 |
| A hyperflexing wristlock used as a pain compliance technique. (Photo credit: Wikipedia) |
https://order.businessmanagementdaily.com/webinar/tcnf.html?campaigncode=535EBMDT&cigx=d.nac,stid.17237,sid.268172,lid.452,mid.12640
Wednesday, October 31, 2012
Webinar: I-9 Compliance Workshop
https://order.businessmanagementdaily.com/webinar/tcnf.html?campaigncode=535EBMDT&cigx=d.nac,stid.17237,sid.268172,lid.452,mid.12640
Race is tied but the smart money is on Obama
 |
| Official photographic portrait of US President Barack Obama (born 4 August 1961; assumed office 20 January 2009) (Photo credit: Wikipedia) |
More: http://www.reuters.com/article/2012/10/30/us-usa-campaign-poll-idUSBRE89K0A920121030
Guest article: 10 phone apps that are supposed to help you discipline your kiddies
 |
| LONDON, ENGLAND - JANUARY 06: In this photo illustration, a computer in a coffee shop displays onscreen the new Apple App store launched today on January 6, 2011 in London, England. The site hopes to transfer the success of its iPhone app store to desktop and laptop computers. (Image credit: Getty Images via @daylife) |
More: http://www.findananny.net/blog/10-iphone-apps-that-help-with-discipline/
Supremes go to the dogs today
 |
| BERLIN - NOVEMBER 19: An german policeman pass after examining with a police dog a dustbin in front of the entrance to the main station on November 19, 2010 in Berlin, Germany. Germany's interior minister Thomas de Maiziere has announced on Wednesday that security is being stepped up at airports and train stations across Germany. De Maiziere told media in Berlin that the move came in light of concrete information received, indicating that a terrorist attack was being planned for the end of November in Germany. (Image credit: Getty Images via @daylife) |
http://verdict.justia.com/2012/10/31/the-u-s-supreme-court-considers-dog-sniffs-and-the-fourth-amendment
Tuesday, October 30, 2012
Sex harasser banned from the grocery store by Second Circuit Court of Appeals
 |
| Seal of the United States Equal Employment Opportunity Commission. (Photo credit: Wikipedia) |
--- F.3d ----, 2012 WL 5072602
C.A.2 (N.Y.),2012.
October 19, 2012
Before KATZMANN, WESLEY and LYNCH, Circuit Judges.
PER CURIAM:
*1 This case requires us to determine whether a district court abuses its discretion where, in the face of egregious acts of sexual harassment perpetuated by a single employee, it declines to order injunctive relief directed toward ensuring that that individual is no longer in a position to continue his harassing conduct. We conclude that it does.
BACKGROUND
After a two-week trial, pursuant to a Complaint brought by Plaintiff–Appellant the Equal Employment Opportunity Commission (“EEOC”), a jury returned a verdict finding that Defendant–Appellee KarenKim, Inc. (“KarenKim”), a grocery store operating in Oswego, New York under the name Paul's Big M Grocery, had: (1) subjected a class of female employees to a sexually hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.(“Title VII”), and (2) sexually harassed the Plaintiffs–Intervenors Andrea Bradford, Judith Goodrich, and Deborah Haskins, in violation of Title VII and New York State law. The jury awarded both compensatory and punitive damages to a class of ten individuals who it found had been victimized by KarenKim and its former employee, Allen Manwaring.
The following facts were adduced at trial, and are undisputed for purposes of the instant appeal. KarenKim is owned and managed by Karen Connors. In January 2001, KarenKim hired Allen Manwaring, who was then in his mid–30s, as Store Manager. Within months, he and Connors became “romantically involved.” App. 1851. They have been engaged since 2006 and have a young son together. Manwaring is now in his mid-forties.
At trial, a number of current and former KarenKim employees testified that Manwaring repeatedly subjected them to both verbal and physical sexual harassment. The verbal harassment consisted mainly of sexual comments, questions, and innuendos. Emily Anderson, for example, testified that soon after she began working at KarenKim, when she was 16 years old, Manwaring began commenting on her appearance in sexually explicit terms. She also stated that Manwaring had insinuated that he would like to engage in a sexual relationship with Anderson and her mother. Similarly, Anna Miller, also age 16 when she started at KarenKim, testified that Manwaring would make comments of a sexual nature to her on a daily basis and compliment parts of her body. He also told her that if he were her boyfriend, he would never “let [her] out of his sheets” and commented that, “if he was 10 years younger, he would be on top of [her].” Id. at 1013–14, 1026. In another example, Andrea Bradford testified that Manwaring had discussed his sexual frustrations with her, and then commented that one day he would “pick [her] up” and engage in sexual relations with her. Id. at 885.
