All the Money in the World: Mark Wahlberg, Michelle Williams, and wage disparity issues

January 22, 2018 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

In the wake of the Harvey Weinstein scandal and the ongoing Hollywood reckoning, Kevin Spacey’s downfall was swift following accusations from Anthony Rapp that Spacey sexually assaulted him at the age of 14.  Since Rapp came forward, several others have joined him in accusing Spacey of sexual misconduct and predatory behavior.  Netflix suspended production of House of Cards, and director Ridley Scott began pursuing rapid reshoots to recast Spacey’s role in the true crime thriller All the Money in the World.  Ironically, efforts to eradicate Spacey’s shadow of sexual harassment allegations inadvertently led to a highly publicized discussion about sex-based pay disparities.

Regarding the reshoots necessary to replace Spacey with Christopher Plummer, Scott stated in interviews that all cast members (with the exception of Plummer) completed the reshoots free of charge.    Michelle Williams, one of the film’s stars, confirmed that she agreed to do the reshoots for free and that “it is our little act of trying to right a wrong.  And it sends a message to predators–you can’t get away with this anymore.  Something will be done.”

However, earlier this month, USA Today reported that another one of the film’s stars, Mark Wahlberg was paid $1.5 million for the reshoots while Williams received an $80 per diem totaling less than $1,000.  The fact both actors were represented by the William Morris Endeavor Agency (WME) added even greater fuel to the ensuing fire.  A social media storm erupted with many condemning the pay disparity between Williams and Wahlberg as yet another example of gender inequality in the workplace.  Just two days earlier, male and female stars (including Williams) had worn black to the Golden Globes as a showing of support for Time’s Up, an anti-harassment and gender equality initiative launched by Hollywood power players like Reece Witherspoon, Eva Longoria, Shonda Rhimes, Ashley Judd, Natalie Portman, and many more.

Mark Wahlberg responded to the film controversy by promising to donate $1.5 million in Williams’ honor to the Time’s Up initiative.  WME promised to donate an additional $500,000 to Time’s Up.  Williams released a statement saying, “If we truly envision an equal world, it takes equal effort and sacrifice.  Today is one of the most indelible days of my life because of Mark Wahlberg, WME, and a community of men and women who share in this accomplishment.  Anthony Rapp, for all the shoulders you stood on, now we stand on yours.”

However, the controversy has not ended there.  The Hollywood Reporter released a story that Williams reportedly was paid $625,000 for her work on All the Money in the World while Wahlberg took home $500 million, despite the fact they had nearly equal screen time in the film.  Renewed public outcry has called for transparency in pay discussions and equality in the workplace.  News outlets and social media are likely to bring us similarly high-profile stories raising pay disparity issues, and it seems that a growing number of actors have been emboldened to discuss pay and alleged inequalities.  Indeed, the National Labor Relations Board has repeatedly reiterated employees’ right to discuss pay, and an executive order issued by then-president Barack Obama extends a similar standard to federal contractors who are not covered by the NLRA.

While so many of these headlines involve Hollywood stars, employers in all industries should take note and embrace the opportunity to evaluate and continue to re-evaluate their own practices to ensure legal compliance and a healthy work environment for employees.  My colleague, Rachel E. Kelly wrote a great piece last week offering employer tips on the importance of transparency and establishing an appropriate workplace culture where qualified diverse candidates can thrive.  As Rhimes stated about the Time’s Up initiative, “It’s very hard for us to speak righteously about the rest of anything if we haven’t cleaned our own house.”  It seems that time is indeed up for those who put off necessary house cleaning.

 

Halloween at work: Don’t get BOOed by your employees!

October 30, 2017 - by: Angela Cummings 0 COMMENTS
Angela Cummings

Halloween can be such a fun holiday for kids of all ages. When October 31st falls on a weekday, as it does this year, ghoulish fun will certainly creep its way into the workplace. How can you, as a human resources professional, ensure that the day is more fun than it is scary? Simple. Just follow a few rules.Halloween theme 3

1: Make any Halloween office festivities totally voluntary

As you know, Title VII of the Civil Rights Act of 1964 protects employees from religious discrimination in the workplace. Even though most people would consider Halloween in 2017 to be largely a secular holiday, it does have religious roots. Be considerate of employees who do not wish to participate in dressing up in costumes or attending Halloween-themed workplace parties. The employee may have a religious reason for not wanting to observe Halloween, and the employee has no obligation to notify the company of his or her rationale for not wanting to participate. Keeping the festivities 100% optional will help prevent any such issues. (As an aside, keep in mind that one or more of your employees may request, as a religious accommodation, to miss work that day, as it is a recognized Wiccan holiday.)

