By employment attorneys Tammy Marzigliano and Delyanne Barros. In Crawford v. Metropolitan Gov’t of Nashville & Davidson County, Tennessee, the Supreme Court unanimously decided that protection under Title VII of the Civil Rights Act extends to an employee who speaks out about discrimination when answering questions during an employer’s internal investigation. Employment attorneys Tammy Marzigliano and Delyanne Barros.
Vicky Crawford was an employee of Metro for over 30 years. In 2002, Veronica Frazier, a Human Resources employee, conducted an internal investigation regarding allegations of “inappropriate behavior” by the relations director, Gene Hughes. Frazier asked Crawford if she had witnessed any “inappropriate behavior” by Hughes. Crawford told Frazier that Hughes had asked to see her breasts on numerous occasions, grabbed his genitals in front of her and, on one occasion, and pulled her head down towards his crotch. The employer took no action against Hughes; however, a few months later Crawford and two other accusers were terminated. The employer alleged that it terminated Crawford and the other accusers because they embezzled money.
Crawford brought a lawsuit against her employer for retaliation in violation of Title VII. The district court ruled for the employer and the 6th Circuit affirmed the decision, holding that Crawford did not “oppose” the harassment under Title VII because she had not “instigated or initiated a complaint” and no EEOC charge had been filed.
However, the Supreme Court found the embezzlement allegation was completely unfounded and unsupported. In addition, the Court rejected the Circuit Court’s reasoning that Crawford’s actions did not qualify as “opposition” because she had not “instigated or initiated any complaint.” The Court applied the ordinary meaning to “opposition” finding that it merely means to “resist or antagonize” and that Crawford’s statement to Frazier clearly fell within that definition. As a result, the Court reversed the 6th Circuit’s decision granting judgment for the employer and sent the case back to the 6th Circuit to be decided in accordance with the Court’s analysis.
In Crawford v. Metropolitan Gov’t of Nashville & Davidson County, Tennessee, the Supreme Court unanimously decided that protection under Title VII of the Civil Rights Act extends to an employee who speaks out about discrimination when answering questions during an employer’s internal investigation.
Why So Many Victims Of Sexual Harassment Stay Silent, Still
Kathleen Peratis, The Atlantic, January 4, 2013
Two decades after Anita Hill's testimony against Supreme Court nominee Clarence Thomas, women are still punished for confronting their harassers.
I'm a lawyer, a long-time practitioner of employment discrimination law, and a partner at Outten and Golden LLP in New York City. I guess I am what some people disparage by calling a "slick lawyer," a way to put down those who are passionate about justice. The work is hard and in Anita Hill's day even more so than today, claimants were so far ahead of the times that they were often unsuccessful in their legal claims. The law was so inhospitable in the 1990s and for many years thereafter that had Anita brought a legal claim—which she never did—it is likely that she would have lost in a court of law.
At about the same time as Anita Hill's claims exploded onto the public scene, my firm was involved in a very similar case, unsuccessful at the trial stage and then successful on appeal, which is why I am able to speak publicly about it. The details of this case give you a flavor of what the law was like in 1991. The claimant was a woman named Lisa Petrosino who worked for Bell Atlantic, which is now Verizon, repairing telephone lines. She worked out of a garage in Staten Island with an all-male crew who tormented her every day. The banter among the men in the workplace was crude and misogynistic, which would have been bad enough for Lisa, but they also singled her out. They drew crude pictures of headless women, women with their legs spread in the air, pictures of men having sex with animals, and of her having sex with supervisors, and left them in terminal boxes she was assigned to work on so she would find them. She felt threatened by the depictions of dismembered women. She said, "It's not that I don't have a sense of humor, but this stuff is not funny." They ridiculed her appearance, they told her to "calm her big tits," they said she complained because she was "on the rag." Bell Atlantic not only did nothing to stop it, their supervisors joined in. Bell Atlantic's lawyers, one of whom was a woman, argued that none of this was illegal, it was just boys being boys. The federal district court judge agreed with them and dismissed the case.
