Ron Paul to sexual harrassment victims — Go home?

Unlike Herman Cain, his former competitor in the GOP presidential race,  Ron Paul is not facing accusations of sexual harassment.

However, Paul, a member of the U.S. Congress from Texas, may be accused of having stunningly little understanding of the problem.

Earlier this month, Paul told Fox News he is standing by statements he made in a 1987 book, Freedom Under Siege, that workers who are targets of sexual harassment must bear some responsibility for the abuse and do not require any special legal protection.

“Why don’t they quit once the so-called harassment starts?” wrote Paul. “Obviously the morals of the harasser cannot be defended, but how come the harassee escapes some responsibility for the problem about sexual harassment in the workplace.”

Earlier this month, host Chris Wallace of  Fox News Sunday asked Paul whether he still agreed with those 1987 statements.  Paul said he does, adding that neither verbal and physical harassment  warrants a federal law.

Regarding the issue of verbal harassment, Paul said:  “If it’s just because somebody told a joke to somebody who was offended, they don’t have a right to go to the federal government and have a policeman come in and put penalties on those individuals. They have to say maybe this is not a very good environment. They have the right to work there or not work there.”

Paul said workers who are victims of physical sexual harassment also do not require protection from a federal law because there already are laws prohibiting assault and rape.

“Because people are insulted by rude behavior, I don’t think we should make a federal case about it. I don’t think we need federal laws to deal with that. People should deal with that at home,” he said.

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment, which is a form of sex discrimination. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

The U.S. Supreme Court repeatedly has said that Title VII doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious.  Harassment becomes illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

In other words,  to be actionable, victims of sexual harassment must feel their very freedom to work  is … under siege.

Target can have job, not $4.4 million

Here’s yet another case where a jury “got it” but the court did not.  Not only did the appeals court minimize the trauma of workplace abuse in its ruling but it did not hold the employer accountable for failing to halt workplace abuse. PGB

Court Overturns Jury Award

James McKelvey was an Army soldier in 2004 when he lost his right hand trying to defuse a roadside bomb in Iraq.

After recovering at a base in Germany and at Walter Reed Army Medical Center, McKelvey moved back to Michigan, and in February 2006 accepted a civilian job with the army as an operations specialist first at Selfridge Air National Guard Base and eventually at the Detroit Arsenal.

There he became a target of verbal abuse regarding his injury by his supervisor and co-workers, and his supervisor either failed to give him work to do or gave him demeaning work assignments.

McKelvey quit on February 16, 2007 to take a non-military job in the local sheriff’s department, saying he had only stayed that long at the armory because he had a wife and child to support. He then filed a lawsuit alleging he was essentially fired – or constructively discharged – because of a hostile work environment stemming from discrimination because of his disability.

A Michigan federal court jury ruled for McKelvey on both claims but it awarded no damages on the hostile-work-environment claim.  Instead, the jury awarded McKelvey $4,388,302 in front pay on the constructive-discharge claim. Front pay is money awarded for lost compensation during the period between judgment and reinstatement, or if reinstatement is not feasible, instead of reinstatement.

The trial court judge immediately vacated the jury’s award, finding that it was not supported by law.

This week, an appellate court found that McKelvey was constructively discharged from his job at the armory but agreed with the trial court that the proper remedy is reinstatement and not the $4.4 million jury award. (See McKelvey v. Secretary of United States Army, No. 10-1172 (Dec. 14, 2011).

The appeals court said “reasonable minds” could find that McKelvey was constructively discharged from his job at the armory because “ … the crux of this claim turns on the harassment McKelvey endured. McKelvey presented evidence that (a supervisor and coworker) repeatedly called him, among other derogatory things, “all fucked up,” “a piece of shit,” “worthless,” and “a fucking cripple.” … Repeated over the course of nine months, this constant stream of invective could sustain a finding of constructive discharge.”

And yet, the appeals court said, the proper remedy in McKelvey’s case is reinstatement. The court said the $4.4 million award of front pay was too “speculative” for a relatively young man of 38 years old and any trauma McKelvey might experience by returning to the job would be mitigated by the fact that he would have different supervisors and four of his six co-workers would be new, with no connection to the prior harassment.

The  Army had argued that McKelvey could not claim constructive discharge because conditions had improved two months before he quit. According to the appeals court,“This gap is too short for us to say as a matter of law that McKelvey’s workplace was no longer intolerable, and is shorter than the gaps in cases where an employee’s delay in leaving precluded a finding of constructive discharge.”  However, the court said it might agree that McKelvey had waited to long to quit if he had stayed much longer.

