Pennsylvania Labor and Employment Blog : Pennsylvania Labor and Employment Lawyer & Attorney : McNees Wallace & Nurick Law Firm : Human Resources, Workplace and Business Law : Harrisburg, Lancaster, Allentown, Lehigh

An employer's liability for co-worker harassment exists if the employer knew or should have known of the harassment and failed to take prompt remedial action. In other words, an employer may be liable for non-supervisory co-worker harassment if the employer was negligent in failing to discover the co-worker harassment or in responding to a report of harassment. Knowledge of a sexually hostile work environment arises when a "management level employee" obtains enough information to raise the probability of sexual harassment in the mind of a reasonable employer.

In its decision in Huston v. The Proctor & Gamble Paper Products Corp., the Third Circuit Court of Appeals concluded that an employee’s knowledge of allegations of co-worker sexual harassment may typically be imputed to the employer in two circumstances:

1. "where the employee is sufficiently senior in the employer’s governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, such as a departmental or plant manager, so that such knowledge is important to the employee’s general managerial duties. In this case, the employee usually has the authority to act on behalf of the employer to stop the harassment, for example, by disciplining employees or by changing their employment status or work assignments. The employee’s knowledge of sexual harassment is then imputed to the employer because it is significant to the employee’s general mandate to manage employer resources, including humanresources;" or
2. "where the employee is specifically employed to deal with sexual harassment. Typicallysuch an employee will be part of the employer’s human resources, personnel, or employee relations group or department. Often an employer will designate a human resources manager as a point person for receiving complaints of harassment. In this circumstance, employee knowledge is imputed to the employer based on the specific mandate from the employer to respond to and report on sexual harassment."

The court went on to clarify that mere supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status unless the worker has  a mandate generally to regulate the workplace environment. This reasonably bright line test should help employers to avoid allegations of constructive knowledge of workplace problems; provided, job descriptions clearly define the employee's job duties. Employers should examine generalized policy statements that create a "duty" to report workplace harassment or mistreatment.

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In its decision in Crawford v. Metropolitan Government of Nashville and Davidson City, the United States Supreme Court considered the scope of Title VII protections from retaliation for employees who act as witnesses in an employer's internal investigation into harassment. The Court held that an employee's involvement in the employer's internal investigation constituted opposition to unlawful employment practices when she responded to her employer's questions in a manner disapproving of accused harasser's sexually obnoxious behavior toward her. The Court's decision unfortunately does not create a bright line standard for employers defining the scope of an employee's involvement in an internal investigation which can trigger protections from retaliation. Employers should tread very carefully in this area.

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In these difficult economic times, the traditional holiday office party may be particularly important to promoting positive employee relations.  On the other hand, the event could also become a forum for criticism, particularly when a business has undergone dramatic changes like layoffs or compensation scale backs.  Whatever approach your business decides to take, managing the "holiday cheer" may be more important than ever.

Mixing alcohol and employees can result in a wide spectrum of possible negative outcomes ranging from mildly embarrassing to catastrophic. Like all good lawyers, we'll focus on the catastrophic: the automobile accident and the discrimination lawsuit. 

In Pennsylvania, there is little difference in liability between an employer/host and the social host of a private party in a home. Whether the party is thrown by an employer or an individual, there is generally no liability for an adult host when an adult employee, guest or someone else is injured by an adult drunk driver who may have been served at the party. Courts reason that "it is the consumption of alcohol rather than the furnishing thereof, that is the proximate cause of any subsequent damage". However, there is liability for any host (whether an employer or a private person) who knowingly serves alcohol to anyone under age 21. 

Employer's may also face claims from employees injured by the consumption of alcohol under employee benefit programs like workers' compensation insurance, medical and accident policies. Employee benefit plan and insurance exclusion for injuries arising from operating a vehicle while intoxicated are generally upheld.  

Work parties are generally considered as arising out of or in the course of an employee's job, even if attendance is not mandatory. Although workers' compensation law bars recovery for injuries or death caused by violation of law (i.e. driving under the influence), it also requires that the intoxication be the proximate cause of the accident causing the injury. In some cases, employees have recovered worker's compensation benefits because the employer could not prove that the accident would not have happened unless the employee was intoxicated. 

Employers may also spend their post-holiday hours sorting out employee disciplinary actions which sometimes ferment into claims of sexual harassment and disability discrimination. Alcohol consumption has been known to cloud judgment and blur the clear line between welcome and unwelcome conduct. Alcohol related misconduct can also bring to light an employee's alcoholism. Although alcoholism is a "disability" under discrimination laws, it does not insulate an employee from discipline or discharge for the conduct arising from his or her impairment. 

