Click here for an interesting item on the Harvard Business Review site entitled How Sex Hurts the Workplace, Especially Women.

The basic premise: workplace sex doesn’t just hurt the parties directly involved — it can also have collateral damage on the careers of high-achieving female employees who had nothing to do with the harassment.

Brand new research by the Center for Work-life Policy indicates that a woman will most likely fail to achieve executive status “unless she is sponsored by a powerful senior executive — who, more often than not, is male and married.” As the article points out, that is often “where sex enters the picture.”

Some of the key findings:

• 34% of executive women say they know a female co-worker who had an affair with her boss
• 15% of women at the director level or above say they had such an affair themselves
• 37% of those who know of an affair believe that the woman received a “career boost as a consequence”
• 70% of women (versus 61% of men) lose respect for a leader who has an affair
• 56% of women (48% of men) feel “animosity” toward the couple involved
• 65% of women (60% of men) believe that salary increases and other perks are traded for sexual favors
• 37% of women (39% of men) see a productivity drop in the wake of a workplace affair

What Should Employers Do?

You don’t have to be the workplace romance police. However, you absolutely should:

• have a policy that (1) clearly prohibits all forms of unlawful harassment and (2) contains a clear mechanism for reporting potential violations, including alternate paths when the alleged harasser is the complaining party’s boss;
• train all employees on the policy, with a special emphasis for managers on the dangers of workplace romance (particularly of the boss-subordinate variety);
• fully investigate all complaints of harassment, even if (1) the alleged harasser asks you not to and (2) the allegations are against the head of the company or a “superstar”-type employee;
• if the investigation warrants disciplinary action, take it (even if it means firing the CEO or superstar); and
• carefully consider any and all communications related to the investigation, particularly if they concern a high-profile employee (and discuss them with experienced legal and PR counsel).

If an employer fails to take any of the above action , it could easily wind up in court — possibly in a class action — and face humongous morale and productivity problems. Don’t let that happen to you.

To help ensure that you cover all the investigation bases, click here for our handy Investigation Toolkit. Click here for our handy “cheat sheet” on harassment law.

Embarrassing e-mails? No problem. Tasteless tweets? A thing of the past. Swearing, sexting and other scandalous statements? Never again.

Thanks to the wonders of modern technology, HR professionals now have a powerful new weapon in their never-ending battle against offensive workplace behavior: Pepper Mouth.

This new gadget plugs into any computer and is able to detect whenever the user uses offensive language. Type in a bad word and you get a bad smell — a stink bomb canister hooked up to the device lights up and emits a foul odor.

According to the device’s inventors, “There [have] recently been many incidents where people got in trouble for the language they use in social media sites. Maybe when your ‘bad language’ disturbs you with a bad smell, you will start to understand that it might also have other, more serious consequences.”

Goldman Sachs’ HR Department probably wishes the device had been invented a few years ago. Congress recently pounded its execs over an internal e-mail that referred to one of its controversial transactions as “one sh*#%y deal.”

Supreme Court nominee Elena Kagan also could have used the device. The New York Times ran a report detailing her creative use of “the two most common swear words” in e-mails sent during her years in the White House.

So, does Pepper Mouth really work? “The smell is very persistent,” cautions the product’s web site. “Just like things you type and send, it is there to stay.” I plan to order my very own as a public service and will publish my reactions asap.

In the meantime, for a slightly less over-the-top way to prevent inappropriate workplace communications click here for our sample social media policy.

First, there was the certification of the largest class-action employment lawsuit in U.S. history. Then, a college agreed to pay $1 million to settle a sex harassment lawsuit. Then another employer agreed to pay $263,360 to settle age discrimination claims. Even a union got into the act, settling a retaliation suit for relatively big dollars.

Here are some of the details . . .

Wal-Mart Makes History

On Monday, a federal court in San Francisco certified the largest class-action employment lawsuit in U.S. history. That means that a case that could involve several hundred thousand plaintiffs demanding billions of dollars in damages may now proceed to trial.

The suit was first filed in 2001 by a greeter named Betty Dukes who worked in Wal-Mart’s Pittsburg, California store. Dukes and others claim that female employees are paid less and given fewer opportunities than their male counterparts. They also contend that women make up more than 70% of Wal-Mart’s hourly workforce but less than a third of store management, saying that the company’s “strong, centralized structure fosters or facilitates gender stereotyping and discrimination.” The plaintiffs seek back pay and punitive damages.

