Lust Not Required For Sexual Harassment
The Department of the Army lost its argument that its supervisor could not have sexually harassed his subordinate because he was not sexually attracted to her. Civilian employee Ruth Rosario alleged that her Army supervisor teased her about her panties every day for more than a year. He mocked her. He made faces behind her back — even while she spoke with customers. He threw her food in the trash. He complained about her family pictures and the way she walked and talked. He called other males together to look, point and laugh at Rosario’s underwear. He called her fat and said she dressed like a “woman of the streets.”
Ms. Rosario complained to the Army, but the harassment continued. Eventually she became depressed, started losing her hair, had panic attacks, and was hospitalized. She asserted that she lost her marriage due to the situation at work. Ms. Rosario eventually filed a lawsuit alleging sexual harassment. The trial court found that the supervisor was “rude” and “lacked courtesy” and “professionalism.” However, it threw out her case because it ruled the conduct was not severe or abusive enough to constitute a hostile work environment based on sex.
Ms. Rosario appealed. This month the Court of Appeals in Boston ruled that she could proceed with her case, see Rosario v. The Department of the Army, et al. The Appeals Court rejected the Army’s defense that Ms. Rosario had no case because no one made any sexual advances toward her or said he was sexually interested in her. Quoting the U.S. Supreme Court, the Court ruled: “Harassing conduct need not be motivated by sexual desire to support” a sexual harassment claim, see Oncale v. Sundowner Offshore Services, Inc., et al (available online at http://www.law.cornell.edu/supct/html/96-568.ZS.html). Ms. Rosario had proof that she was subjected to constant harassment over an extended period. The supervisor’s comments about her panties and his references to her as a “women of the streets” could support the necessary finding that his behavior was sex-based. The case now goes back to the trial court for a jury to decide.
Department of Labor Issues Five-Page Opinion Defining “Clothes”
On June 16, 2010, the Department of Labor’s Wage and Hour Division issued an interpretation regarding the definition of clothes under an exemption in the Fair Labor Standards Act (FLSA). The interpretation also addresses whether “donning” (putting on) clothes at the beginning of a work shift starts the computation of when employees must be paid.
Section 3(o) of the FLSA provides that “changing clothes or washing at the beginning or end of each workday” is excluded from time that must be paid if the time is excluded pursuant to “the express terms or by custom or practice” under a union contract. During the Bush administration, the Wage and Hour Division had issued interpretations that personal protective equipment (PPE) — such as mesh gloves, rubber boots, shin guards, and weight belts — could be considered clothes under this exemption. Therefore, time spent “donning and doffing” (putting on and taking off) such PPE could be excluded from compensable time under a union contract, custom, or practice.
The Wage and Hour administrator’s new interpretation (available online at http://www.dol.gov/whd/opinion/adminIntrprtn/FLSA/2010/FLSAAI2010_2.htm) states that this exemption does not extend to equipment worn by employees that is required to be worn by law, by the employer, or due to the nature of the job. In other words, PPE is not clothes for the exemption; and time spent putting it on or taking it off must be paid even if a union contract, custom, or practice would otherwise exclude that time from being paid. The administrator further states that the donning of clothes at the beginning of a work shift, even under the Section 3(o) exemption, can be a “principal activity” under the FLSA, which makes later activities, including walking to a work station or even waiting to start work, compensable.
For non-union employers, the exemption under FLSA Section 3(o) was never available, so the new interpretation on this issue is not significant to them. For unionized employers, the new interpretation is consistent with most court decisions, which did not agree with the previous interpretations. For all employers, however, the administrator’s additional interpretation that the donning of clothes at the start of a work shift can be a principal activity that starts the compensation clock ticking is significant and will likely become the more important aspect of this interpretation in the years ahead.
Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or any of the following individuals:
Authors
Michael C. Lueder
Milwaukee, Wisconsin
414.297.5643
[email protected]
Lawrence T. Lynch
Milwaukee, Wisconsin
414.297.5824
[email protected]