Managing alcohol consumption at employer events can mitigate liability and reduce the risk of accidents. The following is a partial list of ideas to incorporate into your next office party:

• Circulate to employees a kindly worded reminder about drinking and driving and the consumption of alcohol by employees under the age of 21.
• Consider engaging professional bartenders if they are not already part of your event.
• Give bartenders rules on serving minors and intoxicated employees.
• Avoid self-serve alcohol or long periods of "open bar."
• Don't allow drinking to become the focus of the event.
• Don't allow individuals to be pressured into drinking.
• Monitor conduct and don't be afraid to intervene if conduct or alcohol consumption become inappropriate.
• Have a designated driver or call a cab for someone who shouldn't be driving.

Wishing you a safe and happy holiday season!

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A Federal Appeals Court in Philadelphia enjoined Temple University from enforcing its “facially overbroad” sexual harassment policy because some speech that creates a “hostile or offensive environment” may be protected speech under the First Amendment. In DeJohn v. Temple University, the Third Circuit Court of Appeals invalidated a public university’s Policy on Sexual Harassment that reads like that of many private employer’s, finding fault with the italicized language:

For all individuals who are part of the Temple community, all forms of sexual harassment are prohibited, including the following: an unwelcome sexual advance, request for sexual favors,  or other expressive, visual or physical conduct of a sexual or gender-motivated nature when… (c ) such conduct has the purpose and effect of unreasonably interfering with an individual’s work, educational performance, or status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile or offensive environment.

The court found three areas of the policy language that were overboard so as to potentially stifle protected free speech:

• The phrase “gender-motivated nature” is too indefinite taking into account the speaker’s motivations not limiting only the affect of speech and possibly inhibiting expression of a broad range of social issues. The Court also cautioned that “we must be aware that ‘gender’ to some people, is a fluid concept.”
• The phrase “conduct which has the purpose and effect of unreasonably interfering” is too broad as it prohibits speech that “intends” to cause disruption. The university may only prohibited speeches that it reasonably believes will actually and materially disrupt the learning environment. (Interestingly, the “purpose and effect” language used by the EEOC.)
• The phrase “unreasonably interfere[s] with an individual’s work” is too restrictive because it may encompass speech that creates a hostile or offensive environment but is protected nonetheless. A policy may prohibit speech that “substantially” interferes by using an additional standard like “severe and pervasive.”

Many employees in the private sector believe they have a constitutional right to say whatever they want in the workplace.  This is not the case and employees in the private sector may be disciplined for violating workplace conduct standards.

Private employers are not subject to the free speech protections of the First Amendment.  They can also take solace in the fact that a federal court is less likely to wordsmith their employment policies. The case shows the difficulty that all employers face in regulating workplace speech and conduct.  There are obvious challenges in drafting a harassment policy that is not so replete with legalese that is becomes incomprehensible to the workforce.

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Hard economic times, perpetual threat of layoffs, workers stretched too thin could all be contributing to the “increasingly humorous American workplace” according to MSNBC author Eve Tahmincioglu in her post No joke! The workplace needs a good laugh. However, others are pointing to our legal system’s clamp down on “hostile work environments” as the cause of a joyless workplace:

What’s exacerbating the joylessness this recession has spawned, some believe, is decades of joke slap-downs in offices and factories. “The whole issue of political correctness has gone too far when it comes to the criteria for determining an offensive comment,” says Thierry Guedj, workplace psychology expert and professor at Boston University. “If anybody is offended, then it’s offensive. The criteria has become much too personalized. It only takes one person being slightly upset at something for it to become offensive.” It started in the 1980s, he continues, got worse in the 1990s and “has now reached its maximum.”

It is true that more claims of workplace harassment are being filed. The EEOC received 27,112 charges of harassment in 2007, up almost 18% from the prior year. Employer’s settlement payments of $65.6 million for these charges are no laughing matter. From a legal perspective, should employees be worried about injecting humor into the workplace and is an employer’s “joke slap-down” necessary? If your humor doesn’t demean people based on their membership in a protected class, then joke away.

It is the “off-color jokes” and other “humor” related to gender, race, national origin, religion or other protected classifications that can be considered harassment. These types of comments always find their way into allegations of discrimination or harassment when a complaint is filed. However, there is an important distinction between remarks uttered by a supervisor (quid pro quo harassment) verses those spoken by a co-worker (hostile environment harassment).

