based restaurant chain
Luby’s, Inc. recently agreed with the EEOC
to pay a former employee $90,000 to settle
her claims that she was harassed based on
her disability. The settlement followed
closely on the heels of a federal district
court’s decision to allow the employee’s case
to be presented to a jury. Though the case
itself does not create new law, it does highlight the critical importance of investigating
employee complaints of disability-based
harassment. EEOC v. Luby’s Inc.
FISHER &
PHILLIPS LLP
attorneys at law
ATLANTA
1500 Resurgens Plaza
945 East Paces
Ferry Road
Atlanta, GA 30326
404.231.1400
CHARLOTTE
Suite 2020
227 West Trade Street
Charlotte, NC 28202
704.334.4565
CHICAGO
1000 Marquette
Building
140 South Dearborn
Street
Chicago, IL 60603
312.346.8061
COLUMBIA
1901 Main Street
Suite 1400
Columbia, SC 29201
803.255.0000
DALLAS
Thanksgiving Tower
Suite 4343
1601 Elm Street
Dallas, TX 75201
214.220.9100
FORT LAUDERDALE
450 East Las Olas
Boulevard
Suite 800
Fort Lauderdale, FL
33301
954.525.4800
IRVINE
18400 Von Karman
Avenue
Suite 400
Irvine, CA 92612
949.851.2424
The Hospitality Labor Letter is a periodic publication
of Fisher & Phillips LLP and should not be construed
as legal advice or legal opinion on any specific facts or
circumstances. The contents are intended for general
information purposes only, and you are urged to consult counsel concerning your own situation and any
specific legal questions you may have. Fisher &
Phillips LLP lawyers are available for presentations on
a wide variety of labor and employment topics.
LAS VEGAS
3993 Howard
Hughes Parkway
Suite 650
Las Vegas, NV 89169
702.252.3131
ORLANDO
1250 Lincoln Plaza
300 South Orange
Avenue
Orlando, FL 32801
407.541.0888
NEW JERSEY
Corporate Park III
580 Howard Avenue
Somerset, NJ 08873
732.560.7100
PORTLAND
111 SW Fifth Avenue
Suite 1250
Portland, Oregon 97204
503.242.4262
OAKLAND
501-14th Street
Suite 200, City Center
Oakland, CA 94612
510.763.4411
TAMPA
2525 SunTrust
Financial Centre
401 E. Jackson Street
Tampa, FL 33602
813.769.7500
NEW ORLEANS
201 St. Charles Avenue
Suite 3710
New Orleans, LA 70170
504.522.3303
SAN DIEGO
4225 Executive Square
Suite 950
La Jolla, CA 92037
858.597.9600
KANSAS CITY
104 West 9th Street
Suite 400
Kansas City, MO 64105
816.842.8770
Fisher & Phillips LLP represents employers nationwide in the areas of labor, employment,
civil rights, employee benefits and immigration law.
We’re interested in your opinion. If you have any suggestions about
how we can improve the Hospitality Labor Letter (or its sister
publication the Labor Letter), let us know by contacting your
Fisher & Phillips attorney or email the
editor at mmitchell@laborlawyers.com.
2
Case’s Case
Sally Case, who claims that she suffers from a developmental
disability and possesses an I.Q. of less than 70, was employed as a floor
attendant at one of Luby’s Phoenix restaurants beginning in 1998.
In 2000, Case filed a charge of discrimination with the EEOC, alleging
that the restaurant’s general manager told her to “shut up” on several
occasions, called her a “retard,” and even slapped her on the face.
Case also reported that Luby’s employees intentionally hid her
bicycle in the men’s room, blocked her way
out of the kitchen when she tried to pass,
barked like a dog at her when she entered a
room, and threatened to cut her arm with a
bread slicer. Case claimed that she resigned
her position because Luby’s management
failed to respond to her complaints about
this treatment.
The EEOC then sued the restaurant on
Case’s behalf under the ADA, alleging that
Luby’s subjected her to a hostile working
environment.
Did Luby’s Know?
Asking for a summary judgment, Luby’s
presented its defense, including that Case
was not actually disabled under the ADA,
and even if she were, that Luby’s did not
actually know that she was. Lacking any knowledge of a disability, Luby’s
argued it could not have harassed Case “based on a disability.”
The district court disagreed and found that the evidence could lead
a jury to determine that the restaurant was given notice of Case’s
disability. Why? Case’s sister met with the general manager approximately twenty times to discuss the alleged harassment, and told the
general manager that Case was a “special” girl who required more
patience on the part of her supervisors.
