EEOC “Spam” Gets a Green Light

          Merriam-Webster Dictionary defines “spam” as an “unsolicited usually commercial e-mail sent to a large number of addresses” or “a canned meat product.”  Another definition may now be “an aggressive investigative tactic of the Equal Employment Opportunity Commission (“EEOC”) which has been given a green light by the courts.”

On September 24, 2014, a U.S. District Court Judge in Washington, DC announced he will dismiss a lawsuit over the Equal Employment Opportunity Commission (“EEOC”) sending a blast of more than 1300 e-mails to a company’s employees, requesting they supply information to the agency as part of an investigation into allegations of age discrimination.

In my October 2013 post, “You’ve Got (Mass) Mail . . . From the EEOC?”, I discussed the federal lawsuit filed by construction equipment maker Case New Holland (“CNH”) in which the company alleged the EEOC unconstitutionally solicited or “trolled” the company’s employees to become class members in a potential age discrimination class action.

Prior to the e-mail blitz, the company had cooperated with the EEOC’s investigative requests by producing ten of thousands of page of documents and hundreds of thousands of electronic documents.  The company heard nothing more from the agency for more than a year and a half, until the incident that caused the company to sue the EEOC.

At 8:00 a.m. on June 5, 2013, the EEOC conducted a mass e-mailing to the business e-mail addresses of 1330 CNH employees across the United States and Canada. Over 200 of the recipients were members of management. The e-mail stated the EEOC was conducting “a federal investigation” and making “an official inquiry” into allegations that CNH discriminated against job applicants and employees, and contained a link to an on-line series of questions regarding alleged discrimination. It also asked for the employee’s birth date, address and telephone number. The EEOC’s on-line survey instructed CNH employees to “Please complete and submit this electronic questionnaire as soon as possible.”

The e-mail had been sent without any advance notice to CNH and according to the lawsuit, the mass mailing disrupted CNH’s business operations at the start of the workday and communicated to employees they should cease their legitimate work duties and instead immediately respond to the agency’s questions. A significant concern was the company’s belief that the EEOC had deliberately cut the employer out of the investigatory process, and had solicited members of management, whose statements arguably could have bound the company.

CNH filed its lawsuit on August 1, 2013, alleging that the EEOC’s mass e-mailing: (1) was not authorized by any EEOC rule or regulation, (2) violated the federal Administrative Procedure Act, (3) constituted an unreasonable search and seizure in violation of the Fourth Amendment, (4) violated the takings clause of the Fifth Amendment, and (5) violated the EEOC’s own compliance manual, which requires that an employer be allowed to have a spokesman or attorney present during an interview of management employees, and that advance notice be given. The suit claims the EEOC engages in bullying tactics to force companies into monetary settlements of questionable claims.

However, in his ruling announcing his plans to dismiss CNH’s lawsuit, U.S. District Judge Reggie B. Walton stated that the company lacked standing to bring the suit because it was not able to establish how it was injured by the EEOC’s investigatory tactic, other than vague allegations of business disruptions.  Judge Walton announced he would issue a written opinion dismissing the case within the next two months.  At this time, the company has not announced if it plans to appeal the ruling.

Although the EEOC had never before utilized e-mail at this scale to try and identify alleged victims of discrimination, it had argued to the court that the tactic was clearly within the agency’s investigatory authority.

With the U.S. District Court giving the green light to the EEOC’s investigatory “spam”, at least for the time being, it appears highly likely that employers will be seeing much more of this tactic.  From the EEOC’s perspective, it is cheaper and quicker then actually sending investigators to a workplace, and has the added benefit of being able to target thousands of potential plaintiffs/class members with the click of a mouse.  Also, as noted in CNH's lawsuit, it has the effect of allowing the EEOC to cut the employer out of the investigative process.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

EEOC Targets Mandatory Arbitration Agreements in Lawsuit Against Restaurant Franchisee

 

 

      A Florida company that owns franchise restaurants, such as Applebee’s and Panera Bread, has been sued by the Equal Employment Opportunity Commission (“EEOC”) for making its employees sign mandatory arbitration agreements.  The lawsuit, filed September 18, 2014 in the U.S. District Court for the Southern District of Florida, is the latest instance of the EEOC targeting employer practices which the agency  views as limiting employees’ right to file charges of discrimination or bring lawsuits under Title VII and other employment discrimination statutes.

