Hostile Work Place Podcast, by Undercover

In this episode we review two recent cases, both of which point toward the federal courts gradual expansion of discrimination law, inching closer to requiring civility in the workplace.

We also have a highly informative interview with Brian Therrien of Disability Digest about qualifying for disability benefits, and the differences between short term, long term, and social security disability. I learned a lot just from interviewing Brian, and I know you'll find this to be one of our most informative interviews yet.

Episode 13 features an interview with our forum Den Mother and bully boss fighter, Lulu. Lulu joined our forum feeling alone and confused about how her long stellar career could start crumbling when a much younger manager took over the department where Lulu worked.

Over a year later Lulu is still fighting through trials, but now after learning her rights she feels empowered and more in control. Make no mistake, Lulu does not have an easy life. But listen to her tell her story on this podcast and you will detect a calm confidence in Lulu that makes her a source of inspiration and comfort in the Employment Law Academy.

Remember last episode when we introduced The Undercover HR
Person, Mary, to help our community members with responding to a bullying bosses and H.R. Departments? So many people contacted her for help that now there is a waiting line. If you'd like to check to see if she's had any cancellations you can contact her at: mary@undercoverlawyer.com

Quick Tip Contact Info: http://www.thedisabilitydigest.com/

Episode 12 features an interview with Bully Boss survivor turned author Marilyn Veincentotzs. Marilyn, who also goes by "Dr. Vee", learned from "Work Laws Exposed" how to fight back against a bullying boss. Then she helped a good friend do the same thing. Then she took her expertise in organizational psychology and wrote a book, "How Organizations Empower Bully Bosses: A criminal in the workplace."

In Episode 12 we also introduce a fantastic new resource for people who need help with responding to a bullying boss: The Undercover HR Person! That's right, our forum stalwart and HR expert, "OnYourSide", is actually named Mary, and Mary is now available to help you with workplace issues too. If you want help composing a letter to your boss, filing out a complaint form, preparing a timeline to use when meeting with HR, or completeing FMLA forms -- then Mary is the perfect resource for you.

You can contact Mary here: mary@undercoverlawyer.com

You learn more about Marilyn Veincentotzs here: http://www.dorightatwork.com/

Quick Tip Contact Info: http://www.thedisabilitydigest.com/

In this episode of the Hostile Workplace Podcast we are very pleased to feature an interview with Dr. Ben Leichtling, who has written a book and published a DVD set on living bully free in all aspects of life, including work.

Dr. Leichtling was so generous with his time that we couldn't fit all of his helpful insights and ideas into the podcast, but it was simply too good "to leave on the cutting room floor".

So even more of this interview is available on the Members-Only Forum, which is just $1 for the first month (and no further obligation). You can join the Member Forum here: http://undercoverlawyer.com/amember/signup.php

The Quick Tip a site where you can rate your boss, and check to see if you potential new boss has been rated by his or her employees. The site is: http://www.ebosswatch.com/

Find even more helpful info from Dr. Leichtling at his site: http://www.bulliesbegone.com/

Main Segment

In the Main Segment of Episode #10 we tackle the issue of "Bully Bosses Who Forbid Bathroom Breaks." This craziness happens much more frequently than you may think. Can you guess who the primary victims are?

#1 Spanish radio station in Miami

The radio show I mention during the show is 98.3. My thanks to Frank, the Undercover Lawyer community member from Miami
who got the book and called in to 98.3 to talk about it. Thanks Frank!

All Spanish UCL Site Now Launched:

www.demandas-empleos.com

New Segment -- The Q & A:

We also debut a new segment in Episode #10, the Q&A. In you have a legal question about work that you think other listeners would be interested in, send it to me at: UndercoverLawyer@Gmail.com . Better still, ask the question in you own voice by using the comment line: (360) 450-5750 . Call in, leave your question, and you may hear your voice on the next episode of the podcast!

The Quick Tip:

This week's Quick Tip is about safe internet surfing at work. The resources discussed are these:

http://www.work-surf.info/ http://www.anonymous-proxies.org/2009/07/all-about-work-proxies.html

In Episode #9 the Undercover Lawyer (Curt K.) reveals 10 things that bosses do to their employees that cause hostile work environment lawsuits. This is explosive information that big business pays top dollar for; Curt himself regularly charges companies $1,000+ for "How Not to Get Sued" seminars that cover this same material! But now you get it for free, plus Curt's explanation of how employees can use this information for their advantage.

In the Quick Tip Curt covers how the new Federal Bailout Program includes money that you get right now if you've lost your job. Its the COBRA subsidy, so that you pay only 35% of your insurance premium to maintain health benefits after leaving a job, instead of having to pay 100%. You can get more info here: http://www.dol.gov/ebsa/faqs/faq_consumer_cobra.HTML

Also, the Spanish version of Work Laws Exposed is now available for purchase: http://www.undercoverlawyer.com/libro-espanol

And the most exciting news, the Members Only Private Forum of the Undercover Lawyer Academy is now available for only $1 for the first month (and $14.97 per month thereafter). This is a giant discount from the usual $47 per month that will go into effect in about 30 days. But if you sign up now, you lock in the $14.97 price for life (even after the full Employment Law Academy opens with tons of powerful new content).

You can take advantage of limited time $1 offer by clicking HERE .

Have you ever wished that you could sue your bully of a boss? This episode is about a hospital employee named Joseph Doescher who did just that.

The Bully-Boss Surgeon
Doescher's "boss" was a cardiovascular surgeon named Dr. Daniel Raess. Dr. Raess behavior included yelling, screaming, and swearing at Doescher with "clenched fists, piercing eyes, beet-red face, [and] popping veins." The incident that prompted the lawsuit ended with Doescher believing that Dr. Raess was going to hit him, but at the last second Dr. Raess screamed "You're finished, you're history" and he stomped out of the room.

The Anxiety Stricken Employee
For his part, the employee Doescher reported that Dr. Raess' bullying damaged Doescher's ability to do his job, his ability to interact with his wife and family, and caused him to suffer from anxiety. Doescher was even diagnosed with a "major depressive disorder," a "panic disorder," and an inability to focus.

The "Bullying Expert," Dr. Gary Namie
This lawsuit went all the way to the Indiana Supreme Court, who reviewed how appropriate it was to allow the nation's leading Bullying Expert, Dr. Gary Namie, testify on the employee's behalf.

The results of this case made national headlines, but don't settle for a sound bite explanation of the what happened and how it affects you.

Raess v. Doescher, Indiana Supreme Court (April 8, 2008).

In Episode #7, we discuss how your boss can be liable to you for creating a hostile work environment based on age. The main example we cover is Elizabeth Parks v. Lebhar-Friedman, Inc. , 2008 WL 4449345 (SDNY) (Oct. 2, 2008).

Parks' employer, Drug Store News, made some key mistakes that your employer is probably making, too.

Also, the resource discussed in the quick tip is at: http://creditcard.westlaw.com/.

Finally, we have an exciting announcement about exciting new features coming to UndercoverLawyer.com.

The primary message of Episode #6 of the Hostile Workplace Podcast is "You Are Not Powerless When Facing Termination!" This episode shows you how to fight back and try to keep your job, PLUS, we cover how to negotiate a severance if you decide to leave. Negotiating a severance would also apply to anyone who is facing layoffs at their company.

Tips 1-3:
Fight Back by utilizing protected classes and turning the tables on your supervisor.

Tips 4-7:
Slow the Process Down by knowing all your due process rights and using all of them.

Tips 8-10:
Even if You Decide to Leave, don't just walk away; you have the power to get something out of the company, and ease your transition to your next (better) job.

The ever-popular "Quick-Tip" feature comes straight from our forums. A community member who is facing termination at his own job has a great tip for anyone dealing with an abusive boss.

Episode #5 features a listener interview with Vicki, who fought tooth and nail against disability discrimination to keep her job. She also has learned a lot about filing for FMLA leave and filing with the EEOC. Anyone facing these same issues can learn from Vicki's story.

The Quick Tip for this episode is an update on the subject of Male to Male sexual harassment. New cases are being filed against restaurants you've heard of.

Finally, the Hostile Workplace Podcast now has a listener comment line: (360) 450-5750. After listening to the show call in and let us know what you think of Vicki's story, or call in and share your own workplace story. You may find yourself on the front page of the iTunes "Careers" section!

Michell and Dan began their working relationship as friends. Dan
supervised a group of 8 employees; 7 young men plus Michelle. Michelle
was only 21.

Before work each morning, however, she had to drop off her young son
at her mother’s house. As a result, Michelle often arrived between 5
and 15 minutes late.

But Dan was sympathetic to Michelle’s struggles as a single mom. He
was the only other person at work with children. Plus, how could you
not like Michelle? She worked hard, she was cute, and she could talk
“like one of the boys.” In fact, sometimes she made the boys blush!

Yet, little voice in the back of Michelle’s head kept telling her
that the crude sex talk at work wasn’t something to be proud of. In
fact, she admitted to herself that she wouldn’t want her son talking
like this. But Michelle never spoke up… until one day when one of the
guys said something so crude and disgusting that even she couldn’t take
it any longer…

Listen to the podcast to hear how Michelle and Dan’s relationship
changed forever, how Dan nearly lost his job, and to learn if Michelle
was able to keep her position with the company.

Just by listening to this true story you will learn about retaliation in the workplace, and also about the importance of timing when establishing retaliation claims.

Show Notes :

During the show I mentioned the blog article by "Careerguyd" about violence in the workplace. If you would like to read that article yourself just click HERE .

I also mentioned that one of the members of the Forums has her own blog that is worth reading. That is "HR Wench" and you can reach her blog by clicking HERE .

Finally, I revealed that my ace WordPress customizer is Sherry Dedman of Blog-Solace. If you have your own blog and would like a technical expert to help you spiff it up, add complex plug-ins, or you just need some advice, you can check out Sherry's blog about blogs HERE and her forum about the technical side of blogs HERE .

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Episode #3 of the Hostile
Workplace Podcast, by the Undercover Lawyer

Announcements

In epsisode three I mentioned that you
can follow me on Twitter. In you are not familiar with it, Twitter
is a “micro-blogging” site, where people can post short, text
message length updates about what they are doing each day. You can
see it for yourself at www.Twitter.com
. My username on Twitter, if you would like to follow me, is
“Undercover_Lawr”.

Quick Tip

For the Quick Tip, we talked about how
employees have zero expectation of privacy for anything done with
their work computer, or their work network (like signing in from home
– still utilizes work network)

Feature Segment –
Straight Male to Straight Male Sex Harassment

Oncale v. Sundowner Offshore Services, Inc. 523 U.S.
75 (1998)

Facts of the
Case

Joseph Oncale, a
male, filed a complaint against his employer, Sundowner Offshore
Services, Inc., alleging that he was sexually harassed by co-workers,
in their workplace, in violation of Title VII of the Civil Rights Act
of 1964 ("Title VII"). On appeal from a decision supporting
a district court's ruling against Oncale, the Supreme Court granted
certiorari.

Question

Does the
prohibition against sex discrimination, set out in Title VII of the
Civil Rights Act of 1964, apply to same-sex sexual harassment?

Conclusion

Yes. In a
unanimous opinion, the Court held that while Title VII does not
prohibit all verbal or physical harassment in the workplace, it does
bar all forms of discrimination "because of" sex. Such
discrimination, whether motivated by sexual desire or not, is
actionable so long at it places its victim in an objectively
disadvantageous working condition, regardless of the victim's gender.

Written Option :
http://supreme.justia.com/us/523/75/index.html

Davis
v Coastal Intern. Sec., Inc, 275 F3d 1119 (2002)

Facts:

The extended and
rancorous workplace dispute giving rise to this action began in 1996
after Coastal International Security hired Wallace Davis to work as a
security guard at the Environmental Protection Agency. While serving
as a supervisor early in his tenure, Davis disciplined two other
Coastal security guards, Aaron Smith and Everett Allen, for various
on-the-job infractions. Smith and Allen, apparently infuriated by
their discipline, launched a retaliatory campaign against Davis,
which they began by repeatedly slashing his tires.

After Davis
complained to his supervisor, Coastal required the three men to sign
a memorandum of understanding in which they agreed to set aside their
differences. This agreement accomplished nothing. When Davis was
demoted Smith and Allen visited his work station and taunted him
about the demotion. Approximately six months into their campaign
against Davis, Smith and Allen expanded their repertoire. Smith
approached Davis at his work station and grabbed his (Smith's)
crotch, made kissing gestures, and used a phrase describing oral sex.
After Smith twice repeated this performance, Davis complained to his
supervisor, who convened a meeting with Davis, Smith, and Coastal's
project manager for the EPA facility. Because Smith denied Davis's
accusations, and because Davis failed to provide corroborating
evidence, the project manager took no formal action, but admonished
both Davis and Smith to “ act like grown men.”

Undeterred, Smith continued his vulgar comments and gestures, and
Davis again complained to his supervisor. This time the supervisor
warned Smith that he would be fired if his behavior continued. This
seems to have gotten Smith's attention, for his lewd conduct ceased
(although Davis alleges that Smith threatened his life on several
subsequent occasions). Allen, however, twice approaching Davis and
made precisely the same lewd gestures and comments that Smith had.

When Davis
complained for a third time, Coastal conducted a full-scale
investigation. Although the investigator interviewed ten employees,
he concluded that the inquiry had been “hampered by the lack of a
reliable witness to substantiate even one allegation of sexual
harassment by ... Davis.” Notwithstanding this lack of
corroborating evidence, the investigator recommended that Davis and
Allen be reassigned (Coastal had terminated Smith for unrelated
reasons). Shortly thereafter, Davis filed one final complaint,
claiming again that Allen, despite his reassignment, had repeated the
by-now-familiar lewd gestures and comments.

In January 2000,
over three years after these events began, Davis filed suit in the
United States District Court for the District of Columbia, alleging
that Smith's and Allen's behavior amounted to sexual harassment and
that Coastal and Securiguard “permitted ... Allen ... and ... Smith
to make sexually vulgar gestures and statements.”

Legal Standard for Male to Male Sex Harassment:

The Court suggested three ways to prove
that same-sex sexual behavior rises to the level of illegal sexual
harassment: The plaintiff may show that the sexual behavior is
motivated by actual homosexual desire; that the harassment is framed
in “such sex-specific and derogatory terms ... as to make it clear
that the harasser is motivated by general hostility” toward members
of the same gender in the workplace; or that there is “direct
comparative evidence about how the alleged harasser treated members
of both sexes in a mixed-sex workplace.” Oncale, at 80-81, 118 S.Ct
at 1002.

ROBINSON
v FORD MOTOR Co 277 Mich App 146 (2007)

This case was brought under STATE LAW,
Michigan Civil Rights Act (MCA). “Plaintiff alleging a sexually
hostile work environment on the basis of sexual advances or
solicitations under Civil Rights Act (CRA) must present some credible
evidence that the harasser is motivated by sexual desire; however,
the same cannot be said about the third type of action barred under
the CRA, namely verbal or physical conduct "of a sexual nature."
M.C.L.A.
§ 37.2103(i) .”

Employee presented sufficient evidence
to allow reasonable trier of fact to conclude that co-worker's
conduct and communication inherently pertained to sex for purposes of
employee's same-gender sexual harassment claim under Civil Rights Act
(CRA); co-worker allegedly exposed his testicles and forced employee
to touch them, hit employee's buttocks, exposed employee's underwear,
digitally penetrated employee's buttocks, moved his hand between
employee's legs toward his testicles, squeezed employee's nipples,
threw pubic hair at employee, rubbed employee's personal property
against his genitals, and pressed his erect penis on employee's back
while forcing his fingers into employee's mouth.

FEMALE
HARASSING MALE

Jones v U.S. Gypsum, 126 F Supp 2d 1172 (2000)

Legal Standard
that Accuser Must Satisfy:

(a) she is a member in a protected group; (b) she was subject to
unwelcome sexual harassment; (c) the harassment was based on sex; (d)
the harassment affected a term, condition, or privilege of
employment; and (e) the employer knew or should have known of the
harassment and failed to take proper remedial action.

In The Hostile Work Place Podcast, Episode #2, we discuss the most explosive of work subjects, sexual harassment. During the show we explain how the U.S. Supreme Court recognizes two types of sexual harassment:
Quid Pro Quo (latin for "something traded for something") Hostile Work Environment based on sex

We also explain how you can evaluate whether or not an action can be considered sexual harassment by using the idea of "unwelcomeness".

If unwelcomness is established, a court will look to four factors to evaluate whether a hostile work environment based on sex exists. Those four factors are:
Frequency of the offensive conduct Severity of the offensive conduct Whether the offensive conduct was physically threatening or intimidating Whether the offensive conduct interfered with the performance of your job duties

The case where these four factors were discussed most recently is Reeves v. C.H. Robinson Worldwide Inc. (April 28, 2008).

The two U.S. Supreme Court cases mentioned in the show are Burlington v. Ellerth and Faragher v. Boca Rotan . Summaries of each and links to downloadable versions of the full case are immediately below. However, if you would like to go straight to the forum where we are discussing this episode of the podcast just click HERE .

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)

Facts of the Case

After working for Burlington
Industries for 15 months, Kimberly B. Ellerth quit because she
allegedly suffered sexual harassment by her supervisor - Ted Slowik.
Despite her refusals of Slowik's advances Ellerth did not suffer any
tangible retaliation and was, in fact, promoted once. Moreover, while
she remained silent about Slowik's conduct despite her knowledge of
Burlington's policy against sexual harassment, Ellerth challenged
Burlington claiming that the company forced her constructive discharge.

Question

Can an employee, who despite refusing
sexually harassing advances by a supervisor suffers no adverse
job-related consequences, recover against an employer under Title VII
of the Civil Rights Acts of 1964, without showing that the employer was
responsible for the supervisor's harassing conduct?

Conclusion

Yes. In a 7-to-2 opinion, the Court
held that employers are vicariously liable for supervisors who create
hostile working conditions for those over whom they have authority. In
cases where harassed employee's suffer no job-related consequences,
employers may defend themselves against liability by showing that they
quickly acted to prevent and correct any harassing behavior and that
the harassed employee failed to utilize their employer's protection.
Such a defense, however, in not available when the alleged harassment
culminates in an employment action, such as Ellerth's.

Faragher v. City of Boca Rotan , 524 U.S. 775 (1998)

Facts of the Case

After resigning as a lifeguard, Beth
Ann Faragher brought an action against the City of Boca Raton and her
immediate supervisors, alleging that the supervisors had created a
sexually hostile atmosphere by touching, remarking, and commenting.
Faragher asserted that this conduct constituted discrimination in
violation of Title VII of the Civil Rights Act of 1964. The District
Court concluded that Faragher's supervisors' conduct was sufficiently
serious to alter the conditions of her employment and constitute an
abusive working environment. The court then held that the city could be
held liable. In reversing, the en banc Court of Appeals held that
Faragher's supervisors were not acting within the scope of their
employment when they engaged in the harassing conduct, that knowledge
of the harassment could not be imputed to the City, and that the City
could not be held liable for negligence in failing to prevent it.

Question

May an employer be held liable under
Title VII of the Civil Rights Act of 1964 for the acts of an employee
whose sexual harassment of subordinates has created a hostile work
environment amounting to employment discrimination?

Conclusion

Yes. In a 7-2 opinion delivered by
Justice David H. Souter, the Court held that an employer is vicariously
liable under Title VII of the Civil Rights Act of 1964 for actionable
discrimination caused by a supervisor. The Court also held that such
liability is subject to an affirmative defense looking to the
reasonableness of the employer's conduct as well as that of the
plaintiff victim. "The City had entirely failed to disseminate its
policy against sexual harassment among the beach employees and that its
officials made no attempt to keep track of the conduct of supervisors
like [Faragher's]," wrote Justice Souter, "[u]nder such circumstances,
we hold as a matter of law that the City could not be found to have
exercised reasonable care to prevent the supervisors' harassing
conduct."

In episode #1 we discuss how in the current economy terminations and layoffs are increasing, but poor performance is often not the reason used to select who is let go and who is not.

We discussed the forum posting contest for the Month of July 2008, where the top three posters to the forums at http://www.UndercoverLawyer.com will win either an Apple iPhone (3G), an iPod Shuffle, or an iTunes gift certificate. All three top posters will also win a copy of one of the Undercover Lawyer's books about work law, such as "Work Laws Exposed".

Finally, we refer to the article "10 Signs You are Bullied at Work" which is at UndercoverLawyer.com. This article prompted a reader named Randall to write in with his compelling story, which became the main feature of Podcast #1. You can read the article at: http://www.undercoverlawyer.com/archives/13 .