2: Ensure that any Halloween costumes are appropriate for the workplace

As Lili Reinhart recently found out, not all Halloween costumes are created equally. The actress, who stars on the “Riverdale” series (on the CW), tweeted a picture of her planned Halloween costume, which was an all-black demon. The backlash on social media was swift and unequivocal, as the costume appeared to include blackface. Reinhart apologized immediately, stating that she could “see how it was interpreted as being insensitive, completely.”

Other celebrities have also caused debate in recent years, including singer Chris Brown who dressed up as a Taliban member, and Prince Harry, who dressed up as a member of the Nazi party. Such costumes, of course, in the workplace could lead to claims for unlawful harassment. Simply put, be sure that employees understand that all costumes must be workplace appropriate and that the costumes do not stereotype any religion, national origin, gender or race in a negative light.

In addition, employees should be reminded that any costumes should not be too revealing or provocative, and should not contain any type of weapon as an accessory. Finally, costumes should be safe: if the employee works in a job around heavy machinery or where chemicals from a costume could become flammable, then the safety risks outweigh the benefit of fun, and the employer should not allow the costume. When in doubt, ask the employee to go home and change.

3: Be mindful of the professional setting if you plan to allow children to visit the workplace on Halloween

Many employers allow the children of employees, and sometimes even children of customers and suppliers, to visit the workplace after school hours on Halloween and trick-or-treat down the hallways. Although such events can be morale-building and lead to employee bonding, they can also present unintended problems. As a practical matter, be sure that you have communicated this event to all employees and remind them several times prior to the day, so that large or important meetings are scheduled at other times. As cute as the kids in costume are, you do not want to frustrate an important customer or client who needs to be in your offices that afternoon for an important meeting.

Further, if a nonexempt employee needs to leave work to pick up his or her children to attend the event, be sure that you have communicated to the employee whether he or she must use PTO time for this voluntary activity, whether it will be allowed while on-the-clock, etc. Communication prior to the event is important.

With the above in mind, you can ensure that any Halloween-related festivities at your workplace are safe and fun (and uneventful from a human resources perspective!).

Think before you joke so you don’t have to litigate what’s ‘funny’

October 16, 2017 - by: Robin Kallor 0 COMMENTS
Robin Kallor

Studies show that laughing boosts immunity, eases anxiety and stress, improves mood, decreases pain, and can even prevent heart disease. Socially, laughing strengthens relationships. In addition to the value of humor in our personal lives, we cannot underestimate the power of humor at work. Humor aids in learning and memory retention, increases our ability to persuade others, and helps us to diffuse conflict. Distilled to its most simplest terms: Laughing feels good, and because of this, we enjoy being aroundand actually seek outpeople who make us laugh, not just in our personal lives, but also at work.  Businesspeople laughing in conference room

But, beware: Not all humor is appropriate in the workplace, both in content and in the context in which it is used. Humor can alienate people and constitute unlawful conduct. In his new memoir, Giant of the Senate, Senator Al Franken explained his initial deliberate decision to be “unfunny” following his lengthy career in comedy in order to be taken seriously during his Senate race and his tenure in office. He discussed his frustration when old jokes from his comedy career were resurrected by his political opponents during his first Senate race, which were taken wholly out of context during his campaign. When he tried to explain the context of one of his jokes to reporters and how it was funny, the humor did not translate and became publicly embarrassing for him.  It was then that he learned a valuable lesson about politicsYou can’t litigate a joke.” Because, as he reasoned, “when you’re explaining, you are losing.