            According to the agency’s allegations in EEOC v. Doherty Enterprises, Inc. (Civil Action No. 9:14-cv-81184-KAM), the company “requires each prospective employee to sign a mandatory arbitration agreement as  a condition of employment.  The agreement  mandates that all employment-related claims -- which would otherwise allow  resort to the EEOC -- shall be submitted to and deter­mined exclusively by  binding arbitration.”  The EEOC alleges the arbitration agreements interfere with employees' rights to file discrimination charges and “violates Section 707 of Title VII of the Civil  Rights Act of 1964, which prohibits employer conduct that constitutes a pattern  or practice of resistance to the rights protected by Title VII.

            The lawsuit is not surprising since the EEOC made it clear in its 2013 – 2016 Strategic Enforcement Plan that “[t]he EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforcement efforts.”  However, while these type of “test” cases by the agency result in substantial legal costs for employers, the EEOC does not seem to have been getting much bang for its buck when it actually gets in front of a federal judge.

            As noted in my September 21, 2014 posting, “EEOC Experiences “Separation Anxiety”in Lawsuit Against CVS”, last week the EEOC suffered a big defeat in their controversial lawsuit against CVS Pharmacy, over the drug store chain’s use of separation agreements for departing employees.  In that lawsuit, the EEOC had taken the same approach as it has in this latest case, alleging the drug store chain’s use of very standardized separation agreements demonstrated a pattern and practice of CVS interfering with employees' Title VII in a way that “deters the filing of charges and interferes with employees' ability to communicate voluntarily with the EEOC.” 

            In comments about the agency’s lawsuit against Doherty Enterprises, EEOC Regional Counsel Robert E. Weisberg left little doubt that more lawsuits over arbitration agreements can be expected:

"Employee communication with the  EEOC is integral to the agency's mission of eradicating employment discrimination.  When an employer forces all complaints about  employment discrimination into confidential arbitration, it shields itself from  federal oversight of its employment practices.   This practice violates the law, and the EEOC will take action to deter further use of these types of overly broad arbitration agreements."

           
        As was the case of separation agreements in the CVS lawsuit, mediation agreements are commonly used by employers nationwide, and the EEOC’s litigation focus is troubling to the business community.  For employers who utilize arbitration agreements, it would be advisable to have them reviewed by legal counsel.

 Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com





EEOC Experiences “Separation Anxiety” in Lawsuit Against CVS

          The details are still yet to be known, but word out of Chicago is that the EEOC has suffered a big defeat in their controversial lawsuit against CVS Pharmacy, over the drug store chain’s use of separation agreements.  Employers commonly use separation or severance agreements when the employment relationship ends. In exchange for some type of payment, the employee agrees to a general release of any potential claims he or she might have against the employer, and possibly other provisions, such as confidentiality and non-disparagement clauses.

As reported in my August 8, 2014 post “Mad Men: The EEOC Advertises its Aggressive Agenda”, earlier this year, the EEOC filed a lawsuit against CVS, claiming the drug store chain’s use of its standard separation agreement demonstrated a pattern and practice of CVS interfering with employees' Title VII in a way that “deters the filing of charges and interferes with employees' ability to communicate voluntarily with the EEOC.” 

The EEOC’s lawsuit was troubling for many in the business community, because employers nationwide commonly use the language being attacked in the CVS agreements. In the event the EEOC were to prevail, it could have result in chaos for many businesses, casting into doubt the validity of such standard severance agreements, and potentially allowing former employees to revive previously barred claims.  

On September 18, 2014, U.S. District Court Judge John Darrah verbally granted CVS’s motion to dismiss based on the EEOC’s failure to state a claim, and an opinion is expected shortly that will give the Court’s basis for dismissing the EEOC’s lawsuit.  CVS has announced it is pleased with the decision and the EEOC is withholding comment until it sees the Judge’s written opinion.