The Supreme Court had decided years before that sexual harassment and hostile environment were illegal, but the prejudices of the trial judges remained. In Lisa's case, the trial judge saw no illegality. The appellate court finally reversed and sent the case back to the trial court for trial, and at that point, the case was settled. So the wrong was righted, in a way, but only in a way. Like Anita, Lisa suffered greatly along that road to justice. Some women are transformed by the vindication of a legal victory but some find the process totally debilitating and demoralizing. Women who go public still get punished. It's a sad reality, but some of my happiest clients are the ones who settled for less than their claim was worth and even the ones who decided not to complain at all. Women were punished in 1991, they were punished in 2000, and the sad reality is they are punished still today. I was recently retained by a woman who works at a major education institution in New York City. She was having a business dinner with her boss and he put her hand on his crotch, on his erect penis, freaking her out. She will probably sue and it will be harder on her than she can imagine. These cases do happen less now than they used to but when it happens to you, that is cold comfort.
But let me tell you a little bit about what is actually illegal, then and now. The definition of an illegal hostile environment has not changed—it is an environment where there is an atmosphere of hostility and misogyny that is either severe or pervasive. These words are subject to interpretation, of course, but in most courts, "severe" means that the bad actor, as we call him in my business, has engaged in at least some unwanted or unwelcome touching. I will explain the "unwanted" part in a minute. As for the "touching," it doesn't have to be rape, but to have a really good case for hostile environment discrimination it has to be serious. In the absence of unwanted touching, the claimant has to show that the bad actions were pervasive, and that means a pattern of incidents. How many? No one can quantify what is enough and as in any legal case, it will depend on many things, such as how the claimant and the other witnesses come across to this particular judge or jury.
I mention that the conduct has to be "unwelcome." This is very important because it provides defendants with the opportunity to blame the victim by saying she was a willing participant. It is the "You asked for it" defense. "Why did you send your boss birthday cards or light-hearted emails, if you were bothered by his conduct?" "Why did you get drunk at the holiday party?" "Why did you let your boss come to your room when you were traveling?" "Why did you tell all those off-color jokes?" "Why did you wear a skirt so short, if you're not a slut?" "Why didn't you quit?"
Because this road is so tough, I often hear clients say, "Why me? Why did this have to happen to me? Why has my life been turned upside down by this creep who had no right to do this to me?" And it is unfair. But the law has been transformed by the many women who have bravely stepped up and paved the way for the rest of us. That is what Anita did.
This post is adapted from I Still Believe Anita Hill: Three Generations Discuss the Legacies of Speaking Truth to Power.
Advising A Whistleblower After Dodd-Frank: What Every Employer Needs To Know
Tammy Marzigliano, Law Journal Newsletters, Employment Law Strategist, ALM, Volume 19, Number 10, April 2012. This article examines the retaliation protections provided by Dodd-Frank and how employment lawyers might deal with their impact.
On July 21, 2010, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act, the most significant financial reform effort since the Great Depression. 17 CFR § 240.21F-1, et seq. Part of that legislation directed the Securities and Exchange Commission (SEC) to establish a whistleblower program that pays monetary rewards to eligible whistleblowers, and prohibits workplace retaliation by employers against whistleblowers. This article examines the retaliation protections provided by Dodd-Frank and how employment lawyers might deal with their impact.
Advocacy & Counsel For The SEC Whistleblower: A Primer For Employment Lawyers
Tammy Marzigliano and Jordan A. Thomas. Bloomberg BNA Daily Labor Report. Reproduced with permission from Daily Labor Report, 196 DLR I-1 , 10/11/2011. Copyright 2011 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
In the wake of multiple far-reaching corporate scandals and pervasive misconduct that have eroded public faith in the markets, Congress enacted the whistleblower provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act. The provisions require the SEC to pay financial awards to whistleblowers who voluntarily provide original information leading to a judicial or administrative action in which the SEC obtains monetary sanctions over $1 million, subject to certain limitations. Whistleblowers who provide such information are eligible for an award of 10 percent to 30 percent of the monetary sanctions.
Since the enactment of the whistleblower provisions, there has been undue emphasis on the financial incentives available to qualified SEC whistleblowers. However, the new robust anti-retaliation provisions contained in the guidelines are equally important. Employers are prohibited from retaliating against individuals who provide the SEC with information about possible federal securities law violations, and victims of retaliation are granted an independent cause of action with significant potential remedies. Providing additional protection, whistleblowers are also permitted to report securities violations anonymously if they are represented by counsel.
These protections and incentives will result in a significant increase in whistleblower activity and, by extension, will have a huge impact on the workplace environment. This article examines the protections provided by the statute and offers practical guidance for the plaintiff’s employment lawyer in identifying and counseling potential SEC whistleblowers.