Franken’s lesson is a valuable one–and not just in the political context but also when considering “workplace funny.” Title VII of the Civil Rights of 1964, the Age Discrimination in Employment Act, the Americans With Disabilities Act, and other laws prohibiting discrimination against protected groups all have anti-harassment components. Stereotypical jokes or sexually suggestive jokes can rise to the level of conduct that is considered a hostile work environment, which is prohibited by these laws. Jokes that are reasonably perceived as inappropriateeven if they are not intended as inappropriatecan still constitute a hostile work environment. A defense that the conduct or comments were intended as jokes, and not intended to offend, is a non-defense.

Additionally, once a supervisor or an employee is trying to explain the meaning of the joke and its appropriateness and context, they will be forced to rely on third parties, such as workplace investigators, judges, or juries, to make conclusions as to the interpretation of the jokes or conduct and whether it was a violation of the law or company policy. By then, any funny will likely be lost.

Here are some helpful hints when utilizing humor at work:

  1. Stay away (STAY AWAY!) from all humor that touches upon any protected class (e.g., gender, age, sexual orientation, race, religion, ethnicity, disability, etc.). This is true even if we are making comments about ourselves, as the comments can still be construed as offensive to others. If you are bordering on that line, or even approaching that line . . . STAY AWAY.
  2. If you are going to single anyone out as the target of a joke in a large group, make it yourself. Self-deprecation can effectively make people feel at ease. The purpose of humor at work is to bring people together. Humor that singles anyone outeven with the funniest of all intentionscan alienate.
  3. Avoid jokes and sarcasm in writing. We do not always know how these written messages will be perceived because the context is not clear and the reader cannot see our expression or hear our tone. As to sarcasm, when we write the opposite from what we mean, the message may not translate properly. So, for example, the e-mailed response “yeah right,” may actually be interpreted as “yes” as opposed to the intended “no,” which may ultimately be problematic, particularly years later in litigation.
  4. Avoid jokes in performance reviews or disciplinary documents. As with Tip #3, some documents are sacrosanct and should remain “unfunny” to be taken seriously.
  5. Think before you joke. When preparing a presentation, if you are wondering whether a joke is appropriate, the rule of thumb is that if you have to wonder, it probably is not.

In conclusion, managers should be funny but only at the appropriate time, in the appropriate context, and through the appropriate medium. As the saying goes, “Laugh and the world laughs with youexcept sometimes at work!” Because employment lawyers and HR professionals always seem to take the fun out of everything (e.g., see my prior post about the office Christmas party), I am aware that I have likely taken the fun out of funny, but perhaps we can joke about that someday!

 

Need to learn more? Sexual harassment is just one sign of a breakdown in company culture. There’s also bullying, racial discrimination,  hostile work environment, and the list goes on. When the workplace culture perpetuates these types of unlawful activities under Title VII of the Civil Rights Act of 1964 or other laws, employers are at extreme risk of costly lawsuits—not to mention irreparable damage to the company’s reputation and brand, employee morale, and other negative consequences. And employment law attorney will present Culture Club:  The Link Between Workplace Culture and Workplace Harassment Claims” at the 22nd Advanced Employment Issues Symposium in Las Vegas on November 17. This session will examine recent cases illustrating the ways in which aggressive business practices may foster a culture that breeds harassment claims, how to evaluate whether company leaders’ messages and tone aligns with your efforts to maintain a harassment-free culture, and more. For more information on AEIS, click here.

 

Harvey Weinstein: beauty and the beastly mogul

October 12, 2017 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

Over the last week, the fallout from a New York Times article regarding Harvey Weinstein has been swift and significant. On October 5, the Times published an explosive story about Hollywood producer and media mogul Weinstein’s alleged sexual harassment spanning decades. More and more women have been coming forward since the story broke to accuse Weinstein of unwelcome sexual advances and sexual assault during his time at Miramax and the Weinstein Company. The Times quoted Weinstein as stating, “I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it. Though I’m trying to do better, I know that I have a long way to go.”  Stop Sexual Harassment red stop sign held by a female

According to the Times, Weinstein has reached settlements with at least eight women over the years, and his former attorney, Lisa Bloom, has described him as “an old dinosaur learning new ways.” The growing list of allegations stands in stark contrast against Weinstein’s public image as a liberal, humanitarian, and champion of women. The Times quoted Ashley Judd as saying, “Women have been talking about Harvey amongst ourselves for a long time, and it’s simply beyond time to have the conversation publicly.”