Wal-Mart has objected to the size of the suit, calling it “historic” in scope and arguing that it would be too difficult to litigate. Judge Susan Graber of the appeals court disagreed, ruling that although “the size of this class action is large, mere size does not render a case unmanageable.”

Wal-Mart has indicated that it may appeal the court’s sharply divided 6-5 decision to the Supreme Court, saying “We do not believe the claims alleged by the six individuals who brought this suit are representative of the experiences of our female associates.”

College Pays $1 Million

Lafayette College in Easton, Pennsylvania agreed to pay $1 million and furnish significant remedial relief to settle a sex harassment lawsuit filed by the EEOC.

The EEOC alleged that Lafayette’s supervisor of loss prevention engaged in repeated harassment of five female public safety employees, including groping, forcible kissing, lewd comments, explicit gestures and pornographic e-mails. One employee was forced to quit due to the harassment, according to the EEOC.

“No one should have to endure the abuse these women faced at work,” said EEOC Chair Jacqueline Berrien. “This significant settlement shows that the EEOC will insist on meaningful relief for workers who are victims of harassment.”

Each of the five plaintiffs will receive $200,000 under the terms of the settlement.

Fire Department Pays $263,360

The Selden Fire District in Long Island, New York agreed to pay a total of $263,360 to 23 firefighters to settle a class-action age discrimination suit brought by the EEOC.

The EEOC alleged that the district refused to let volunteer firefighters over age 55 accrue credit toward a length-of-service award due to their age. As a result, the EEOC contended, older firefighters lost pension amounts after they turned 55 in violation of the Age Discrimination in Employment Act.

“Older workers, like these firefighters, should not be deprived of valuable pension benefits simply because of their age,” EEOC Chair Berrien said. “This settlement ensures that these highly valued public servants will finally receive fair compensation.”

Union Settles Retaliation Suit

The Maryland Classified Employees Association (MCEA) agreed to pay $80,000 to settle an EEOC retaliation suit. The EEOC charged that MCEA (1) fired an employee for her “perceived involvement” in a prior EEOC investigation of MCEA’s alleged unlawful employment practices and (2) unlawfully denied a promotion to another employee who filed a discrimination charge against the union. The MCEA also agreed to various anti-retaliation remedial efforts in a two-year consent decree.

“Title VII depends for its enforcement upon the cooperation of employees who are willing to oppose or report employment discrimination,” said EEOC Acting Regional Attorney Debra Lawrence.

Stay tuned.

A Colorado prison agreed to pay $1.3 million to 21 female former employees who alleged numerous disturbing acts of sexual harassment.

The EEOC charged that:

• several female employees were threatened with termination if they didn’t perform sex acts;
• after one female employee complained of harassment, she was placed in an isolated location where she was raped by the man against whom she had complained;
• two chiefs of security were allowed to resign after “numerous complaints of sexual harassment and rape,” including forcing a female officer to have sex or be fired, as well as repeated incidents of inappropriate touching and lewd comments;
• male employees were allowed to openly view pornography, tell sexual jokes and make inappropriate sex-related comments on a regular basis; and
• female employees who complained about the harassment faced severe retaliation from male managers who ostracized them, unfairly scrutinized their work, accused them of misconduct and assigned them to the worst and most dangerous assignments at the prison.

In the settlement, the defendants refused to admit any liability.

“We at the EEOC see an unfortunately high number of sexual harassment cases, but what allegedly happened here was shocking,” said Acting Chair Stuart Ishimaru. “No working woman should ever have to endure harassment and requests for sexual favors by managers in order to earn a paycheck — or suffer retaliation for complaining about the illegal harassment.”

What Should Employers Do?

To avoid anything remotely similar happening in your workplace, (1) implement an anti-harassment policy that includes multiple avenues through which to complain, (2) conduct regular anti-harassment training, (3) promptly and thoroughly investigate any and all complaints of harassment, (4) take prompt and appropriate corrective action and (5) avoid any form of retaliation.

(Click here for more on this case from the EEOC.)

