Standing ovation for Adam Jones at Fenway

Kristin Starnes Gray

Last Monday, the Orioles made headlines for more than just their 5-2 win over the Red Sox at Fenway Park.  Orioles player Adam Jones reported that Red Sox fans called him a racial slur several times and threw a bag of peanuts at him as he was entering the dugout. Police reportedly ejected 34 people, including the person who threw the bag of peanuts. The Red Sox, Boston Mayor Marty Walsh, and MLB Commissioner Rob Manfred all condemned the fans’ behavior.  Fenway park at sunset

The following day, fans welcomed Jones with a standing ovation at Fenway Park before his first at-bat. Despite recent hostility that has arisen between the two teams after Manny Machado injured Boston’s Dustin Pedroia, Red Sox starter Chris Sale stepped off the mound on Tuesday to allow more time for Jones’ ovation. In addition, Jones thanked two Boston players, Mookie Betts and David Price, for their supportive text messages. African-American players for other teams also have come forward about their experiences with being called racial slurs by fans during games.

While we typically think of harassment in the workplace as occurring between two employees, Jones’ experience is an example of how important it is to be vigilant about the reprehensible behavior of non-employees. Title VII  of the Civil Rights Act of 1964 is the federal law that prohibits discrimination in the workplace based on various protected categories, including race.  As the Equal Employment Opportunity Commission has explained, “Harassment can occur in a variety of circumstances . . . . The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee . . . . The employer will be liable for harassment by non-supervisory employees and non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action.”

Some important steps employers can take to prevent harassment in the workplace include, but are not limited to:

  • Establishing anti-discrimination and anti-harassment policies with complaint procedures;
  • Communicating those policies and procedures to all employees;
  • Training supervisors on what to do when an employee complains; and
  • Taking prompt and appropriate corrective action to address employee concerns.

In the meantime, let us take to heart these two teams’ classy showing of solidarity and mutual respect. Let this be an example to us of, not only good sportsmanship, but also the importance of treating each other with dignity and following the Golden Rule.

#Fired: Post a tweet, lose your job

August 23, 2016 - by: Katie O'Shea 0 COMMENTS
Katie O'Shea

Many people enjoy spouting off what they view as 140-character tidbits of wisdom on the social media platform Twitter. But recently several individuals have found themselves in trouble with their employers (read: former employers) for their tweets or other social media posts.  Tweet

One recent example was a loan officer from Michigan who crafted a racist tweet, not worth repeating here, following First Lady Michelle Obama’s speech at the Democratic National Convention. Twitter users saw the tweet and tracked down the home loan company the woman worked for. The result was a flood of tweets directed to the company’s Twitter profile calling their attention to the tweet and asking if the employee’s views represented the company’s values.

One individual tweeted to the company, “you can’t tell me someone who holds this view on the @FLOTUS is not abusing her powers on other minorities.” Others went straight to the point and asked the company, “Will you continue to employ someone who is racist?”

The company saw the tweets and immediately took action by issuing a statement in response on Twitter. The company denounced the woman’s reprehensible comments and stated she was no longer employed with the company. The company emphasized that they do not condone such comments, which were made on the employee’s personal account.

Similarly, a national bank employee lost her job earlier this summer after a Facebook rant filled with racist remarks. The employee’s profile listed that she was an employee of the bank, and social media users immediately began sending the bank thousands of comments about the post. The bank investigated the post and terminated the employee, issuing a statement that they were aware of the reprehensible post on Facebook and the employee had been terminated. In this instance, many customers even threatened to close their accounts with the bank.

The public appeared particularly attuned to this issue given that in 2013 the bank was ordered to pay more than 1,000 African American job applicants over $2 million in back wages and interest after a judge found one of the company’s offices had discriminated against them based on their race.

Even celebrities like Blake Shelton, a judge on the popular singing competition show The Voice, have been called out by the Twitter masses for their tweets. Just last week, the country singer tweeted what some have dubbed a “non-apology” for past racist and homophobic tweets. Some of the tweets in question stem as far back as 2008, proving once again that the Internet never forgets.

With social media, it’s possible for a tweet or post to go viral immediately, and companies must be attuned to their social mentions and quickly take action if problematic posts surface. As with the bank case, delaying an investigation and taking action could cost a company customers and create bad PR.

If a company is considering taking action against an employee for a problematic post on social media, HR should be sure to immediately save or print a copy of the post in question in case the employee attempts to delete it. Employers also should keep in mind that some states might limit an employer’s ability to investigate social media or take action against an applicant or employee based on off-duty conduct.

Of course, employers also must be cognizant of the National Labor Relations Act (NLRA) in analyzing employees’ social media posts. In recent cases, the National Labor Relations Board (NLRB) has found that certain employee posts, and even rants, were protected activity under the NLRA because they pertained to concerted activity and union activity. The NLRB has found that employers violated the NLRA by terminating employees for participation in protected conduct, and has awarded back pay.