Since the story first broke, the Weinstein Company has terminated Weinstein’s employment, board members and legal advisers have resigned, and Weinstein’s wife has announced she is leaving him. Meanwhile, the accusations have continued to mount. Gwyneth Paltrow, Angelina Jolie, and Cara Delevingne have come forward with additional allegations of sexual harassment. The New Yorker also published a story alleging that Weinstein has raped several women over the years.

Weinstein is reportedly entering a treatment program for sex addiction and has denied any accusations of nonconsensual sex. From former temporary employees to Hollywood A-listers, the accusers’ accounts have a similar narrative: young women hoping to find success in the industry but instead facing unwanted sexual advances from a top power player promoting a culture of fear. It sounds like a Hollywood film plot in the vein of 9 to 5, but this is far more serious and with real-life consequences.

Best practices for employers

Title VII of the Civil Rights Act of 1964 is the federal law that prohibits sexual harassment and discrimination in the workplace, though there are many state and local laws prohibiting the same. To maintain a sexual harassment claim, the plaintiff must generally establish that he/she was harassed based on sex, the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment, and there is some basis for holding the employer liable.

If the harassment is perpetrated by a supervisor but does not culminate in a tangible employment action, a defending employer may avoid liability if it proves the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities.

Best practices for employers to maintain healthy working environments and prevent harassment and discrimination from invading the workplace include:

  • Implementing strong policies prohibiting discrimination, outlining various avenues for employees to complain (taking into account the possibility that complaints may be against the person at the top of the chain of command), and prohibiting retaliation;
  • Training employees on the available avenues for complaints;
  • Training supervisors and managers on how to respond to a complaint;
  • Immediately investigating complaints; and
  • Taking prompt corrective action when complaints are substantiated.

Bottom line. Employers must practice commitment, communication, and credibility. It is their responsibility to ensure that potential complainants understand they will not be subjected to retaliation, the complaints will be taken seriously and investigated appropriately (regardless of the position of the accused harasser), and they have nothing to fear from using the complaint procedure. Let us know your thoughts on this developing story in the comments below.

Magnum, SMH

September 20, 2017 - by: Matt Gilley 0 COMMENTS
Matt Gilley

Who could possibly sully the sainted memory of Thomas Magnum, fictional private investigator and iconic 1980s bon vivant? All 45 of these guys, apparentlyMan partying

Here’s a quick hit in case you don’t want to follow the link: Bachelor partygoers decided they would take in a baseball game in Detroit between the Tigers and the Chicago White Sox. All 45 partiers (if only I were so well-liked) dressed as television’s best-known Detroit Tigers fan, Magnum, P.I. The fellows must have left their Higginses behind because they weren’t on their best behavior (hijinks during a bachelor partyperish the thought!). Eventually, the Tigers brass kicked all 45 Tom Selleck doppelgängers from Comerica Park.

Their sins? One of them was smoking and others were catcalling women in the crowd (no mention whether all those red Hawaiian shirts also crossed a line). One member of the party despaired that the Tigers ruined everyone’s fun because of a few bad pineapples, but, honestly, who could possibly separate one naughty Magnum from the other 44 angels?

You may be asking, “Matt, this is amusing and all, but what does this possibly have to do with HR?” That’s a fair question. The HR intersection is that employers need to be watching their patrons’ behaviornot just their employees’to avoid a hostile work environment. Employers can be liable for the harassing conduct of visitors, vendors, and customers just as they can be liable for the actions of supervisors and co-workers. If you are aware that a third partyor third parties, like four dozen Thomas Magnum lookalikesmay be harassing your employees or causing a hostile environment, you have a duty to take prompt remedial action to correct the problem.

So bravo to the Tigers. We don’t know whether the revelry was directed at any team employees, but the team had a problem on its hands and immediately corrected it. Sure, it probably cost them some concession revenueafter all, 45 guys could drink a lot of Old Dusseldorf. Still, you should heed the team’s example and be vigilant of your patrons’ behavior for the benefit of your employees.

In fact, you’ll probably have to be more vigilant. Potential harassers are rarely this loud and in-your-face, and they almost never wear identical, splashy tropical shirts.

