Michael J. Davey, Esq. mdavey@eckellsparks.com 610.565.3700

Wednesday, December 2, 2009

Court Allows Gender Hostile Work Environment Claims To Proceed To Jury

In Hiltabidel v. Uniontown Newspapers, Inc., No.: 2:08-cv-409 (W.D. Pa. 2009), the Court allowed plaintiff's allegations of a hostile work environment based upon her gender to proceed to a jury. The Court held that genuine issues of material fact existed with respect to whether comments made regarding plaintiff's attractiveness made by her supervisor, along with what plaintiff categorized as inappropriate requests and placement in inappropriate situations by her supervisor were severe and pervasive enough to constitute a hostile work environment under Title VII.

Plaintiff was a female sales representative for the defendant and had the responsibilities of selling advertising on the defendant's internet websites. The following facts were undisputed: (1) in March of 2007, plaintiff accompanied her supervisor to a meeting with a male potential client at the bar of a restaurant in Uniontown and that during the meeting, the customer sat next to plaintiff, his leg made contact with her leg early in the meeting and his arm was draped around plaintiff's chair for the duration of the meeting; (2) after the March, 2007 meeting, plaintiff requested not to meet with potential customers in restaurants again; (3) in April, 2007, plaintiff's supervisor asked her to have dinner with an employee of a Philadelphia newspaper that was conducting an on-site visit with the defendant; (4) on more than one occasion, plaintiff's supervisor shared comments with her that he either received or overheard the opinion that plaintiff was an attractive woman; (5) on one occasion, plaintiff's supervisor asked her to accompany him on an overnight business trip, which she declined;(6) on April 23, 2007, plaintiff approached the manager of a different department of the defendant employer and expressed her opinion that conducting a meeting with a customer in a bar was inappropriate; and (7) plaintiff resigned her position in June, 2007.

The defendant employer did not dispute these incidents, but argued that the supervisor never directed sexual conduct or behavior towards plaintiff, that the bodily contact complained of at the March, 2007 meeting was incidental, and that the remainder of plaintiff's complaints were innocuous incidents that were insufficient to give rise to a claim of a hostile work environment.

Plaintiff also complained of defendant's requirement that plaintiff be accompanied on appointments with potential clients by a sales representative from a different department. Defendant argued that this was intended to assist plaintiff and relieve her of having to "cold-call" potential clients. Plaintiff argued that this requirement was made in response to her complaints and was intended to reduce of efficacy of her position.

Court Rejects Hostile Work Environment Claim Based On Racial Comments and A Text Message

On November 23, 2009, in the case of Griffin v. Harrisburg Property Services, Inc., No.: 1:CV-08-1655 (M.D. Pa. 2009), District Judge Sylvia H. Rambo dismissed plaintiff's claim of a hostile work environment that was brought after plaintiff, a male African-American security employee, was subjected to two racially charged comments by his supervisor, a caucasian male, and also received racially explicit text message from that same supervisor. Shortly after receiving the text message, plaintiff reported the incidents to a different supervisor, who conducted an investigation, granted plaintiff's request for a location transfer, placed a final warning in the commenting supervisor's employment file, and conducted an in-house diversity training session.

The Court held the the evidence of two racial comments and one racially explicit text message was sufficient to establish a claim for intentional harassment based on race that was severe or pervasive, and which had a detrimental effect on the plaintiff. But, despite this finding, the Court dismissed plaintiff's claim because: (1) there was no evidence that the supervisor had relied upon his employment authority or that the company had aided him in any way while making his derogatory comments; and (2) in conducting its investigation, placing a final warning in the supervisor's file, granting plaintiff's transfer request, and conducting an in-house diversity session, the employer had taken appropriate remedial actions that were reasonably calculated to remedy the harassment. The Court held that these facts were sufficient to insulate plaintiff's employer from liability of the supervisor's actions under Title VII.

GINA Arrives!

The "Genetic Information Nondiscrimination Act of 2008" (GINA) went into effect last week, on November 21, 2009. GINA covers all private, state and local government employers who employ fifteen (15) or more employees, and prohibits such employers from: (1) taking any adverse employment action against an employee or prospective employee because of genetic information; or (2) limiting, segregating, or classifying employees in any way because of genetic information, which would deprive or tend to deprive the employee of employment benefits or which would adversely affect the employee's work status. With some limited exceptions (such as for use in an employer-offered health or wellness program), GINA also prohibits covered employers from requesting, requiring or purchasing genetic information about their employees or the family members of employees.

"Genetic information" under GINA is defined relatively broadly, and refers to information about an employee's genetic tests, genetic tests of an employee's family members, or the manifestation of a disease or disorder in family members of an employee. Note also, that the term "family member" of an employee is defined under GINA as "any individual who is a first-degree, second-degree, third-degree or fourth-degree relative" of an employee, i.e., an employee's parent, grandparent, great-grandparent, and great-great-grandparent.

For violations of GINA by an employer, the statute provides for various damages and remedies such as compensatory damages for future monetary losses, emotional distress, pain, suffering, inconvenience, mental anguish, punitive damages, attorneys' fees and expert witness fees. GINA does not allow for the recovery of backpay or interest on backpay.

The provisions of GINA are enforced by the EEOC. For more information on GINA's requirements and prohibitions, visit the EEOC website at http://www.eeoc.gov/laws/types/genetic.cfm