One of the best ways to stay out of court is to (1) keep tabs on what sorts of things the EEOC is suing employers for and then (2) don’t do those things.

The EEOC announced a whopping 38 new lawsuits this past week. If you’d like to spend more time with lawyers, judges and juries, just do any of the following . . .

Sexual Harassment and Gender Discrimination

Almost a third of the new cases fall into this category. Here’s what not to do:

• ignore repeated complaints about “higher-ups” who use “sexual epithets” and engage in “threatening physical and verbal sexual conduct” (here);
• apply anti-nepotism policies inconsistently to male and female employees (here);
• fail to have a clearly articulated harassment complaint procedure and fail to take steps to stop a manager from using his position to harass several female employees (here);
• punish an employee who complains of sex harassment by cutting her hours, taking away her company vehicle and then firing her without explanation (here);
• fail to take adequate steps to address a “campaign of sexual comments, threats and unwanted touching” by managers against female teenage employees (here); and
• fail to stop repeated sex-based harassment such as unwelcome touching, requests for sexual favors, physical intimidation, name-calling, anonymous notes and/or retaliation (here, here, here, here, here, here, here and here).

Pregnancy Discrimination

Please don’t:

• make sexist comments like ”a pregnant woman should be at home,” fire a pregnant employee the day she turns in her maternity leave paperwork and then fire her husband three weeks later for “associating” with her (here);
• remove a pregnant employee from a position for safety/risk reasons without an in-depth analysis (here);
• refuse to accommodate a pregnant employee’s request for additional leave time due to doctor-ordered bed rest (here); and
• fail to rehire an employee after she resigned due to a pregnancy-related medical condition (here).

Disability Discrimination

What not to do in this area . . .

• refuse to provide reasonable accommodations to disabled applicants during pre-employment training (especially if you’re a disability services company) (here);
• refuse to hire someone solely because of a back ailment (here) or learning disability (here);
• refuse to discuss a deaf employee’s accommodation requests, “pick on” the employee, force the employee to “work in the back of the store away from the public,” and then “eliminate her work hours entirely” (here); and
• discharge an employee who was involuntarily hospitalized (here).

Race and National Origin Discrimination

Don’t:

• tell a minority applicant during the hiring process that she is “obviously qualified,” then refuse to hire her because she is “unqualified” and then hire a less qualified non-minority applicant (here);
• refuse to hire non-Hispanic applicants for housekeeping positions (here);
• refuse to hire an applicant solely because they don’t speak Spanish when it’s not required for the job (here);
• screen out applicants on a nationwide basis based on credit history and criminal charges/convictions without considering potential job-relatedness (here);
• systematically favor employees of one national origin over another (here); and
• fail to take adequate steps to address a racially hostile work environment, including racial slurs, graffiti and nooses (here, here, here and here).

Age Discrimination

Somewhat surprisingly, there was only one new age-discrimination suit.

Don’t:

• make hiring decisions based on age and then fail to retain employment records related to the hires (here).

Retaliation

Many of the above cases also included retaliation claims. Here are some “what not to do’s” from other new cases that focus almost exclusively on retaliation.

Don’t:

• fire an employee for refusing to drop a discrimination complaint against another employer with whom management has a “close relationship” (here);
• terminate an employee for refusing to drop a restraining order against a co-worker (here); and
• retaliate against employees who complain of discrimination (here, here and here).

All of the above are merely allegations made by the EEOC and are not established facts at this point. Stay tuned to see how these cases play out.

As practically everyone in the world now knows, last week talk show host David Letterman publicly admitted that he has had sex with “women who work for [him] on the show.”

Background

Click here to see Letterman’s on-air remarks, courtesy of CBS.

One comment Letterman made that has grabbed the attention of employment lawyers and HR gurus is that he hopes to “protect [his] job.” He has a right to be concerned.

Most companies have policies that restrict boss/subordinate relationships. According to sources, CBS — like many employers — has a policy requiring disclosure of such relationships in an effort to avoid conflicts of interest. It reportedly states:

If a consenting romantic or sexual relationship between a supervisor and a direct or indirect subordinate should develop, CBS requires the supervisor to disclose this information to his or her Company’s Human Resources Department to ensure that there are no issues of actual or apparent favoritism, conflict of interest, sexual harassment, or any other negative impact on others in the work environment.