As to physical harassment, several witnesses testified that Manwaring would regularly touch, massage, and engage in other inappropriate conduct with teenaged female KarenKim employees. For example, Anna Miller said that when she was working alone in the front office, Manwaring would come in and deliberately brush her breast with his arms, come up behind her and put his crotch against her buttocks and whisper in her ear or breathe on her neck, put his hands on her hips and squeeze, rub her shoulders, put his arm around her and hug, or walk by so closely that his hand would brush her buttocks. Similarly, Emily Anderson testified that Manwaring touched her almost every time he found her alone by massaging her shoulders, touching the back of her hair, and rubbing her thigh. As another example, Abigail Murray said that when Manwaring spoke to her, he would often stand “really close,” put his hand on her shoulder, and “lean in,” invading her “personal space bubble” and causing her to “cringe away.” Id. at 393. Rachel Johnson echoed this testimony, stating that, when speaking to her, Manwaring would stand very close with his arm bent and a hand on her shoulder, and pull her closer until they were face to face. Similarly, Amanda Cole testified that Manwaring would “squeeze” in behind her in the tiny alcove by the cash register and “press” against her, “body to body almost.” Id. at 621–22.
*2 Manwaring's conduct did not go unnoticed. Former KarenKim Manager Carol Akers asserted that “[p]retty often, ... maybe at least twice a week,” she saw Manwaring “[g]iving [female employees] hugs, ... standing behind them, giving them a back rub, putting his hands on their shoulders.” Id. at 224. Amanda Cole testified that she often discussed Manwaring's conduct with other employees, stating that it was “chattered about on a daily regular basis.” Id. at 632. She stopped participating in such conversations, however, after Manwaring called her into the stock room and confronted her about “rumors that he heard that [she] was spreading ... about him sexually harassing employees,” adding that she was “lucky that he didn't fire [her] right then and there.” Id. at 637–38. Afraid she would be terminated from her first job, she started crying. Manwaring then hugged her, kissed her on the cheek, and whispered in her ear that “if he was gonna sexually harass anybody, it would be [her].” Id. at 638.
KarenKim had no anti-harassment policy until mid–2007, and did not have a formal complaint procedure until after the trial in this action. Nevertheless, several KarenKim employees complained to their supervisors about Manwaring's conduct. The first to do so, Angela Hamlin, complained to her manager, Carol Akers, that Manwaring had touched her inappropriately and had asked her questions of a sexual nature, such as how much she charged for sexual acts. Shortly thereafter, Hamlin was terminated for absenteeism. Several other witnesses testified that they had complained about Manwaring's conduct. For example, Emily Anderson testified that she complained to KarenKim Manager Marlene Davis because Manwaring had told another employee that he wanted to engage in sexual relations with Anderson. However, according to Anderson, Davis had hurried away and did not follow-up on the conversation as she had promised. In addition, Akers testified that Anna Miller complained to her and Davis that Manwaring had told Miller that she was “so pretty and young” that anyone would want to “sleep with” her. Id. at 244. In response, Akers and Davis confronted Manwaring, telling him that he probably “just didn't realize ... that certain things are inappropriate.” Id. at 245.
Akers testified that she had reported complaints of sexual harassment to Connors. In addition, Lorraine Warren said that she complained to Connors at her parents' urging after Manwaring pulled up her underwear and made sexual comments as she bent over to stock the deli. Thereafter, Warren met with Connors and Manwaring, at which point Manwaring accused Warren of making up the story. Warren was then fired. Bradford also testified that she and several other employees approached Connors in her office and described specific incidents in which Manwaring had engaged in sexual harassment. Connor responded by crying and initially appeared to believe Bradford and her companions, but later decided that the complaints were unfounded. Similarly, Anna Miller testified that, when she quit working for KarenKim, she left a letter for Connors detailing Manwaring's sexual harassment of her over several years. Connors testified that, while she recalled the letter, she believed Miller had been lying about the harassment.
