Is Professor's 'Hi, Sweetie' Comment Sexual Harassment?

Did diversity and inclusion in a corporate culture cause a reaction to this chin-chucking incident? Read this case and more in our legal update.

Diversity and inclusion sensitivity caused a university to overreact by firing chin-chucking professor for harassment. A state appeals court ruled that a university did not have the foundation to fire a tenured male professor for sexual harassment. He had approached his department chair in the lounge area, said "Hi, sweetie," and "chucked" her chin. The department chair filed a sexual-harassment complaint. The professor was fired under the university's zero-tolerance policy for harassment. He filed state and federal due-process and contract claims. The court found that there appeared to be a rush to judgment and overreaction. There was no prior warning to the professor regarding his behavior being unwelcome or violating the sexual-harassment rules. The department chair claimed that the professor should have known his behavior was unwelcome because of her "stony silence" reaction on a prior chin-chuck incident. The court found this insufficient to give fair warning. The incident itself could hardly be characterized as sexual harassment under any legal definition of that term. Haegert v. U. of Evansville (Ind. Ct. App., 2011). For more on sexual harassment, read Things NEVER to Say to Women Executives.


Starbucks failed to accommodate server with dwarfism. A job applicant had short height because of the condition of dwarfism. A Starbucks store refused to place her in a barista job. She claimed she could do the job using a stool. However, the management did not even try this accommodation. It concluded, without facts, that she would "pose a danger to customers and employees." When the ADA case was filed, Starbucks quickly settled for $75,000 and agreed to provide training on proper ADA procedures to managers. The EEOC praised Starbucks for its prompt resolution of the issue. EEOC v. Starbucks Coffee Co. (W.D. Tex., 2011). 

Employee's clothing too modest for Catholic facility. A non-Catholic was hired to work in a nursing home operated by the Catholic Church. Because of her own Church of the Brethren beliefs, the employee wore very modest clothing, including long dresses, long sleeves and a hair cover. The nursing director informed the employee that her garb made her stand out in a way that bothered some residents and did not fit into the operation or its mission. When the employee insisted her attire was a function of her faith and that she would not modify the clothing, she was fired. She sued for religious discrimination. The court granted judgment to the nursing home based upon the First Amendment and the Title VII deference to religious organizations. The decision was based on what was appropriate for a Catholic service environment. A religious-based employer is not required to accommodate the religious practices of other faith employees when they even minimally conflict with the organization's views of what is or is not a proper environment for its own faith. Kennedy v. St. Joseph Ministries, Inc. (4th Cir., 2011).  For best practices on religious inclusion, read Starting Religious Resource Groups.

Be sure you really hang up before you say what you really think―race and sex comments warrant discharge and union's refusal to pursue grievance. A company manager gave training on its anti-harassment policy and zero-tolerance requirements. The next day, an employee present at the training left a voicemail for that trainer to complain about his supervisor. (So far, a protected act.) Then, failing to realize he had not actually hung up, he decided to "entertain" his coworkers by launching into a profane derogatory tirade of the manager and the anti-harassment training she had given. He used the N-word and made gross comments about her breasts. All was clearly recorded on the voicemail. He was fired, despite his 29-year tenure with the company. The union then refused to pursue his grievance process to the arbitration level and withdrew. The employee sued the company for unfair discharge, as well as the union for breach of its duty of fair representation. The court found against him on both grounds. He had clearly and intentionally violated the anti-harassment policy's prohibitions on use of derogatory racial and sexual epithets and slurs. The union could validly consider this in its decision on which cases it should take to arbitration and was neither arbitrary nor unfair in its decision of non-representation. Robeson v. U.S. Steel Corp. (E.D., Mich., 2011). Read NBA Star John Amaechi: Hate Speech Goes Beyond N- and F-Words for more on stereotypes and racism.

Excess skin was a serious medical condition. A city employee took FMLA for a gastric-bypass surgery. She then lost more than 150 pounds. This left large areas of excess skin that hung from her arms and abdomen. She requested FMLA to have surgery for this and was denied. The employer considered it only cosmetic. She was fired when she took time off for the surgery. A jury ruled for the employee. The medical testimony was clear that the excess skin was itself a serious condition which, if uncorrected, could cause serious infections. The employer should have considered the medical verification before denying the leave. Alcazar-Anseimo v. Chicago (N.D. Ill., 2011). For more on FMLA, read FMLA: What Employers Need to Know.

Car salesman has valid constructive-discharge claim for age harassment. In Dediol v. Best Chevrolet, Inc. (5th Cir., 2011), the court found a valid claim of age harassment and constructive discharge. A 65-year-old was hired as a car salesman. His manager allegedly began daily comments about age, never calling him by his name but always "old man," "pop" and "you old motherf***er." The manager steered customers away from him and then escalated to more profane statements and physical threats. The salesman complained to higher management, but nothing was done. The manager reacted to the complaint by threatening to beat up the salesman and "charged" at him. The salesman left and did not return to work. The court found ample evidence to support a harassment and constructive-discharge case. For ways to avoid age discrimination complaints, read Things NEVER to Say to Older Coworkers.

Company overreacts to workers-compensation disability determination. An employee with a work-related elbow injury received a permanent partial (30 percent) disability determination. There were partial restrictions on mobility and an evaluation for not doing "a lot of heavy lifting." However, the company interpreted this disability determination as meaning the employee could do no lifting whatsoever and could not use hand tools, and it banned him from returning to his job. The company seemed to jump to unfounded conclusions with no assessment and no interactive process with the employee. In the ADA suit, the court found discrimination for "regarding" the employee as having a disability. Jones v. Nissan North America (6th Cir., 2011).

Wisconsin legislature proposes eliminating conviction-record discrimination protection. The Wisconsin Fair Employment Act currently prohibits job discrimination against those with conviction records unless the crime was "substantially related" to the job or the work environment. Assembly Bill 286 would remove that protection and allow employers to fire or not hire anyone convicted of a felony, without any assessment of relatedness to the work. Further, AB 286 would prohibit local governments from enacting their own antidiscrimination rules on conviction status and would void those that currently exist. The legislature believes that the state should set uniform standards, rather than allow local governments to exercise discretion or consider local needs. For more on fairly hiring applicants with criminal records, How to Fairly Hire Applicants With Criminal Records.

Read more legal articles here. 

Bob Gregg, a partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

 

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