Also, Case’s sister asserted that she reported the alleged harassment
to the company’s employee complaint hotline at least twice. Finally, there
was evidence that a state social worker had visited with the general
manager to discuss Case’s employment.
If The Kitchen Is Burning, Put Out The Fire
After the district court denied Luby’s request for summary judgment,
the company entered into a settlement agreeing to pay Case $90,000 in
compensatory damages and an additional $60,000 in attorney’s fees and
costs. As a third condition of settlement, Luby’s agreed to do something
that could have helped the restaurant avoid any liability in this matter:
train its employees to ensure that disabled workers are accommodated
and not harassed.
One interesting question raised by the district court was whether a
harassment claim can even arise out of the ADA. The U.S. Court of
Appeals for the Ninth Circuit (which has jurisdiction over Arizona and
eight other Western States) has yet to specifically address the issue. But
in every circuit that has addressed it, the theory has survived. You can
pretty much take it as a given that a hostile environment theory under the
ADA will eventually gain universal acceptance. Consequently, employers
should understand that they have a legal obligation to prevent and
promptly correct any harassment.
Dishing Up The Answers
It could very well have been that Luby’s did not know that Ms. Case
was disabled – she adequately performed all of her job responsibilities
without an accommodation, and the evidence indicated that she was able
“THAT’S NOT HARASSMENT – WE JUST HAVE A
‘SEXUALLY CHARGED’ ATMOSPHERE”
Continued from page 1
The California Supreme Court found that the evidence showed the
sexual antics and sexual discussions during the writers meetings did not
involve, nor were they aimed at, Lyle or any other female employee present.
The Court also found that the conduct took place in group sessions where
both male and female writers were present, and where both male and
female writers participated in discussions of their sexual experiences to
generate materials for the television show. The Court found that the
comments made during these meetings were not sufficiently severe or
pervasive enough to create a sexually hostile work environment.
In reaching its conclusion, the Court
emphasized that it did not suggest that use of
sexually coarse and vulgar language can
never constitute harassment because of sex.
Indeed, the Court stated that language
similar to that at issue in the case at hand
might well establish actionable harassment
depending on the circumstances. The Court
also found that although California State law
prohibited harassing conduct that created a
work environment hostile or abusive on the
basis of sex, it did not outlaw sexually coarse
and vulgar language or conduct that would
merely offend.
The “Friends” case does not give
employers a free pass to use coarse or vulgar
language at work in every scenario. The
Court went to great lengths to point out that
the work environment was a “creative
workplace, focused on generating scripts for an adult oriented comedy show
featuring sexual themes.” The Court’s conclusion was that no reasonable
trier of fact could find that the language used, and the manner in which it
was used during the show’s writing sessions constituted harassment against
Lyle because of her sex within the meaning of the California statutes.
“You’re Actually Going To Wear That?”
So, can companies use sexually coarse and vulgar language any time
they want to sell sexual themes aimed at adults? Let’s take a look at the
example of American Apparel. American Apparel is a company on the
cutting edge, which makes clothing emphasizing sexuality. In order to
maintain its racy image, the company maintains a sexually charged work
environment. American Apparel translates that sexual charge into
advertisements that tie its products with sexuality.
The message conveyed in American Apparel’s advertisements about
sexuality are mirrored by those of its CEO Dov Charney. Charney’s
persona and the image he created for the company have opened him up to
charges of exploitation and sexual harassment. Charney vehemently
denies the charges, but it has clearly led to problems.
Last year American Apparel, and Charney himself, were sued three
times by three former employees and an independent contractor, all for
sexual harassment. None of the lawsuits accused Charney himself of
untoward sexual behavior, but instead concentrated on the sexualized work
environment and the sexual language that Charney casually uses. One of
the lawsuits was dismissed and the other settled out of court. The third is
still pending.
One result of these lawsuits was the creation of a document
which all American Apparel employees now must sign. The document
declares that “American Apparel is in the business of designing and
manufacturing sexually charged T-shirts and intimate apparel, and uses
sexually charged visual and oral communications in its marketing and sales
Continued on page 4
© 2006 Fisher & Phillips LLP
© 2006 Fisher & Phillips LLP
activities. Employees working in the design, sales, marketing and other
creative areas of the company will come into contact with sexually charged
language and visual images. This is a part of the job for employees working
in these areas.”
Of course, individual companies like American Apparel cannot
dictate what is and isn’t sexual harassment. But American Apparel’s use of
a sexually charged work environment has created incredible business
success. With this success, it is not hard to see why companies like
American Apparel are trying to push the envelop on what is and isn’t
sexual harassment.
