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What is Workplace Harassment?

There is a lot of misunderstanding as to what “workplace harassment” is. Specifically, we need to ask, what illegal workplace harassment is. The reality is that there is a lot of harassment in the workplace that is perfectly legal. Stated otherwise: In “at will” states such as Pennsylvania you can harass an employee for no […]

There is a lot of misunderstanding as to what “workplace harassment” is. Specifically, we need to ask, what illegal workplace harassment is. The reality is that there is a lot of harassment in the workplace that is perfectly legal. Stated otherwise: In “at will” states such as Pennsylvania you can harass an employee for no reason or any reason except an illegal reason. What is illegal harassment, therefore?

Harassment in the workplace is sometimes called “a hostile work environment” and is properly characterized as a form of discrimination. It is this “discrimination” component which differentiates illegal harassment from harassment which is not covered by the law. Since illegal harassment or hostile work environment is linked to discrimination, it must, therefore, relate to a federal or state law making the discrimination at issue illegal. To discriminate means to treat unequally- but if I harass or even fire my secretary “unequally” and unfairly because she is a Cowboys fan and the other secretaries are Eagles fans, this type of unequal treatment is not actionable. What are the laws therefore upon which a harassment claim may be based? The main ones are the Civil Rights Act of 1964 and Civil Rights Act of 1991 (Title VII), which prohibits employment discrimination based on race, color, sex, religion and national origin; The ADEA, age discrimination act; and the ADA, which prohibits disability discrimination. Recently “sex” has been interpreted to include sexual preference and sexual orientation as well. In Pennsylvania, the PHRA mirrors the above federal protections in many ways.

What conduct constitutes harassment? Unlawful harassment based on the above laws is: a) offensive and unwelcome conduct; which is b) severe OR pervasive. In addition, retaliation for a person complaining, filing a Charge, reporting or participating in an investigation of harassment under the above laws, is prohibited. “Severe” can be one very serious incident, and “pervasive” can be a series of continuous less severe insults, threats, slurs, offensive statements and the like. No single factor will determine whether there is unlawful harassment or hostile work environment; however, the courts and the EEOC regulations have focused on whether the harassment “unreasonably interferes with the employees’ work performance.” Harassment itself is a harm punishable by the law without the need of economic damage such as from a demotion or firing.

When is an employer liable? The short answer is that an employer is most at risk for the acts of its supervisors. An employer is liable for the authorized acts of its supervising employees. This, however, provides an easy escape for employers who simply state that “harassment and discrimination are never authorized.” Accordingly, the Supreme Court in the 1998 cases of Farragher and Ellerth, stated that an employer is strictly liable for supervisor’s harassment if the harassment causes termination, failure to promote or hire or loss of wages-what is called a “tangible employment action.” For harassment, by non-supervisors, the employer is liable if it knew or should have known about the harassment and failed to take prompt and corrective remedial action. A defense for the employer is to show that the employee failed to take advantage of preventive or corrective opportunities provided by the employer.

What can employers do to prevent such claims? Employers can: 1. Prevent harassment by having appropriate and enforced policies and well trained and sensitive HR staff. Training and education of employees are critical. 2. Employers can conduct a proper and effective investigation of the allegations of harassment. The investigation must be thorough, non-retaliatory, prompt, effective and impartial.

To prevent illegal harassment there needs to be a clear understanding of what it is, how it is proven and the circumstances under which employers may be held liable. Whether an employer or employee, this area of the law is very complex and therefore consultation with experienced HR counsel at the earliest opportunity is critical.

 

For over 25 years Attorney Kounoupis has represented employees and sued most of the Fortune 500 corporations, insurance companies, as well as federal, state and county governments. If your top managers and executives have not yet secretly consulted with him, they probably will in the future.

