WHAT SHOULD EMPLOYERS DO TO BE ABLE TO ESTABLISH THE AFFIRMATIVE DEFENSE?
| The Supreme Court held that where the commission of supervisor harassment does not culminate in a “tangible employment action” (as in both Faragher and Ellerth), the employer may raise as an affirmative defense to liability or damages that it (a) “exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745 (1998). |
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What is an employer’s reasonable care to prevent and correct any sexually harassing behavior?
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| Whether the employer exercised reasonable care to prevent any sexually harassing conduct will be determined based on what actions the employer took prior to receiving a sexual harassment complaint to prevent such behavior in its workplace. Since Faragher and Ellerth, courts generally have found that employers exercised reasonable care to prevent harassment where they are able to show that they adopted and distributed a policy that clearly communicates that harassment is not tolerated, and that they have a complaint or grievance procedure in place. Proof that its employees received the policy is also effective in establishing the first prong of the affirmative defense. |
| Whether the employer exercised reasonable care to correct promptly any sexually harassing conduct will be determined based on what actions the employer took after receiving a sexual harassment complaint to remedy such behavior. |
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The employers in the following cases successfully established that they exercised reasonable care to prevent and correct promptly the alleged harassment:
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| In Dayes v. Pace Univ., No. 98 Civ. 3675 (WHP), 2000 WL 307382 (S.D.N.Y. Mar. 24, 2000), aff’d, ___ F.3d ___, No. 00 Civ. 7641, 2001 WL 99831 (S.D.N.Y. Jan. 19, 2001), the employer met the first element of its affirmative defense, and the court granted summary judgment, because it was undisputed that the employer had a grievance procedure set forth in its employee handbook, along with the employer’s policy of prohibiting sexual harassment. The record also established that the employer responded promptly to plaintiff’s complaint of harassment. After plaintiff complained about the alleged harasser, the alleged harasser was told that plaintiff was uncomfortable with his behavior. Thereafter, plaintiff concedes that she experienced no further incidents of harassment. Thus, the employer acted reasonably to prevent and correct harassment in the workplace. |
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| In Coates v. Sundor Brands, Inc., 164 F.3d 1361 (11th Cir. 1999), the court affirmed summary judgment for the employer because it had an effective sexual harassment policy which called for employees notifying designated managers of any alleged incidents of harassment. Plaintiff failed to notify any of these managers, and instead, notified a co-worker of the alleged harassment. Further, she asked that a non-managerial employee confront the harasser. This was arranged by the employer. Thereafter, the plaintiff never again complained to management about the continuing harassment. The court noted that while delegating the tasks of confronting the harasser to a non-supervising employee is not appropriate, it was in line with the plaintiff’s wishes. Further, since she failed to bring the continuing harassment to management’s attention, it was reasonable for the employer to conclude that no further action was necessary. |
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| In Madray v. Publix Supermarkets, Inc., 208 F.3d 1290 (11th Cir.), cert. denied, 121 S. Ct. 303 (2000), a hostile work environment case, the court granted summary judgment for the employer holding that plaintiff’s failure to notify designated managerial employees of her claimed sexual harassment failed to put the employer on notice. The plaintiff told midlevel managers who were not designated to receive complaints of the alleged harassment. But see, Breda v. Wolf Camera & Video, 222 F.3d 886 (11th Cir. 2000) (reversing district court’s grant of summary judgment for the employer, and finding that where the employer’s policy provided that store managers were to refer complaints to the district manager and plaintiff reported harassment to a store manager, who failed to refer the complaint, the employer had actual notice of the harassment) |
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| In Farley v. Am. Cast Iron Pipe Co., 115 F.3d 1548 (11th Cir. 1997), the plaintiff alleged that she had been subjected to five (5) years of unwelcome sexual advances and remarks. During the period, the employer had an effective anti-sexual harassment policy which it communicated to employees. The plaintiff received training on the policy three years after the alleged harassment began and more than two years before she used the procedures to inform management. The employer raised the Faragher affirmative defense. The court affirmed summary judgment for the employer, holding that “once an [employer] has developed and promulgated an effective and comprehensive anti-sexual harassment policy, aggressively and thoroughly disseminated the information and procedures contained in the policy to its staff, and demonstrated a commitment to adhering to this policy, it has fulfilled its obligation to make reasonably diligent efforts to ‘know what is going on’ . . . beyond this point, it is incumbent upon the employees to utilize the procedural mechanisms established by the company specifically to address problems and grievances.” Id. at 1554. See also Guerra v. Editorial Televisa-USA, Inc., No. 97 Civ. 3670, 1999 U.S. Dist. LEXIS 10082 (S.D. Fla. June 2, 1999) (noting that while the fact that a plaintiff did not receive a copy of the employer’s policy or handbook might be fatal to an employer’s motion for summary judgment, where the plaintiff testified that she knew to whom she should complain, the fact that did she not receive the policy was immaterial). |
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| In Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999), cert. denied, 120 S. Ct. 1959 (2000), the court found that the defendant exercised reasonable care to prevent and correct sexually harassing conduct because it had an anti-harassment policy with complaint procedures in place, and there was undisputed evidence that it endeavored to investigate and remedy problems reported by its employees. |
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| In Savino v. C.P. Hall Co., 199 F.3d 925 (7th Cir. 1999), the court found that the employer established the first prong of the affirmative defense where it posted an anti-harassment policy with instructions for reporting harassing behavior, and the employer had promptly investigated and acted reasonably to remedy the harassment which plaintiff reported. Successful prevention of subsequent harassment was not required to establish the first prong of the defense. |
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| In Brown v. Perry, 184 F.3d 388 (4th Cir. 1999), the employer satisfied the first element of the affirmative defense by having an anti-harassment policy in place, including a complaint procedure, to deter sexual harassment. Where, like here, there was no evidence that the employer adopted or administered the policy in bad faith or that the policy itself was defective, the existence of such a policy “militates strongly in favor of a conclusion that the employer ‘exercised reasonable care to prevent’ and promptly correct sexual harassment.” Id. at 396 (citation omitted). The employer satisfied the corrective prong of the affirmative defense by offering immediate, unconditional support to the victim and suggesting that the she pursue her EEO remedies. The court held that these actions constituted reasonable efforts to prevent further incidents of harassment, regardless of whether the effort was ultimately unsuccessful. The employer also took reasonable corrective action by issuing a restraining order against the accused harasser from having contact with employees in plaintiff’s department. |
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| The court in Meadows v. County of Tulare, 191 F.3d 460 (9th Cir. 1999), found the employer met the first prong of the affirmative defense by having a policy prohibiting harassment and an established complaint procedure in place, and acting promptly to correct reported harassing behavior. The court implied that the employer’s response may vary depending on specific circumstances, like whether the plaintiff/employee complained specifically about the harassing behavior and whether the plaintiff/employee refused to assist the investigator in the investigation. |
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| In Barua v. Credit Lyonnais-U.S. Branches, No. 97 Civ. 7991 (JSR), 1998 WL 915892 (S.D.N.Y. Dec. 30, 1998), the court concluded that the employer exercised reasonable care to prevent harassment because its employee handbook included a policy prohibiting discrimination and retaliation, and had a complaint procedure with several avenues for grievances. Moreover, the court found that the employer exercised reasonable care to correct harassment because shortly after the plaintiff first complained to the Human Resource Department, the employer met with the harasser and reprimanded him. Shortly thereafter, the harasser was removed as manager of the plaintiff’s department and transferred to a non-supervisory position in a different department. Furthermore, no further harassment occurred after plaintiff complained. |
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In some cases, courts have refused to find that an employer exercised reasonable care to prevent or correct promptly alleged harassment where:
- The employer had prior knowledge of the harasser’s history of inappropriate behavior, but took no action to prevent its reoccurrence.