It is not surprising that the EEOC filed the lawsuit.  In its Strategic Enforcement Plan for 2013-2016, the EEOC had announced its intent to target employer policies it claimed discouraged or prohibited individuals from exercising their legal rights, including overly broad waivers or settlement provisions that prohibited filing EEOC charges or providing information in EEOC or other legal proceedings.

In its rush to file a “test” case, the EEOC might have made the error of simply picking the wrong defendant to go after, or not bothering to actually read the agreements in question.  When it filed its motion to dismiss, CVS noted that its separation agreements expressly allowed for employees to participate with and cooperate in any investigation by a government agency, including the EEOC. Specifically, CVS’s agreements expressly note that none of the provisions are:

“[I]ntended to or shall interfere with employee’s right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws, nor shall this Agreement prohibit employee from cooperating with any such agency in its investigation,” provided of course that the employee waives her entitlement to monetary and other relief.

       The decision in the CVS case may not bode well for a similar lawsuit filed by the EEOC in the United States District Court of Colorado.  Some legal commentators have suggested that the EEOC may be trying to use this type litigation to impose new guidelines for such agreements, or perhaps as a prelude to more formalized regulation

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

NLRB Says “No Workplace Secrets Allowed!”

The National Labor Relations Board (“NLRB”) has held that an employer’s enforcement of a commonly used workplace policy could expose the employer to liability under the National Labor Relations Act (“NLRA” or “the Act”).

This particular matter involved the technology company MCPc, which had a confidentially provision in its employee handbook which read. In part, as follows:

[D]issemination of confidential information within [the company], such as personal or financial information, etc., will subject the responsible employee to disciplinary action or possible termination . . . .

This type of policy, in one form or another, is commonly utilized by many employers.  In the case of MCPc, the company fired an employer after he announced at a meeting that the salary paid to a particular executive, stating the specific amount of the executive’s compensation, would have been used to hire additional engineers.  In terminating the employee for his statements, MCPc also based the decision on the employee improperly accessing computer files to discover the executive’s salary.

Last month, the NLRB upheld an administrative law judge’s decision, finding that MCPc’s internal confidentiality policy was overbroad and violated The NLRB held that this language violated Section 8(a)(1) of the NLRA because employees would reasonably construe the overbroad rule to prohibit discussion of wages or other terms and conditions of employment with their coworkers.  In upholding the ruling against MCPc for the termination of the employee, the NLRB agreed that the employee’s discussion was protected discussion because it involved the terms and conditions of his employment, i.e. staffing shortages.

In recent years, the NLRB has used the same rationale to find many employers’ social media policies to be in violation of the Act.  Another lesson to remember from the NLRB’s assault on workplace social media policies is that an employer can be found in violation on the basis of an overbroad policy alone, even if there is no action taken against an employee for violation of the policy.  As many employers also learned from the NLRB’s social media focus, even non-union employers can be found in violation of the NLRA.

Where does this leave employers?  As mentioned above, many employers have similar policies in their employee handbooks.  This is often for the purpose of avoiding the inevitable bickering and complaints that arise when employees start comparing their respective salaries, and are aggrieved over their perception of being underpaid, or another employee being overpaid.  Unfortunately, that goal is exactly what the NLRB views as a violation.

From the perspective of the NLRB’s “bigfoot” approach in the area of social media policies, I think employers are ultimately going to have to scrap the broadly worded confidentiality policies, and opt instead for narrowly tailored policies that protect against the disclosure of trade secrets and other confidential or proprietary information.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

THE LEGAL PITFALLS OF WORKPLACE ROMANCE

 

Birds do it, bees do it,

Even educated fleas do it,

Let’s do it, let’s fall in love

                        Let’s Do It (Cole Porter 1928)

I.  Introduction

History is full of great romances.  Romeo and Juliet, who defied their families for true love.   Rhett and Scarlett’s tumultuous love was set against the backdrop of the Civil War.  And of course, the classic workplace romance at the Daily Planet between Clark Kent/ Superman and Lois Lane.