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an-ounce-of-prevention

An Ounce of Prevention: A Plaintiff Employment Lawyer’s Sincere Advice to HR

For over 25 years Attorney Kounoupis has represented employees and sued most of the Fortune 500 corporations, insurance companies, as well as federal, state and county governments. If your top managers and executives have not yet secretly consulted with him, they probably will in the future. Human resources issues are highly prevalent in the business […]

For over 25 years Attorney Kounoupis has represented employees and sued most of the Fortune 500 corporations, insurance companies, as well as federal, state and county governments. If your top managers and executives have not yet secretly consulted with him, they probably will in the future.

Human resources issues are highly prevalent in the business environment, and thus there is a steady barrage of HR seminars and conferences. Knowledge of the laws and regulations is easier than ever with such consultants and online resources. However longer, wisdom in the area of HR is harder to acquire.

In this vein, therefore, allow me some general observations gained from a valuable perspective: that of a 30-year plaintiff employment lawyer-for practical purposes the “adversary” (although we should all be interested solely in obtaining fairness and justice in the workplace).

We can begin with the question of who comes to see me? Employees, of all ranks, come to see me, “chiefs, cooks, and bottle washers” and in all protected categories: age, gender, race, ethnicity, religion, disability, sexual preference, whistleblowers, etc.… As varied as they may be, they all mainly have one unifying characteristic: They feel disrespected. You can spot the employee who will cause “a problem” by seeing who feels profoundly disrespected.

When do employees come to see me? It is useful to note that they often come when they are threatened, disciplined, fearful, angry- long before they are fired. Accordingly, in such cases, HR managers should be mindful that there is a high chance of a retaliation or hostile work environment case being filed since behind the employee’s interactions there is the watchful eye of counsel and counsel’s guidance.

he best advice in my experience is holistic. It comes from understanding that for most employees a job is not just a paycheck but also a source of dignity and self-esteem. They must be able to go home and look their family in the eye. Most long-time, employees feel they have provided loyalty and claim a deep sense of betrayal when disrespected, treated unfairly or bullied. (“I missed my kids’ birthdays for this!”). In my view, the best and most effective HR manager does not focus only on what is legal but humanizes the workplace. This type of HR professional is very valuable and a formidable opponent to the Plaintiffs lawyer in litigation and in front of the jury. Such an HR professional has avoided the pitfalls of threats, bullying, and abuse of power and has acted with sensitivity and respect for the human element. Rather than using organizational power to beat down and intimidate employees, there is a use of such power sparingly to raise consciousness and bring out the better natures of employees.

A sensitivity to the human element also picks up problems early. In most cases, potential victims signal their dissatisfaction early, and harassment will frequently test their boundaries before committing a violative act.

On a more practical level, of course, HR managers cannot get by solely by humanizing the workplace- they must also know the law. They must know how to communicate their knowledge of the workplace law as it applies to real life situations. They must know how to conduct a timely and reasonable investigation. For example, some concepts, such as when is “offensive to a reasonable woman” can most effectively be taught by skits and real-life vignettes and examples of such situations.

In terms of HR, most commonly observed pitfalls I would mention: lying, covering up, bullying, exaggerating discipline and not understanding what retaliation is, improperly applied “PIP’s.” Common legal errors and misconceptions include: not realizing how to jointly apply ADA/FMLA; not understanding ADA’s interactive process or “regarded as” ADA violations; not understanding gender discrimination vs. sexual harassment; thinking severe and persuasive for hostile work environment rather than or; not understanding the “reasonable woman” standard; not understanding the scope of circumstantial evidence of causation in such cases; not understanding stereotype evidence; not understanding how sexual preference cases can be brought- and other numerous areas of confusion.

Ultimately, if things degenerate to the worst conclusion potentially for all, what resonates with juries are three themes in employment cases: respect, responsibility, and use or abuse of power. In conclusion, human beings do not evolve at the same rate as technology, and so there will be continuing conflicts in the workplace caused by emotions and human weaknesses, ego, desires, prejudices, and lusts. Complex HR issues and conflicts will persist in the workplace where adults spend a great part of their life, and as a result, great care sensitivity and training is required.

