Men accused of sexual harassment can sue!

For years, employment lawyers like me have had to break the bad news to men who have been fired for allegedly sexually harassing women in the workplace:  there is very little I can do for you!  Title VII is designed to protect women (and men) from sexual harassment in the workplace.  It is not designed to protect men (or women) from being falsely accused.  Employers faced with a charge of sexual harassment are free to terminate the alleged harasser, even if they didn’t do it and even if the investigation proves inconclusive. 

On May 22, 2009, the Second Circuit took a step toward providing men (and women) with a bit more protection when they are accused of sexual harassment.  In Sassaman v. Gamache … F.3d … , 2009 WL 1424433 (2d Cir. 2009), the court reversed the grant of summary judgment and permitted a man’s case to proceed to trial, based on allegations and evidence that he was forced to resign because of his employer’s belief that men have a propensity to commit sexual harassment.  Integral to the Court’s opinion was the employer’s failure to adequately investigate the claims.

The Court took great pains to clarify what it was not holding:

“We emphasize that we do not hold that an arguably insufficient investigation of a complaint of sexual harassment leading to an adverse employment action against the accused is, standing alone, sufficient to support an inference of discriminatory intent.

Rather, we hold only that where a plaintiff can point to evidence closely tied to the adverse employment action that could reasonably be interpreted as indicating that discrimination drove the decision, an arguably insufficient investigation may support an inference of discriminatory intent.”

The take away here is that men can bring Title VII cases of their own if they can provide evidence that the employer terminated them because of a belief that as a man, it was likely that he committed the sexual harassment complained of.  Relevant to this claim could be, as here, a poor investigation by the employer.

Going forward, Plaintiff’s employment lawyers need not dismiss a new caller’s claim that he was terminated for sexual harassment when he really didn’t do it!

Paycheck Fairness Act in U.S. Senate. Keep your fingers crossed!

The Paycheck Fairness Act, an amendment to the Equal Pay Act, is currently before the U.S. Senate after having passed the House in January.  Introduced by our own Rosa DeLauro, this bill will make it more difficult for employers to justify pay disparities between men and women.  A great explanation of this imp0rtant bill can be found at themiddleclass.org. 

Previously, employers could defend otherwise indefensible pay disparities by asserting that the differences were attributable to “any factor other than sex.”  This catch-all defense was overused by defense attorneys and judges.  This law would narrow that defense, making employers show that the other “factor” was job related, bona fide and related to business necessity. 

Women should encourage their Senators to vote for this legislation, since women still make far less than men in comparable positions. 

Like the FLSA, employees victimized under this law can bring actions “collectively” or as quasi-class actions.  This new law may bring a new day and a new power to underpaid working women in America.

Pharmaceutical Sales Reps at issue again!

A short time ago, I wrote about a decision here in Connecticut that pharmaceutical “sales reps” were entitled to overtime since they were not actually selling anything and therefore not entitled to the “outside sales” exemption of the FLSA. 

This issue isn’t going away.  The Ninth Circuit Court of Appeals has asked the California Supreme Court to issue an opinion to guide it in a similar case pending before it.  A great discussion of this matter can be found at EpsteinBeckerGreen blog. 

It seems pretty clear to me that you can’t be a sales person if you don’t actually sell anything.  Lets hope the California Supreme Court gets it right!