In light of these recent tweets, it’s important for employers to evaluate their social media policies and consider how they might respond to an employee who makes a racist, sexist, or otherwise inappropriate remark on a personal social media page. Employers should be extremely careful when disciplining employees over social media posts, however, especially if the posts pertain to conditions of employment. Employers considering disciplinary action or termination based on an employee’s social media post should act swiftly but consult with counsel beforehand.

Tricks and treats and trial briefs

October 26, 2015 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Remember NBC’s The Office? I think some lawyers used to blog about it. Anyhow, one of my favorite episodes was “Costume Contest” where the Scranton employees threw a Halloween party at the branch office. The costumes in the episode were mostly tame, ranging from Justin Bieber (Ryan) to Lady Gaga (Gabe). Late in the episode Angela dressed up as “sexy nurse.” The employment lawyer in me was not amused.  Devils Not in Disguise

Halloween is a few days away, and many employers will be holding costume-themed events. Unless HR steps in with some firm rules about costumes and conduct, some of those parties will invariably end up as reported Title VII cases. Consider just a few examples:

  • In a 2009 New York case, the plaintiff, dressed as a punk schoolgirl, was asked by her supervisor whether her fishnet stockings were waist-high or thigh-high;
  • In a 2009 Massachusetts case, photographic evidence of the provocative costumes the plaintiff wore to Halloween parties was offered by the defense in her sexual harassment case;
  • In a 2006 Louisiana case, the plaintiff dressed like a cat, prompting her manager to comment that he wanted “that p***y”;
  • In a 1995 Eighth Circuit decision, a white officer came to the party dressed in blackface, wearing overalls and a black curly wig, and carrying a watermelon.

Don’t let this be your workplace. Take steps before the party to diminish the risk of liability. Prohibit or limit alcohol. Do not allow provocative costumes. If the party takes place at the workplace, have it end at a reasonable hour. Remind employees about the company’s harassment and discrimination policies. Nothing is scarier than being sworn in for your deposition. Happy Halloween, everyone.

Donald Sterling: SMH

May 06, 2014 - by: Matt Gilley 0 COMMENTS
Matt Gilley

I learned something last week. If you read a youngster’s text messages, you’ll notice shutterstock_104818202a complicated system of abbreviations, symbols, and symaphores that, when translated with your 7-year-old’s assistance, become more-or-less coherent English sentences. Anyway, I learned “SMH” means “shaking my head,” which is exactly what I do these days when I hear the words “Donald Sterling.”

Sterling made himself cannon fodder for anyone in sight, and our own Josh Sudbury ably tackled the issue last week. So why go back to the well? Quite simply, Mr. Sterling is the ol’ gift that keeps on giving.

Last week, DuJour.com managed to get a line in to Sterling. Catching the attention of a guy who is the subject of just about everyone’s morbid fascination is a nice little coup for any publication, so they went for it: They wanted to know Sterling’s thoughts about V. (Vivian?) Stiviano, his … correspondent on the infamous tapes (she calls herself his “Silly Rabbit,” but that’s beyond my ken). So, Mr. Sterling, Ms. Stiviano made tapes that have brought you public ridicule. They may cost you your team. What – say – you?!?!

“I wish I had just paid her off.”

Lovely.

Nevertheless, there is a kernel of a takeaway here for human resources professionals. If we give Mr. Sterling the enormous benefit of a very profound doubt, we can imagine he was referring to severance pay that he could have offered Ms. Stiviano. In that case, any employer offering severance needs to get a separation agreement in return. For separation agreements to make a clean break, though, you can’t treat them as boilerplate, and failing to have your counsel update them regularly or review them individually can stir trouble.

The potential topics are many, but here are a few words to the wise:

  • Don’t overreach. There are certain employment rights that cannot be waived, especially things like Fair Labor Standards Act (FLSA) and other wage claims. Furthermore, the Equal Employment Opportunity Commission (EEOC) and other agencies may view prohibitions against filing claims as unlawful (they’ve been litigating this issue recently, in fact). Appropriate drafting can give you a satisfactory resolution.
  • Don’t cancel out another agreement. Before signing a separation agreement with any employee, make sure you know the other agreements the company may have with this person (especially restrictive covenants). If those other agreements need to survive termination, be very careful about language in the separation agreement that purports to supersede prior agreements.
  • Know the law. I am still surprised that folks overlook the Older Workers Benefit Protection Act in their separation agreements. Also, if you’re doing an agreement in a state that’s relatively new to you, get some assistance.

And, finally, with a nod to Mr. Sterling, you should probably consider a paragraph requiring the employee to return all property and work product. Oh, yeah – and a confidentiality provision, too.