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Open-the-Door

Opening the Door

Off the coast of the Peloponnese in southern Greece, a small island mourns.  It has lost one of its favorite sons who, while adopted, loved the island as much as it loved him.  And so this November 2016, Hydra Island mourns the great Leonard Cohen. It was my great pleasure and honor to have represented […]

Off the coast of the Peloponnese in southern Greece, a small island mourns.  It has lost one of its favorite sons who, while adopted, loved the island as much as it loved him.  And so this November 2016, Hydra Island mourns the great Leonard Cohen.

It was my great pleasure and honor to have represented Leonard Cohen and his family for several years with regard to legal matters in Greece, including his beloved house on Hydra Island.  Even now, after his death, “Cohenites” from around the world plan their annual weekend gathering on the island to celebrate his music and writings. Mr. Cohen’s enduring love for his house in Hydra Greece led me to reflect on my experience in owning a summer home in Greece.

I am fortunate to have a small home in the southern Peloponnese, nestled in olive groves and overlooking the blue Aegean. In front of my balcony is the crystal blue sea Odysseus sailed on and behind me the orange grove covered plain of Sparta. I hesitated to buy it until a good friend asked me,” What price do you put on the memories you will make with your family there?”  Also, I was moved by author Frances Mayes, after reading her book Under the Tuscan Sun, about her buying an old villa in Tuscany, in which she stressed the value of being in a place where you “walk out of your footprint.”  I have met Frances Mayes, and she gushed about how much she loved the Peloponnese region of Greece.   For Leonard Cohen, his home in Hydra Greece (off the coast of the Peloponnese), was the driving force of his creativity and inspiration.  For me, a lesser mortal, the house in Greece regenerates and revives my spirit so that I am psychically able to continue to practice law – often an extremely toxic occupation.  It is the medicine of the highest order.  Sometimes in life, we need to dare to open a new door.  Cohen valued his Greek house due to its essential “otherness” – and so do I.

And so, in 1960, Leonard Cohen was struggling to write novels, books, poems and lyrics. Exhausted, drained and desperate for inspiration, he found himself wandering the gray and rainy streets of London.  He saw the door of a branch office of the Bank of Greece and decided to go inside. Seeing the tanned clerks, he asked about the weather in Greece.  He had never been to Greece.  Upon hearing what the weather was like, he left for Greece two days later.

After arriving in the port city of Pireaus, he took a ferry to Hydra, a beautiful Greek island in the Saronic group of islands, which even today bans motor cars and motorcycles.  He discovered many artists in Hydra, including American, British and Australian writers and poets.  He spotted a house on a hill overlooking the Port of Hydra.  It was an old, traditional sea captain’s house built in the 1800’s.  With $1,500 in inheritance money from his grandmother, Cohen purchased the house.  Cohen often said that this purchase in 1960 was the best decision he ever made.  As his lawyer, more than half a century later, I can attest to that fact from a financial investment viewpoint.  However, Cohen, I know, was not reflecting on the financial return of his Hydra home.  He was reflecting on the priceless gift of sunlight, inspiration, and renewal.

It is not the easiest thing to purchase a house in a foreign country.  Even for me, a lawyer also licensed in Greece, there was red tape and tribulations.  Additionally, accessibility can be an issue for some homes overseas, although the world is getting smaller every year.

There may be currency fluctuations against the Dollar or the real estate values may plummet (as they have in Greece due to the crisis). In addition to the legal and building permit and zoning bureaucracy and uncertainty, local contractors and workers may not respect contracts or quotes leading to protracted litigation that can last for years. In Greece for example, there is no title insurance and a legal title dispute can take ten years in the courts. “Caveat emptor” is the rule and I will say, in a self-serving fashion, local trusted legal counsel is a must. On the other hand, local real estate taxes(if any)often are a fraction of the taxes on a summer home, say, in Florida or the New Jersey shore.