Sex Versus Sex: Comparing American Apparel And Friends
Is American Apparel the new benchmark? When do language and
actions like the ones used in the “Friends” case
become pervasive enough to support a claim
for sexual harassment? The California
Supreme Court in the “Friends” case was
interpreting a California statute, but every
employer in every state needs to carefully
analyze its own state’s laws before allowing
any such coarse and vulgar language.
In fact, the “Friends” case can easily be
distinguished. The Court itself pointed out
that it was particularly important that it was
a creative workplace focused on generating
scripts for an adult oriented comedy show
featuring sexual themes. Although American
Apparel is a sexually charged workplace
whose self-imposed mantra is that of creating
a “new normal” in designing, manufacturing,
and selling of sexually charged T-shirts and
intimate apparel, this may not be enough to
withstand a sexual harassment lawsuit.
A reasonable person may conclude, like the California Supreme Court,
that sexual language is needed to allow the “creative juices” to flow for an
adult oriented comedy show. But the same reasonable person may easily
think that a charged sexual environment at a clothing design and
manufacturing employer is not needed, and is sufficiently vulgar and
pervasive to sustain a claim for sexual harassment.
So, Who Sets The Standard?
While not all workplaces could even consider legitimately
arguing that their atmosphere was “sexually charged” for business reasons,
there are some who might, especially in the hospitality and entertainment
areas, where lounge acts and wait staff are frequently chosen to create a
particular ambience.
For now the standard remains the same. What constitutes sexual
harassment based on a hostile work environment must still be looked at
from the perspective of a reasonable person in the employee’s position.
But as more and more companies push the envelope on the “sex sells
mentality,” what is unreasonable in some scenarios might well be
reasonable in others.
For more information contact the author at 702.252.3131 or
czinn@laborlawyers.com.
3
Casino Fires “Teflon” Employee
By Myra Creighton (Atlanta)
Employers frequently believe that they cannot discipline or adversely
affect the employment of employees who have complained about violations
of various state or federal laws or who have played the role of whistleblower. Worse, there are employees who believe their employment is
“untouchable” if they complain or blow the whistle. In a recent case one
such employee got a rude awakening. Imbornone v. Treasure Chest Casino.
Timing Looked Bad, But...
Sylvia Imbornone had worked as a surveillance agent for Treasure
Chest Casino for seven years when the casino fired her. In 2002 she
complained that a female co-worker was sexually harassing her. After an
investigation the casino terminated Ms. Imbornone’s harasser.
Additionally, the company met with the entire surveillance department
and reviewed its harassment policy, which indicated the Company could
terminate employees who violated the policy.
Approximately three and one half months later, a male surveillance
agent complained that Ms. Imbornone had sexually harassed him.
Although Ms. Imbornone admitted the inappropriate behavior alleged,
she contended the man reciprocated her conduct. The company
suspended Ms. Imbornone pending additional investigation.
During Imbornone’s suspension her attorney sent the casino a letter
with a signed statement in which Imbornone admitted that she had
engaged in the inappropriate conduct but which also complained that her
co-workers were sexually harassing her. The company then terminated
Ms. Imbornone for violating its sexual harassment policy. She subsequently filed a lawsuit in federal court against the company alleging that
it terminated her for complaining about sexual harassment.
GIVE ME ONE ORDER OF HARASSMENT, WITH A
SIDE OF FAILURE TO REMEDY
Continued from page 2
to accomplish most activities on her own. But “lurking” disabilities,
particularly in the context of what the EEOC calls “intellectual
disabilities,” create a significant hazard for employers.
While it will usually be obvious whether harassment may be based
on a protected class (such as race, sex or national origin), the same may
not be true if a person does not present obvious indicators of a disability.
For that reason, your policy against harassment should prohibit all types
of offensive behavior, not just that based on a protected class. Train your
supervisors to intervene whenever employee conduct may be offensive,
even in cases of “horseplay.” Part of the necessary intervention includes
investigations of employee complaints.
You may determine that complained-of harassment does not affect
an employee’s rights. And your investigation will go a long way toward
protecting the company if a court later finds that you were wrong.
...Timing Isn’t Everything
The district court determined that Ms. Imbornone did not present
any evidence that her complaint and termination were related and
granted judgment to the casino.
In its holding, the court noted that Ms. Imbornone’s first
complaint had led to the termination of a co-worker’s employment, that
Ms. Imbornone had attended training, which indicated that termination
was a possible consequence of violating the harassment policy,
and that she had admitted engaging in inappropriate conduct.