*3 At trial, Connors testified that she could only recall two complaints of possible harassment involving Manwaring, and that she felt both complaints were handled appropriately. The first came from Kelsey Rose, then still in high school, who complained that Manwaring suddenly stuck his tongue in her mouth as she was talking on the phone one day, and then walked away “with a smirk on his face.” Id.at 1133–34. Crying “[h]ysterically,” id. at 1134–35, she called her friend's mother to complain and the police arrived soon thereafter. Rose gave the police a statement implicating Manwaring and never returned to work at KarenKim. Manwaring pled guilty to second degree harassment, but testified that “in [his] heart [he] always felt it was an accidental joking incident.” Id. at 1663. Another employee testified that Manwaring told others that Rose was lying about the incident. Id. at 1178.
In deposition testimony heard by the jury, Connors stated that she did not believe Manwaring had done anything wrong in regard to this incident, and accepted his explanation that he had “f[allen] into” Rose. Id. at 1957. Nevertheless, she suspended Manwaring for 30 days with pay and warned him that he would be fired if she received another harassment complaint. However, Manwaring went into the store a few times during the suspension, without consequence. Following the Rose incident, KarenKim drafted an employee handbook which contains a sexual-harassment policy and directs employees to report instances of sexual harassment to Connors. Employees are required to take a copy of the handbook home, sign a form acknowledging that they have read it, and return it with the signed form to KarenKim.
The second incident involved Kim Davis, who complained several times to her night manager that Manwaring made comments of a sexual nature to her, expressed his desire to have sexual relations with her, and touched her inappropriately on the buttocks. She testified that she did not initially complain to Connors directly, however, because Connors had shown her Anna Miller's resignation letter and stated that Miller's comments about Manwaring were all lies. In May 2010, while this lawsuit was pending, Davis had a fight with her boyfriend. Seeing her upset, Manwaring said, “[w]hy don't you tell [your boyfriend] that I've been wanting to [have sex with] you for a year and a half now[?]” Id. at 1179. Thereafter, Davis told Connors about the incident and her past experiences with Manwaring, and told Connors that she was quitting. In response, Davis testified, Connors cried. Thereafter, Connors called Davis and told her she had fired Manwaring and asked her to return to work at the store. Davis agreed.
Davis further testified that Connors asked her, in light of the pending lawsuit, “to lie and tell everybody [Manwaring] was farming,” instead of saying that he had been fired for sexually harassing her. Id. at 1188. In addition, Connors asked Davis not to seek a protective order against Manwaring, explaining that “if [Davis] were to come forward, [Connors] would lose everything and she would lose the store.” Id. Davis agreed. The first time the EEOC learned that Manwaring had been fired for sexual harassment was at Connors' deposition, three weeks before trial.
*4 In early November 2010, at Connors' request, Davis wrote a statement for the instant lawsuit in which she asserted that “[t]he only harassment I have received is from the EEOC” because “[the EEOC's trial attorney] will not stop trying to contact me.” Id. at 1195. Soon after Davis prepared her statement, Manwaring started reappearing around the store. Davis saw him only once, but her supervisor told her he had been there several other times and conveyed the message that “Allen says hi.” Id. at 1193. In late November, Davis was fired for smoking marijuana on her break. She agreed to testify on behalf of the EEOC in this lawsuit, she stated, because she no longer had anything to lose and, moreover, “wanted to help put a stop [to Manwaring] doing this in the future to people.” Id. at 1196. Connors denied telling Davis to lie or dictating the language in Davis' statement. However, she admitted giving Davis' statement to her lawyer even though she knew that Davis had in fact been harassed at work and that the lawyer would forward the statement to the EEOC.
Based on the foregoing, the jury returned a verdict for the EEOC and the Plaintiff–Intervenors, finding that KarenKim and Manwaring were liable for maintaining a “sexually hostile work environment” with “malice or reckless indifference” to the rights of young female KarenKim employees. Id. at 8, 16. In so finding, the jury implicitly rejected KarenKim's arguments that it took reasonable steps to stop and prevent sexual harassment, and that the employees failed to complain about any harassment that occurred. See id. at 2201–2205 (jury instructions on the two defenses). The jury awarded the ten members of the class a total of $10,080 in compensatory damages and $1,250,000 in punitive damages.FN1
Following trial, the EEOC moved to alter and amend the judgment under Rule 59(e) of the Federal Rules of Civil Procedure so as to impose broad injunctive relief against KarenKim. In particular, the EEOC contended that injunctive relief was necessary because KarenKim has not adopted adequate measures to ensure that harassment of the kind at issue in this action does not recur. In support, the EEOC noted that Connors and Manwaring remained in a romantic relationship; that, following the jury verdict, Manwaring continued to publicly deny he had engaged in any sexual harassment; and that Manwaring continued to be a presence at the store in his new capacity as a produce contractor for KarenKim. The EEOC also recounted an incident that occurred approximately six weeks after the trial in which Lorraine Warren, a claimant in this action, and her husband attempted to enter Paul's Big M, but were ordered to “leave immediately” and told they were “no longer allowed in the store.” Id. at 81–82. In addition, the EEOC noted that, absent an injunction, there is no legal bar to KarenKim re-hiring Manwaring.