Trash talk or abuse? NFL debates banning the N-word

March 16, 2014 - by: Josh Sudbury 1 COMMENTS
Josh Sudbury

In any other NFL offseason, with the hype over combine results all over the television and free agency in full swing, it’s likely many football fans might not notice the NFL Competition Committee meeting in the background. But this year, the committee is making news as it mulls over a controversial potential new rule that could result in individual players being penalized for using the N-word. The potential move is another effort by the NFL to clean up its image in the wake of scandals such as the Richie Incognito/Jonathan Martin scandal that surfaced during last season.shutterstock_10634185

The debate over the new rule has brought about opposition from at least a few current NFL players, such as Seattle cornerback Richard Sherman, who told Sports Illustrated’s Peter King that banning the N-word is “an atrocious idea,” adding that he feels its “almost racist” for the league to target only one word. Sherman stated that the N-word is present “in the locker room and on the field at all times” and that he hears it “almost every series out there on the field.” Free agent linebacker D’Qwell Jackson sees it a different way. According to King, Jackson told him he feels the rule would be great for the game, assuming the NFL could get it implemented, although he noted that enforcing the rule could prove difficult. As King’s article points out, the penalty’s stigma could be significantly more far-reaching than the yards assessed:

“What happens if an official thinks he heard the n-word from one player and it actually was another? The referee could call the unsportsmanlike conduct penalty/language foul, and if the offending player is white, it’s going to scar him for his career. What if the call is made on the wrong player?”

Still, the NFL would not be the first place language prohibitions were enforced in sport. In June 2012, British soccer star John Terry was put on trial for alleged “racial abuse” of an opposing player during a match. The specific allegations were that Terry had used the word “black” as a racial slur toward an opponent as part of a heated exchange of insults and foul language between the two. Terry was ultimately acquitted of the charges after the magistrate hearing the case found no evidence that Terry was a racist and that his explanation of the context in which the word was used was plausible.

While making a racist remark is not crime in the United States, employers in the states can incur significant civil liability for allowing racially insensitive language to permeate the workplace. Use of the N-word or other racially derogatory terms may contribute to a hostile work environment under Title VII of the Civil Rights Act of 1964, which also prohibits discrimination based on several other protected characteristics in addition to race. The test for a hostile environment is whether the complained-of conduct is severe or pervasive enough that it effectively alters the employee’s working conditions. Under this test, an employee may establish a hostile work environment through one, significant act of abusive conduct, or multiple acts of insensitivity, which occur repeatedly. In these claims, context matters greatly. What is offensive to one might not be offensive to another, and vice versa.

Although some NFL players might not make a big deal out of the use of language like the N-word due to its frequent use, an employer should never take such language lightly. In fact, an employer’s defense to coworker-on-coworker harassment hinges on being able to show that it promptly investigated and took appropriate remedial measures upon learning of the conduct. While employers aren’t expected to be the “language police,” they should provide employees with clear avenues for reporting offensive conduct and always be responsive to employee complaints. If necessary, the employer should have a relationship with a legal professional to consult with after an investigation to determine what remedial action to take, if any.

Offensive personal foul

November 06, 2013 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Suspended Miami Dolphins offensive lineman and last-guy-to-realize-people-save-voice-mails-and-texts Richie Incognito is 6’3″ and weighs 319 pounds. He is (was) a member of the Dolphins’ players leadership council, and he was a 2012 Pro Bowler. Incognito, however, may finally be facing an insurmountable opponent: the corporate employment lawyer. The Dolphins put Incognito on indefinite suspension after reportedly hearing a voice mail he left for teammate Jonathan Martin in April 2013. According to reports, the voice mail said:

“Hey, wassup, you half n—– piece of s—. I saw you on Twitter, you been training 10 weeks. [I want to] s— in your f—ing mouth. [I'm going to] slap your f—ing mouth. [I'm going to] slap your real mother across the face [laughter]. F— you, you’re still a rookie. I’ll kill you.”

Martin had reportedly been the target of Incognito’s hazing for some time. It’s unclear whether the Dolphins knew about the conduct all along or first learned of it after Martin stormed out of the team facility last week. From the HR/employment law perspective, it doesn’t really matter. At this point, if you’re the Dolphins, you’re trying to limit your liability.

Title VII of the Civil Rights Act of 1964 prohibits a hostile work environment on the basis of an employee’s gender, race, religion, or other protected classification. The test for a hostile environment is whether the complained-of conduct is severe and pervasive enough that it effectively alters the employee’s working conditions. Take another look at that voice mail and read the articles about the conduct Martin reportedly endured at the hands of Incognito and possibly others leading to his decision to walk out on his team.

With Incognito calling Martin a “half n—– piece of s—,”  the reports of systematic harassment, and Martin’s absence from the team, the Dolphins ran out of options with Incognito. An employer’s defense to coworker-on-coworker harassment is that upon learning of the conduct, it promptly investigated and took appropriate remedial measures. Whether or not the Dolphins knew about the Incognito-Martin dynamic earlier than last week, they knew all they needed to when they heard that voice mail.

There are other interesting legal and HR aspects to this story: bullying on the job and workplace violence; Martin’s potential causes of action against Incognito, the Dolphins, or the NFL;  jock culture. This blog may address those in future posts as the saga of Martin and Incognito unfolds.

The narrative of the pro football season has shifted. Roger Goodell was just getting his arms around head injuries. Now, he has to deal with hurt feelings. Welcome to the NFL!