It’s unknown whether Letterman disclosed the relationships to CBS’ HR Department. CBS issued a statement saying only that: Mr. Letterman addressed the issue during the show’s broadcast, and we believe his comments speak for themselves.”

The Bottom Line: Letterman could face potential disciplinary action from his employer if he failed to disclose the relationships. Letterman, CBS and/or Letterman’s rather ill-named production company Worldwide Pants could face several harassment claims with very limited defenses given Letterman’s position of authority. The company could also face discrimination/conflict-of-interest claims from employees who didn’t sleep with Letterman, alleging that they were treated less advantageously.

Letterman’s Not Alone

Several other high-profile personalities have faced big-$$$ lawsuits related to alleged workplace romances in recent years. Bob Barker of The Price is Right fame faced an $8 million sex harassment suit that was dropped after he admitted having a relationship with a female employee. Bill O’Reilly of Fox News settled a harassment suit brought by a female employee who claimed they had phone-sex conversations. Dov Charney, the high-flying CEO of American Apparel, has faced at least four sex harassment claims brought by female employees.

What Should Employers Do?

How can you avoid something similar happening to your company? Here are some simple tips:

• have a policy that (1) clearly prohibits all forms of unlawful harassment and (2) contains a clear mechanism for reporting potential violations, including alternate paths when the alleged harasser is the complaining party’s boss;
• fully investigate all complaints of harassment, even if (1) the alleged harasser asks you not to and (2) the allegations are against the head of the company or a “superstar”-type employee;
• if the investigation warrants disciplinary action, take it (even if it means firing the CEO or superstar); and
• carefully consider any and all communications related to the investigation, particularly if they concern a high-profile employee (and discuss them with experienced legal and PR counsel).

To help ensure that you cover all the investigation bases, click here for our handy Investigation Toolkit. Click here for our handy “cheat sheet” on harassment law.

What Should Employees Do?

Unless you want to end up facing a grand jury, avoid the extortion route. Instead, report the conduct promptly using the procedure outlined in your company’s anti-harassment policy. If your company has no such policy, go see your HR representative. Provide all the facts of which you are aware and cooperate fully with the investigation.

Click here for another employment lawyer’s take on this issue and here for a rather creative “top ten” approach one writer suggests for Mr. Letterman.

In honor of Valentine’s Day, we conducted a poll to get your thoughts on the hot topic of love contracts.

What’s a Love Contract?  To protect itself from liability, an employer requires romantically intertwined employees to sign an agreement stating that (1) the relationship is 100% welcome, voluntary and consensual and (2) they will fully comply with the employer’s anti-discrimination and anti-harassment policies, including immediately reporting any and all harassment, avoiding nepotism/favoritism and working in a professional manner at all times.

The Vote.  The people have spoken.  Of the 165 voters in our poll, 100 (61%) said love contracts are a bad idea.  Only 65 (39%) believe they’re a good idea.  That’s a marked difference from the same poll we conducted last year, which had a perfect 50-50 split.

My Thoughts.  My rather negative view of love contracts was captured nicely in this article from last week’s Chicago Sun-Times.  In short, it seems to me that love contracts are a form of over-lawyering that basically forces HR to act as the love police.  Effectively and consistently enforce your anti-harassment policies and you should be just fine.

One can easily imagine the following conversation taking place in a company that adopts a love contract policy:

HR:  Hello, Greg.

Greg:  Hello.

HR:  I heard you’re dating Marcia.  Is that true?

Greg:  No, actually I’m dating Alice.

HR:  Oh, really?  I thought Sam was dating Alice.

Greg:  No, he’s dating Carol now.

HR:  Hmm.  I thought Carol and Mike were married.

Greg:  Did you hear that Bobby’s dating Cindy?  And that Jan’s dating Peter?

HR:  I quit.  (Hands him a stack of love contracts.)  Congratulations — you’re our new Head of HR.  Get everyone to sign one of these.

Don’t let that happen to you.

EEOC claims hit a record high 95,402 in fiscal year 2008, according to the latest EEOC Performance and Accountability Report.  That number was up a whopping 15.2% compared to last year.

Those figures are consistent with other data published on the Blawg showing that employment law claims and verdicts go up in a downturn.