Thus, Ms. Imbornone failed to show that the company’s decision to
terminate her employment was a pretext for retaliation.
Lay The Groundwork Early
The key questions then are when is an employer most at risk for
retaliation claims and how do you avoid them. First, adverse actions
on the heels of an employee’s complaint (even one made during the
disciplinary process) can make adverse action seem too risky because the
timing could lead a person to infer that there is a causal connection
between the complaint and the action.
The federal appellate courts currently are split on whether a
temporal nexus standing alone is sufficient to give rise to an inference of
retaliation. Nevertheless, if the basis for the decision is well-documented
then an employee’s chances of prevailing drop considerably – especially
if the decision was made before the protected activity took place.
One crucial point is to document decisions as they are made and not
just after they are communicated. For example, if you decide to terminate
an employee but want to wait until after the holidays or after a project is
complete, and the employee complains in the interim, the employee’s case
looks viable because communication of the decision was delayed. But if
the decision and basis for delay has been memorialized, then the
documentation can help negate the nexus between the complaint and
the decision.
Documentation can take some of the shine off a teflon employee.
For more information contact the author at 404.231.1400 or
mcreighton@laborlawyers.com.
attorneys at law
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For more information contact the author at 702.252.3131 or
shaley@laborlawyers.com.
4
FISHER &
PHILLIPS LLP
Tampa
© 2006 Fisher & Phillips LLP
© 2006 Fisher & Phillips LLP
Hospitality
Solutions at Work®
LABOR LETTER
September 2006
“That’s Not Harassment –
We Just Have A ‘Sexually Charged’
Atmosphere”
By Christian Zinn (Las Vegas)
The California Supreme Court recently unanimously held that sexual antics and sexual language by
the writers for the television show “Friends” was not
severe or pervasive enough to
create a hostile work environment in violation of California
State law.
Amaani Lyle, the female
writers’ assistant who sued
Warner Brothers Television
Productions, interviewed for
her job with the television show
“Friends” in June of 1999.
Lyle’s duties included attending
all of the writers meetings,
taking notes of the discussions
held, and transcribing any jokes
or dialog that might be used for
the script. At the time of her
interview, the producers and
writers of the show warned her
that writers often discuss sex and tell sexual jokes during
the creative writing sessions. She accepted the job
anyway. Lyle was fired after just four months,
purportedly because of problems with her typing
and transcription. Lyle v. Warner Brothers Television
Productions.
“Let’s Just Be Friends”
Lyle, who is African American, sued Warner
Brothers – and a slew of others including the producers
and writers of the show – alleging race and sex discrimination, racial and sexual harassment, and retaliation for
opposing race discrimination against African Americans
in the casting of the show. Lyle testified at her deposition
that nobody on the show ever said anything sexually
offensive directly to her, or that they even sexually
propositioned her. However, she stated that the writers
regularly discussed their sexual preferences, experiences,
and fantasies in her presence.
She also alleged that the writers drew sexual
pictures, wrote sexually explicit words on scripts and a
calendar, made masturbatory gestures, talked about how
one of them missed an opportunity to have sex with one
of the show’s actresses, and made demeaning comments
about the sexual ability and fertility of another actress.
The producers and writers of the show testified that
writers used sexually coarse and vulgar language during
their meetings before and after
Lyle was hired. They also testified that both men and women
were present during all these
meetings, and that both men
and women discussed their
sexual experiences for the
purpose of generating material
for the show.
The Los Angeles County
Superior Court held that the
defendants could not be liable
because they were either
not Lyle’s employer or because
she could not prove her claims.
The California Court of
Appeals affirmed the summary
judgment on all but one count.
It held that the employee’s claims of racial and
sexual harassment against Warner Brothers, and other
individuals including the producers and writers, was
viable. The Appeals Court rejected the argument that
sexually coarse and vulgar language is necessary for the
creative process. The California Supreme Court agreed
to review only the sexual harassment claim.
Harassment Must Be Because Of Sex
An employee claiming sexual harassment based on
a hostile work environment must show that the conduct
was unwelcome, that it was because of sex, that it was
sufficiently severe or pervasive to alter the conditions of
employment so as to create a hostile or abusive work
environment, and that the conduct was imputable to
the employer. The standard is to be judged from
the perspective of a reasonable person in the plaintiff’s
position considering all the circumstances. The California Supreme Court emphasized that the disparate
treatment of an employee on the basis of their sex, not
the mere discussion of sex or use of vulgar language, is
the essence of a sexual harassment claim.
Continued on page 3