Further, while KarenKim adopted policies requiring its employees to undergo anti-harassment training and instituted a complaint procedure by which its employees can report instances of sexual harassment, the EEOC contended that both of these measures are facially inadequate to prevent future violations of Title VII. Specifically, the EEOC noted that the complaint procedure requires employees to complain “within 30 days from the date which the Complainant first knew or reasonably should have known” of the unlawful “discriminatory act,” and states that, except in “rare” circumstances, the company will act on only “formal” complaints, which must be in writing on a special form. Id. at 67–69. The EEOC also noted that the training course consists of a short online module, which can be completed in a few minutes by simply clicking rapidly through the pages and allows an individual to print out multiple completion certificates at once. See id. at 75–76.
*5 Based on the foregoing, the EEOC requested that the district issue a wide-ranging injunction, lasting for ten years, which would order, among other things: (a) that KarenKim may not create or maintain a hostile work environment or retaliate against individuals for engaging in Title VII protected activity; (b) that KarenKim may not employ or otherwise compensate Manwaring in any way, except for purchasing produce from him; (c) that Karen Kim must bar Manwaring from entering the grocery store building; (d) that KarenKim must produce and distribute copies of a notice indicating that Manwaring was barred from entering the building, along with copies of Manwaring's photograph; (e) that KarenKim must pay for an independent monitor to continually review KarenKim's employment practices and investigate possible instances of sexual harassment; (f) that KarenKim must amend its nondiscrimination policy and complaint procedure in a variety ways, and prominently post the policy; (g) that KarenKim must conduct an annual training session on sexual harassment for its employees; and (h) that the EEOC is authorized to monitor KarenKim's compliance with the injunction, and that KarenKim must cooperate in bi-annual EEOC compliance reviews. KarenKim did not object to the proposed injunction's provision prohibiting it from employing or compensating Manwaring, but contended that the injunction's other provisions were unnecessary and overly burdensome.
By Order dated June 17, 2011, the district court denied the EEOC's request for injunctive relief in its entirety, concluding that all the requested relief was unnecessary and overly burdensome. As to the burdensomeness of the relief, the court noted that the proposed injunction would last ten years and “requires the defendant to alter drastically its employment practices and hire an independent monitor whom, together with the EEOC, will review and critique any present or future employment practices with respect to sexual harassment.” Equal Emp't Opportunity Comm'n v. KarenKim, Inc., No. 08–CV–1019(NAM), 2011 WL 2462297, at *6 (N.D.N.Y. June 17, 2011). As to the necessity of the relief, the district court stated that the evidentiary record:
... suggests that the discriminatory and unlawful actions in this case were isolated instances involving a manager who is no longer employed by the company and employees who are no longer employed by the company, occurring during a period when the company did not have clearly established anti-harassment policies ....
Given the existence of an anti-harassment policy ... and the company's now keen awareness of the issue, the Court is hard-pressed to imagine that should complaints by employees concerning sexual harassment or employment discrimination of any other kind arise in the future, ... KarenKim will not take them seriously.
Id. at *7–8. Accordingly, the court concluded that there is no cognizable danger that KarenKim will engage in recurrent violations of Title VII, and so the imposition of injunctive relief is not warranted in the circumstances of this case.FN2 Id. at *10. In so concluding, the court rejected as “specious” the EEOC's arguments that the continuation of the personal relationship between Conners and Manwaring could result in the resurrection of the hostile work environment or allow Manwaring to engage in further sexual harassment of KarenKim employees. Id. at *8–9.
DISCUSSION
[1] 
[2] A district court's decision to grant or deny injunctive relief is reviewed for abuse of discretion. Malarkey v. Texaco Inc., 983 F.2d 1204, 1214 (2d Cir.1993). “A district court abuses its discretion if it (1) bases its decision on an error of law or uses the wrong legal standard; (2) bases its decision on a clearly erroneous factual finding; or (3) reaches a conclusion that, though not necessarily the product of a legal error or a clearly erroneous factual finding, cannot be located within the range of permissible decisions.” Millea v. Metro–North R.R. Co., 658 F.3d 154, 166 (2d Cir.2011) (internal quotation marks omitted).