- The employer had no policy against harassment in place.
- The employer had no complaint procedure in place.
- The employer’s complaint procedure was ineffective because, for example, employees were directed to complain only to one person such as their supervisor, or it contained strict time limits within which a complaint had to be filed.
- An investigation was not commenced until some time after the employee complained.
- The employer’s decision to designate a particular person to receive complaints was questionable in light of the complaint-receiver’s inappropriate response to complaints.
- The employer failed to take any (or effective) action to discipline a harasser after an investigation revealed that an employee’s complaint had merit.
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Cases holding employer failed to exercise reasonable care to prevent or correct promptly alleged harassment:
- In Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp. 2d 414 (S.D.N.Y. 1998), the court found that a factual dispute existed as to whether the employer prevented and promptly corrected harassment because although there was an anti-harassment policy and an avenue for complaint, the plaintiff’s allegations of inappropriate behavior by Vice President of Human Resources, the manager designated by the employer to hear such complaints, called into question whether the employer exercised reasonable care in its designation. The plaintiff alleged that the Vice President made inappropriate comments when she complained (e.g., commented that she was very attractive and suggested that she should enjoy herself a little). The court also found that there was a factual dispute as to whether plaintiff’s complaints of harassment were adequately investigated and promptly corrected. Id. at 431.
- In Meng v. Ipanema Shoe Corp., 73 F. Supp. 2d 392 (S.D.N.Y. 1999), the court denied summary judgment where there was a question of fact as to the timing and circumstances under which the plaintiff/employee received the Employee Handbook that contained the employer’s sexual harassment prevention policy. The employer alleged that the Handbook was distributed to all new employees, and that employees including plaintiff attended a seminar on sexual harassment. However, the plaintiff testified that she did not receive a copy of the Handbook until late in her employment, that she never read applicable parts until after her termination, and that the seminar she attended included a discussion of sexual harassment, but there was no distribution of the sexual harassment policy or instructions for reporting incidents of harassment. Thus, whether the employer’s actions were reasonable is a factual question for the jury.
- In Hurley v. Atlantic City Police Dep’t, 174 F.3d 95 (3d Cir. 1999), cert. denied, 528 U.S. 1074 (2000), the court noted that “Ellerth and Faragher do not, as the defendants seem to assume, focus mechanically on the formal existence of a sexual harassment policy.” Id. at 118. Rather, the employer must enforce its sexual harassment policy in order to prevent and correct sexual harassment. Finding that employer’s policies were ineffective and unimplemented, the court held that the defendant could not have satisfied the first prong of the defense.
- In Smith v. First Union Nat’l Bank, 202 F.3d 234 (4th Cir. 2000), the court noted that a defective or dysfunctional policy does not necessarily negate an employer’s affirmative defense. However, where the plaintiff’s supervisor and the supervisor’s boss both may have told plaintiff not to complain, there was a genuine issue about the policy’s effectiveness, such that the employer could not establish the first prong of the defense for purposes of summary judgment.
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What is reasonable plaintiff’s conduct?
Generally, a timely complaint of actionable harassment by an employee will defeat the affirmative defense.
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Courts have found that the plaintiff/employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise where:
- The plaintiff failed to complain to his or her employer, despite there being no evidence of threatened retaliation.
- The plaintiff failed to follow the procedures provided for in the employer’s established harassment policy.
- The plaintiff refused to cooperate with the employer’s investigation of the plaintiff’s harassment complaint.
- The plaintiff failed to notify the employer of the harassment in a timely fashion.
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Cases holding plaintiff was unreasonable in failing to take advantage of any preventive or corrective opportunities provided by employer or to avoid harm otherwise:
- In Patterson v. CBS, Inc., No. 94 Civ. 2562 (KTD), 2000 WL 666337 (S.D.N.Y. May 22, 2000), the employer met the second prong of the affirmative defense because the plaintiff did not report acts of alleged work place harassment. Although plaintiff cited “conclusory assertions of generalized fear of repercussions,” as the reason for not complaining, the court held that such general fear of retaliation, not based in any statement or representation made by the employer, is not a reasonable ground for failing to complain. Id.
- A significant delay in complaining about alleged harassment may be considered “unreasonable” as a matter of law. In Dayes v. Pace Univ., No. 98 Civ. 3675 (WHP), 2000 WL 307382 (S.D.N.Y. Mar. 24, 2000), aff’d, ___ F.3d ___, No. 00 Civ. 7641, 2001 WL 99831 (S.D.N.Y. Jan. 19, 2001), the employee alleged that she was initially harassed in February 1995, but she did not complain to Human Resources until one year later, after the harasser “touch[ed]” her back. Id. at *6. The court held that plaintiff’s one-year delay establishes that she unreasonably delayed in availing herself of the employer’s available corrective procedures, and thus, the employer established the second element of the defense.
