By Chuck Douglas – New Hampshire Sexual Harassment Lawyer

The law makes a distinction between sexual harassment by co-workers and sexual harassment by a supervisor. A company that has a supervisor who is sexually harassing an employee is strictly liable for the supervisor’s conduct. That is not the case if the harasser is only a co-worker.

The gray areas involve co-workers who have titles or job responsibilities where they can change your hours, assignments or duties but can’t hire or fire you. Everyone agrees a person who can hire and fire an employee is a supervisor, but once you get beyond that, the various Federal Circuit Appeals Courts are in disagreement.

That question will be answered because the United States Supreme Court has accepted a case from the 7th Circuit Court of Appeals in the mid-west to consider exactly what the term “supervisor” includes or doesn’t include in the work place. Because this is an uncertain area of the law, you need to contact a firm who represents employees and, therefore, understands the various ins and outs of the court decisions that may be relevant to your case. We represent employees in sexual harassment cases and recently successfully mediated a case against a major employer that argued that the supervisor was not a supervisor but merely a co-worker.

If you think you have been sexually harassed, please call our office at 1-800-240-1988 or fill out our online contact form.

An employer may face liability for sexual harassment to which an employee is subjected after hours and outside the workplace setting.  In the New Hampshire Federal Court case of McGuinn-Rowe v. Foster’s Daily Democrat, the female employee, an account representative, alleged that a management-level employee leaned against her at a bar and, later the same night, rubbed himself against her.

The employer argued to the Court that it should not be held liable for the conduct occurring at the bar because “it occurred away from the workplace and outside normal working hours.”  The Court disagreed.  First, the Court said that the incident at the bar was “relevant to the issue of whether the [employee] experienced a hostile environment at work.”  The Court found that the harassment of an employee both at work and at her home when she was off-duty supported an actionable claim for sexual harassment.  The New Hampshire Federal Court also held that the employer could be held liable for the harassment if it knew or should have known about the harassment’s occurrence and failed to take appropriate steps to halt it, regardless of whether the harassment occurred on or off work premises.

So, just because a boorish supervisor or co-employee harasses you away from the workplace rather than at the workplace does not mean that the employer is off the hook.  If you are a victim of such harassment, be sure to notify your employer promptly so that the employer has the opportunity to meet its obligation to undertake corrective action.  You should also consult an experienced employment attorney to gain a full understanding of your rights.

The impact of bullying continues to be hot topic in the media, with an increase in attention to the phenomenon of “cyber-bullying.”  Recently, a Rutgers University student committed suicide after he was the victim of a high-tech cyber-bullying incident.  His roommate surreptitiously procured a video of the student having sex with another male student, and then streamed the video online.  The bullying victim jumped from the George Washington Bridge after posting his intent to do so on his own Facebook page.

Such cyber-bullying incidents are becoming more and more common as our youth become ever more tied into electronic media and online social networking sites.  At least one study has suggested that more than 40 percent of kids in this country admit having been bullied on the internet, and 35 percent say they have received online threats.  Another study reported that more than 20% of the kids who had been on the receiving end of bullying strongly considered committing suicide, and as many as 19% actually made some kind of suicide attempt.  Nearly one third reported committing acts which could be considered bullying in nature.  Approximately 20% admitted committing acts of cyber-bullying.

With such startling numbers, it is clear that parents and schools must be vigilant to the warning signs that bullying, even via the internet, texting, or social networks like Twitter, is occurring.  New Hampshire’s revised bullying statute that went into effect on July 1, 2010, now contains a definition of “cyber-bullying,” and obligates school officials to be on the lookout for it, and to act when there is evidence that it is occurring.  Unfortunately, the law does not contain a private enforcement mechanism permitting parents to hold schools accountable in court when they fail to meet the obligations placed on them by the new Act.  Hopefully the legislature will reconsider this omission in the near future.  Parents who are concerned should let their voices be heard at the State House.

