This week I want to tell you about a case that just might have something for everyone. The Federal Housing Finance Agency is facing the following allegations: a) sexual harassment by the Director; b) Equal Pay violations; c) retaliation; and d) recordings that reportedly support these allegations. Yowsa! I know in my head that these things happen all the time. Yet I continue to be amazed, that in light of federal and state laws addressing these issues, that: a) they continue to occur; and b) that many continue to be so blatant about it. The case is Grimes v. Federal Housing Finance Agency. While the Agency may not be in a good place (assuming these allegations to be true) we, as always can learn a lot, so let’s get to it…
Here’s what went down: Simone Grimes worked for the FHFA in 2015 filling 2 jobs– one that was hers and another to which she was promoted. The first problem: she didn’t receive the increase promised to her for the second job. The second problem: Her predecessor in the new job, a man, was paid more than she was (and he was only doing one job, not two). She was told that the Director needed to sign off on the increase. The next problem: Shortly after Ms. Grimes asked the Director, Melvin Watt, to sign off on the increase, he approached her at work functions to tell her he believed there was an attraction between them that needed to be explored. Ms. Grimes continued to ask for the increase. She pointed out that she was paid 70 cents per dollar compared to her predecessor. The Agency kept telling her that the decision was Watt’s.
In November 2016 Watts asked Ms. Grimes to meet. The problem here: Watts insisted that the meeting be at his home. Ms. Grimes reluctantly agreed. Watts allegedly told Ms. Grimes at that meeting that “I’m guilty of having an attraction to you, that is true,” and, “So it makes me more conscious not to leave some impression.” He allegedly mentioned opportunities for higher pay, and senior positions, and that he had the power to grant her what she wanted. According to Ms. Grimes, Watts continued to make comments about her looks and her attire and make advances to her. Here’s the possible clincher though: Unbeknownst to Watts, Ms. Grimes used her cell phone to record many of these conversations, including the November 2016 meeting at his home. Ms. Grimes filed a charge in May with the EEOC and on Monday filed a lawsuit, alleging Equal Pay violations, harassment and retaliation.
Before I talk about the harassment, retaliation, and Equal Pay issues, I am expecting that at least one of you is thinking, “Wait a minute. Isn’t it illegal to record conversations?” Alternatively, can an employer forbid recordings? The answer to the first question is “It depends…” A participant in a conversation can record it if the State where it occurs is a one-party consent state. In such states as long as one party to the conversation consents to the recording it’s legal. This conversation took place in Washington, D.C., which, as you might have guessed, has a one-party consent rule.
Can you ban recordings in the workplace? In theory, yes, but only pursuant to a narrowly tailored policy that advances or protects legitimate business interests (e.g. preserving confidentiality of proprietary information), and only if it doesn’t violate specific employee rights. Speaking of which: the NLRB takes the position that a blanket recording ban violates an employee’s rights under Section 7 of the NLRA to engage in concerted activity “for the purpose of collective bargaining… or mutual aid or protection” (i.e. discussing and aiming to improve work conditions). There is no indication that the Agency had any such prohibition, and, if it did, Ms. Grimes might well be able to argue that the recording was meant to help not only herself but others (that would depend on a very fact-specific analysis). There’s also the question of whether such a ban would include the meeting at Watt’s home, since it clearly was not the workplace.
What is the basis for Ms. Grimes’ retaliation claims? Interestingly, in her complaint, she argues that the harassment, having occurred after she asked for her pay to match that of her male predecessor, was and is retaliation. (Did I mention that Ms. Grimes not only still works at the agency, but also is still reporting to the people she alleges have had involvement in this entire scenario?)
Assuming all the allegations to be true, and assuming the recordings bear them out, do I need to say much more about harassment and pay discrimination? Why don’t we just move on to the takeaways, hm?
- As soon as you know or have reason to know of a pay discrepancy, either fix it or, make sure you have a really, really good reason for the discrepancy and document it;
- This should go without saying, but apparently it needs to be said: keep your emotions in check. If an employee is asking for something work-related that is reasonable, grant it or document your justification for not granting it–and don’t tie it in with a romantic relationship;
- This too should go without saying: keep work-related issues at work. Avoid meetings alone with employees at home or in secluded places;
- Re-visit any policies prohibiting recordings at work. May sure they advance or protect legitimate business interests and that they are narrowly tailored to protect those interests.
- Monitor compliance with any anti-discrimination and harassment policies;
- Ensure that employees can make complaints or reports about alleged discrimination, harassment or misconduct in confidence and without experiencing retaliation;
- Talk and listen to employees about workplace issues and take their concerns seriously. These last 3 points will go a long way toward ensuring that your policies and training are actually effective.
I’d say we have enough to mull over for now. See you next week!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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