- In Fierro v. Saks Fifth Ave., 13 F. Supp. 2d 481 (S.D.N.Y. 1998), the court held as a matter of law that generalized fears of retaliation or futility can never constitute reasonable grounds for an employee’s failure to complain to his or her employer. According to the court, “employees must be required to accept responsibility for alerting their employers to the possibility of harassment.” Id. at 492. Plaintiff failed to (i) specify the repercussions he feared other than his general statement that it would lead to unpleasantness if he complained; (ii) cite to other employees who were subjected to retaliation because they availed themselves of the complaint procedures; (iii) mention the alleged harassment to his wife; or (iv) make any mention of it when informed that he was about to be terminated, “any perceived harassment during [the plaintiff]’s employment was so only by reason of its potential utility for this litigation.” Id. at 492-93. See also Madray v. Publix Super Mkts., 30 F. Supp. 2d 1371, 1375 (S.D. Fla. 1998), aff’d, 208 F.3d 1290 (11th Cir.), cert. denied, 121 S. Ct. 303 (2000) (finding that “[a]n employee’s generalized fear of repercussions cannot form the basis for an employee’s failure to complain to his or her employer”).
- In Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999), cert. denied, 120 S. Ct. 1959 (2000), the plaintiff unreasonably hesitated in coming forth with her allegations. The court ruled that for an employee’s reasonable apprehension in coming forth with allegations of harassment “must be based on an apprehension of what the employer might do, not merely on concern about the reaction of co-workers.” Id. at 295.
- In Brown v. Perry, 184 F.3d 388, 397 (4th Cir. 1999), the employer proved the second element of the affirmative defense by demonstrating that the plaintiff “‘unreasonably failed . . . to avoid harm otherwise.'” (Citation omitted) In this case, the plaintiff was allegedly sexually harassed twice by the same person in similar situations. The first occasion was at a conference, where the plaintiff voluntary stayed in her supervisor’s hotel room late at night. Less than six months later, the plaintiff unnecessarily put herself in the same situation that lent itself to the same kind of advances, as the plaintiff voluntarily remained alone with her supervisor in his hotel room at night, accepted his invitation to visit a pub and a bar, and then went back again to his hotel room at midnight. The court held that “[i]n light of her previous history with [this supervisor], no reasonable factfinder could reach any conclusion other than that [the plaintiff] ‘unreasonably failed . . . to avoid harm.'” Id.
- In Shaw v. AutoZone, Inc., 180 F.3d 806, 813 (7th Cir. 1999), cert. denied, 528 U.S. 1076 (2000), the court held that “subjective fears of confrontation, unpleasantness or retaliation do not alleviate the employee’s duty under Ellerth to alert the employer to the allegedly hostile environment.” In so holding, the court rejected plaintiff’s argument that she acted reasonably, even if she was legitimately uncomfortable discussing the offensive sexual conduct to which she was subjected.
- In Montero v. AGCO Corp., 192 F.3d 856 (9th Cir. 1999), the court found that the plaintiff unreasonably failed to take advantage of the preventive and corrective measures provided by the employer where she waited nearly two years to report the alleged conduct (despite the fact that she did eventually complain). Plaintiff knew about knew about the employer’s policy prohibiting sexual harassment, had received several copies of it, and knew whom to contact if she was being subjected to sexual harassment, and when plaintiff reported the conduct, the employer’s reaction was “swift and certain.” Id. at 863. See also Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1299 (11th Cir.), cert. denied, 121 S. Ct. 303 (2000).
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Cases holding that the plaintiff was not unreasonable in failing to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise:
- In Seepersad v. D.A.O.R. Sec., Inc., No. 97 Civ. 2086, 1998 WL 474205 (S.D.N.Y. Aug. 12, 1998), the court found that plaintiff’s “near-daily” complaints of harassment for almost a week constituted reasonable behavior under the circumstances.
- In Greene v. Dalton, 164 F.3d 671 (D.C. Cir. 1999), the court explained that to prove the affirmative defense, the employer had to show not merely that the plaintiff inexcusably delayed reporting the alleged rape, but that a reasonable person in the plaintiff’s place would have come forward early enough to prevent the harassment from becoming severe or pervasive, reasoning: the “‘failure to avail’ standard is not intended to punish the plaintiff merely for being dilatory. Rather, it ‘reflects an . . . obvious policy imported from the general theory of damages,’ namely, that the victim has a duty to mitigate her damages. ‘If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and . . . no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.'” Id. at 674 (quoting Faragher v. Boca Raton, 524 U.S. 775, 807 (1998)).
- In Watts v. Kroger Co., 170 F.3d 505 (5th Cir. 1999), the court rejected the defendant’s argument that the plaintiff acted unreasonably because she waited to complain, stating that although the harassment intensified in the spring of 1994, a jury could find that waiting until July of that same year before complaining was not unreasonable. The court also rejected the defendant’s contention that because she filed a union grievance, rather than going through the company’s sexual harassment policies, the plaintiff acted unreasonably, explaining “[Plaintiff]’s filing of a union grievance comports with the Burlington/Faragher rubric. The affirmative defense allows the Plaintiff employee to take corrective opportunities provided by the employer ‘or to avoid harm otherwise.’ Taking advantage of the union grievance procedure falls within this language because both the employer and union procedures are corrective mechanisms designed to avoid harm.” Id. at 511 (citation omitted).
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What Happens When Employee and Employer Act Reasonably?
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| There is an open issue, highlighted by Justice Thomas’ dissent in both Faragher and Ellerth, regarding the application of the affirmative defense when an employer satisfies the first prong by acting reasonably, but the plaintiff also acts reasonably by making a timely complaint. The Faragher and Ellerth affirmative defense would seem to require an employer to prove both that it acted reasonably, and that the plaintiff did not, but arguably does not address the situation where a complaint is made and proper remedial action was taken. Several courts have refused to impose liability on an employer that was able to show that it exercised reasonable care to prevent and correct promptly the alleged harassment, despite its inability to satisfy the second prong of the test because the plaintiff did in fact complain. See Indest v. Freeman Decorating, Inc., 164 F.3d 258 (5th Cir. 1999). Nonetheless, other courts have found the employer liable in circumstances where the plaintiff complained and the employer responded reasonably. See DeWitt v. Lieberman, 48 F. Supp. 2d 280 (S.D.N.Y. 1999) (finding genuine issue as to the applicability of the affirmative defense where the first prong was undisputed). |
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Who is An Immediate Supervisor?
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- In enunciating the new standard of employer liability, the Faragher and Ellerth Courts did not distinguish between a high level supervisor and a low level supervisor, nor did it address when a harasser will be considered a “supervisor with immediate (or successively higher) authority over the employee.” Faragher, 524 U.S. at 777; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745 (1998). Post-Faragher courts have addressed whether the harasser at issue should be viewed as an “immediate supervisor” such that the employer should be subjected to vicarious liability, and, in the absence of a tangible employment action, permitted to use the affirmative defense. Specifically, courts have found that harassers were immediate supervisors where they had the power to make or influence employment decisions, and, particularly, the terms and conditions of the plaintiff’s employment, took actions that could only be taken by those in supervisory roles, or had special authority enhancing their ability to harass.