Several attorneys filed suit against the State recently to try to obtain proper funding for our judicial system.  It is broken and I could not sit idly by and let it be gutted by excessive legislative budget cuts so I joined in as counsel.

Each year 230,000 court cases are filed in New Hampshire.

Certain types of court cases have specific time frames in which to act and those are set by the legislature.  For example, domestic violence cases and criminal cases require certain scheduling dates by law.  Thus, work on such cases means other cases must be delayed if judge time is lacking due to vacancies.  For instance, in 2009, there were 5,300 cases of domestic violence with hearings required between five or thirty days of filing, depending on the request.

Stalking cases were 1,470 in number, with the same time requirements.  9,600 landlord/tenant cases must be heard ten days from service of process.  Involuntary emergency admissions to the N.H. Hospital were filed 1,700 times last year and they must be heard within three days of hospitalization.

Families are also heavily affected by the lack of a judge to help decide their disputes.  7,200 juvenile cases, 10,000 new divorce or family petitions and 7,000 closed cases reopened for parenting or lack of child support issues were heard last year alone.

Judges cannot decide cases without someone processing them, scheduling them, getting orders out, and otherwise processing paperwork.  Each month thousands of orders have to go to the office of child support enforcement, various criminal law agencies, and to parties involved in marital and civil cases.

In the non-criminal area our State Constitution’s Bill of Rights (Part I, Article 14), says that everyone is entitled to a certain remedy for all injuries they may receive and that they are to obtain it “completely, and without any denial; promptly, and without delay.”

The purpose of that provision is to make civil remedies readily available and to guard against arbitrary denial of access to the courts.  It is an equal protection clause because, whether you are suing someone or being sued, you want to have your case resolved as soon as possible.

Last year there were $3.1 million of cuts out of a judicial branch budget of about $65 million, with another $2.2 million hit in May.  Concord District Court, which is a three-judge court, is now operating with one full-time judge.  Due to the reduction in personnel a form letter went out this summer canceling all civil trials.

Small claims cases were all cancelled in the Manchester District Court this summer for an indefinite period.

On July 22, Merrimack County Superior Court began closing to the public daily from 1:00 p.m. to 4:00 p.m.  As of June 30, it had nearly 500 case files with pieces of mail that had yet to be docketed in the court record, with some documents dating back to March.  Another 150 trial and hearing notices had not been sent out and more than 350 files contained court orders that had not been issued.

And Hillsborough County just announced:

HILLSBOROUGH SUPERIOR COURT CLERKS TO CLOSE OFFICES

TUESDAY AND THURSDAY AFTERNOONS

Staff shortages prompt move to focus on reduction of case backlog

CONCORD, October 1 – The clerk’s office in Nashua for Hillsborough County Superior Court North and Hillsborough County Superior Court South will close at 1 p.m. on Tuesday and Thursday beginning October 5 to allow uninterrupted time for processing cases and related materials.

Both clerk’s offices, which had been closed from 8 a.m. to 9 a.m., will reopen at 8 a.m. daily, beginning Oct. 5 with implementation of the new Tuesday/Thursday afternoon closings.

After 1 p.m. on Tuesday and Thursday, no telephone or counter service will be available to lawyers, litigants or the public in the clerk’s office during those hours; the automated telephone system will be monitored so that emergency requests are addressed promptly. A “drop box” will be set up inside the courthouse at 30 Spring Street in Nashua for filing documents during the hours when the clerk’s office is closed.

As of today, the Merrimack County Superior Court, which had been closed down since last August on weekday afternoons to work on reducing the case backlog, will be open for a full day on Fridays. The clerk’s office in Concord remains closed to lawyers, litigants and the public Monday through Thursday from 1 p.m. to 4 p.m. to allow for uninterrupted case processing.

Several other court locations statewide, faced with backlogs and staff shortages, also have limited public operating hours to allow uninterrupted time for employees to process cases.