And so Leonard Cohen became at home with the rhythm of the small Greek island, its coffee houses, the markets, the fishing boats and the donkeys carting vegetables and fruits for sale. Ever present in Hydra in the 50’s and 60’s was a bohemian and diverse assemblage of actors, poets, musicians and painters including Sophia Loren, Alan Ladd, Melina Mercouri, Tony Perkins, Mick Jagger, Keith Richards, Joan Collins, Richard Burton and Michael Cacoyianis (of Zorba fame). Cohen immersed himself in the creative process on his sun- filled terrace overlooking the sea, finding his creative fuel and drive. He fell in love with his muse in Hydra and often said that the livable pace and tranquility of the island “made cities less frightening”. One day he was upset to see telephone poles and wires outside his window. He was distraught at this encroachment of civilization until he saw that birds came to the wires. This scene inspired him to write “Bird on the Wire.”  “Like a bird on the wire …I have tried in my way to be free”.

This Summer I will visit Hydra and like hundreds of others lay a wreath at the door of Leonard’s house. It is now owned by his also talented son Adam and his daughter Lorca. What is the value of owning a home in a foreign land?  The place itself can become the poetry of your life.  In return for the headaches, you may find your soul. In the end, few have said it better than Leonard Cohen in “Hallelujah”:

I did my best, it wasn’t much
I couldn’t feel, so I tried to touch
I’ve told the truth, I didn’t come to fool you
And even though it all went wrong
I’ll stand before the Lord of Song
With nothing on my tongue but Hallelujah.

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A Greek Tragedy

This is a true story. The red-haired middle-aged man who showed up in my office was highly distraught. I will call him Carl. He spoke with a British accent. He told me that he was a stockbroker who until recently lived in a beautiful condominium in Jersey City overlooking the NY City skyline, with his […]

This is a true story. The red-haired middle-aged man who showed up in my office was highly distraught. I will call him Carl. He spoke with a British accent. He told me that he was a stockbroker who until recently lived in a beautiful condominium in Jersey City overlooking the NY City skyline, with his wife and son, a six-year-old boy. His hands shook as he showed me a picture of him walking with his young son in the park and playing with action figures, Elmo and Thomas the train. He had not seen his son, Andrew in three months. The last time he saw him he had watched him eat his breakfast cereal before going to his job in New York City. His wife, Katerina, had said that she would take Andrew shopping that day. When he came home from work his son’s clothes and his wife’s clothes were gone as well as his wife’s personal items.

Carl had met Katerina, a beautiful Greek brunette on the internet and had traveled to Greece to marry her and eventually brought her to the United States. He paid for her to get her Associate’s Degree in Psychology and she had just gotten her degree when she disappeared. Katerina, he had found out, was prone to explosions of rage and had become obsessed with Wicca and the occult as well as Cabala. He held on, however, because of his love for his baby boy, Andrew who was his entire life.

Through hiring a detective in Greece, we found out that Katerina had taken the child to Greece and had moved in with her parents in Athens. We told Carl, who by this time was increasingly despondent and crushed by fearing that his son was losing touch with and forgetting his father. He missed him terribly, spending his days thinking about what they did together. He took a leave of absence from his job due to depression.

I took this case personally. I could not imagine not being with or seeing my kids for any such length of time. As the ABA Liaison to Greece and as a US and Greek lawyer, I had handled such cases before but never one with such emotion. Attempts to contact the mother both by our client and us were met with slammed doors and hung up phone calls. We decided that we needed to take action. We filed a Petition under The Hague Convention on the Civil Aspects of International Child Abduction with the US Department of State, Office of Children’s issues. This Hague Convention basically says that a parent cannot take a child away from his habitual residence to another country. Any custody disputes must be determined by the court where the child was last living with both parents – in this case Jersey City. Our Petition was transmitted by the US State Department to the Greek Ministry of Justice which appointed a Ministry lawyer to commence proceedings in Greece against the mother.