- Cases finding that plaintiff was harassed by an “immediate supervisor”:
- In Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp. 2d 414, 430-31 (S.D.N.Y. 1998), the court applied the Faragher/Ellerth analysis to alleged harassment by the Vice President of Human Resources who was “neither [plaintiff’s] co-worker nor her ‘immediate’ supervisor” because of “his station,” to the underwriter who supervised the plaintiff’s work for him and thus, arguably was her “supervisor,” and to her immediate supervisor.
- In Durham Life Ins. Co. v. Evans, 166 F.3d 139, 154 (3d Cir. 1999), the court found that the harasser should be considered plaintiff’s immediate supervisor because he was part of a three-person team that convinced the plaintiff’s direct supervisor to strip the plaintiff of her office and to instigate the employer’s lawsuit against her — despite the fact that the harasser did not have complete authority to act on the employer’s behalf without the agreement of others. The court declined to decide what it termed an “interesting claim” by the employer — that the affirmative defense should apply because the plaintiff had some “non-tangible notice of discrimination” before the adverse action was taken against her. Id. In other words, the employer argued, the first time someone made a discriminatory remark to her, if plaintiff had reported it, the employer would have investigated and stopped the problem before the tangible action occurred, and, thus, the employer should be permitted to assert the affirmative defense.
- Cases finding that the harasser was not the plaintiff’s “immediate supervisor”:
- In Summerville v. Ross/Abbott Lab., No. 98 Civ. 3517, 1999 WL 623786 (6th Cir. Aug. 10, 1999), the court held that the alleged harasser was not a supervisory employee because he did not exercise significant control over the plaintiff’s hiring, firing or conditions of employment. In applying this standard, the court was not persuaded by plaintiff’s conclusory assertions that the alleged harasser was her supervisor. In fact, the record indicated that, at her deposition, when asked if the alleged harasser was an “hourly co-worker” that worked with her, she responded “[y]es,” and indicated a different person to be her “direct supervisor.” Id at *3. Moreover, while the alleged harasser had the title of “[c]rew [l]eader,” the record reflected that the title pertained to a position of leadership in an employee “peer group,” not a position with power to affect the terms and conditions of the plaintiff/employee’s employment. Id. Thus, the court found no evidence in the record that the alleged harasser had any supervisory power over the plaintiff/employee.
- In Mikels v. City of Durham, 183 F.3d 323, 334 (4th Cir. 1999), the court held that an alleged harasser who was a “superior” in rank but actually had no power to take tangible employment actions against the plaintiff/employee was not a supervisor for the purposes of discovering an aided-by-agency relationship. While the alleged harasser could direct the plaintiff’s operational conduct while on duty, the plaintiff was not isolated from the continuing protective power of higher management. Additionally, the plaintiff thought that a different person was her direct supervisor, and she had immediate access to him without going through the harassing employee. Further, the court noted that the plaintiff did not indicate any sense of “special vulnerability or defenselessness deriving from whatever authority [the harassing employee’s] rank conferred,” as she rebuffed him sharply after his unwelcome conduct. Id. The plaintiff’s profanity-laced and obscene reaction to the harassment was natural for one who regards her harasser as a co-employee, not a supervisor.
- What does and does not constitute tangible employment action?
- According to Faragher and Ellerth, when “tangible employment action” is taken by a harassing supervisor with immediate authority over the plaintiff, the defending employer is strictly liable for the supervisor’s actions. In such cases, the employer is precluded from raising the affirmative defense to liability. Consequently, whether the commission of supervisor harassment culminates in a “tangible employment action” has been a key issue addressed by many of the post-Faragher/Ellerth courts.
- Case finding that a “tangible employment action” was taken where plaintiff were subjected to discharge, demotion, or undesirable reassignment (e.g., with significantly different job responsibilities):
- In Hasbrouck v. BankAmerica Hous. Servs., Inc., 105 F. Supp. 2d 31, 35 (N.D.N.Y. 2000), the court held that the supervisor’s actions in removing two of sales employee’s major accounts was a “tangible employment action” for purposes of employee’s Title VII harassment action. Loss of the accounts could have a very significant effect on the employee’s earnings through the bonus or commission structure of the employer.
- In Poole v. Country Club, 129 F.3d 551, 553 (11th Cir. 1997), the court held that a plaintiff “[s]tripped of all responsibility, given only a chair and no desk, and isolated from conversations with other workers” had a legitimate claim that she was constructively discharged.
- However, courts seem unwilling to expand the concept of “tangible employment action” broader than the concept of discharge (constructive or actual), demotion, or undesirable reassignment. Cases finding “no tangible employment action” was taken:
- In Rainey v. Miami-Dade County., No. 99 Civ. 1815, 2000 U.S. Dist. LEXIS 2508 (S.D. Fla. Jan. 13), the court rejected plaintiff’s claim that she suffered a tangible employment action where she claimed that she was given extra work, and was moved from her office for a short period of time while her sexual harassment claims were being investigated, aff’d, 237 F.3d 636 (11th Cir. 2000). See also Guerra v. Editorial Televisa-USA, Inc., No. 97 Civ. 3670, 1999 U.S. Dist. LEXIS 10082 (S.D. Fla. June 2, 1999). In Guerra, the court allowed the employer’s assertion of the Faragher affirmative defense, finding no tangible employment action where plaintiff’s claim was that her job duties increased after her harasser was fired, and not as a direct result of the harassment.
- In Pritchard v. Earthgrains Baking Co., No. 7:98 Civ 0536, 1999 WL 397910 (W.D. Va. Mar. 5, 1999), the court found no tangible employment action where plaintiff was terminated for a legitimate, non-discriminatory reason. Further, plaintiff’s pre-termination job reassignment from “bun seeder” to “depanner” did not involve a significant change in responsibilities or benefits, and therefore was not serious enough to qualify as a tangible employment action. Id. at *8. Likewise, plaintiff’s reduction of hours, which resulted in a wage decrease, was not a tangible employment action because there was evidence that other employees’ hours were also cut. Thus, the court held that there was no tangible employment action that would bar a Faragher/Ellerth defense.