Superior Court Chief Justice Robert J. Lynn said the schedule will be reviewed every 30 days to determine when the clerk’s office can return to routine office hours. Reductions in the court system budget have required administrators to maintain 71 full-time non-judicial vacancies, which means court locations have fewer employees on staff to carry out day to day clerical responsibilities.

These cutbacks affect all citizens who seek justice.  I will do all I can to fight for fair funding.  If you have a delay horror story, email me at info@nojustice.org

If you are contemplating a lawsuit, or perhaps just filed one, you have probably heard that the court requires the parties to “mediate” the case.  What is mediation, and is it something you want to take part in?

Mediation is a type of “alternative dispute resolution.”  Simply put, it is a formalized method by which you attempt to settle your lawsuit before going to trial.  It is often confused by lawpersons with arbitration, which is an alternative form of trial judges rather than an actual judge and jury.

How does a mediation work?  Typically the parties agree on a mediator as the first step.  The mediator is typically an attorney or retired judge.  The choice of mediator is very important.  An inexperienced or unmotivated mediator will not be effective in driving the mediation process to a successful resolution.  Experienced trial attorneys will know the right mediator for the case, and will insist on using the right mediator in your case.

Once the mediator is selected, the mediator process typically begins by having all the parties meet and their representatives meet in one room.  The lawyers for the parties typically give a presentation of what they believe the evidence will demonstrate at trial, and try to highlight the strengths of their case, and the weaknesses of the other side’s case.  It is not uncommon for the plaintiff to explain how the defendant’s conduct has personally impacted him or her, and also not uncommon for the mediator to ask questions of both sides to help clarify certain points and potentially to highlight key issues in the case which parties may not have fully appreciated before the medication begins.

At that point, the parties typically separate and go into different rooms.  It is at this point that the plaintiff makes a demand for a certain amount of money (which is typically much higher than what their attorney ahs told them to expect as an end result) and the defendant makes an offer to pay the plaintiff a certain amount (almost always much lower than what they actually expect to pay) of money to dismiss the case.  The mediator then goes back and forth between the rooms in a process of “shuttle diplomacy.”

During each visit with the mediator, the parties discuss the amount of their demand or offer the settle, and the strengths and weaknesses highlighted by the other side.  The goal is to keep reducing the plaintiff’s demand, and increasing the defendant’s offer, until they meet at some point.  If they meet, then the case is settled.  If the defendant is unwilling to pay the lowest amount the plaintiff is willing to accept to settle the case, then the mediation will end and the parties effectively pretend it never happened.

In a successful mediation, the parties decide the outcomes of the case, rather than allowing a third party to do it for them.  If the mediation fails, then the parties simply proceed to trial, and treat the mediation as if it never happened.  The jury never hears about what happened at the mediation.  Everything that happens at the mediation is kept strictly confidential, to encourage the parties to be open and honest about their case and make the best effort possible to resolve it.

Successful mediations depend tremendously on the skill and experience of the parties’ counsel and the mediator.  Picking the right mediator is crucial, but having the right attorney is even more important.  An experienced trial attorney will have the experience to value your case, and to make the most effective use of the mediation process to get the other side to pay the most money they are willing to offer, and not take the risk of undervaluing your case.

Considering that most cases settle before trial, and many of those settle in mediations, it is important to choose the right attorney to handle your case in order to ensure your case is worked to get you the full compensation you deserve.

Do you regard your fellow employees as your friends?  Do you chat with them during the workday regarding details of your personal life?  Do you sometimes socialize with them after work and talk about personal matters?

If so, consider changing your habits and keeping your private information private.  Why?  It’s certainly desirable to be friendly with your co-workers.  A harmonious workplace is certainly more pleasant and productive than an acrimonious one.