We met with the Ministry lawyer in Athens, a wonderful and sympathetic woman, who explained that the Ministry lawyers’ role in these cases was formal and that the father’s lawyers would have to intervene in the case and actually try the case. We did this and I and my Greek legal partners began to prepare for the case. In the meantime, the Greek court ordered that our client, Carl, could see his son – which he did under the hateful glare of the mother and her family. He was devastated to discover that the child had started to forget him and had become fearful of him. Trial in Greece was set 4 months after our initial Hague Petition.

During this time, our client received anonymous, dire warnings, satanic messages, Wicca symbols and death threats. They warned him that if he proceeds in this course he would be ruined. We brought these to the attention of the court but there was no proof that Katerina sent them. (However, we saw that these pentagrams matched her earliest drawings). In the week before the trial, our client’s parents flew in from the UK to support their son and concerned that they would never be able to see their grandchild. Carl had been in Greece preparing with us for a week before the trial and had been a mess in his hotel room every time we saw him. We also heard that the wife’s father, a Greek General, would appear at the trial to intimidate us and perhaps influence the judge. We also heard that Katerina had retained a famous Greek “celebrity” lawyer – the “F. Lee Bailey” of Greece, as her attorney. She was determined to keep the child in Greece at all costs. We all realized, as did Carl reluctantly, that all along she had planned to use him to pay for her education in the US and that she never wanted to live in the US. We found out that she had been seeing a boyfriend in Greece for some time – maybe even during the marriage.

On the day of trial, tension ran high but we were prepared. Katerina claimed that Carl took drugs but we had blood tests and hair sample tests for several months previously showing he was drug free. She said he drank and was abusive but we had witnesses and affidavits that he did not drink. She said that the US home was unfit for living – but we had photographs of the beautiful condominium. She said he was a bad father but we had dozens of photographs of Carl with his son showing his obvious love for his son. We had Affidavits from friends and pre-school staff. She questioned that he supported the family properly but we had Affidavits from his employers that he had a promising career and a steady job. The General blustered that his daughter was intimidated and bullied by Carl and the Greek celebrity lawyer tried to impeach him (claiming that he had evicted his wife) but all these claims were proven to be lies.

One month after the Hearing, the Greek judge ruled in our favor ordering that the child had to be returned to Jersey City for a custody hearing there. We were overjoyed but a new problem surfaced. Under the former law the court constables and the police were authorized to break in and seize the child. The law had changed because this was deemed psychologically detrimental to the children. Therefore, enforcement proceedings had to be filed to impose contempt charges and fines on the offending parent who did not turn over the child. It was clear that the Greek legal bureaucracy was completely confused as to how to enforce this Order – as is often the case in Greece (and which legal bureaucracy had been a main cause in Greece’s financial problems).

Months passed while we tried to work out how to enforce the Athens Court order and actually take possession of the child. One ministry and government lawyer referred us to another lawyer for the police department. Then there were other lawyers involved for the civil court and another lawyer for the justice ministry and another lawyer for the constables.
One terrible morning, I walked into my US office to find my secretary looking pale and shocked. Carl’s parents had called. Carl had committed suicide. He was found suffocated, his head wrapped in a plastic bag. He could not wait anymore and his depression got the better of him. Perhaps the black magic of Katerina worked.

It has been years and I have not yet recovered. Justice delayed is indeed justice denied. This experience, more than any other, has led me to try to reform the Greek legal system so that predictable and efficient justice can be rendered. In today’s global economy and interconnected world stories such as Carl’s are becoming more common. International law is more critical than ever whether it be on terrorism or refugees or privacy. That, however, is another story. For now, I have to live with the fact that I was not able to get justice for Carl nor was I able to give Andrew the priceless gift of a great father.

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