- The court found no tangible employment action in Watts v. Kroger Co., 170 F.3d 505, 510 (5th Cir. 1999), stating, “[s]imply changing one’s work schedule is not a change in [plaintiff’s] employment status. Neither is expanding the duties of one’s job as a member of the produce department to include mopping the floor, cleaning the chrome in the produce department, and requiring her to check with her supervisor before taking breaks.”
- In Meadows v. County of Tulare, 191 F.3d 460 (9th Cir. 1999), the court held that the plaintiff’s transfer from one position to another, where plaintiff continued to receive the same pay and benefits, did not constitute a tangible employment action. The court noted that plaintiff did not argue that she experienced economic harm, or that her reassignment is undesirable or that her responsibilities changed significantly, facts which may bear on whether a transfer is a tangible employment action.
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SOVEREIGN IMMUNITY WORKS FOR STATES IN FMLA CASES, BUT NOT IN TITLE VII CASES – EEONews
UncategorizedOn the same day, the Eighth Circuit held that Congress clearly intended States to be covered by Title VII and the Eleventh Circuit found that sovereign immunity protects States from FMLA claims. Both Courts looked to legislative intent to determine if sovereign immunity applied.
FMLA PERMITS SUITS AGAINST INDIVIDUAL SUPERVISORS – EVEN IN THE PUBLIC SECTOR. – EEONews
UncategorizedCourts are split over whether the FMLA permits suits against supervisors in the public sector. A District Court found that a postal worker with a knee problem could sue the Postmaster General and his supervisor individually.
LEAVE NOT DESIGNATED AS FMLA LEAVE- EEONews
UncategorizedAn employee sought to extend a 30 week leave by 30 days. Her employer said no. The employer sued alleging the 30 weeks leave was not designated as an FMLA leave. The U.S. Supreme Court sided with the employer.
JACQUELIN F. DRUCKER, ESQ.
UncategorizedJACQUELIN F. DRUCKER, ESQ.
ARBITRATOR
Jacquelin F. Drucker is a full-time arbitrator of employment, labor, and commercial cases. Her practice spans the East Coast, Northeast, Caribbean, South, and Mid-West. She is listed on the AAA Labor Panel, the AAA National Employment Arbitration Roster, and all other major national and local panels. Ms. Drucker, a member of the National Academy of Arbitrators, serves as a permanent labor arbitrator in numerous industries and, as an employment arbitrator, has handled cases involving the full range of statutory and contract claims under in-house employment ADR systems and pursuant to individual employment contracts.
Ms. Drucker is on the faculty of Cornell University School of Industrial and Labor Relations and the Cornell Institute on Conflict Resolution, where she teaches programs on employment arbitration, labor arbitration, employment mediation, sexual harassment, and employment law. Ms. Drucker also is associated with the W. J. Usery, Jr. Center for the Workplace in Atlanta, Georgia. She was the designer of and lead instructor for the AAA’s 1999/2000 nationwide training program for its Employment Arbitration Panel and is a lead trainer for the AAA’s nationwide advanced employment arbitrator training program.
During her 25-year career in employment law and labor relations, Ms. Drucker practiced labor and employment law on the management side, spent several years as a union lobbyist, and, before relocating to New York in 1990, served as the General Counsel, Vice Chair, and Executive Director of the then newly formed Ohio Employment Relations Board. She was instrumental in the development of Ohio’s collective bargaining law, the formation of its adjudicatory and impasse-resolution board, and the operation of the state’s labor mediation service. While in the private practice of law, Ms. Drucker litigated employment discrimination cases on behalf of management and handled traditional labor relations matters. She also served as counsel to the Governor’s Task Force on Collective Bargaining.
Ms. Drucker is the author of numerous articles on labor and employment law. She is sole author of the treatise Collective Bargaining Law in Ohio (788 pp, West Publishing, 1993), which frequently is cited by Ohio’s highest courts and is regarded as the definitive work in the field of labor law and impasse resolution in the state. She is associate editor of Discipline and Discharge in Arbitration (ABA/BNA, 1998) and is a contributing editor of Public Sector Labor and Employment Law, Second Edition (NYSBA, 1998). Her recent articles include the following: “The Evolving Role of Arbitration in the Workplace,” Proceedings of the University of Louisville 2001 Carl Warns Institute (forthcoming 2001); “Manifest Disregard of the Law: Why Reasoned Awards Are Preferred in Employment Arbitration,” Conflict Management, Spring 2001 (ABA Litigation Section, ADR Committee); “Employment Arbitration and Labor Arbitration: Comparisons, Contrasts, and Concerns,” Proceedings of the ABA Labor and Employment Law Section ADR Committee 2001 Mid-Winter Meeting (ABA, 2001); “Arbitrating and Mediating Wrongful Termination Claims: Practical Considerations,” Handling Wrongful Termination Claims, (Practising Law Institute, 2001); “Arbitrating Employment Claims: Tips for Advocates,” The Effective Use of ADR in Employment Disputes (NYSBA CLE Programs, 1999); and “Is There a Wright Way? Arbitration of Statutory Claims under Collective Bargaining Agreements,” Proceedings of the American Bar Association 1999 Annual Meeting (ABA, 1999).
Ms. Drucker is the neutral chair of the ABA Labor and Employment Law Section’s Committee on ADR in Labor and Employment Law. She serves as CLE Chair for the NYSBA Labor and Employment Law Section, is a former co-chair of that Section’s Committee on ADR in Employment, and is a past secretary of the Section. She also has served as neutral chair of the ADR Advocacy and Development Subcommittee of the ABA Labor and Employment Law Section’s ADR Committee and is a past chair of the New York County Lawyers Association’s Committee on Labor Relations and Employment Law.
Ms. Drucker is admitted to the bars of Ohio, New York, and various federal courts, including the Supreme Court of the United States.
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UncategorizedAugust 20, 2001
Alternative Dispute Resolution
The United States Supreme Court and other courts across the country appear to becoming more favorably inclined toward enforcing mandatory arbitration agreements. In addition to evaluating mandatory arbitration provisions, many employers also are considering other forms of alternative dispute resolution (“ADR”), such as formalized employee grievance procedures, open door policies, and the like.
To assist your analysis in determining whether your Company should adopt a binding arbitration process or some other form of ADR, we are providing a review of the current state of the law governing arbitration agreements. SUPREME COURT APPROVES MANDATORY PRE-DISPUTE ARBITRATION On March 21, 2001, in Circuit City v. Adams, the U.S. Supreme Court made it easier for employers to require non-union employees to arbitrate employment disputes instead of filing lawsuits in court. The decision gives broad protections to arbitration agreements under the Federal Arbitration Act.