The message is simple:  Now is the time to make sure you and your managers know and follow the law.  Failure to do so could be perilous to your company’s health.

Click here and here for a slew of helpful tips on managing in a downturn.  Hope you find ‘em helpful.

Previously here on the Blawg, we reported on a sexual harassment case brought by four firefighters who were forced to participate in San Diego’s annual gay pride parade.

Yesterday, a mistrial was declared when the jury couldn’t reach a decision after four days of deliberations.

The plaintiffs were seeking up to $4 million in damages.  They alleged they were forced to participate despite prior complaints about the parade and were exposed to humiliating taunts and gestures.

The city’s attorney, Michael Aguirre, called the mistrial a “total victory” and said the case was “about greed.”  He compared the parade to other city-sanctioned events such as Martin Luther King, Jr. Day and the Fourth of July and said the plaintiffs were uncomfortable about the city’s policy prohibiting sexual orientation discrimination.

The firefighters’ attorney, Charles LiMandri, said the mistrial was “extremely frustrating.”

A new trial is scheduled for January 2009.

Maybe, according to a recent federal court decision.

The Facts

Allison Forrest, a bartender at Chili’s in South Portland, Maine, and Mike Vashaw, a cook, began dating in 2003.  Their relationship was rocky and often spilled over into the workplace.  For example, after one of their early breakups, Vashaw allegedly arranged to have four women accost Forrest in the Chili’s parking lot.  Forrest complained to management and the company disciplined Vashaw.  The couple then reconciled and continued their romance for several months.

Forrest and Vashaw broke up for good in 2005 when Forrest began dating another man.  Forrest alleges that Vashaw immediately began to harass her with a vengeance.  She filed three separate complaints with management in which she claimed Vashaw squirted her with hot water, gossiped about her with co-workers, refused to give her items she needed from the kitchen and called her derogatory names.

Investigations and Corrective Action

After the first complaint, Chili’s promptly investigated and then issued Vashaw a verbal warning to “stop and behave as a professional” or “circumstances will take place.”

Vashaw allegedly ignored the warning and continued harassing Forrest by calling her “b**ch” and “wh**e” in front of other employees.

When Forrest complained again, Chili’s investigated and issued Vashaw a written warning threatening “immediate termination” if the “negative confrontations” didn’t stop.

Vashaw then allegedly told Forrest that she was fat and needed to go to the gym.  Forrest complained, Chili’s investigated and then fired Vashaw.

The Lawsuit

Forrest quit a month after Vashaw was terminated.  She filed a federal lawsuit, alleging sexual harassment in violation of Title VII.  Specifically, she claimed that Chili’s subjected her to a hostile work environment by failing to take appropriate action to stop the harassment by Vashaw.

The Maine U.S. District Court granted summary judgment to Chili’s.  It concluded that Vashaw’s actions didn’t constitute sexual harassment because they were merely “retribution after a failed romantic relationship” and thus weren’t “based upon [Forrest's] sex.”  Forrest appealed.

The U.S. Court of Appeals for the First Circuit disagreed.  It cited “a raft” of case law holding that the use of derogatory gender-specific terms such as “b**ch” and “wh**e” could constitute harassment based on gender. 

The court stated that “whether a harasser picks his or her targets because of a prior intimate relationship, desire for a future intimate relationship, or any other factor that draws the harasser’s attention should not be the focus on the Title VII analysis.”  It added:  “presumably the prior relationship would never have occurred if the victim were not a member of the sex preferred by the harasser, and thus the victim’s sex is inextricably linked to the harasser’s decision to harass.”

The Ruling

Despite disagreeing with the the lower court’s approach to the law, the Court of Appeals affirmed the finding that Chili’s was not liable for harassment because it took “prompt and appropriate action” to Forrest’s complaints.

The Lesson

Based on this case, employers could be found liable for harassment that’s related solely to the breakup of an office romance.  To avoid this happening to you, do what Chili’s did:

• ensure that your anti-harassment policies and procedures are up-to-date and distributed to all employees;
• regularly train all employees on the policies and procedures;
• take all complaints of harassment seriously and conduct prompt and thorough investigations; and
• immediately take appropriate corrective action.

For more, check out our Harassment Cheat Sheet, Investigation Checklist and Termination Tools.