The "She Asked For It" Defense Strikes Again

In another example of why women hesitate to bring sexual harassment claims, a judge has ordered twenty two women who are bringing a sexual harassment claim to turn over their cell phones and social networking passwords to attorneys for their former employers. The judge will allow these attorneys to examine their chats, text messages, tweets, private messages, pictures, posts and emails.

The former employer claims that they need the information to explore whether the women used the words they claim offended them, their romantic lives, and other information to determine whether they were indeed subjected to unwelcome sexual harassment and, if so, the extent of their emotional damage.

The big smoking gun the employer pointed to was a shirt one of the women wore in a photo with the word, "Cu**" on it. Apparently, if you wear such a shirt on your own time, no matter your intent, you have extended an open invitation to all your supervisors and male coworkers to sexually harass you. Sort of like the argument that African-American employees who use the n-word can't be offended when someone else uses it toward them.

The judge said this about his reasoning: "I view this content logically as though each class member had a file folder titled “Everything About Me,” which they have voluntarily shared with others. If there are documents in this folder that contain information that is relevant or may lead to the discovery of admissible evidence relating to this lawsuit, the presumption is that it should be produced."

This is a case where twenty-two women say they were propositioned, fondled, and subjected to unwanted comments by their manager. Twenty-two! That means this employer is claiming twenty-two women are all making up the same story. That twenty-two women asked for this behavior.

Which brings me back to the "she asked for it" defense. Too many judges in sexual harassment cases allow the harasser to claim that a woman's use of four-letter words, her clothing, or her sex life with others mean that she wasn't offended when she was groped, insulted or grabbed by her supervisor. If a woman isn't a delicate flower, blushing at the merest hint of foul language or the mention of sex, she's apparently an open target.

So, ladies, open your diaries, love letters, private email, intimate discussions with friends and anything else in your life. If you are bringing a sexual harassment claim, your harasser can see it all so they can claim you asked for it.

I have to say this to management-side employment lawyers who use this tactic to humiliate sexual harassment victims: "Have you no sense of decency, sir? At long last, have you left no sense of decency?"

Weird Or Not, Beliefs Are Protected Religion

A recent case where a vegan claimed she was protected from religious discrimination has caused some wailing and gnashing of teeth on the management side of my profession. The court said this about her claims:

[I]t is plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.... Accordingly, at this early stage of the litigation, the Court finds it inappropriate to dismiss Plaintiff's claims for religious discrimination based on her adherence to veganism.

I, on the other hand, was not surprised. Indeed, I predicted this in my book, Stand Up For Yourself Without Getting Fired:

Sincerely held beliefs: You don’t need to be part of an organized religion to be protected against religious discrimination. Atheists are protected. So are “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” It doesn’t matter that the beliefs are illogical or even that they aren’t held by many people. For instance, a person who practices veganism for moral reasons may be protected against religious discrimination, where a person who practices veganism for health or environmental reasons may not be protected.

It doesn't matter if you agree with the religious belief or think it's weird. Whether you dislike dreadlocks, you must respect a Rastafarian's right to wear them. Do you think a Jehovah's Witness ought to be a good sport and participate in birthday celebrations? Stop pushing. You can't do it. Think a Sikh's long hair should be cut? It doesn't matter what you think. It matters what the person who holds the belief thinks. If their belief is sincerely held, you must respect it in the workplace. No mocking or harassment allowed.

What about atheists? They don't have a religion, do they? Wrong. Atheists are one of the most maligned groups in our society, right up there with the overweight. Politicians openly blame them for tragedies that have nothing to do with them. Some openly call them evil or immoral. There are even state laws that openly discriminate against atheists. However, their sincerely held beliefs are protected under Title VII's religious discrimination provisions. That means an atheist must be excused from prayer services and other religious displays at work. You can't refuse to hire them because you assume all atheists are unethical (as my daughter's teacher announced in class the other day) or because they don't attend your church.