1. The Federal Arbitration Act
Congress passed the Federal Arbitration Act (“FAA”) in 1925 in response to judicial hostility towards arbitration. Section 1 of the FAA clearly states the courts must enforce private agreements to arbitrate.
[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
The FAA also contains an exception to the enforcement of arbitration agreements:
[N]othing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.
2. The Law Prior to Circuit City
In the 1980s, the U.S. Supreme Court decided a series of cases under the FAA, holding that parties could agree in advance to arbitrate disputes even before they arose. The Court made clear that by agreeing to arbitrate, a party does not forego a legal right, but rather picks a different forum-arbitration instead of court. None of these cases, however, addresses whether the exception to arbitration clause in the FAA applied to all workers or just those involved in the interstate transportation industry.
In 1991, the Supreme Court decided Gilmer v. Interstate/Johnson Lane Corp. In Gilmer, the Supreme Court held that an arbitration agreement contained in a New York Stock Exchange registration statement was enforceable under the FAA. The Supreme Court, however, avoided the issue of whether the FAA applied to all workers. The Court did not have to decide that issue because the contract in Gilmer was between a stock exchange and Mr. Gilmer; it was not an agreement between an employer and employee. The Supreme Court’s decision in Circuit City put that issue to rest.
3. The Issues In Circuit City
St. Clair Adams worked as a sales counselor at a Circuit City store in Santa Rosa, California. When he was hired, Circuit City required Adams to sign an employment application that contained the following provision:
I agree that I will settle any and all previously unasserted claims, disputes or controversies arising out of or relating to my application or candidacy for employment and/or cessation of employment with Circuit City exclusively by final and binding arbitration before a neutral Arbitrator. . . . Two years after he was hired, Adams filed a civil complaint in California state court against Circuit City, alleging claims for discrimination under the California Fair Employment and Housing Act and various state tort claims. The Ninth Circuit Court of Appeals held that the dispute was not arbitrable under the FAA because Adams worked in interstate commerce.
The Supreme Court reversed the Ninth Circuit and decided the FAA requires courts to enforce arbitration agreements in all employment contracts, except for employees working in interstate transportation, such as seamen and railroad workers. Adams was not involved in interstate transportation. The FAA therefore applied and the arbitration agreement he entered into was enforceable under the FAA.
THE SUPREME COURT CONTINUES TO REWARD PROACTIVE EMPLOYERS
Circuit City continues a trend by the Supreme Court–to provide employers with incentives to implement proactive preventive human resource strategies. In 1998, the Supreme Court decided Faragher v. City of Boca Raton and Burlington Industries v. Ellerth. These cases reward employers with comprehensive policies and procedures to prevent and respond to sexual harassment. In brief, an employer with a meaningful complaint resolution procedure may avoid liability for sexual harassment if the employee unreasonably failed to utilize that procedure.
Then, in 1999, the Court decided Kolstad v. American Dental Association. In Kolstad, the Court established a defense to punitive damages in federal discrimination claims. This powerful defense to punitive damages liability is available to employers that make good faith efforts to comply with civil rights laws such as Title VII of the Civil Rights Act of 1964. These efforts include preventive strategies such as a comprehensive, anti-discrimination policy.
As mentioned, the Circuit City case continues this trend. After Circuit City, employers will find it easier to use well-drafted arbitration agreements to avoid complicated, expensive litigation in court and the uncertainty of jury trials in favor of a more streamlined and informal method of dispute resolution. Thus, the Supreme Court’s recent decisions enable employers investing in preventive measures to significantly reduce their exposure to the costs and uncertainties of employment discrimination litigation.
THE CURRENT STATE OF THE LAW REGARDING MANDATORY ARBITRATION OF EMPLOYMENT DISPUTES
The Circuit City decision will enhance the enforceability of mandatory arbitration agreements between employers and their employees. Among other things, the FAA
This last factor perhaps is the most important one for multi-state employers that desire to implement uniform arbitration agreements. For example, in a 1996 decision, Doctor’s Associates v. Casarotto, the Supreme Court held the FAA preempted a Montana law requiring contracts to include any arbitration clauses on the first page of the agreement and in underlined capital letters.
WHAT REMAINING LEGAL ISSUES AFFECT ENFORCEABILITY OF ARBITRATION AGREEMENTS?
The Circuit City decision did not resolve all of the outstanding legal issues relating to the enforceability of mandatory, pre-dispute arbitration agreements. A brief discussion of some of the remaining questions follows.
1. Open questions under federal law regarding mandatory arbitration of discrimination claims
a. The Civil Rights Act of 1991
At least until the Ninth Circuit Court of Appeals has the opportunity to consider the Supreme Court’s decision in a later case, discrimination claims brought under Title VII still may be exempt from arbitration in California and other states covered by the Ninth Circuit. In 1998, in Duffield v. Robertson Stephens Co., the Ninth Circuit held that under the Civil Rights Act of 1991 pre-dispute arbitration agreements are unlawful. To date, the Ninth Circuit is the only appellate court to adopt this view. One federal district court in California already has decided that Circuit City indirectly overruled Duffield. The EEOC, however, continues to take the position that mandatory, pre-dispute agreements to arbitrate discrimination claims are unlawful under Title VII, the ADA and the ADEA. Over the course of the next year or so, it is likely the courts will more definitively decide whether Duffield and the EEOC’s position remain valid after Circuit City.
b. The Older Workers’ Benefits Protection Act
The Older Workers’ Benefits Protection Act imposes a number of requirements on waivers of substantive rights under the Age Discrimination in Employment Act. Courts have not fully resolved whether a pre-dispute mandatory arbitration clause is subject to this law.
c. The National Labor Relations Act
Courts also remain divided over whether a union contract can require arbitration of statutory claims, such as for employment discrimination. In the Alexander v. Gardner-Denver case, the Supreme Court held that a general arbitration clause could not be used to compel arbitration of statutory discrimination claims. In a more recent decision, Wright v. Universal Maritime Services Corp., the Supreme Court held a collective bargaining agreement requirement to arbitrate statutory rights must be “clear and unmistakable” to be enforceable. The language at issue failed to meet this standard. Finding no waiver had actually occurred, the Court declined to resolve the more fundamental question of whether a clear and unmistakable union-negotiated waiver can be enforceable.
