2010 Initiatives

As part of our ongoing effort to improve and expand our learning platform, ELI^® will create several new courses this year. These courses will help participants identify key behaviors that create a civil workplace and provide tools to take learning beyond the classroom.

We are updating our course that addresses FLSA issues, Civil Treatment^® for Managers: Focus on Wage and Hour Issues, to include new exercises and videos. This two-hour course will be available in an instructor-led format. To review other tools that will help you address wage and hour issues, visit our website.

Over the years, clients have asked for tools they can use to help managers create appropriate documentation of workplace events. ELI^® will create a one-hour online simulation course that explores managers' responsibilities for documenting workplace events. This course will give managers tools they can use beyond the training to help them create effective documentation. As an extension of the online course, we will also create an instructor-led simulation course that helps HR professionals conduct investigations.

In an effort to make our Civil Treatment^® for Employees (CTE) online course even more engaging, we are creating a simulation-based CTE. This course will allow employees to practice applying the Conduct Guidelines and INFORM Model^® through simulated workplace interactions.

Legal Updates

Private Sector Charges Remain Significant in Fiscal 2009

According to statistics recently released by the Equal Employment Opportunity Commission (EEOC), employment discrimination charges in fiscal year 2009 totaled the second highest level ever. The 2009 total of 93,277 charges is second only to the 2008 charge filings of 95,402, representing a modest decrease of 2.2%. For the first time, retaliation charges slightly edged out race charge filings as the most frequently filed charge type, with a total of 33,613 charges. Race charges tracked closely behind at 33,579. Following in its usual third-place position were sex charges, which totaled 28,028.

Although numbering fewer in terms of total charge filings than the retaliation, race, and sex charges, charge filings based on allegations of national origin discrimination, religious discrimination, and disability discrimination each hit all-time highs. National origin charges totaled 11,134, religious discrimination charges totaled 3,386, and disability discrimination charges totaled 21,451.

The EEOC commented that "the near-historic level of total discrimination charge filings may be due to multiple factors, including greater accessibility of the EEOC to the public, economic conditions, increased diversity and demographic shifts in the labor force, employees' greater awareness of their rights under the law, and changes to the agency's intake practices that cut down on the steps needed for an individual to file a charge."

The agency succeeded in resolving 85,980 of the private sector charges and recovered a record high of $294 million through administrative enforcement and mediation.

The agency succeeded in resolving 85,980 of the private sector charges and recovered a record high of $294 million through administrative enforcement and mediation.

Click here to view the 2009 enforcement and litigation statistics.

Employees' Remedial Action of Choice Need Not Necessarily Be Implemented to Avoid Liability in Harassment Complaints

As set forth in Blackmon v. Wal-Mart Stores E. LP d/b/a Wal-Mart, No. 09-11953 (11th Cir. Dec. 23, 2009) and Young v. Temple Univ. Hosp., No. 08-4375 (3rd Cir. Dec. 31, 2009) an employer's obligation upon learning of co-worker harassment is to take prompt and adequate remedial action. An employer's remedial action is generally considered adequate if it is "reasonably calculated" to end the harassment, even if it is not ultimately effective. Accordingly, where an employer reasonably determines that certain actions are likely to end the harassment, those actions may preclude liability despite the fact that they differ from the actions requested by the plaintiff.

In Blackmon v. Wal-Mart Stores E. LP d/b/a Wal-Mart, a male employee made several sexual remarks to a female employee. The female employee complained to an assistant manager, per the company's policy. After each inappropriate remark, the assistant manager reprimanded the male employee. In a final incident, the male employee touched the female employee's breast. The company investigated and fired the male employee less than two weeks later. The male (former) employee continued to visit the store, telling the female employee that she would be fired. The employer told the female employee to walk away from her cash register when the male (former) employee came into the store.

In her lawsuit, the female employee alleged the employer had not taken prompt and remedial action, particularly prior to the touching incident. Additionally, the female employee believed the male (former) employee should have been banned from the store after he was terminated. The court disagreed, finding that the employer's reprimands to the male employee and further termination of the employee within two weeks of the touching incident constituted prompt remedial action. The court found the female employee's contention that the male (former) employee should have been banned from the store unavailing in light of these facts.

In Young v. Temple Univ. Hosp., a female certified occupational therapist complained that her male subordinate refused to take directions from her and on one occasion raised his voice to her, "screaming and spitting" in her face. After each incident, the male employee was verbally disciplined. Subsequently, the female employee complained again when the male employee bumped into her and blocked her passage. The male employee was suspended for one day. Thereafter, other employees also complained about the male employee, with one woman alleging that he touched her inappropriately. The female certified occupational therapist contended that the male employee should have been transferred out of the department. The employer, however, chose to follow its progressive discipline process and gave the male employee a final written warning. The male employee subsequently inappropriately touched another female employee and was terminated pursuant to the organization's progressive discipline process.

The female employee sued, claiming that the employer failed to take prompt and adequate remedial action given that it did not transfer the male employee out of the Occupational Therapy Department. The court disagreed, finding that the employer's "failure to take that step, however, does not by itself render its remedial actions." The court found that the employer acted reasonably in seeking to take the necessary steps to terminate him and therefore completely remove him from the workplace.

Accordingly, employers need not necessarily implement the corrective action recommended by the victim of sexual harassment; instead, employers should carefully assess the situation and take those actions that are reasonably calculated to end the harassment.

Gender Specific Profanity, Even If Not Targeted at the Plaintiff, Can Support a Sexual Harassment Claim

In this case, Ingrid Reeves, the plaintiff, worked as a transportation sales representative for a shipping company, C.H. Robinson. She was the only woman who worked on the sales floor, which was comprised of six cubicles. Because there were no large barriers between the cubicles, Reeves could overhear the language of her male co-workers. Reeves claimed her male co-workers used gender-derogatory language to refer to or insult individual females with whom they spoke on the phone or who worked in a separate area of the branch.

In addition to the regular use of such language, Reeves' co-workers regularly tuned the office radio to a crude morning show that discussed women's anatomy. Further, on one occasion, Reeves' co-worker displayed on his computer screen a pornographic image of a fully naked woman. Although Reeves complained to the co-workers about the language and conduct, it persisted. She further complained to her supervisor, who did not stop the behavior.

In Reeves v. C.H. Robinson Worldwide, Inc., No. 06-00358-CV-2 (11th Cir. Jan. 20, 2010), the Court of Appeals held that the plaintiff presented ample evidence of gender-specific derogatory comments made about women on account of their sex, though not targeted at the plaintiff, to support a claim of sexual harassment.

Click here to view the 2009 enforcement and litigation statistics.

Update Your Information

ELI^® is in the process of updating its client database. Please take a moment to click here and update your contact information. Thank you for helping us maintain the most up-to-date information so that we can provide you the best service possible!

Upcoming Events

ELI^® CEO Steve Paskoff will be a featured speaker at several upcoming national conferences this year. Join Steve to learn about the following topics:

Treating Workplace Culture: A Prescription for Values-Based Leadership

ACHE 2010 Congress on Healthcare Leadership

Hyatt Regency Chicago

March 22, 2010
4 p.m. - 5:30 p.m.

March 23, 2010
8:45 a.m. - 10:15 a.m.

Click here for more information.

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