But for Larry, GeneriCorp’s Human Resources Director, the great romance he’s concerned about is between Shipping Department Manager Ken Worth and Shipping Clerk Lola Rider.  Ken is Lola’s direct supervisor.  Larry learned about the couple’s sexual relationship after other female clerks in the Shipping Department angrily complained about Ken’s plans to promote Lola to the newly created and higher paying position of Assistant Shipping Manager. 

All indications at this point are that the relationship is consensual.  Morale is suffering in the Shipping Department amid complaints of favoritism and Larry is concerned about whether the company may have more serious potential legal problems.

II.  The Workplace as a “Dating Pool” 

Workplace romances are nothing new and if anything, have become more common. With the amount of time people spend working and the increased percentage of women in the workplace, it’s no surprise that the workplace is fertile ground for couples to meet. People who work together also usually live within a reasonable dating distance, and because they share a workplace, they see each other on a daily basis.  Coworkers in similar jobs may also be approximately the same age, and share similar interests both inside and outside of work.  As such, the workplace creates an inadvertent dating pool. 

In a survey of U.S. workers by the staffing and recruiting business Spherion Corporation, 39% of workers said they have already had a workplace romance and the same percentage would consider it.  Looking at the workplace relationships, the survey found 27% involved couples dating for just a few weeks or less, 30% dating for several months, 15% dating several years and 25% resulting in marriage of coworkers.  As the survey indicates, the majority of these relationships are short term and when the romance sours or goes bad, it can be really bad and cause serious problems for employers.  The Spherion Corporation survey noted that nearly half of all employees surveyed (46%) said they felt that dating a coworker would jeopardize their job security or career advancement opportunities.

III.  Non-Fraternization Policies

In this case, GeneriCorp does not have a non-fraternization policy, which would otherwise address Ken and Lola’s workplace romance.  In this regard, GeneriCorp is not unique. A recent survey by the Society for Human Resource Management  showed that 72 % of the employers who responded said they did not have a written non-fraternization policy, 14 % said they had a non-written policy that was understood within their workplace, and only 13 % indicated they had a formal written policy.  However, even when there is a policy, many employers adopt an enforcement attitude of benign neglect. 

This is not surprising.  It’s an awkward subject for some employers and Human Resource professionals, who do not relish the role of being the “Romance Police.” Many would rather not get involved in employees’ personal lives unless it is causing problems in the workplace.  However, such policies are important so employers can clearly communicate to employees what is and is not appropriate in the workplace and to protect themselves from legal liability and disruption of the work environment.

What are some of the specific reasons for adopting such a policy?  It addresses and hopefully prevents problems arising from:

·         Favoritism/perceptions of favoritism (and the ensuing rumor mill)

·         Disruption of the workplace (including extramarital affairs)

·         Conflicts of interest

·         Confidentiality (nondisclosure agreements, trade secrets, salary information, etc.)

·         Hostile Work Environment

·         Sexual Harassment (including repeated unsolicited requests for dates)

The purpose of this article is primarily to address the issues that arise from consensual workplace romances, and it is not intended to address the broader area of sexual harassment.  However, as noted above, the problem with certain office romances, especially between supervisors and subordinates, is that they may not be consensual, and in fact may be coerced.  Contrary to the traditional Title VII scenario in such cases, in recent years there has been an increase in the number of EEOC charges filed by male employees, complaining of sexual harassment from female supervisors.  Any such  issues should be addressed fully by the sexual harassment policy employers should already have in place. A non-fraternization policy should be utilized in conjunction with the sexual harassment policy.

A.        Supervisor and Subordinate Relationships

In the case of the romance between GeneriCorp Shipping Manager Ken Worth and Shipping Clerk Lola Rider, what are the legal issues?  Assuming that it is a voluntary consensual relationship, there would not appear to be any liability for GeneriCorp under Title VII for sexual harassment and/or sexual discrimination. 

  However, what about the claims of favoritism from the other female clerks in the Shipping Department, who are upset that Lola is getting a promotion from her boss and new boyfriend?  Do these other employees have a Title VII claim against GeneriCorp for favoritism shown to a co-worker who is sexually involved with a supervisor?