If you think about it, even mainstream religions have some practices that may seem weird to outsiders. Catholics engage in ritual cannibalism when they do communion. The Bible that most Christian and Jewish believers follow says offenses like adultery, not honoring the sabbath, and being a bad son are subject to mandatory death penalty.

So who's to say what's weird or whose beliefs are silly? To an atheist, a religious practice might be superstition. To others, it might be blasphemy. To some, it may be their most sincerely held belief.

Hindu, Muslim, Scientologist, Seventh-Day Adventist, Pagan, Wiccan, Satanist, and believers in Greek Mythology are all protected under Title VII.

So let's stop judging each other's beliefs and get back to work.

Broward Joins Miami-Dade In Protecting Employees Against Wage Theft

Miami-Dade County's wage theft ordinance has been in effect since 2010. It was the first such ordinance in the nation. This month, Broward County finally joins them in the fight against unscrupulous employers who steal employee wages. Alachua County is currently considering a similar ordinance.

The sad fact is that most states let employers get away with allowing people to work, then failing to pay them. Why businesses tend to fight these laws like cornered rats is beyond me. Isn't using free labor the very definition of an unfair trade practice? How can legitimate employers fairly compete with unscrupulous companies who use slave labor?

Not that the Miami-Dade wage theft system is perfect. I wrote previously about some problems we had with hearings. We have one case we won months ago, yet haven't received our judgment. Several other cases have languished for months without being set for hearing. Still, it's probably better than trying to file a lawsuit in a system that's glutted with foreclosures.

Rant over. There are some key differences between the two ordinances. Here's the scoop:

Wages due date: Both counties now make wages due within 14 days after services were performed unless the employer has established a consistent pay schedule that is different.

Demand letter: Broward County requires a demand letter within 60 days of the date the wages were due giving the amount of wages due, the actual or estimated work dates and hours, and notifying the employer the wages are past due. Dade has no such requirement.

Deadline for claim: Both counties have deadlines of one year from the last date the employee performed work for the employer that wasn't paid.

Supporting documentation: Dade's ordinance requires all supporting documentation to be attached to the complaint. Broward's just requires the complainant to set forth the facts with sufficient specificity to allow the respondent and the County to understand the basis for the claim.

Service of complaint: Dade serves the complaint by certified mail. Broward will apparently use the Sheriff or a process server.

Hearing notice: Dade's ordinance says notices are served by certified mail, which is a real problem. By the time of the hearing, the receipts don't arrive and the employees waste a day they had to take off from work before they find out the hearing is canceled. Dade also says that Fla. R. Civ. P. 1.080 can be used for service. That rule used to say service was by snail mail, but now it's by email. Yet Dade doesn't use that method, instead making taxpayers incur the expense of additional certified mail costs. Broward's refers to the Florida Rules of Civil Procedure for service without specifying which rule. Presumably, regular first class mail, or even better, email, will be used for notices once the employer is properly served with the complaint.

Answer: Answers are due in both counties within 20 days after service of the complaint.

Hearing officer appointed: In Dade, a hearing is supposed to be appointed within 15 days after the complaint is served. In Broward, it's 30 days. Neither county has a deadline by which the hearing must be conducted. That's a giant flaw.

Conciliation: Both ordinances encourage the parties to reach an agreement and say the counties will work to help resolve the dispute. The reality in Dade has been, so far, that conciliation pretty much concists of, "Hello, employer. Do you want to pay these wages? No? Ok." Hopefully a more formal mediation program will be set up to try to get the parties to settle more quickly and reduce backlog.

Lawsuit: Both counties prohibit aggrieved employees from suing for their wages. If they do, the counties will dismiss their wage theft complaints. That just sucks, especially where the wage theft program is so bogged down.

Damages: In Dade, it's three times the amount of wages stolen. In Broward, it's twice the amount.

Attorney's fees: In Dade, employees cannot recover their attorney's fees incurred. In Broward, they can. However, Broward also has a provision that employees bringing frivolous claims will have to pay administrative fees and the attorney's fees and costs of the employer.

