Sexual Harassment and the Academy Awards: Employment Attorney Tom Spiggle is here to answer questions on harassment and discrimination in the workplace. Ask Me Anything!

How often do people blame their poor decision making on drugs or alcohol?

"I was drunk" is not a valid legal defense

Say there is a tenured employee who makes frequent racist remarks loudly in the workplace. If said openly racist remarks have been reported by multiple people in the work place against one person both to management and HR but no action has been taken, how should an employee reporting another such incident proceed?

It is unfortunate, but it is not uncommon for us to see situations like this where HR is little to no help. Sometimes, even worse, employees will be retaliated against for reporting wrongdoing. In this situation, I would report it in writing, an email is fine. If HR does not respond or makes not effort to address the situation, which is quite possible, the next step to consider is filling a charge with the EEOC, or, if you workplace is a governmental one, with your EEO office. This might - might - prompt your employer to do something about the hostile work environment. Know that reporting this type of behavior is, in most situations, considered "protected activity"; thus, retaliation against someone for making the report is illegal. You might also consider consulting with an employment lawyer. I suggest the attorney locator function at www.nela.org. Another good resource is www.avvo.com.

What are some common examples of sexual harassment in the workplace?

We see all kinds, everything from a straight - to use a popular term these days - quid pro quo, e.g., "Go out with and you'll get the promotion," to more subtle, but ongoing, harassment in the form of repeated inappropriate jokes and comments.

Interesting. Are all comments relating to physical appearance such as "You look nice today" considered to be sexual harassment? If not, where would you say the line is?

Whether advisable or not, giving a positive comment about someone's physical appearance at work will in the vast majority of cases NOT be illegal. Of course, as is often true in these cases, context matters. For instance, if you are a man and say something once to a female co-worker like, "That's a really nice sweater" then that would not even come close to an illegal comment, even if the woman took offense to it. However, if you are the boss and walk by your office assistant and, everyday for a week say, while looking her up and down, "Wow, you REALLY look nice today," then that gets much closer to the standard of pervasive harassment that could be the basis of a hostile work environment. Plus, you'd just be a creep.

A company that sells flowers, has a huge article on complexity of sending flowers. https://www.cityflowers.co.in/blog/flower-etiquettes-at-workplace-things-you-must-know/.

What gets me is the asymmetry of it. Towards the end of the article there is a heading "Sending flowers to a guy" where they write "There is nothing wrong with sending flowers to a guy." Forget the social structure, even legally a man cannot say that he is being sexually harassed by a woman. There is in fact an epidemic of violence against men which no one is acknowledging.

The laws on sex harassment are sex neutral so it IS legally possible for a man to be sexually harassed by a woman. There are fewer of those cases, to be sure, but they do exist. So, if you are a man and your female boss, say, sends you flowers every day for a week with a lipstick kiss on the card, even though you have told her to stop, then you definitely have a basis to bring a sexual harassment case against the company.

How can you tell if you’re being discriminated against verses being sensitive? I know every situation is different.

For discrimination to be what is called "actionable," i.e., something upon which a claim could be made, there must be "adverse employment action," like being fired or demoted. For an actual legally impermissible hostile work environment to exist, the harassment must be severe or pervasive. To your question, the standard is what would be offensive to a reasonable person. You might try telling friends and family what is happening to you at work. Do they find it unacceptable? If you tell 5 people, and they do not find the behavior offensive, then it may not rise to the level of a hostile work environment upon which you can base a legal claim. Talking to an employment lawyer who represents employees is also a good way to find out if you are be illegally discriminated against. I suggest using the lawyer locator function at www.nela.org - and if you're in the DMV www.wmela.org. Another good resource for finding a lawyer is www.avvo.com

Is there any correlation between the amount of sexual harassment cases you have received and in the rise the #metoo movement?

Definitely. The press attention on the problem has given people the hope that they need to come forward. Unfortunately, in many of these cases there is no claim to bring because the statute of limitations has passed. To maintain a claim for sexual harassment under federal law, in most instances you have to file a charge with the EEOC within either 180 or 300 days. Still, even when there is no claim to bring, there is power in sharing what happened.

