Email Is A Great Tool–Until It Is Not.

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By Kathleen J. Jennings (kjj@wimlaw.com)

Nearly all of us use email to communicate at work. It’s fast, you can reach a lot of people, and the conversation is documented, which can be good–or bad–depending on how you use it. On this Podcast, Thom and I talk about email etiquette with Louise Hughes (lih@wimlaw.com), our very smart and multi-talented Firm Administrator. And we ask the question: who doesn’t get annoyed by that email sent to everyone in the office but really targeting one person? Have a listen: https://www.spreaker.com/user/10949568/cyaemailetiquette

The Toxic Workplace

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By Kathleen J. Jennings (kjj@wimlaw.com)

The toxic workplace. Most of us have had experience with a co-worker or supervisor whose bad behavior makes the workplace a toxic place. Even if this toxic behavior does not rise to the level of being legally actionable, it certainly has a negative impact on employee morale and increases turnover. In this competitive job market, can you afford the toxic behavior of the employee who is driving others away?

Have a listen to our lively discussion of the Toxic Workplace:

https://www.spreaker.com/user/10949568/cyatoxicmaster

The “Boy’s Club” Problem

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By Kathleen J. Jennings (kjj@wimlaw.com)

It’s Women’s History Month, so it is a good time to talk about avoiding sex discrimination in the workplace.

This topic came to me by way of a personal experience. It recently came to my attention that male opposing counsel in a large litigation matter sent an invitation to join him and his trained dogs on a bird hunt. However, the invitation was sent only to the male members of our litigation team. Mind you, this is a lawyer who represents plaintiffs in employment matters; you’d think he’d know better. But the “boy’s club” mentality can be deeply ingrained. And if you have male managers at your company with the same mentality, you run the risk of losing qualified female workers or worse, drawing a sex discrimination lawsuit.

Here’s what to look for: male groups of managers (we are going to focus on management here) that socialize together inside and outside of work, to the exclusion of female managers. Worse case scenario–the male managers who like to regularly go to strip clubs to socialize or conduct business. As a practical proposition, this type of activity serves to exclude women, and let’s face it, the optics are horrible in the era of #metoo. Less obvious but still problematic–the tight knit group of male managers that keep a secret stash of liquor and sit around and drink and shoot the breeze because they work long hours. Or regularly go out to a bar together after work. Maybe they even make comments about female employees or customers while they are hanging out. They do not invite any women to join them. (This fact pattern occurred in a recent lawsuit filed by a female manager who was denied a promotion). If participating in these activities is the way that people advance up through the ranks at your company, you have got a problem that could eventually result in a lawsuit.

There are other consequences, too. For a time, I worked with a male senior attorney who openly bragged about taking clients to strip clubs as a form of client development. I didn’t complain or file an EEOC charge. I just left the firm for another job. And that’s what a good number of well-qualified women will do if they feel excluded because they are not a member of the “boy’s club.” Or maybe that kind of atmosphere makes them annoyed or uncomfortable. Especially now, it is easier to leave one workplace for another that is more inclusive. In this job market, where employers are competing for good talent, it makes no business sense to have a work environment that essentially repels half of the available workers.

Finally, as for the male managers that tell you the reason that they don’t socialize with women is because they “don’t want to say something wrong and get hit with a sexual harassment lawsuit,” those gents are perfect candidates for anti-harassment and sensitivity training. They are all but telling you that they are lawsuits waiting to happen. boy’s club

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2022 by Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

What Does the New #MeToo Inspired Law Mean for Business?

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By Kathleen J. Jennings (kjj@wimlaw.com)

A rare bipartisan effort has brought us a new federal law that was enacted in response to the #MeToo movement. This new law will prohibit companies from forcing employees to use arbitration, rather than the courts, to resolve cases involving sexual harassment or sexual assault in the workplace.

Why do we need this new law? Many people have complained that forced arbitration tends to unfairly favor businesses and keep these types of claims out of the public eye. Businesses generally favor arbitration over jury trials for a number of reasons, including the cost, length of time to resolve claims, and less emotion influencing the result.

As of the effective date of this law, companies will be unable to enforce written arbitration agreements that require employees or former employees to resolve claims of workplace sexual harassment or sexual assault through the arbitration process. This will make these types of claims much more attractive to plaintiff’s lawyers because the monetary value of these cases, especially egregious ones, will increase substantially.

Pro Tip: Now is a good time for businesses to review their policies and procedures that prohibit harassment in the workplace. And when is the last time that you have done any harassment prevention training? It is not enough to talk to employees and managers about harassment at orientation and never bring it up again. Rather, your business should be taking regular affirmative steps to prevent workplace harassment.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2022 by Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Lawfully Handling Employee Mental Health Issues

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By Kathleen J. Jennings (kjj@wimlaw.com)

Thanks to the effects of a worldwide pandemic and revelations by high profile athletes, the issue of mental health is being openly discussed. Such discussions may even happen in your workplace. So how do you deal with employees who reveal that they are struggling with mental health issues, either their own or those of a close family member?

As a starting point, employers that are covered by the Americans WIth Disabilities Act (ADA) cannot discriminate against employees who suffer from mental health conditions that would be considered “disabilities.” Morever, the ADA prohibits employment discrimination against a person, whether or not he or she has a disability, because of his or her known relationship or association with a person with a known disability.

The ADA also protects employees from harassment on the basis of their mental health disabilities. Additionally, the ADA imposes a duty on covered employers to determine whether they can provide reasonable accommodations to disabled employees. An employer is not required to provide an accommodation that would impose an undue hardship.

