New York Fish Market Settles Race Discrimination and Sexual Harassment Lawsuit

The Equal Employment Opportunity Commission (EEOC) recently settled a discrimination suit against New York-based fish wholesaler M. Slavin & Sons, Inc. for $900,000. The EEOC filed suit in December 2009 based on complaints by more than thirty employees of physical and verbal sexual harassment. According to the EEOC’s 2009 Press Release, some of M. Slavin’s owners and managers subjected certain non-Caucasian male employees, mostly African-American, to ongoing harassment including groping, offensive sexual comments, and racial slurs.

Some employees left the company because of the harassment, and the individual who first reported the harassment further alleges that he faced retaliation from M. Slavin managers. He claims that managers instructed other employees not to associate with him and threatened his life.

The EEOC’s lawsuit, filed in U.S. District Court for the Eastern District of New York, claimed that M. Slavin violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on race, color, sex, and other protected categories. Discrimination based on sex includes sexual harassment, and it encompasses actions against any gender. The law also protects people who seek to defend their rights from retaliation by their employer, and it allows employees to make claims against employers who create a hostile work environment based on race, sex, and other protected categories.

On December 15, 2011, the EEOC announced that M. Slavin had agreed to pay $900,000 to settle the lawsuit, in addition to providing other relief. As part of the settlement, the company is required to revise its policies on sexual harassment, discrimination, and retaliation, and submit to monitoring by the EEOC for a period of five years. The Company is also required to retain an independent consultant to handle discrimination complaints and must provide one-on-one training for the owners and managers who committed the worst acts of harassment. Finally, the Company is required to provide annual anti-discrimination training for all of its owners and managers, publicize the resolution of the lawsuit to all employees at the work site, and notify the EEOC of any and all new discrimination complaints.

A Brief History of Sexual Harassment

Sexual harassment has been at the forefront of the news in recent weeks thanks to two major stories. One involves the allegations of sexual harassment against Republican presidential candidate Herman Cain. The other is the twentieth anniversary this year of the sexual harassment allegations against Supreme Court Justice Clarence Thomas during his confirmation process. The Christian Science Monitor recently published an article examining the history of sexual harassment as both a legal and social concept over the past 30 to 40 years, identifying six high profile cases that have raised public awareness of the issue. While sexual harassment is undoubtedly still a widespread problem across the country (and the world), it is worthwhile to occasionally review how far we have come.

1. Meritor Savings Bank v. Vinson: Originally, quid pro quo was the only type of legally actionable sexual harassment. This type of sexual harassment occurs when an employee is required to submit to a supervisor’s sexual advances as a condition of employment (e.g., “sleep with me or you’re fired”). The Supreme Court’s 1986 ruling in Meritor Savings Bank v. Vinson expanded the definition of sexual harassment to include hostile work environment:

In sum, we hold that a claim of “hostile environment” sex discrimination is actionable under Title VII … and that the District Court did not err in admitting testimony about respondent’s sexually provocative speech and dress.

For more information on the differences between quid pro quo and hostile work environment sexual harassment, please visit our website here.

2. Jensen v. Eveleth Tavonite Co.: The first class-action sexual harassment lawsuit was filed in 1988 on behalf of Minnesota mining company employee Lois Jensen, who described a pattern of harassment and abuse beginning when she went to work there in 1975. The lawsuit continued until a settlement was reached in 1998. Jensen’s story was the subject of the 2005 Charlize Theron film “North Country”.

3. Clarence Thomas and Anita Hill: While Clarence Thomas awaited confirmation to the U.S. Supreme Court in 1991, Hill went public with allegations of sexually suggestive remarks when she worked as his assistant years earlier. The Supreme Court confirmed Thomas, but the controversy served to make the whole country aware of the topic of sexual harassment, sparking a dialogue on what is and is not appropriate in the workplace.

4. General Larry Smith and Lieutenant General Claudia Kennedy: In 1999, Lt. Gen. Kennedy was the highest-ranking female officer in the Army and was nearing retirement. When she learned that General Smith was being considered for an inspector general position, which would involve investigating sexual harassment claims, she went public with allegations that he had touched her in an inappropriate and unwanted manner in 1996. An inquiry found that Smith had behaved inappropriately and his nomination was withdrawn.

5. Senator Bob Packwood: The Oregon senator resigned in 1995 when at least 29 women, including aides, interns, and campaign workers, came forward with allegations of sexual harassment and even possible assault. After several years of scrutiny and calls for ethics investigations by fellow senators, the Senate Ethics Committee recommended his expulsion from the Senate.

6. President Bill Clinton and Paula Jones: Jones, a former Arkansas state employee, filed suit against then-President Clinton in 1994, alleging incidents of harassment and inappropriate behavior. Although a judge dismissed the suit for lack of evidence of damages, the case brought the Monica Lewinski scandal to light and led to the president’s impeachment. He settled with Jones in 1998 and paid her $850,000.

One key case not mentioned in the article is Robinson v. Jacksonville Shipyard, which established that nude pin-ups in the workplace constitute sexual harassment, even if not directly targeted at the employee who found this offensive.

The Boston sexual harassment attorneys at The Law Office of Alan H. Crede, P.C. specialize in employment law and solely represent employees. If you are a victim of sexual harassment, please contact The Law Office of Alan H. Crede, P.C. through our website or at (617)973-6434 to schedule a confidential consultation.

More Sexual Harassment Blog Posts byThe Law Office of Alan H. Crede, P.C.:

Sexual Harassment Disproportionately Affects Restaurant Workers, Boston Employment Lawyer Blog (November 14, 2011)
Sexual Harassment Claims Against Herman Cain, Boston Employment Lawyer Blog (November 3, 2011)
Sexual Harassment Claims in Federal Court: Overcoming the Farragher/Ellerth Defense, Boston Employment Lawyer Blog (October 5, 2008)

Sexual Harassment Disproportionately Affects Restaurant Workers

The link between sexual harassment and the restaurant business has come into the national spotlight recently, in part due to allegations by several women against Republican presidential candidate Herman Cain and the discussions they have inspired. As we discussed in a previous blog post here, journalists at MSNBC took the opportunity to review statistics on the prevalence of sexual harassment in restaurants. The surprising results appeared last week in a Huffington Post article entitled, Restaurants, Sexual Harassment Go Hand-In-Hand, According To New Report.

According to the article, fewer than 9% of American workers are employed by restaurants, yet 37% of the sexual harassment suits reported by the federal government so far in 2011 have taken place in restaurants. A poll of Louisiana restaurant employees cited by MSNBC indicated that 42% of female restaurant employees had experienced some form of sexual harassment during their careers.

The Equal Employment Opportunity Commission announced in 2006 that it had entered into a settlement agreement with Cracker Barrel, a nationwide chain of “family dining” restaurants, for $2 million to resolve discrimination claims including sexual harassment. Earlier this year, a female employee of a Gordon Ramsay-affiliated restaurant in New York City filed a sexual harassment complaint with the state’s human rights agency. She alleged that male chefs subjected her to ongoing verbal abuse, sexual propositions, and groping. Male chefs staged a walkout in protest in April that apparently shut the restaurant down for several days.

The amount of sexual harassment settlements has also been a topic of debate. According to a Slate article entitled Is $45,000 a Lot for a Sexual Harassment Settlement?, one woman who accused Cain of sexual harassment received a $45,000 settlement and a second woman received a $35,000 settlement. The article points to a study that reviewed 50 sexual harassment cases before Chicago magistrate judges, revealing that victims of sexual harassment who prevail at trial receive an average jury award of $217,000. Those who resolve their cases before trial receive significantly less, with an average settlement of $53,000 and median of $30,000.

As with all discrimination cases, the value of a sexual harassment case is very fact specific. It is not uncommon for sexual harassment to lead to constructive discharge, where the sexual harassment victim has no choice but to resign due to intolerable working conditions. In such a scenario, recovery is not limited to emotional distress damages since the employee will certainly suffer economic loss as well. As one can imagine, the economic loss can vary greatly depending on one’s salary and length of unemployment.

If you are a victim of sexual harassment, contact the Boston sexual harassment attorneys at The Law Office of Alan H. Crede, P.C. through our website or at (617)973-6434 to schedule a confidential consultation.

More Sexual Harassment Blog Posts by The Law Office of Alan H. Crede, P.C.:

Sexual Harassment Claims Against Herman Cain, Boston Employment Lawyer Blog (November 3, 2011)
Sexual Harassment Claims in Federal Court: Overcoming the Farragher/Ellerth Defense, Boston Employment Lawyer Blog (October 5, 2008)
Sexual Harassment and Race Discrimination Claims Against Tavern on the Green Settled for $2.2 million, Boston Employment Lawyer Blog (June 8, 2008)

Sexual Harassment Claims Against Herman Cain

As sexual harassment allegations swirl, Republican presidential candidate Herman Cain has received much media scrutiny in recent days. Stories have appeared in the press about settlements with two women who accused him of sexual harassment when he headed the National Restaurant Association in the late 1990’s. That number very recently increased to three. Few definitive details of the two cases are available since the identities of the two women remain confidential and Cain’s own accounts of the events have been criticized less than consistent, even in the eyes of some of his supporters.

In an article entitled, Cain Accuser Got a Year’s Salary in Severance Pay, the New York Times reported that one of the alleged sexual harassment victims received a payment of $35,000, equal to one year’s salary, in severance when she left her employment with the National Restaurant Association. She left after Cain allegedly engaged in conduct that made her uncomfortable on a work outing with heavy drinking, which is said to be a common feature of hospitality industry events. People with knowledge of the situation confirmed the payment and its amount for New York Times reporters, with one person stating that the high amount of the woman’s severance was unusual given her pay grade and short tenure.

A second accuser also received a payment related to multiple claims of harassing behavior by Cain, but few details of her case have come to light. People who have commented to the media have requested anonymity, in part to protect the accusers’ privacy. Cain has offered various explanations for the two cases and has been criticized for being evasive. He told a Fox News host that the payments were for “agreements” and not “settlements.” This statement prompted conservative host Charles Krauthammer to suggest that Cain’s answer was “Clintonian,” referring to former President Bill Clinton’s tendency to split hairs about the meanings of words during the Lewinsky scandal of the late 1990’s.

The Cain sexual harassment scandal brings to light the mechanics involved in a settlement or severance agreement. Whether the document is described as severance or a settlement is typically insignificant. Regardless of its title, an agreement in this context is simply a binding contract between two or more parties. In this particular case, the alleged sexual harassment victims received payment in exchange for the legal promise not to sue the National Restaurant Association and Cain for sexual harassment. It is not uncommon for such agreements to contain additional terms such as, for instance, confidentiality and mutual non-disparagement, in which all parties agree not to speak negatively about each other.

Assuming that Cain agreed to the latter as part of the agreement, his characterization of the sexual harassment allegations as a “a witch hunt” and contention that he was falsely accused may run afoul of any existing non-disparagement obligations. Not surprisingly, Cain’s public commentary has led one victim’s attorney to request that the confidentiality requirements of the settlement agreement be lifted so that his client may defend herself.

According to this article by the Huffington Post, sexual harassment in the restaurant business occurs a disproportionately higher rate:

According to the MSNBC research 26 of the 75 (37% ) sexual harassment suits reported by the federal government so far this year took place in restaurants. Considering that less than 9% of American workers are employed by restaurants, this is a dramatically outsized percentage. And it’s not as if this year is some kind of aberration; the MSNBC piece cited a poll from Louisiana showing that 42% of female restaurant workers had experienced sexual harassment at some point in their careers.

Sexual harassment in the workplace violates Title VII of the Civil Rights Act of 1964 and the Massachusetts Fair Employment Practices Act (M.G.L. c. 151B). Both state and federal law recognize two types of sexual harassment: quid pro quo and hostile work environment. Please visit our Sexual Harassment page here to learn more about the different forms of sexual harassment.

The Boston sexual harassment attorneys at The Law Office of Alan H. Crede, P.C. represent the rights of employees who have suffered sexual harassment. To schedule a confidential consultation to discuss your case, contact the firm through their website or at (617)973-6434.

More Sexual Harassment Blog Posts Blog Posts by The Law Office of Alan H. Crede, P.C.:

Sexual Harassment Claims in Federal Court: Overcoming the Farragher/Ellerth Defense, Boston Employment Lawyer Blog (October 5, 2008)
Sexual Harassment and Race Discrimination Claims Against Tavern on the Green Settled for $2.2 million, Boston Employment Lawyer Blog (June 8, 2008)
Sexual Harassment Victory Before the 11th Circuit Provides Greater Protection for Employees, Boston Employment Lawyer Blog (May 6, 2008)

Employeees Who Suffer Workplace Discrimination Gain Clarification On Obtaining Punitive Damages

Employees who suffer workplace discrimination in violation of the Massachusetts Fair Employment Practices Act are entitled to recover four types of damages: front pay (the amount by which someone’s future earnings are reduced by discrimination), back pay (the plaintiff’s lost income from the time of the discrimination up to a jury verdict), emotional distress damages, and attorney’s fees. These damages are compensatory damages, designed to compensate the victim of discrimination for the actual harm s/he suffered and no more.

Punitive damages are another category of damages provided by the Fair Employment Practices Act for the victims of unlawful discrimination on the basis of race, color, religious creed, national origin, sex, sexual orientation, or handicap. However, not all victims of unlawful workplace discrimination are entitled to punitive damages. Recently, in the case of Haddad v. Walmart Stores, Inc. , the Massachusetts Supreme Judicial Court clarified the standard for the award of punitive damages.

In Haddad, a jury awarded punitive damages to the plaintiff for the gender discrimination that she had suffered. The trial judge, however, took away the punitive damages. The parties then filed cross-appeals, raising numerous questions of law.

On appeal, the plaintiff argued that the trial judge’s decision to take away the punitive damages was error. Simplifying a bit here, the plaintiff went on to argue that Massachusetts law permits punitive damages for intentional acts and, since discrimination is the result of intentional acts, any finding of discrimination is sufficient to support an award of punitive damages.

The Supreme Judicial Court (“SJC”) agreed with the plaintiff that the trial court’s decision to take away the jury’s award of punitive damages was a mistake. The SJC found that the the trial court judge may have based his decision on a belief that, in order to recover punitive damages, an employee must show that his/her employer acted with the knowledge that its actions violated applicable civil rights laws. The SJC said that, to the extent the judge’s order relied upon that reasoning, it was in error.

The Supreme Judicial Court went on to clarify the circumstances under which a victim of unlawful discrimination may recover punitive damages. The SJC held that punitive damages in a discrimination case may be awarded only where the defendant’s conduct is outrageous or egregious. In determining whether the defendant’s conduct is outrageous or egregious, a judge or jury should consider several factors, including but not limited to:

(1) whether there was a conscious or purposeful effort to demean or diminish a class of which the plaintiff is a member (or the plaintiff because he or she is a member of a class);
(2) whether the defendant was aware that the discriminatory conduct would likely cause serious harm or recklessly disregarded the likelihood that serious harm would arise;
(3) the actual harm to the plaintiff;
(4) the defendant’s conduct after learning that the initial conduct would likely cause harm; and
(5) the duration of the wrongful conduct and any concealment of that conduct by the defendant.

The Supreme Judicial Court suggested these five factors do not exhaust the list of considerations that may be relevant to an award of punitive damages in a discrimination case, but they do help clarify what an employee who is the victim of workplace discrimination should show if she hopes to recover punitive damages against her employer.
You can watch a video of the oral arguments in the Haddad case on Suffolk Law’s website.

Sexual Harassment Claims in Federal Court: Overcoming the Farragher/Ellerth Defense

Employees who are victims of sexual harassment must take great care to protect their rights. The First Circuit’s decision in Chaloult v. Interstate Brands represents a broadening of the Farragher/Ellerth defense, which allows employers to escape liability even when an employee has clearly suffered inappropriate and demeaning conduct over a prolonged period of time.

The Farragher/Ellerth defense is an affirmative defense arising out of two 1998 Supreme Court decisions: Farragher v. City of Boca Raton, and Burlington Industries v. Ellerth. For the Farragher/Ellerth defense to be apply, an employer must satisfy two elements: (1) reasonable care was taken to prevent and promptly correct the harassing or discriminatory behavior, and (2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided.

In June 1999, Bonnie Chaloult began working at Interstate Brands in Biddeford, Maine. In August 2005, Chaloult resigned after a enduring a series of debasing remarks from her supervisor, Kevin Francoeur. Such remarks included:

Accusing Chaloult of having sexual relations with her direct supervisor
Complaining about his wife, his lack of sexual relations with her, and voicing his desire murder his wife
Asking about the distance between her nipples and telling her to go home and measure this distance
Asking her if her nipples chafed or stood out like headlights
Stating that her breasts were “melons” and “big hooters”
Asking her to hold her breath and push her chest out
Offering to go to her house and have sex with her
Stating that he wanted to see how far she could stick an eclair down her throat, stating “[i]f there isn’t enough cream in there, . . . I have plenty”
Asking Chalout’s manager, “How long have you [two] been fucking?”

Francoeur made many of these disparaging remarks both in front of Chalout’s co-workers as well as her manager. Ironically, the employer had a policy requiring all managers to all report sexual harassment and inappropriate conduct to Human Resources. Chalout’s manager failed to abide by this policy. Although Chalout’s letter of resignation did not detail specific instances of misconduct, it made clear that she no longer felt comfortable working at Interstate Brands because of statements made by Francoeur.

Approximately one year later, Chaloult filed a lawsuit based on, among other things, the sexual harassment she suffered from Francoeur. Surprisingly, the federal District Court of Maine accepted the Farragher/Ellerth defense on the basis that Chaloult failed to report specific instances of misconduct. The First Circuit affirmed the district court’s decision. In doing so, both courts failed to acknowledge the reality of workplace. If your manager knows that your supervisor is subjecting you to such demeaning conduct, and fails to take remedial measures, how confident would you feel in voicing such concerns. Would you keep quiet to ensure to avoid possible retaliaton?

Race Discrimination and Sexual Harassment Lawsuit Filed Against NASCAR

One of the most egregious fact patterns in a race discrimination case has presented itself against NASCAR. Maurica Grant, 32-year-old black female, worked as a technical inspector from January 2005 until her termination in October 2007. During her employment, Grant was allegedly subjected to a panoply of racially hostile and offensive conduct, which included:

Being called “Nappy Headed Mo” and “Queen Sheba” by her co-workers
Being told she worked on “colored people time”
Enduring references to the Ku Klux Klan made by one particular race official
Being asked, “Does your workout include an urban obstacle course with a flat-screen TV on your back?”
Being forced to work outside more often than white male officials because her supervisors believed she couldn’t sunburn because she was black
Being instructed to duck as she passed race fans in the backseat of a carpool with one race official stating, “I don’t want to start a riot when these fans see a black woman in my car”
Being told, “Keep smiling and pop your eyes out ’cause we can’t see you.”
Being accused of being gay when she rejected the sexual advances of co-workers

NASCAR allegedly terminated Grant approximately two months after she complained about how she was treated. For more information, please visit the Chicago Tribune article entitled, Mauricia Grant, NASCAR.

Sexual Harassment and Race Discrimination Claims Against Tavern on the Green Settled for $2.2 million

The Equal Employment Opportunity Commission (EEOC) recently finished prosecuting a case involving severe sexual harassment as well as gender and race discrimination against New York’s landmark restaurant, Tavern on the Green. According to the EEOC, Tavern on the Green subjected female, black, and Hispanic employees to continual lewd and degrading conduct. Female employees were allegedly forced to endure demands for sexual acts as well as various forms of groping and inappropriate touching. Black and Hispanic employees also allegedly experienced racial epithets and ridicule for their accents.

The EEOC, which brought the suit on behalf of 50 employees, was successful in securing a settlement of $2.2 million. As part of the settlement, Tavern on the Green is also required to establish a telephone hotline for employees to report discrimination complaints. In its Press Release, EEOC New York District Director Spencer H. Lewis made clear the duty that employers owe to their workers:

This case should remind employers to take seriously allegations of harassment and retaliation, especially where managers in positions of authority are involved in the misconduct.

According to Professor Marcia McCormick of Cumberland School of Law (Samford University), the lawsuit signified a victory for the EEOC’s EEOC’s E-RACE Initiative (Eradicating Racism and Colorism from Employment), which was launched in 2008 to eliminate race discrimination from the workplace by enhancing public awareness and through litigating unlawful employment practices.

For more information, please visit the New York Times’ article entitled, Tavern on the Green to Pay $2.2 Million to Settle Harassment Claim.

Sexual Harassment Victory Before the 11th Circuit Provides Greater Protection for Employees

Sexual harassment victims just scored a major victory before the 11th Circuit Court of Appeals in Ingrid Reeves v. C.H. Robinson Worldwide. Ingrid Reeves worked for C.H. Robinson Worldwide (CHRW) based in Birmingham, Alabama as a transportation sales representative from 2001 through 2004. During her tenure, Ms. Reeves states in her complaint that she was subjected to sexually offensive remarks in which her co-workers, the large majority being men, referred to women as “bitch” and “whore.” It was also not uncommon for her male colleagues to allegedly listen to a local radio program discussing women breast sizes and pornography.

In bringing her claim for sexual harassment, Ms. Reeves faced an uphill battle because none of the derogatory comments about women were directed toward her. On this basis, the Northern District Court of Alabama granted summary judgment to CHRW, dismissing her case and preventing Ms. Reeves from going before a jury. Ms. Reeves appealed to the 11th Circuit, which had held in Walker v. Ford Motor Co. that racial epithets in the workplace could support a hostile work environment claim under Title VII, even where the derogatory statements were not directed at the plaintiff. In reversing the lower court’s decision, the 11th Circuit extended its holding in Walker to the sexual harassment context:

The language in the CHRW office included the “sex specific” words “bitch,” “whore,” and “cunt” that … may be more degrading to women than men. The subject matter of the conversations and jokes that allegedly permeated the office on a daily basis included male and female sexual anatomy, masturbation, and female pornography, all of which was discussed in a manner that was similarly more degrading to women than men. The radio programming that Reeves claims was also similar. Therefore, even if such language was used indiscriminately in the office such that men and women were equally exposed to the language, the language had a discriminatory effect on Reeves because of its degrading nature. Accordingly, just as the language in Walker was sufficient to support Walker’s hostile work environment claim because it particularly offended Walker as a black man, we hold that the evidence Reeves presented was sufficient to survive summary judgment on the “based on” element here.

This is a key victory for employees who must endure sexually hostile work environments. Under the 11th Circuit’s decision in Reeves, employers will no longer be able to hide behind obtuse technicalities to avoid liability. For more information about this decision, please visit’s article entitled, 11th Circuit OKs Suit Based on Sexual Language in Office.

Pregnancy Discrimination Lawsuit Filed Against Bloomberg L.P.

Pregnancy discrimination, which is a form of gender discrimination, is becoming a hot button issue in 2008. The Equal Employment Opportunity Commission (EEOC) has filed a class-action lawsuit against Bloomberg L.P., the financial-services and media company founded by Mayor Michael R. Bloomberg, on behalf of at least 54 women who accuse the firm of discriminating against pregnant employees. The suit puts Bloomberg L.P. in a familiar position, representing the latest in a series of discrimination and sexual harassment complaints filed against the firm since the 1990s.

According to EEOC lawyer, Raechel L. Adams, the number of women represented in the class action is likely to grow. As part of its continuing investigation, the EEOC is interviewing 478 Bloomberg L.P. female employees who took maternity leave at some point from 2002 to the present.

Monica Prestia is among those represented in the suit. According to the lawsuit, Ms. Prestia received the worst performance review of her career after giving birth to her first child in 2005. Thereafter, the suite alleges, she experienced hostility from a supervisor who could not have children and was asked by a different supervisor: “What is this, your third baby?”

Although Mayor Bloomberg remains the firm’s majority shareholder, the suit does not name him as a defendant. For more information about this issue, please visit the New York Times article entitled, 54 More Women Accuse Bloomberg Firm of Bias.