Employee defined: An employee in both counties is anyone who performs work within the geographic boundaries of the county while being employed by an employer. It doesn't include bona fide independent contractors, but most people classified as contractors are misclassified and should be considered employees.

Employer defined: Both counties exclude the U.S. government, the State of Florida, and any Indian Tribe. Dade excludes itself, but Broward doesn't.

Hopefully, Broward will learn from Dade's mistakes and administrate their program a little better. Dade still needs more resources and a more efficient system in order to have their program become a model for the nation.

Congratulations to both Miami-Dade and Broward for having the guts to stand up to thieving employers!

And The Crystal Ball Says: My Predictions for 2013 Employment Law

Last year I did pretty well with my predictions. Here’s what I see on the horizon for 2013.

1. Even More Active NLRB

With zero Republicans left, the possibility of gridlock is nil. We’ve seen a very active NLRB on issues involving non-union workplaces. Look for stepped up activity against employers on social media restrictions, attempts to suppress worker concerted activities and lopsided agreements. NLRB will do what other government agencies have punted on: help employees.

2. EEOC Will Start Stepping Up

Not to be outdone by NLRB, EEOC will become more active as well. This year saw the beginnings of activity to address gay rights and retaliatory confidentiality agreements. Look for more activity that actually helps employees, and for an agency that no longer accepts employer position statements as gospel.

3. Marijuana Litigation

With flat-out legalization in two states and legal medical marijuana in many more, we’ll start to see litigation on the employment-protection provisions built into many of these new state statutes. The fact that it’s still illegal under federal law will make things complicated. Will the feds finally give up and recognize state’s rights? Probably not this year, but definitely within the next 5 years.

4. Gay Rights Expansion

Speaking of states’ rights, with gay marriage spreading across the country, the feds can’t be far behind. We probably won’t see Congress adding sexual orientation to Title VII or gay spouses to FMLA this year, but I think it’s going to happen this Presidential term.

5. Strikes

All of a sudden, workers are waking up. They’ve realized they don’t have to put up with crappy working conditions in silence. We’ll see more non-unionized workforces going on strike. We’ll also see some Wal-Mart and fast food corporations retaliating for the strikes that have happened last year and which will continue in 2013. Fortunately, I think NLRB will take action to slap employers for illegal retaliation.

6. Federal Courts Become (Slightly) Less Anti-Employee

While federal courts have long been a sad place for employees, especially here in the 11th Circuit, some recent cases indicate that the times may be changing. Look for some rulings in favor of employees for a change. All it will take is a couple of Supreme Court appointments over the next four years and it will be a different world for employees. This year, the Supremes will, for the most part, continue to bend toward corporate interests instead of the working people.

7. Arbitration Under Fire

Although arbitration clauses have been the darling of employers, who are sneaking them into applications, handbooks and that giant stack of papers employees sign on their first day, look for some attacks this year coming from government agencies. The courts tend to love arbitration because it clears their dockets, so expect little help from those in robes. Watch for NLRB, EEOC, FTC and maybe even DOJ to subject arbitration agreements to extra scrutiny. It’s doubtful Congress will take action this year, but if they do something to help consumers, employees will probably be able to benefit.

8. Bullies Will Slide

Although states periodically consider anti-bullying laws, they always fail to pass. It’s likely 2013 will be no different. Watch for more consciousness-raising but no legal action this year.

9. Privacy Protections

More state legislatures will pass laws against demanding employee social media passwords and other egregious employer snooping. Congress might even do something to stop some of the worse invasions of privacy, but I won’t hold my breath. They’re too busy with gridlock to actually do anything that might protect their constituents.

10. Background Check Restrictions

More states will place limitations on background checks and what background information employers can use against applicants. Watch for laws limiting use of criminal records, unemployment, and credit history against applicants. EEOC will continue looking for disparate impact of background check information against women and minorities. It’s only a matter of time, say 2013 or 2014, before we see a case arguing that use of criminal records has a disparate impact on men, but it won’t come from EEOC.

One thing for sure: 2013 will be a hot year for employment law issues. Stay tuned here and on my Twitter feed for the latest updates.