A Picture is Worth $2 Million in Punitive Damages
Skywest Airlines was recently tagged with a $2 million punitive damages award in a sexual harassment trial.
Sarah Budd claimed that her co-workers sexually harassed her. She asserted that she was the victim of persistent incidents of sexual harassment including jokes by her co-workers that they were going to “prostitute her out,” that the best position for a woman is “on her hands and knees,” and asking if Budd liked “whips and chains.” Budd had no documentation supporting her allegations other than photos of one instance involving a candy jar and employees making jokes about sexual assault. Budd’s lawyers argued that if employees felt comfortable making jokes about sexual assault (of which Budd had photographic evidence) they certainly would have felt comfortable making the other comments Budd complained about (for which Budd did not have proof, other than her word).
Budd claimed that Skywest did a slipshod investigation and did not sufficiently discipline her co-workers to ensure that the behavior would stop.
The jury awarded Budd $170,000 in compensatory damages and $2 million in punitive damages. Under Title VII guidelines, the punitive damages award will be reduced by statute, but it will still be a significant sum.
Takeaway: Always take complaints of unlawful harassment seriously and make sure each one is thoroughly investigated (and the investigation is documented). Failure to do so could lead to an angry jury awarding significant amounts in punitive damages.
Discrimination is Sometimes OK?
The U.S. Department of Homeland Security was recently sued by three women and three men who claimed that the Department unlawfully created “women-only” assignments at the Port of Tampa. The Department assigned only women to search female travelers pursuant to a U.S. Customs and Border Protection policy mandating same-gender searches of passengers.
According to the complaint, border control officers at the Port of Tampa were assigned shifts each year through a bidding process in which they listed their preferred assignments and were assigned shifts based on seniority. Three of the shifts were reserved exclusively for female officers because personal searches of passengers suspected of carrying illegal substances could only be conducted by officers of the same gender.
The Department’s handbook allowed other law enforcement officers to conduct a personal search if a border control officer was not available, and the Department often used Transportation Security Administration agents or local police officers for searches when necessary.
Because of the female-only shifts, the male officers asserted that they missed out on preferred shifts and that the female officers claimed they were forced into assignments they did not want.
The Department considered several alternatives before creating the women-only assignments, which reduced the number of female-only shifts from six to three.
After a five-day trial, jurors agreed that gender played a role in how the Department assigned work to male and female officers, but that the policy of same-gender searches was necessary to operate the Port of Tampa. The jury accepted the Department’s assertions that male officers could not adequately conduct personal searches of female travelers without violating those passenger’s privacy interests and that it would be impossible to rearrange responsibilities to prevent female travelers' privacy interests from being violated.
Takeaway: Under Title VII, a person's sex, religion or national origin may be reasonably necessary to carrying out a particular job function in the normal operation of an employer’s business or enterprise. In these cases, an employer may require that an employee be of a certain gender, religion or national origin to meet that job’s requirements. Race is not included in the statutory exception and cannot, under any circumstances, be considered a “bona fide occupational qualification.”
Sleeping With the Family
An employee has brought an interesting claim in Georgia federal court. The employee claims that her co-worker made sexual comments about the employee’s father and began an affair with him. The employee claims that this created a hostile work environment which forced her to resign. The employee asserts that the co-worker called her father a “whore,” discussed how she was attracted to the employee’s father, and said she would “steal” him away from employee’s mother.
While no one wants to hear that a co-worker is sleeping with their father and the related “war stories” (just eewww), the employer has argued that the employee cannot state a claim under Title VII for sexual harassment because the comments were not directed at the employee but were simply about her father.
“Being related to a person who her co-worker is sleeping with is not a protected class,” the employer asserted in a Motion to Dismiss the employee’s claims. “Moreover, just because sex was discussed does not mean that the comments were inherently discriminatory because of sex.” In short, the employer has argued that the employee’s claim can’t proceed because the comments made about her father have nothing to do with her own gender.
We will wait to see how the court rules on the company’s Motion to Dismiss, but in the meantime, employers should consider reviewing their workplace policies to prohibit these type of discussions, which may, or may not, be covered by unlawful harassment policies.
Immigration Law Changes on Deck
Parsons Behle & Latimer is a member of the Management Lawyers Employment Roundtable (MLER). MLER members recently engaged with senior officials at Homeland Security Investigations (HSI), the workplace enforcement arm of the Department of Homeland Security, regarding what to expect in the coming months regarding immigration enforcement. Discussions included the following:
Quotas for I-9 Audits
HSI plans to implement quotas for I-9 audits and worksite enforcement actions, potentially beginning with as high as 6,000 audits per month among their 30 offices nationwide. This goal was initially set during the first Trump administration.
Focus Areas
The HSI enforcement efforts will focus on the following:
- Employers served with Notices of Inspection whose cases stalled during the COVID 19 pandemic or under the Biden Administration
- Previously audited businesses that failed to show compliance with I-9 requirements
- Employers gaining competitive advantages by underpaying undocumented workers
- Industries such as agriculture, hospitality, food processing and construction
- Entities with access to critical infrastructure, like airports and military contractors
Auditor Capacity and Outsourcing
HSI plans to hire additional auditors and may outsource many audit functions while it increases the number of in-house auditors.
Changes to the I-9 Process
The Biden administration updated the I-9 Employment Eligibility Verification process, including the option for remote I-9 completion via videoconference. However, this program is expected to be revoked by the second Trump administration.
Compliance Focus on Electronic I-9 Systems
HSI will closely scrutinize electronic I-9 systems provided by outside vendors.
Emphasis on Criminal Prosecution
The new administration aims to pursue criminal charges against employers, when available, to eliminate incentives for undocumented employment.
Increased Scope of Raids
Future raids are expected to be larger, more widespread and coordinated, potentially with National Guard support.
Focus on Joint Employment
HSI will continue its emphasis on joint employment with staffing agencies and contractors, aiming to discourage employers from using these agencies to hide employment of undocumented workers.
Trump Nominee for Secretary of Labor Might Be . . . Pro Union?
In a surprising move, President-elect Trump has nominated Representative Lori Chavez-DeRemer (R-Ore.), for Secretary of Labor.
Chavez-DeRemer was one of only three Republicans in the House to vote in favor of the PRO Act, which would significantly strengthen collective bargaining rights. The measure passed the House in 2019 and 2021 but never passed the Senate. Chavez-DeRemer also co-sponsored legislation that would protect public-sector workers from having their Social Security benefits docked because of government pension benefits. That proposal also has lingered for a lack of Republican support.
While we still expect the Department of Labor to take a decidedly pro-employer turn during the second Trump administration, the Department under Chavez-DeRemer’s leadership may ultimately not be as “employer-friendly” as we initially expected.