Can staring be a form of harassment? I work in a hair salon, mostly women. Our manager and one of the owners are men. They make comments like “damn you look good”, “wooow😏” and the occasional “let me grab this real quick” but for some reason they HAVE to put their hand on your back?? It’s feels difficult to say something because the second owner is the mother on the other owner. And some of the girls “play along” which is infuriating since some complain about their conduct. I would consider moving salon but I have a lease to finish and the location is ideal for my clientele. I would love some advice or input.

Based on what you have described here, this conduct certainly sounds like illegal hostile work environment. I recommend that you talk to a lawyer. Check out the attorney locator function at www.nela.org or www.avvo.com One thing to be aware of is that federal laws against sexual harassment generally only apply to employers with 15 or more employees. (Check out www.eeoc.gov). But even if your employer does not have that many employees, state and local laws may apply.

What is your favorite part of your job?

Helping people find their own power in workplace disputes. Sometimes that means literally standing by them in court, but just as gratifying is helping employees see options that they were not aware of before, whether or not they end up hiring an attorney.

Do you think this affects the Academy Awards in any way?

Do you mean the Weinstein trial or the sexual harassment complaint associated with the Grammys?

In regards to the sexual harassment complaint associated with the Grammys

I think it will affect it in the sense that it keeps the spotlight on sexual harassment in the entertainment industry, a problem that shows no signs of resolving anytime soon. In the complaint filed regarding the Grammys, there are also allegations, as I understand it, that it impacted the voting process. Possible this will focus attention on the voting for Academy Awards.

What are some ways a company can help prevent sexual harassment and discrimation in their workplace?

There are a number of excellent training programs. Recent research suggests that the most effective ones involve the input from employees rather than a top-down training conducted only by management. Ultimately, workplaces have to make it a part of workplace culture that harassment will not be tolerated, even by c-suite members. Having a nice anti-harassment policy on paper only does no one any good.

There are a number of excellent training programs that outside consultants provide. Research suggests that the best ones involve employee input and participation. Top-down training approach by management only have been shown to be ineffective

Would you say that claiming sexual harassment, perhaps even if none occurred, is a viable strategy for removing more competent or qualified male colleagues whose very presence might serve as obstacles to ones career advancement?

We have not seen those cases, but certainly can't say it hasn't been tried. But I think such a tactic would, in most instances, be highly unlikely to work. Sexual harassment cases can be tough to win, even when evidence exists. A fraudulent claim of harassment is likely to fail once the company investigates the issue. Certainly a bogus claim would have little to no chance of working in court and could even result in a counter-claim of defamation.

If you weren’t doing this, what other areas of the law are you interested in?

Before I opened my firm, I was a federal prosecutor focusing on domestic violence and sex abuse cases. Those cases were emotionally difficult, but I found the work rewarding. But there are many interesting areas of the law. A completely different area of the law that I find interesting is trust and estates - helping peoples with wills and other types of legal documents. I've not done much of that work, but I am intrigued by that area of the law.

How do you feel about weinstein trying to work a transgender angle to i guess lighten the sentence? Where do you see this going?

I'm not familiar with that tactic. Regardless, it would not help him in sentencing. The primary issue for the jury is the credibility of the many witnesses against him.

Thanks for the answer i hope this guy rots in jail.

Completely agree

You don't want to wait until the trial is over, and see if he is guilty or not?

I've prosecuted a number of sexual assault cases. The barriers for women (and it's mostly women) to report sexual assault are very, very high. The number of women coming forward with similar stories, risking possible professional, and even in some cases financial, ruin as they have in this case, is all the evidence I would need were I a juror.

Do you think evidence should be presented along with claims, or just claims?

Do you mean in an EEOC filing? Regardless, it always advisable to submit evidence in support of your claims. However, in and EEOC charge, you need not include every bit of evidence that you have, just enough to support the initial claims. There is often opportunity to provide more evidence as the investigation goes on