According to the EEOC, the answer, in regard to “insolated instances” of sexual favoritism, is “no.”  The EEOC Policy Guidance on Employer Liability under Title VII was adopted January 12, 1990, and was updated in June 1999.  It provides that:

Not all types of sexual favoritism violate Title VII.  It is the Commissioners position that Title VII does not prohibit isolated instances of preferential treatment based on consensual romantic relationships.  An isolated instance of favoritism toward a “paramour” (or a spouse or friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders.  A female [plaintiff] who is denied an employment benefit because of such sexual favoritism would not have been treated more favorably had she been a man nor, conversely, was she treated less favorably because she was a woman.[1]

In essence, the EEOC is saying that while other employees in the workplace, both men or women, may feel the situation is unethical or unfair, it is not sexual discrimination because both groups are disadvantaged for reasons other than their gender.  However, the EEOC Policy Guidance also notes that:

Managers who engage in widespread sexual favoritism may also communicate a message that the way for women to get ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their fair treatment.  This can form the basis of an implicit “quid pro quo” harassment claim for female employees, as well as a hostile work environment claim for both women and men who find this offensive.

 

The EEOC authority has been cited favorably by federal courts within the Fifth Circuit (which encompasses Louisiana, Mississippi and Texas) in dismissing such claims of sexual favoritism.  The Fifth Circuit itself has also held that an employee does not have a cause of action for retaliation for reporting a supervisor’s sexual relationship with a subordinate coworker.[2]

However, there is some indication that courts may be taking a more nuanced view on sexual favoritism based on consensual relationships. The key phrase in the EEOC Policy Guidance is that “Title VII does not prohibit isolated instances of preferential treatment based on consensual romantic relationships.” 

In a recent case by the California Supreme Court, it was held that widespread and overt sexual favoritism resulting from consensual relations could create a cause of action for sexual harassment and hostile work environment.  This ruling may reflect a trend in how courts view such cases.

 In Miller v. Department of Correction, 36 Cal. 4^th  446 (Cal. 2005), two former female employees at a California prison claimed that the warden gave unwarranted favorable treatment to numerous female employees with whom he was having sexual affairs, and they claimed it amounted to sexual harassment and discrimination.  The case was dismissed at the trial stage but the California Supreme Court reinstated the lawsuit.  While it was a state court claim, the California Supreme Court relied on the federal EEOC Policy Guidance.  In finding for the Plaintiffs, the Court held:

[A]lthough an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed as “sexual playthings” or that the way required for women to get ahead in the workplace is to engage in sexual conduct with their supervisors or the management. (emphasis added).

It is not uncommon that once a consensual relationship ends, the subordinate employee will subsequently claim they were coerced by the supervisor and will file a Title VII lawsuit.    Aside from any potential legal liability, the issue of a supervisor sexually involved with a subordinate can result in acrimony and disruption in the workplace if the relationship ends badly.  Even assuming the relationship continues happily, the impact in the workplace can be disgruntled coworkers, poor morale and a never-ending distraction from the real work of your business.

An employer’s non-fraternization policy should strictly prohibit romantic relationships between supervisors and subordinate employees or any employee who falls under that supervisor’s chain of supervision.  Companies that are large enough sometimes have policies that allow the supervised employee to transfer, if possible, to a different department, where they would not be supervised by their love interest.  However, this potentially opens the door to claims of employees being treated differently on the basis of their gender.  A zero tolerance policy best protects the employer.

While this type of policy may seem harsh and draconian, it is important to remember that the purpose of your business is not to be a dating service or a singles bar.  You did not create the situation, the two employees who started the relationship created the problem.  Having been involuntarily placed in the position of having to deal with it, this is the best option to avoid possible legal liability and problems in the workplace.  In the instance of a violation of the policy, the following procedure can be followed:

(1)   Call them in and talk to them separately;

(2)   Tell them that you have reason to believe that they are involved in a sexual relationship with the other employee;

(3)   Make them aware that the company has serious concerns because a relationship between a supervisor and a subordinate employee leaves the company open to claims of sexual harassment, hostile work environment, retaliation or favoritism;

(4)   Inform both employees that it put the company in position where it has to do something to avoid legal liability and/or disruption to the workplace, and the situation  cannot continue;

(5)   Tell both of them they have until noon the next day or some other deadline to decide between themselves which of them is going to voluntarily decide to resign, and if they can’t, both of them will be terminated.  This avoids later claims of sex discrimination, because the employer’s decision is not based on gender and in the event they cannot decide, both genders are treated equally.  Some employers may elect to terminate one of the employees based on their respective employment history, position and seniority.  However, this opens the door to claims that employees of different genders were treated differently.