2. Open questions under state law regarding mandatory arbitration of discrimination claims
The Supreme Court held in Circuit City that even though pre-dispute mandatory arbitration agreements will be enforced under the FAA, employers still must draft contracts for arbitration which comply with and are subject to state contract law requirements. Therefore, even after Circuit City, multi-state employers wishing to adopt a uniform arbitration agreement still must take into consideration individual states’ laws applicable to any contract.
a. Offer, Acceptance, and Consideration
State law determines the validity of a contract. Enforceable contracts require a valid offer, acceptance, and “consideration.” Consideration means some sort of value conferred in exchange for the contractual provision. Consideration may involve payment of money, but it also can involve a promise to do something or to give up the right to do something.>
States are free to apply their own legal standards to these elements. The most variable issue among the states is what constitutes sufficient consideration. For new hires, the employer’s job offer at a given wage generally will be sufficient consideration for the employee’s promise to arbitrate any employment-related claim. State laws may vary considerably, however, regarding what consideration must be furnished to current employees in exchange for an arbitration agreement. For example, in some states, the employer’s permitting the employee to continue working in exchange for the employee’s agreement to arbitrate will be adequate consideration. In other states, however, the employer will have to provide a financial inducement to the employee in exchange for his or her promise to arbitrate. In these latter jurisdictions, the employer may wish to condition eligibility for a bonus or salary increase on the employee’s assent to the arbitration agreement.
The employer alternatively may elect to pay the employee a financial incentive to sign the arbitration agreement. The amount of the incentive need not be large, but it must be sufficient under the particular state’s standards for valid consideration.
b. Defenses
The FAA expressly provides it does not preempt traditional contract defenses under state law, such as unconscionability, fraud, and duress. State courts’ interpretations of these defenses vary considerably from state to state.
For example, in Armendariz v. Foundation Health Psychare, the California Supreme Court held that pre-dispute agreements to arbitrate statutory employment discrimination claims were “unconscionable” unless they complied with certain requirements, including the following:
In April 2001, after the Circuit City decision, the Washington court of appeals decided the application of compulsory arbitration agreements to retaliatory discharge and overtime claims violate public policy. Other states’ courts may follow suit in an attempt to come within the FAA’s preservation of state law contract defenses. In addition, states may respond to Circuit City by legislating that certain statutes may not be resolved via arbitration.
It remains to be seen whether the state court decisions such as Armendariz are attacked as “end runs” around FAA preemption. At present, employers seeking to enforce arbitration agreements should ensure they comply with state law. Multi-state employers desiring uniform agreements will have to draft them to comply with the most demanding standards.
c. Blue Pencil
In some states, courts have the power to strike or modify illegal provisions in contracts to make them enforceable. This is referred to as “blue penciling” the agreement. However, other states do not permit application of the blue pencil and a court will strike down the entire unlawful section of the contract without attempting to modify it.
SHOULD YOUR COMPANY REQUIRE ARBITRATION OF EMPLOYMENT DISPUTES?
1. What Are the Benefits?
Your Company should evaluate the pros and cons of requiring its employees to execute arbitration agreements. Advantages of arbitration include:
2. What Are the Risks?
Some of the potential concerns surrounding binding arbitration include the following:
WHAT SHOULD YOUR COMPANY CONSIDER BEFORE IMPLEMENTING MANDATORY ARBITRATION
We generally recommend that employers should thoroughly analyze their history of employment disputes over a three to five year period in order to decide whether the advantages of requiring arbitration outweigh the risks. The review should include the following
In deciding whether to enforce an arbitration contract, courts will consider whether the agreement provides employees with adequate “due process.” Some of the factors a court will consider and you should evaluate before implementing a mandatory arbitration process include whether:
OTHER FORMS OF ALTERNATIVE DISPUTE RESOLUTION
The Equal Employment Opportunity Commission in 1997 issued a report on “Best Employment Practices of Private Sector Employers.” The report outlines the programs the EEOC believes comprise the “best practices” in alternative dispute resolution. Not surprisingly, mandatory arbitration programs are not included in the EEOC list. Instead, the EEOC focuses on formalized programs providing means for employees to resolve disputes by open door policies, peer review programs, employee hot lines, mediation with minimal cost to the employee, or arbitration where the employee may elect whether or not the decision will be binding. We suggest that you review the “best practices” list with an eye toward determining whether such programs might be more appropriate for your Company than binding arbitration.
CONCLUSION
The Circuit City decision has opened the door for employers to consider arbitration, as well as other forms of alternative dispute resolution. Arbitration may or may not be efficient and appropriate way to minimize the risk and cost of employment litigation. Jackson Lewis has assisted a wide array of employers in developing arbitration and other forms of alternative dispute resolution programs. We would be pleased to assist you in analyzing or developing a mandatory arbitration program or other form of alternative dispute resolution. Members of our Alternative Dispute Resolution group can be reached at our website, jacksonlewis.com or by calling Marty Payson at (914) 328-0404.
MARTIN F. PAYSON
UncategorizedMARTIN F. PAYSON
Mr. Payson received his undergraduate degree in Personnel Management and Industrial Relations from the City University of New York, and obtained a Juris Doctor degree from Brooklyn Law School in 1966. He is admitted to practice before the Supreme Court of the United States, the Circuit Courts of Appeals and is admitted to the Bar of the States of New York and Pennsylvania. Mr. Payson is a member of both the American and New York State Bar Associations, serving as an active member of their respective Labor Law Sections.
An experienced practitioner, Mr. Payson has represented the interests of management in federal and state courts, before federal and state fair employment practice administrative agencies, and before the National Labor Relations Board. He has extensive experience in the representation of management faced with union organizing drives and National Labor Relations Board elections. He has placed special emphasis on assisting clients in the development and implementation of preventive workplace practices, procedures and programs, most recently focusing on the use of Alternative Dispute Resolution mechanisms as both a litigation avoidance and union avoidance strategy.
Based upon his extensive experience, Mr. Payson has frequently spoken on a variety of contemporary workplace issues. He has appeared on NBC and CBS news shows and has co-hosted a series of programs on personnel issues and the law. He recently has been interviewed by both the BBC and ITN Channel 4.
His insightful remarks have been quoted in The New York Times, Wall Street Journal, Fortune, Business Week, Industry Week and in numerous professional journals and management publications. He has published a wide variety of articles in such publications as Nation’s Business, Personnel Journal, Trial Magazine, and is a contributing editor to the text, Winning NLRB Elections: Management Strategy and Preventive Programs. He serves on the Editorial Board of the Journal of Alternative Dispute Resolution in Employment. He is listed in Who’s Who In America.
Mr. Payson has served as faculty for the Young President’s Organization, Executive Enterprises Institute, Advanced Management Research and the American Management Association. He held the position of adjunct professor of labor and employee relations at the University of Rochester and was visiting lecturer at Cornell University’s School of Industrial and Labor Relations.
How Can You Avoid Liability under Faragher and Ellerth?
NewsWhat is an employer’s reasonable care to prevent and correct any sexually harassing behavior?
The employers in the following cases successfully established that they exercised reasonable care to prevent and correct promptly the alleged harassment:
In some cases, courts have refused to find that an employer exercised reasonable care to prevent or correct promptly alleged harassment where:
Cases holding employer failed to exercise reasonable care to prevent or correct promptly alleged harassment:
What is reasonable plaintiff’s conduct?
Generally, a timely complaint of actionable harassment by an employee will defeat the affirmative defense.
What Happens When Employee and Employer Act Reasonably?
Who is An Immediate Supervisor?
ABOUT PROSKAUER ROSE LLP
UncategorizedABOUT PROSKAUER ROSE
Proskauer Rose LLP is one of the largest law firms in the United States, providing a wide variety of legal services to major corporations and other clients throughout the United States and around the world. We are dedicated to producing results for individuals and businesses through the effective application of talent and experience. Founded in 1875 in New York City, the firm employs over 525 attorneys in five domestic offices (New York, Los Angeles, Washington, Boca Raton and Newark), as well as in Paris, France.
We have wide experience in all areas of practice important to businesses, including corporate finance, mergers and acquisitions, real estate transactions, bankruptcy and reorganizations, taxation, litigation and dispute resolution, intellectual property, and labor and employment law. Our clients include participants in many industries, including chemicals, entertainment, financial services, health care, hospitality, information technology, insurance, Internet, manufacturing, media and communications, pharmaceuticals, real estate investment, sports and transportation.
Trained at leading law schools, Proskauer lawyers also are active in important civic, philanthropic and trade organizations, often holding significant leadership positions. These community leaders are also frequently called on for advice and service by government agencies, the judiciary, bar and charitable organizations and corporate boards of directors.
Please visit our website at www.proskauer.com
Raymond Salomone
NewsRaymond Salomone P.O. Box 230132 New York, NY 10023 (917) 885-5399 [email protected]
Relevant Experience:
1998-2001 Vice President of Operations, Colton Consulting NYC
Reported Directly to Managing Partners of $8MM Technology Recruiting Firm. Thoroughly versed in candidate sourcing, qualifying and interviewing. I quickly develop positive rapports with clients and candidates. Managed staff of 11, including Junior Recruiters, Salespersons, Telemarketers and College Interns. Directly responsible for generating over $1MM in revenue per year. Worked closely with many Fortune 500 and Wall Street Investment clients. Developed strategic alliances with software and hardware vendors. Also responsible for managing budgets relating to advertising, training and procurement.
1993-1998 Technical Recruiter, Velocity Staffing NYC
Began as a cold caller. Prospected potential clients and technical job seekers. Developed and fine-tuned business skills with respect to: introductions, sales pitches, negotiations and closings. Developed skills at analyzing and drafting RFP’s (Request for Proposals) which lead to several long term staffing contracts. Bid on and was awarded several large software and telecommunications projects for Fortune 500 firms. I was also instrumental in the successful opening of a second office in Miami Beach, Florida. Learned to quickly develop marketing abilities to suit a variety of corporate and personal cultures.
1993 Rental Agent, Elias-Bernstein Realty NYC
Without any formal training, began interacting with clients and working through the entire rental process. Qualified clients. Evaluated client requirements/requests. Conducted apartment showings and organized open houses. Presented potential renters to landlords. Assisted in the preparation and execution of leases. Developed positive working relationships with landlords, superintendents and doormen. Used my superior knowledge of Manhattan to increase productivity.
1990-1993 Rental Manager, Ruffino Realty Oneonta, NY
During college I was responsible for all the rental activities of a 12 unit, 4 story building. Duties included qualifying potential renters, contacting and researching guarantors and securing leases. Direct liaison between tenants and landlord. Education:
1993 State University of NY at Oneonta Major: Speech Minor: Marketing
1995-1999 New York University Graduate level courses in Marketing, Communications and eCommerce.
Military
1982-1989 United States Army, Military Policeman
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UncategorizedMICHAEL J. LOTITO
is a partner at Jackson Lewis, a preventive labor, employment, immigration and benefits law firm representing management exclusively. Mr. Lotito is a graduate of Villanova University and Villanova Law School. He was named by Villanova as their Top Human Resources Alumnus of the 20th Century. He has devoted his entire professional career to representing management interests in labor and employment law. He is a member of the California and American Bar Associations. Mr. Lotito has received professional accreditation in the human resources field by achieving the SPHR designation for life. He is listed in “Who’s Who in American Law”, “Who’s Who in California” and is a Life Member of the National Registry of Who’s Who. Mr. Lotito was the first non-practitioner to Chair the Society For Human Resource Management, the largest human resource association in the world. He has traveled the globe for SHRM making presentations from Juneau, Alaska to Johannesburg, South Africa and many places in between. He is a past chairman of SHRM’s National Legislative Affairs Committee and served on its Employee and Labor Relations Committee. In these capacities, he has influenced legislation such as the ADA and has testified before the United States Senate and the House of Representatives. A frequent workshop presenter, Michael is noted for his wit, insights and practical solutions to workplace issues. He is a resource for TEC Worldwide, an international organization of company presidents. He has given numerous presentations before TEC groups and was named TEC’s Most Outstanding Resource. Most recently, he was honored as a member of TEC 200, a designation which places him among the top 1% of all TEC presenters from the many thousands who have participated in a TEC program. Mr. Lotito has appeared on PBS’ “NewsHour with Jim Lehrer”, Fox TV’s “The Schneider Report”, CBS Radio’s “Gil Gross Show”, frequently appears on National Public Radio, and was quoted in The New York Times and The Wall Street Journal regarding the EEOC’s guidelines on mental disabilities. He is regularly quoted on a variety of employment law topics in major publications including Forbes, Business Week, the Washington Post, the Wall Street Journal, the Boston Globe, USA Today, the Los Angeles Times, the San Francisco Chronicle, The Sacramento Bee, The National Law Journal, Nation’s Business, and The Conference Board’s magazine, Across The Board. Most recently he has been published by the Harvard Business Review.