The Saturday File - Person of the Year 2017: #MeToo

A weekly update on employment law developments and related news stories from The McKinney Law Firm.

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The Top Story

Time Person of the Year 2017: The Silence Breakers
Discussions of sexual harassment in polite company tend to rely on euphemisms: harassment becomes "inappropriate behavior," assault becomes "misconduct," rape becomes "abuse." We're accustomed to hearing those softened words, which downplay the pain of the experience. 

It wasn't so long ago that the boss chasing his secretary around the desk was a comic trope, a staple from vaudeville to prime-time sitcoms. There wasn't even a name for sexual harassment until just over 40 years ago; the term was coined in 1975 by a group of women at Cornell University after an employee there, Carmita Wood, filed for unemployment benefits after she had resigned because a supervisor touched her. The university denied her claim, arguing that she left the job for "personal reasons."

In 1980 the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing civil rights laws in the workplace, issued guidelines declaring sexual harassment a violation of Title VII of the Civil Rights Act. It was a victory, but with caveats: even after sexual harassment became explicitly illegal, it remained difficult to lodge a complaint that stuck—in part because acts of harassment are often difficult to define. What separates an illegal act of sexual harassment from a merely annoying interaction between a boss and his subordinate? When does a boss stop just being a jerk and become a criminal? Because the Civil Rights Act offered no solid legal definition, interpretation has evolved slowly, shaped by judges and the EEOC over the past 37 years.

And then...2017 and #MeToo happened. Read Time Magazine's Cover Article Here

News From Around The Web

#MeToo - Reporting Sexual Harassment In Today's Workplace

#MeToo

#MeToo

While headlines focus on famous men who lead prominent organizations, the majority of sexual harassment happens in ordinary office buildings by ordinary managers or workers who are insecure about their status in life, feel a need to rattle or dominate others to make themselves feel better, or see their colleague as a potential sexual gratifier. They don't love their victims. In fact, they may want to hurt them through embarrassment, discomfort and humiliation.

Most harassers are men, although women also have been reported. The targets are usually women. However, men filed approximately 17 percent of the sexual harassment charges filed with the Equal Employment Opportunity Commission (EEOC) in 2016. 

Most employees try to ignore the behavior, at least at first, waiting to see if it will go away. Some clearly ask the harasser to stop. Others try to play along or laugh it off, unwittingly sending mixed signals of encouragement to the harasser.

The correct response, of course, is to report harassing behavior to a supervisor or human resources. A responsible employer will listen to the description of the events and then speak to the instigator. However, reporting sexual harassment is a difficult thing to do. Employees who are being harassed at work often feel alone and powerless. Will the report do any good? Will HR stand up for me? Will I be retaliated against? Will I lose my job?  

 

We have put together an article discussing some important tips to consider when you need to oppose or report sexual harassment in the workplace. If you or someone you know is facing this issue, the information in this article could help.

Weinstein Case Highlights Difficulty Employees Face When Reporting Workplace Harassment Claims

Harvey Weinstein

Harvey Weinstein

NPR had an excellent story yesterday about the problems that employees face in the workplace when they report sexual harassment:

"Former Hollywood mogul Harvey Weinstein's ouster from the Academy of Motion Pictures Arts and Sciences following numerous allegations of sexual misconduct have prompted others on social media to open up about workplace harassment complaints that have gone unheeded.
Most employers in most industries have written policies on and procedures for reporting incidents of sexual harassment, and human resources officials are required to investigate those claims.
And while recent decades have seen a cultural shift and more education to help minimize sexual harassment, HR consultant Sharon Sellers says there is still a big gap between what should happen, and what actually does. One concern is that many people don't feel safe reporting claims.
"The employer should take every complaint seriously, and this is one area I see where it falls down," Sellers says."

Most employees don't want a lawsuit; they just want to be allowed to do their job without being sexually harassed. Companies do their employees (and their bottom line) a disservice by not building a strong HR department that has the resources and independence within the company to investigate harassment claims and, when necessary, speak truth to power within the company.

Read the rest of NPR's article here.

Tort Reform Is A Lie: Hot Coffee Still Being Used to Mislead

Here's the lie:

The lies used to support corporate efforts to continue to restrict regular people's access to the courthouse are powerful. And, sadly, they work. Routinely, potential clients who are sitting in my office will reference the famous McDonalds "Hot Coffee" case and try to assure me that their case isn't like the Hot Coffee case.  Their case is real. 

Here's the thing, the story everyone knows about the Hot Coffee case is a myth. It's a lie pushed by big business and their tort "reform" groups to poison the minds of potential jurors and make it harder for those who have been legitimately injured to received fair compensation. 

So, What Happened?:

In 1992, 79-year-old Stella Liebeck bought a cup of takeout coffee at a McDonald’s drive-thru in Albuquerque and spilled it on her lap. She sued McDonald’s and a jury awarded her nearly $3 million in punitive damages for the burns she suffered.