 

Baseball purists

December 13, 2016 - by: Matt Gilley 0 COMMENTS
Matt Gilley

“Puritanism: The haunting fear that someone, somewhere, may be happy.”

-H.L. Mencken

This post may not be the usual finger-wagging scold you may have come to expect from an employment lawyer. I’m confident, though, that this blog’s audience of fellow practitioners and human resource professionals will take a little solace in it. After all, it’s no fun to be a killjoy and we are thrust into that role more often than we’d like.  Young male baseball referee blowing a whistle

Why? Because potential liability under the employment laws too often compels us to manage to the lowest common denominator.

That frustrating fact claims its share of fun as casualties because you never know when some yahoo is going to take the fun well beyond harmless. Witness the latest casualty, as reported by the Washington Post: Major League Baseball’s new collective bargaining agreement will prohibit (well, curtail) the time-honored practice of rookie hazing.

As reported by the Post (quoting the Associated Press), the new CBA “bans players from ‘requiring, coercing or encouraging’ other players to engage in ‘dressing up as women or wearing costumes that may be offensive to individuals based on their race, sex, nationality, age, sexual orientation, gender identify or other characteristic.’” Gone are the days, the Post mentions, when the Washington Nationals dressed their rookies as gymnasts and ballerinas, or when the Dodgers outfitted Yasiel Puig as Gumby. In other words, grizzled MLB veterans can’t poke some good-natured fun at rookies by putting them in a Marilyn Monroe wig because there’s probably some perverted vet out there who’s going to torment a rookie until he streaks the field wearing who-knows-what.

Now, I don’t blame you a bit if you read that last paragraph and decided that Major League Baseball and the players’ union have done us all a very big favor. On the other hand, friendly ribbing and joking can go a long way to develop chemistry and camaraderie among a teamwhether it’s a baseball team or a business unit. The trick, of course, is knowing when it’s crossed the line, and that’s a terribly difficult line to draw (“good-natured” and “fun” being in the eye of the beholder and all). Unfortunately for us, the easiest way to navigate safely among Title VII of the Civil Rights Act of 1964, the National Labor Relations Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and all of the other employment statutes is to put the kibosh on as much of it as you can.

I wish I had some more cheering news. No one enjoys telling a good employee that they can’t pull a harmless prank because a real-world Bluto Blutarsky may stalk among us, primed and ready to take that inch and go 100 miles more. Until we all grow up, though, we may just have to accept the unwanted mantle of the Puritan crusading against fun. And there’s one thing we know about adult humans: we don’t always act like adults.

Peter Dinklage takes on Elf

December 05, 2016 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

It’s December, which means that those of us holiday fanatics can decorate and watch Christmas movies to our hearts’ content without shame.  Of course, I won’t tell anyone if you already had your tree up in November (like me) or if you never took it down from last year.  One of my favorite Christmas movies is Elf, starring Will Ferrell.  It is surprisingly packed with various employment law issues, such as employee substance abuse at work, sexual harassment, and workplace violence.  In one of the more memorable scenes, Peter Dinklage’s character, Miles Finch, demonstrates how good intentions can still lead to a harassment complaint.  Facepalm, retro disappointed man slapping forehead, d'oh!

As background, Will Ferrell’s character, Buddy, has been raised as one of Santa’s elves and only recently learned that he is actually human. He has tracked down his biological father, who works for a children’s book publisher in New York City. Unaccustomed to the human world and innocent to its realities, Buddy has difficulty adjusting to life in the Big Apple and working in his father’s office.

Cue Peter Dinklage, who steals the scene wherever he goes.  His character, Finch, is a best-selling children’s author ready get down to the business of pitching his latest book ideas. Finch, like Dinklage, is a busy, high-powered professional who also happens to have a form dwarfism. Tensions flare when Buddy barges into the room and innocently mistakes Finch for one of Santa’s elves. Unaware that Buddy was actually adopted and raised by Santa’s elves, Finch is understandably insulted and upset by Buddy’s elf comments. Finch tries to remain professional but quickly reaches his breaking point when Buddy calls him an “angry elf.” Finch then initiates his own trial by combat and attacks Buddy before storming out.