These are complicated issues, and the EEOC has provided detailed (albeit not up to date–it was issued in 1997) Enforcement Guidance on the Americans With Disabilities Act and Psychiatric Disabilities. More recently, in 2016, the EEOC issued a technical assistance document targeted toward employees entitled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.” This is something your employees may review if they feel like they are not being treated lawfully, so it is worth the time for employers to review it as well.

Every situation is different, so an employer should deal with employees with mental health disabilities on a case by case basis and with the assistance of qualified counsel. However, the following are some general guidelines:

  • If an employee reveals that he or she has been diagnosed with a mental illness, that information must be kept confidential.
  • There are very limited circumstances under which an employer can ask an employee if he or she is mentally ill. Before making such an inquiry, consult with counsel.
  • It is inappropriate for anyone to refer to another employee as “crazy,” “nutcase,” “cuckoo for coco puffs,” “insane,” or other types of derogatory words and phrases. If the use of such terms is considered to be severe or pervasive, the employer could be liable for harassment. Your harassment prevention training should cover this issue.
  • Some examples of possible accommodations for employees with mental health disabilities include altered break and work schedules (e.g., scheduling work around therapy appointments), quiet office space or devices that create a quiet work environment, changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them), specific shift assignments, and permission to work from home.
  • The Family and Medical Leave Act may come into play, if the employer and employee are covered by it.

Most of all, a little compassion goes a long way.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Do You Know What Your Managers Are Doing on Social Media?

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With so many people working and playing at home, it is no wonder that many of them are utilizing some form of social media to keep in touch with others. That includes your managers.

Why should you care about what your managers are doing on social media? Because what they say and do can reflect upon your company. And because to a plaintiff’s lawyer, your manager’s social media posts or activity can be considered evidence. To be used against your company.

Which means that your managers need to understand that whatever they post, share, or follow can be reflection on them and the company they work for, especially if their profile includes the name of their employer. That post that a manager “shares” that expresses disdain for the Black Lives Matter movement? Do you want to see that as evidence in a lawsuit for race discrimination filed by one of your employees? Or that video denouncing gay marriage? That may also show up as evidence in a discrimination lawsuit. Even if they do not become evidence, they may cause some people to stop doing business with your company.

Even more dangerous are the posts where a manager threatens or harasses an employee online. Your policy against harassment should make it clear that emails, texts, and social media posts that harass another employee (or third party) are prohibited. And it is usually not a good idea for managers and supervisors to be “friends” with their subordinate employees.

The manager’s position and industry also matter. It just doesn’t look good for a male teacher to be “following” hundreds of very young women on TikTok. Or for a safety coordinator to follow pages dedicated to the love of illegal drugs. Optics, people.

So what is an employer to do? The first step is to have a comprehensive written Social Media Policy. You should revisit and modify that policy as social media evolves. The policy should provide guidelines for social media use, both professionally and personally. A competent employment lawyer can draft a policy that will fits the needs of your organization.

In addition, the company should regularly communicate to its supervisors and managers that they should not post, share, or do anything on social media that would violate any company policies, such as:

  • the policy against harassment,
  • the company’s ethics policy,
  • the policy against violence, or
  • the EEO policy.

And that there will be consequences if they violate this policy.

Finally, it is also a good idea to have a computer and internet policy that spells out the types of sites employees can and cannot visit, and that advises all employees that they have no expectation of privacy in any company owned computers or internet use. Even when such a policy is in place, I am always amazed at how many employees download porn on their company owned computers. Which just makes my job as defense counsel more difficult.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Who is the Equal Opportunity Harasser and Why Do We Care?

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Who is the Equal Opportunity Harasser? It is the person who asks both men and women questions about their favorite sexual positions. The person who tells jokes that offend pretty much every ethnic group. The manager that screams at everyone and takes special delight in making employees cry. Basically, this is a person who is a complete jerk and a bully.

Why do we care?  From a legal standpoint, the “equal opportunity harasser” is a defense raised by employers to charges and lawsuits alleging harassment.  The gist of the defense is that because the equal opportunity harasser offends everyone, a plaintiff cannot prove that he or she harassed a particular individual because of sex, or race, or some other characteristic protected by Title VII.  Some federal courts have utilized this defense to absolve employers from liability for harassment in the workplace.  See, e.g., EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 508 (6th Cir. 2001) (explaining in a sex harassment case that “‘Title VII does not cover the ‘equal opportunity . . . harasser'” “because such person is not discriminating on the basis of sex.'” (internal citation omitted)). 

Now, many attorneys and scholars are questioning the continued validity of the equal opportunity harasser defense after some language contained in the U.S. Supreme Court’s ruling in Bostock v. Clayton County (the recent LBGTQ rights case) seems to cast doubt on it. Specifically, Justice Neil Gorsuch wrote:

The consequences of the law’s focus on individuals rather than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it. 

In other words, as my Mother always said, “two wrongs don’t make a right.”

Some attorneys and legal scholars are skeptical that the equal opportunity harasser defense has been completely eviscerated by the Supreme Court.  They argue that Title VII does not prohibit indiscriminate bullying in the workplace. 

We’ll need to wait and see how the lower courts interpret Justice Gorsuch’s language.

In the meantime, even if the equal opportunity harasser defense lives on, that does not necessarily mean that employers should tolerate the equal opportunity harasser.  Do you really want to have a workplace where folks dread coming to work every day because they expect to be yelled at or belittled? Where employee morale is low and employee turnover is high?  Is the equal opportunity harasser worth those costs?

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.