Potentially discriminatory remarks or jokes spoken by a decision maker are evidence of discriminatory motive in adverse employment decisions as noted by the Supreme Court in Ash v. Tyson Foods. A couple of off-color jokes followed up by a disciplinary suspension may give a discrimination charge some merit. On the other hand, mere utterance of a joke or other inappropriate remarks by a co-worker may not sufficiently affect conditions to create a hostile environment as noted in Meritor Savings Bank v. Vinson.   But that’s your risk.

According to EEOC Policy Guidance, a "hostile environment' harassment takes a variety of forms, many factors may affect this determination, including: (1) whether the conduct was verbal or physical, or both; (2) how frequently it was repeated; (3) whether the conduct was hostile and patently offensive; (4) whether the alleged harasser was a co-worker or a supervisor; (5) whether the others joined in perpetrating the harassment; and (6) whether the harassment was directed at more than one individual. 

Severity and the pervasiveness of alleged hostile activities are the focus of the legal analysis. This is a very fact sensitive inquiry which depends in part on what a reasonable person would find offensive. For example, the New Jersey Supreme Court has held that some racial slurs and jokes are so historically offensive that their use in the workplace, even once, can lead to liability for an employer who doesn’t respond appropriately. A single utterance of an epithet can create a hostile work environment if it is viewed as “severe” and it is aimed at the individual rather than a generalized comment.  

Professor Guedj is correct that workplace humor has changed; but, perhaps the change was needed.  The impact of hypersensitivity is theoretically mitigated by the reasonable person standard.  However, the gray of the law may have led some workplace humorist to abstinence. Alternatively, practicing “safe humor” could include the following prophylactic measures:

• Evaluate the content of the humor; some words and subjects are never appropriate for the workplace.
• Know your audience.
• Save your stand up routine for the comedy club where patrons are willing participants.
• Don’t make jokes personal by singling out one individual as the butt of your humor.
• Stop joking with people who seem uncomfortable with it.
• Don’t ridicule co-workers who don’t like your humor
• Try ask whether someone is offended by the humor.
• If a co-worker’s joke offends you, then say something to the jokester.
• Don’t e-mail jokes to everyone in the office.
• Take seriously complaints about inappropriate humor, but remember the conduct must offend a reasonable person.

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The prevalence of e-mail and texting communications can aid an employer in its investigation of workplace misconduct; provided, the employer’s policy adequately preserves its right to access the data. However, overstepping rights to access e-mail and other electronic communication media can result in criminal prosecution under state and federal law.

Recent high profile firings of Philadelphia TV anchors highlight the role of electronic evidence in an employer’s investigations and the pitfalls of illegal access to private computer data, in this case by an employee. Fired TV newscaster Larry Mendte was charged July 21, 2008 with hacking into the e-mail of his younger co-anchor. Mendte was previously fired based on an independent investigation by CBS as he allegedly hacked into Lane’s e-mail account from work and home and then revealed information to news outlets about Lane’s legal troubles. Lane was fired in January by CBS after she was accused of assaulting a New York City Police Officer and other public gaffes which gained media attention. Lane since sued KYW-TV, claiming that the station exploited her, tore her down and defamed her on her way out the door. She also claims that KYW management failed to investigate leaks of personal information about her and also engaged in a pattern of "deep-seated gender-discriminatory animus" toward her and other female employees.  Undoubtedly, CBS's investigation into the circumstances of both firings will be the critical issues in subsequent lawsuits.

Federal and State laws protect employers and employees from unauthorized access to computers, servers and electronic data. There may be additional limitations on an employer’s access to employee e-mails and text messages sent from employer accounts when the messages are stored on third party provider’s servers and are not stored on employer’s internal network. In Quon v. Arch Wireless Operating Co. Inc., a federal appeals court in California held that a public employer cannot access the content of text messages and e-mails sent at work because the data was stored on a third party service provider’s server and the employees had a reasonable expectation of privacy in these accounts. An employer’s e-mail policy may eliminate the expectation of privacy as to e-mails stored on its servers.  However, the text messages held by “remote computing service” are protected under the Stored Communications Act and cannot be obtained by an employer without the employee’s consent.

Employers must carefully draft policies related to employee use and access to all electronic media so as to preserve its property interest in the data, ensure rights to unfettered access and prevent misuse of the media and information.

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