This is a great example of how even the most well-meaning employee can unknowingly engage in conduct giving rise to a harassment complaint. As the Equal Employment Opportunity Commission (EEOC) has explained, harassment is unwelcome conduct that is based on a protected status such as disability, race, color, religion, sex (including pregnancy), etc. It becomes unlawful where (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Had an employee complained about conduct like Buddy’s, the employer’s best practice would be to investigate immediately,  interview potential witnesses, provide the accused employee with an opportunity to tell his/her side of the story, and take prompt remedial action reasonably designed to end any harassment. Other best practices include regular employee and supervisor training as well as having a strong harassment policy clearly stating that harassment will not be tolerated, the various avenues for reporting such issues, and that retaliation will not be tolerated. I’ll leave the workplace violence issue for another post.

Thankfully for Buddy, his tale ends on a cheerful note and teaches us that the best way to spread Christmas cheer is singing loud for all to hear. In the meantime, what’s your favorite color?

 

Success through rudeness and hostility

June 08, 2016 - by: Matt Gilley 0 COMMENTS
Matt Gilley

Silicon Valley’s third season is in full swing on HBO, which raised a question in my mind: if Michael Scott’s Dunder Mifflin warranted an entire blog from the FordHarrison crew, isn’t the Hacker Hostel’s Erlich Bachman at least due his own post?Silicon Valley

My answer: Of course he is!

For the uninitiated, Silicon Valley is a brilliant sitcom that chronicles the ups and downs of a fictional startup, Pied Piper. Erlich, expertly played by comedian T.J. Miller, is an entrepreneur of sorts who plowed the relatively modest proceeds from the sale of his prior venture into a house near Palo Alto (and, judging by the episodes, into a copious amount of marijuana). He dubbed his home the “Hacker Hostel,” where he allows select entrepreneurs to live rent-free in exchange for 10% of their companies.

At the beginning of the series, if any of the hostel’s “incubees” have paid off for Ehrlich, there’s no evidence of it. In a stroke of blind fortune, however, venture capitalists latch onto Richard Hendrick’s Pied Piper, a clunky music app that just happens to have a killer compression algorithm built into it. Suddenly, venture capitalists and tech companies set off a feeding frenzy to get their hands on the new tech. Pied Piper vaults from the object of Ehrlich’s ire to the apple of his eyeand he vaults from middling tech entrepreneur onto the board of Silicon Valley’s hottest new company.

This is where the fun begins. Ehrlich is a train wreck on a personal levelan undisciplined, crass, intemperate, ungoverned, and thoroughly hilarious lout. Pied Piper is in its earliest stages, so right now its legal spend is devoted to corporate lawyers and litigators who fend off lawsuits over the ownership of its gold-plated IT. However, if Pied Piper makes it, and if Ehrlich remains involved in the company, it is sure to make some fictional employment lawyer a ton of money.

Ehrlich spits out litigation-worthy nuggets faster than an Uzi spits bullets, so I had plenty of options to choose from. (The hard partand this was really, truly difficultwas finding quotes clean enough to use for this post.) Consider the following, however, and if you are involved with any new business, just know that you should never, never, never, never come within a million miles of anything like these excerpts in your own company if you like the idea of striking it big someday:

  • The first episode of Season Three offered a doozy. Ehrlich strutted into a meeting with Pied Piper’s seasoned new CEO and was none too pleased to find that their venture capital masters had hired an older man to fill the role. The new CEO, “Action” Jack Barker, tried to play nice and let Ehrlich know, “I’m a big fan!” Ehrlich was ready, though: “Oh really, of what? Metamucil? Polio? The phonograph? A nice piece of fish? Segregated water fountains? Senior citizen discounts …? Erectile dysfunction …? Deviled eggs as an entree? Liking Ike?” Ehrlich clearly does not appreciate the nuances of the Age Discrimination in Employment Act of 1967.
  • Thankfully, Ehrlich and the Pied Piper team were in an all-male meeting for this next one. He was convinced that the venture capitalists courting Pied Piper would offer more to invest in the Series A round depending on how intolerable his behavior was during the pitch meetings, declaring, “If they want to negotiate using hostility and rudeness, well, they picked the wrong guy.” (Incredibly, he was right.) During one such meeting, he glared across the table and growled, “One of you is one of the least attractive people I’ve ever met and I’m not going to say which one.” That, my friends, is a walking hostile work environment.
  • Finally, Ehrlich seems to keep his own counsel. When a visitor came to the hostel seeking to get in on the ground floor at Pied Piper, Ehrlich elbowed him out the door, warning, “In the State of California, you can kill a man for entering your house without permission.” I’m no California lawyer, but I’m pretty sure he’s wrong about that.