The appeals court said McKelvey is entitled to back pay from the time he was constructively discharged until the Army offered him reinstatement  following the trial in his case.

Service Members Option: Quit

Appeals Court says “No” to Hostile Environment Claim

New Orleans, LA –   The U.S. Court of Appeals for the Fifth Circuit has ruled that members of the armed services cannot file a lawsuit under the Uniformed Services Employment and Reemployment Rights Act (USERRA) against a civilian employer for creating a “hostile work environment” through harassment.

The appeal came in the case of Derek Carder, et al v. Continental Airlines, Inc., a class action suit filed by pilots employed by Continental Airlines, Inc. who are members of the United States Armed Forces Reserves and Air National Guard.

The jurisdiction of the 5th circuit court includes Texas, Louisiana and Mississippi.

The pilots alleged that management at Continental created a “hostile work environment”  that discriminated against them because of their military service.  Continental argued that USERRA does not prohibit harassment of military members nor otherwise contemplate a hostile work environment action.

In a March 11, 2011 ruling, the appeals court sided with Continental and affirmed a lower court decision that dismissed the service members claim on the grounds that USERRA does not permit a claim for hostile work environment discrimination.

The pilots, the court said, may sue for constructive discharge if the alleged harassment becomes sufficiently severe that they are forced to quit their jobs.

According to the complaint, Continental has created a hostile work environment through  “harassing, discriminatory, and degrading comments and conduct relating to and arising out of Appellants’ military service and service obligations.” The complaint cites a “continuous pattern of harassment in which Continental has repeatedly chided and derided plaintiffs for their military service through the use of discriminatory conduct and derogatory comments regarding their military service and military leave obligations.”

Examples of these alleged derisive comments include comments by Continental managers such as the following:

  •  “If you guys take more than three or four days a month in military leave, you’re just taking advantage of the system.”;
  • “I used to be a guard guy, so I know the scams you guys are running.”;
  • “Your commander can wait. You work full time for me. Part-time for him. I need to speak with you, in person, to discuss your responsibilities here at Continental Airlines.”;
  •  “Continental is your big boss, the Guard is your little boss.”;
  •  “It’s getting really difficult to hire you military guys because you’re taking so much military leave.”;
  •  “You need to choose between CAL and the Navy.”

The pilot argued that they could file a “ hostile work environment” because a clause in Section 4311(a) of USERRA (entitled “Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited”) prohibits denial of “any benefit of employment” to persons serving in the armed forces. However, the appeals court said the phrase is narrower than the language in other federal anti-discrimination laws and not intended by Congress to permit hostile work environment claims.

So what options do service members have?

“ If an employer makes service members’ employment so intolerable that they feel forced to quit, these service members could likely make a claim under USERRA for constructive discharge,” the appeal court states.

To make a claim of constructive discharge, the plaintiff must show that his or her working conditions became ‘so intolerable that a reasonable person would have felt compelled to resign.’”) (quoting Penn. State. Police, 542 U.S. at 147, 124 S. Ct. at 2354).

Still pending in the lawsuit is a separate count that the district court did not dismiss for denial of retirement benefits based upon Continental’s alleged denial of flight time to the Appellants and other class members because of their service obligations.

A Matter of Personal Space

The U.S. Court of Appeals for the First Circuit ruled on Oct. 6, 2010 in the case of Vera v. McHugh that a supervisor’s allegedly intentional encroachment on a subordinate’s personal space was severe and pervasive enough to constitute sexual harassment under Title VII.

The plaintiff , a U.S. Army soldier, shared a small office with her male supervisor.  She  alleged that for three months he stared at her,  sat very close to her,  made it difficult for her to leave the office and called her “babe” on one occasion. She alleged that he enjoyed her discomfort, and would smirk at her reaction to his behavior.

The First Circuit reversed a grant of summary judgment for the Army, remanding the matter for jury trial. The court ruled the plaintiff alleged sufficiently severe and pervasive conduct to constitute a violation of Title VII if proven.

Federal courts take different positions with regard to the level of severity necessary to constitute a hostile work environment and sexual harassment under Title VII.

The First Circuit includes U.S. District Courts in Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.

The 94 U.S. judicial districts are organized into 12 regional circuits, each of which has a United States court of appeals. A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies.