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Anti-Gay Harassment Claims Need to Be
John L. Litchfield
The employee in EEOC
v. Cromer Food Services, Inc., brought a harassment claim
complaining his employer failed to protect him from regular anti-gay harassment
by two individuals who were not co-workers. In adopting a negligence standard
for considering whether an employer may be liable for the activities of
non-employees in a claim for sexual harassment, the federal Court held that the
employer would be liable if it knew or should have known that the employee was
the subject of anti-gay harassment and failed to take appropriate actions to
stop it. From the facts available to the appeals Court, it was reasonable to
conclude that the employer had such knowledge, didn't follow its own harassment
complaint procedure, and ultimately failed to protect the employee from lewd,
unwanted, and inappropriate anti-gay harassment.
In defending against the claim, the employer argued that
the employee's complaints were too vague, and that the employee failed to
follow the company's required harassment complaint procedure by not reporting
the harassment directly to the president of the company. The trial court
agreed, ruling in favor of the employer.
Reversing the trial court on appeal, the Fourth Circuit
held that the reasoning of the employer and the trial court ignored the "clear
evidence" that the employee tried to report the nature and extent of the
harassment and was "effectively ignored at all levels" of management. The Court
found that the employer "still had a duty to investigate or take other measures
to combat harassment."
There are a number of lessons that employers can take
away from EEOC v. Cromer, not least of which is that harassment of
lesbian and gay employees may be illegal under federal law, despite the fact
that there are no specific protections. Employers should be keenly aware of
this precedent and take steps necessary to conform their policies and
practices. Proper training of employees as to what constitutes "harassment" is
imperative - same-sex harassment and harassment of gay and lesbian (and,
arguably, bisexual and transgender) employees is still considered "harassment"
under the law. It is critical that employers review and update their harassment
policy statements, reporting mechanisms, and employee training to ensure
Another key take-away from EEOC v. Cromer is that
a complaint procedure whereby employees must report harassment to a company
executive, without an alternative procedure, is most times insufficient. The
Court pointed out that employees are often intimidated by top executives, or
lack knowledge of who the higher-ups are. Therefore, employers are encouraged
to provide alternate methods of reporting harassment - such as to human
resources - and to properly train supervisors and human resources personnel on
handling such reports.
Finally, employers can be held liable for harassment of
employees by non-employees. If the employer knows or should know that an
employee is being subjected to harassment by non-employees, a failure to take
steps to protect the employee exposes the employer to liability. Maintaining a
policy that requires reporting of this kind of harassment is a best practice,
but ensuring compliance with the policy is what will help prevent liability.
Supreme Court Upholds Arizona Law
Sanctioning Employers for Hiring Unauthorized Aliens
Caroline A. Hogan
of Commerce v. Whiting [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law], the United States Supreme
Court upheld a controversial Arizona law that imposes penalties against
employers who knowingly hire illegal immigrants. The Court held that the
federal Immigration Reform and Control Act (IRCA)
did not preempt Arizona's Legal Arizona Worker's Act of 2007, which allows
Arizona courts to suspend or revoke the business licenses of employers who
knowingly or intentionally employ unauthorized aliens. The Arizona law sets
forth a graduated series of sanctions for violations of the Arizona Act. For
example, employers who violate the law a second time by knowingly hiring an
unauthorized alien can lose their business licenses. The Arizona law also
requires Arizona employers to participate in the federal E-Verify program to
check an employee's eligibility to work.
The majority opinion, authored by Chief Justice John
Roberts, explained the statutory background of IRCA and E-Verify. IRCA, enacted
in 1986, makes it unlawful for an employer to knowingly hire unauthorized
aliens and imposes civil and criminal sanctions for such violations. IRCA also
prohibits any state or local law from imposing civil or criminal sanctions
"other than through licensing and similar laws" upon employers who employ
unauthorized aliens. E-Verify, which Congress enacted 10 years later in 1996,
allows (but does not require) an employer to verify an employee's status to
legally work in the United States.
Chief Justice Roberts gave short shrift to the argument
that IRCA preempts Arizona's law by focusing on the express language of IRCA
that allows states to impose penalties "through licensing and similar laws."
The majority ruled that Arizona's procedures "simply implement the sanctions
that Congress expressly allowed Arizona to pursue through licensing laws" and Arizona
"went the extra mile in ensuring that its law closely tracks IRCA's provisions
in all material respects." The majority opinion also held that Arizona's use of
E-Verify did not conflict with federal law and noted that "the federal
government has consistently expanded and encouraged the use of E-Verify."
In his dissent, Justice Breyer argued the Arizona law may
increase job discrimination against Hispanic-American workers because employers
might discriminate against "legal workers who look or sound foreign" rather
than risk the permanent loss of the right to do business or the "business death
penalty" by hiring unauthorized aliens. The Chief Justice, however, believed
any fears about the law leading to discrimination against Hispanics were
unwarranted. He argued that the "most rational path for employers is to obey
the law - both the law barring the employment of unauthorized aliens and the
law prohibiting discrimination - and there is no reason to suppose that Arizona
employers will choose not to do so." He further noted that license termination
is the sanction for "egregious violations of the law" and "an employer acting
in good faith need have no fear of the sanctions."
This decision means a state may sanction an employer who
knowingly employs unauthorized aliens by suspending or revoking its business
license. Several states, including Colorado, Georgia, Missouri, Pennsylvania,
South Carolina, Tennessee, Utah, Virginia, and West Virginia have enacted laws
similar to Arizona. The ruling may indicate that the Court will determine that
Arizona's controversial immigration law, SB1070, is also constitutional.