This article examines the protections provided by the statute and offers practical guidance for the plaintiff’s employment lawyer in identifying and counseling potential SEC whistleblowers.
When Your Personal Life Affects Your Professional Life
Tammy Marzigliano and Carmel Mushin. Employment Rights Newsletter, Vol. 17, No. 2, Winter 2010
Almost daily we hear stories about people who were not hired for a job because of something they posted online or someone that lost a job for the same reason. I caution employees regularly to be mindful of what they post online because everyone can see it. I advise them to refrain from posting that “awesome picture” of them playing beer pong or that picture of them at the Mets game when they were allegedly “out sick.” People forget that the internet is not their “private” playground. It is a mechanism in which your world (should you allow it) becomes an open book.
So, what about blogging? People argue it is harmless. It is just my thoughts about a situation. But is it?
The Dodd-Frank Act's Whistleblower Provisions: The Act's Best Hope For Exposing Financial Wrongdoing
In this BNA Insights article, Outten & Golden attorneys Tammy Marzigliano and Cara E. Greene take a close look at these provisions and the effects of preceding laws, such as the Sarbanes-Oxley Act, to examine what their future impact might be. Bloomberg BNA, Workplace Law Report, 10/22/2010.
On Sept. 15, 2008, Lehman Brothers collapsed, sending shock waves through the financial services industry and portending the industry's broader meltdown. Less than two weeks later, Washington Mutual was seized by the federal government and placed into receivership. Over the next year, more than 100 banks folded, Americans saw $13 trillion in wealth evaporate, and massive securities fraud, like that committed by Bernie Madoff, shook investor confidence to the core. The housing market collapsed, the number of people out of work hit 15.6 million, and the federal deficit ballooned. America was in the midst of the Great Recession.
In response, on July 21, 2010, the federal government enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “act” or “Dodd-Frank Act”), which overhauls and strengthens federal oversight of the financial system. While it is impossible to know whether the financial meltdown could have been avoided had the act's provisions been adopted in 2007 instead of 2010, the question on everyone's mind is whether the Dodd-Frank Act will keep it from happening again. Only time will tell if it will have the desired and intended impact, but the act's whistleblower provisions attempt to ensure that in the future financial fraud and irregularities are exposed long before they corrupt the entire system.
Happy Valentine's Day...Now Please Sign On The Dotted Line
Tammy Marzigliano and Delyanne Barros, Outten & Golden LLP, 2009
With Valentine’s Day around the corner, what better way to discuss love than in contractual terms? Workplace romances are increasingly common and employers are aware of this. In a 2008 survey by Vault.com, 58% admitted to having an office romance and another 12% would be willing to engage in one if given the opportunity. Not surprising in light of the reality that most of us have so little time left over after work and sleep that our place of employment is our main chance for finding a mate.
In the last few years, companies have responded to this reality by instituting what has been popularly dubbed as “love contracts.” These contracts may contain several different provisions, but most commonly it seeks to establish that the two employees are in a consensual dating relationship and that they will not allow the relationship to interfere with their work productivity. One sample love contract provided that by signing the love contract, the employees “notify the company that [they] wish to enter into a voluntary and mutual consensual social relationship” which they “are both free to end . . . at any time. Should the relationship end, [they] agree that [they] will not allow the breakup to negatively impact the performance of [their] duties.”
The contract can also refer to the company’s sexual harassment policy and “that entering into the social relationship has not been made a condition or term of employment.” Most important to employers, the contract may limit the grievance process to arbitration only, potentially limiting an employee’s right to file a lawsuit in court.
Kathleen Peratis, The Forward, July 24, 2008. A brief discussion of who transgender people are, and the differences between transgender and gay people.
You have to hand it to Rep. Barney Frank, the man knows how to empathize. In the first-ever congressional hearing on workplace discrimination against transgender people, held by the House in late June in an Education and Labor subcommittee, Frank said he understands what it means to be trapped in the wrong body — because that is what happens when his legislation gets bogged down over in the Senate.
The lesbian, gay, bisexual and transgender — or LGBT, for short — press called the congressional hearing on gender identity discrimination “historic” and “groundbreaking.” The mainstream media pretty much ignored it, but the issue is worth keeping an eye on.