Before you hear all the facts, your initial reaction might be "Isn’t coffee supposed to be hot?" or "McDonald’s didn’t pour the coffee on her, she spilled it on herself!" But that would be before you hear all the facts.

Here are the facts:

Mrs. Liebeck was not driving when her coffee spilled, nor was the car she was in moving. She was the passenger in a car that was stopped in the parking lot of the McDonald’s where she bought the coffee. She had the cup between her knees while removing the lid to add cream and sugar when the cup tipped over and spilled the entire contents on her lap.

The coffee was not just “hot.” It was very dangerously hot. McDonald’s policy was to serve it at an extremely hot temperature that could cause serious burns in seconds. Mrs. Liebeck’s injuries were far from minor. She was wearing sweatpants that absorbed the coffee and kept it against her skin. She suffered third-degree burns (the most serious kind) and required skin grafts on her inner thighs and elsewhere. (See the video above for pictures.)

Importantly Mrs. Liebeck’s case was far from an isolated event. McDonald’s had received more than 700 previous reports of injury from its coffee, including reports of third-degree burns, and had paid settlements in some cases.

Mrs. Liebeck offered to settle the case for $20,000 to cover her medical expenses and lost income. But McDonald’s never offered more than $800, so the case went to trial. The jury found Mrs. Liebeck to be partially at fault for her injuries, reducing the compensation for her injuries accordingly.

But the jury’s punitive damages award made headlines — upset by McDonald’s unwillingness to correct a policy despite hundreds of people suffering injuries, they awarded Liebeck the equivalent of two days’ worth of revenue from coffee sales for the restaurant chain. Two days. That wasn’t, however, the end of it. The original punitive damage award was ultimately reduced by more than 80 percent by the judge. And, to avoid what likely would have been years of appeals, Mrs. Liebeck and McDonald’s later reached a confidential settlement for even less than that.

Here is just some of the evidence the jury heard during the trial:  

  • McDonald’s operations manual required the franchisee to hold its coffee at 180 to 190 degrees Fahrenheit.
  • Coffee at that temperature, if spilled, causes third-degree burns in three to seven seconds.
  • The chairman of the department of mechanical engineering and biomechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor-in-chief of the Journal of Burn Care and Rehabilitation, the leading scholarly publication in the specialty.
  • McDonald’s admitted it had known about the risk of serious burns from its scalding hot coffee for more than 10 years. The risk had repeatedly been brought to its attention through numerous other claims and suits.
  • An expert witness for the company testified that the number of burns was insignificant compared to the billions of cups of coffee the company served each year.
  • At least one juror later told the Wall Street Journal she thought the company wasn’t taking the injuries seriously. To the corporate restaurant giant those 700 injury cases caused by hot coffee seemed relatively rare compared to the millions of cups of coffee served. But, the juror noted, “there was a person behind every number and I don’t think the corporation was attaching enough importance to that.”
  • McDonald’s quality assurance manager testified that McDonald’s coffee, at the temperature at which it was poured into Styrofoam cups, was not fit for consumption because it would burn the mouth and throat.
  • McDonald’s admitted at trial that consumers were unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s then-required temperature.
  • McDonald’s admitted it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not.

After the verdict, one of the jurors said over the course of the trial he came to realize the case was about “callous disregard for the safety of the people.” Another juror said “the facts were so overwhelmingly against the company.”

That’s because those jurors were able to hear all the facts — including those presented by McDonald’s — and see the extent of Mrs. Liebeck’s injuries.

But that's not the story that the public has heard. Tort reform advocates lied about the facts of the case and the fake story gained traction. It went viral. So viral that now this story is what is most often cited by jurors and others when explaining why they don't trust lawyers, why they don't like lawsuits, and why they think plaintiffs are just out for a quick buck. 

And it's all a lie.

 

 

If you want to read more, start here.

Fox Running the Hen House -- Trump Nominates Corporate Lawyer as EEOC Chair

Janet Dhillon, general counsel and corporate secretary for Burlington Stores, Inc., has been nominated by President Trump to fill a vacant seat on the Equal Employment Opportunity Commission and to become its Chair. If confirmed, Ms. Dhillon will serve a five-year term that will expire July 1, 2022.

Dhillon has spent her entire career defending corporate interests. She has served as Burlington Stores' Executive Vice President, General Counsel and Corporate Secretary since July 2015. Prior to that, she was an Executive Vice President, General Counsel and Corporate Secretary of JC Penney Company, Inc. from February 2009 through March 2015. Prior to joining JC Penney, she served as Senior Vice President, General Counsel and Chief Compliance Officer of US Airways Group, Inc. Prior to that, Ms. Dhillion was an associate and later a "counsel" with international corporate firm, Skadden Arps. 

I don't know much about Dhillon because she hasn't been much of a player in the EEO/Labor law community during her career.  Frankly, her selection is a bit of a surprise. (Given the current White House I guess we should be pleased that the Chair wasn't filled with a random TV celebrity.) However, the fact that her entire career has been spent in service of giant corporate interests is not an encouraging sign for American workers.