Donald Trump will win (a Title VII lawsuit)

July 20, 2015 - by: Brian Kurtz 2 COMMENTS
Brian Kurtz

This is an entertainment-centered blog and therefore as good a place as any to discuss Donald Trump. By now you are surely aware of the nuanced approach Trump took toward U.S.-Mexico immigration policy in his presidential bid announcementDonald Trump

“When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”

If you are of Mexican national origin, that stings. If you are of Mexican national origin and are employed at Trump Plaza, or at the Trump Taj Mahal, or work on the Miss USA Pageant broadcast, you may be asking yourself whether Trump’s remarks could give rise to a discrimination or harassment lawsuit under Title VII of the Civil Rights Act of 1964. read more…

The naked truth about nude celebrities in your workplace

November 17, 2014 - by: Andy Tanick 2 COMMENTS
Andy Tanick

Celebrities lately seem to be having a hard time keeping their clothes on.

Whether it’s one of the Kardashian sisters baring her bottom or Keira Knightley baring her bosom, you can hardly look at any social media site these days without being assaulted by celebrities in various degrees of naked-idity, as Radar O’Reilly once called it. While the exhibitionism has recently arisen mainly among the ranks of female celebrities, there has been no shortage of male body parts on display in recent years, what with NFL quarterbacks, New York politicians, and others seemingly unable to resist the urge to use their smart phones to do dumb things.  NSFW

All of which raises an interesting employment law issue: How does a company’s policy against sexual harassment deal with conversations that employees might have about current events, when those events can at times be sexually charged? If an employee forwards the Kardashian photo to a co-worker, is he violating the policy? What if he merely references the photo as further proof (as if we needed it) that nothing Kardashian-related has any redeeming social value? What if several coworkers engage in a spirited intellectual debate about the statement of female empowerment that Knightley claims she was making with her revealing photo?

As a side note, readers who are of a certain age may remember that a similar issue arose in the late 1990s, when a Wisconsin jury awarded $24 million to an employee who was fired for telling a female coworker about a “Seinfeld” episode with sexual overtones. While that case, contrary to its media portrayal, was not really about the right to discuss adult-themed sitcoms in the workplace, it didn’t matter in the end, because the verdict was thrown out on appeal.

Anyway, when does a discussion of current events turn into a violation of your sexual harassment policy? Like many other employment law issues, (1) it’s complicated, and (2) it really turns on common sense. An employee who forwards a nude celebrity photo to a coworker accompanied by a lewd comment does not somehow gain legal protection because the photo appeared in a classy magazine rather than Penthouse. By the same token, the employees having an intellectual discussion about Knightley’s political motivations are clearly not engaging in a communication of a “sexual nature,” even if the topic does involve a partially nude actress. In other words, just because a conversation relates to a subject that in certain contexts can be sexual (e.g., nudity), it’s not necessarily sexual in other contexts.

Similarly, there are words that can be sexual in some contexts, but not in others. One particular well-known and popular “swear word,” for example, clearly has a sexual connotation in some contexts, but at other times can simply mean “Go away, now!” or “What the … heck?” Not even the most creative plaintiff’s lawyer or aggressive EEOC investigator would likely claim that such utterances constitute sexual harassment, although to be sure, the use of such language in the workplace certainly might violate other company policies.

To put it even more simply, ask yourself, “Would I be embarrassed if my parents walked in on that?” A scholarly discussion of the nude body in late Renaissance art? Dad may find it awfully boring, but it’s probably not an example of sexual harassment. An employee displaying a life-sized poster of Will Ferrell streaking? You probably wouldn’t want Mom to see it, so that’s a good indication that it’s probably time to train your employees on that sexual harassment policy. Because really, the Kardashian sisters are distasteful enough already–why make it even worse by having them pop up as Exhibit A in a sexual harassment lawsuit you’re defending?

 Page 1 of 2  1  2 »