Some employers adopt non-fraternization policies that discourage but do not strictly forbid relationships between supervisors and employees who do not fall under their chain command.  Such policies require that the relationship must be disclosed by the supervisor to his or her manager or the next person up the supervisory chain.  The higher supervisory official then must assess the situation and make a recommendation to resolve any actual or potential conflict created by the relationship.  However, such policies may not address all of the potential problems. Likewise it results in  company managers using company time to “assess” romantic relationships.

 B.        Coworker Relationships

Fresh on the heels of addressing the Ken and Lola romance in the Shipping Department, Larry the Human Resources Manager is faced with another office love affair.  This time it’s over in the Data Processing Department.  Larry learns that Data Entry Clerks Ivy Pod and  Pete Dief have been dating quietly for six months, and generally few people at GeneriCorp know they are an item.  Neither Ivy nor Pete have any supervisory authority over each other.

It’s estimated that 80% of office romances involve similarly situated co-workers. Romantic relationships between co-workers with no supervisory authority over the other still present many of the same potential problems for the employer.  While there is less potential for sexual coercion than in a supervisor - subordinate situation, there is still plenty of opportunity for disruption of the workplace during the relationship, and even more so after an unhappy breakup.

Adopting the same zero tolerance policy as to co-worker romances is an option.  However, Human Resource professionals report such policies are harder to enforce in a co-worker scenario. Employees resent the intrusion into what they perceive as their private lives and they are more likely to keep the workplace relationships underground, putting more effort into “beating the system” as opposed to complying with a no-dating policy.

Taking into account the realities of the workplace and the reluctance to be the “Romance Police”, some employers have adopted policies that allow co-workers to date but require both individuals to enter into written agreements: (1) voluntarily disclosing their relationship, (2) acknowledging their understanding of the company’s sexual harassment and discrimination policy, and (3) acknowledging that if the relationship causes disturbance in the workplace, they may be subject to discipline, up to and including termination.  Such an agreement also requires either party to promptly report to management anything relating to the relationship or a broken-off relationship that might serve as the basis of a harassment complaint. 

Such an agreement is a way for employers to preemptively avoid problems with office romances.  If you need such a policy drafted for your business or a non-fraternization policy, please feel free to contact me and we can discuss what type of policy or agreement would work best for your workplace.

                        IV.  Tips for Dealing with Workplace Romances  

Office romances are often the focus of intense gossip, so Human Resources professionals and supervisors need to know to keep their ears open for news about job or career damaging behavior resulting from such relationships.  Supervisors need to know the appropriate disciplinary measures to take if a romance derails and the resultant employee behavior disrupts the workplace.

Employees need to be made aware that the company will not tolerate sexual liaisons or sexual behavior at work and any such relationships need to be kept entirely separate from the work environment. The company’s sexual harassment and non-fraternization policy needs to be posted and all employees should be trained as to the company’s policy.  If romance becomes sexual harassment, supervisors, working in concert with Human Resources, needs to know what to do to take immediate action.

V.  Conclusion

Paraphrasing the old song at the start of this paper, if birds and bees and educated fleas fall in love, the odds are employees at your company are doing the same.  Having the appropriate policies and training in place can help prevent legal woes  as well as workplace headaches and heartaches

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

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[1] See EEOC Policy Guidance on Employer Liability under Title VII for Sexual Favoritism No. 915.048

 

[2]       See Ellert v. Univ. of Texas, 52 F.3d 543 (5^th Cir. 1995) (“Even if [Plaintiff’s] knowledge of the affair was the true animus behind the discharge decision, it was a motivation that did not rely upon her gender and, as such, it was not within the ambit of Title VII’s protections.”).