Yet, personal information that you share with your co-employees can come back to haunt you if you are fired.  Suppose that you share details of stormy times in your marriage with your co-workers or, worse yet, with your supervisors.  Then suppose you are sexually harassed in the workplace.  You report the harassment and the company fires you a short time later, purportedly for “poor performance.”

You bring a claim for harassment and retaliatory discharge against your employer, claiming emotional distress as an element of your damages.

Your employer will almost certainly use the information that you shared about your domestic discord against you in at least two (2) ways.  First, the employer will claim that you were unproductive and a “poor performer” in the workplace because you spent so much time talking about your personal problems.  Second, your employer will claim that whatever emotional distress you claim stems from your marital problems, not from the alleged sexual harassment.

Keeping private information private when you are in the company of your co-workers guards against the danger that your employer may someday use as a weapon against you the confidences that you shared.

You know you are about to be fired for doing the right thing, or because you complained about sexual harassment.  You have emails or memos from your boss or co-workers which you know will prove the truth of your allegations.  Can you take them with you if you are fired or when you quit after the retaliation becomes too much for you to endure?

The answer, of course, is that it depends.  The wisdom of taking materials you obtained or where given access to through your employment, so that they might be used in a lawsuit, varies with the circumstances.  If your employer has a policy prohibiting taking work-related materials home with you, or using them for any non-work-related purpose, then sending e-mails home or taking documents with you on the way out may have a negative impact on your case.

When there is a policy against personal use or removal of work-related material, and your employer discovers in the course of your lawsuit that you removed work-related materials from your employer’s premises, it is sometimes possible for the employer to effectively “re-fire” you even after you have left their employment, for violating a company policy.  In those cases where this rule (which is termed the “after-acquired evidence rule”) is applicable, your former employer may be able to use it against you to substantially limit your ability to recover certain damages, particularly lost wages and benefits.

Therefore, if you know your employment situation is looking bleak due to sexual harassment, illegal discrimination, or retaliation for your doing the right thing, you should contact a trustworthy employment lawyer with real trial experience.  One of the things you should discuss, if possible, before you resign or before your employer has a chance to terminate you, is whether to make copies of e-mails and other documents that might help your case.

A physician running a clinic with approximately 25 employees apparently enjoyed telling dirty jokes and commenting on female body parts during the work day. One of the staff physicians, who was pregnant, did not appreciate the doctor’s continual obsession with breasts, breast feeding, etc. The doctor called himself a shock jock and, therefore, assumed because everyone involved was in the medical profession that somehow the normal requirements for dealing with human anatomy allowed him wider verbal leeway. Not so said a Federal Appeals Court.

On the other hand, a woman who was transferred from an environment within a company where the men were constantly streaming sexual comments and threats at her ended up in a department where the rhetoric was dramatically different and not offensive. Unfortunately, she waited too long to complain about the prior department she worked in and she missed the time limits under the law. The comments she did timely complain about were one employee talking on the phone about “chickies” and a sleepover with a woman. The court held that those comments were too trivial to support a hostile work environment sexual harassment case.

That is why you need to contact employment lawyers who represent employees if you are in an offensive environment. If you are unsure of your rights, feel free to contact us.

From 1990 to 2009, the percentage of sexual harassment claims filed by men has doubled from 8% to 16% of all claims filed with the federal Equal Employment Opportunity Commission (EEOC).

Women still file the overwhelming majority of sexual harassment claims with the EEOC. “It’s certainly possible that there’s more sexual harassment of men going on, but it could just be that more men are coming forward and complaining about it” said one EEOC staff lawyer.

While some cases allege harassment by female supervisors or co-workers, most charges involve men harassing other men. Sometimes it’s unwelcome romantic advances. Other times, men are picked on because of their sexual orientation, perceived as being gay or not considered masculine enough for the work setting. “If you don’t fit the masculine stereotype or are viewed as effeminate, you get picked on in a sexual way to demean you” said an employment consultant.

Our employment law firm still sees most cases involving women but likewise has more cases involving men than we did just a few years ago.