[2] A district court's decision to grant or deny injunctive relief is reviewed for abuse of discretion. Malarkey v. Texaco Inc., 983 F.2d 1204, 1214 (2d Cir.1993). “A district court abuses its discretion if it (1) bases its decision on an error of law or uses the wrong legal standard; (2) bases its decision on a clearly erroneous factual finding; or (3) reaches a conclusion that, though not necessarily the product of a legal error or a clearly erroneous factual finding, cannot be located within the range of permissible decisions.” Millea v. Metro–North R.R. Co., 658 F.3d 154, 166 (2d Cir.2011) (internal quotation marks omitted).
[3] [4] [5] [6] [7] Generally, “[a]n injunction is a matter of equitable discretion; it does not follow from success on the merits as a matter of course.”Winter v. Natural Res. Defense Council Inc., 555 U.S. 7, 32, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). In seeking an injunction, “the moving party must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation ....“ United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); see also Equal Emp't Opportunity Comm'n v. Everdry Mktg. and Mgmt., 348 F. App'x 677, 679 (2d Cir.2009) (summary order) (no abuse of discretion in denying injunctive relief where the entity that violated Title VII “no longer exists”). “The factors ... [that] are pertinent in assessing the propriety of injunctive relief” are “the balance of equities and consideration of the public interest.” Winter, 555 U.S. at 32. “[T]he court's power to grant injunctive relief survives discontinuance of the illegal conduct.” W.T. Grant, 345 U.S. at 633; see also Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d 224, 230 (2d Cir.2006) (“Under Title VII, equitable relief is not incidental to monetary relief.”). In determining whether to impose an injunction where a defendant has ceased the offending conduct, courts may consider “the bona fides of the [defendant's] expressed intent to comply” with the law, “the effectiveness of the discontinuance,” and “the character of the past violations.” W.T. Grant, 345 U.S. at 633; see also Malarkey, 983 F.2d at 1215 (noting the relevance of whether past violations were “isolated” or “widespread”).
[4] [5] [6] [7] Generally, “[a]n injunction is a matter of equitable discretion; it does not follow from success on the merits as a matter of course.”Winter v. Natural Res. Defense Council Inc., 555 U.S. 7, 32, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). In seeking an injunction, “the moving party must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation ....“ United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); see also Equal Emp't Opportunity Comm'n v. Everdry Mktg. and Mgmt., 348 F. App'x 677, 679 (2d Cir.2009) (summary order) (no abuse of discretion in denying injunctive relief where the entity that violated Title VII “no longer exists”). “The factors ... [that] are pertinent in assessing the propriety of injunctive relief” are “the balance of equities and consideration of the public interest.” Winter, 555 U.S. at 32. “[T]he court's power to grant injunctive relief survives discontinuance of the illegal conduct.” W.T. Grant, 345 U.S. at 633; see also Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d 224, 230 (2d Cir.2006) (“Under Title VII, equitable relief is not incidental to monetary relief.”). In determining whether to impose an injunction where a defendant has ceased the offending conduct, courts may consider “the bona fides of the [defendant's] expressed intent to comply” with the law, “the effectiveness of the discontinuance,” and “the character of the past violations.” W.T. Grant, 345 U.S. at 633; see also Malarkey, 983 F.2d at 1215 (noting the relevance of whether past violations were “isolated” or “widespread”).
[8] [9] Under Title VII, “[i]f the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate.” 42 U.S.C. § 2000e–5(g)(1). Accordingly, “[o]nce a violation of Title VII has been established, the district court has broad, albeit not unlimited, power to fashion the relief it believes appropriate.” Bridgeport Guardians Inc. v. City of Bridgeport, 933 F.2d 1140, 1149 (2d Cir.1991). “The bounds of the court's discretion are set by the purposes of Title VII, which are to prevent discrimination and achieve equal employment opportunity in the future ....“ Berkman v. City of New York, 705 F.2d 584, 594 (2d Cir.1983).
[9] Under Title VII, “[i]f the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate.” 42 U.S.C. § 2000e–5(g)(1). Accordingly, “[o]nce a violation of Title VII has been established, the district court has broad, albeit not unlimited, power to fashion the relief it believes appropriate.” Bridgeport Guardians Inc. v. City of Bridgeport, 933 F.2d 1140, 1149 (2d Cir.1991). “The bounds of the court's discretion are set by the purposes of Title VII, which are to prevent discrimination and achieve equal employment opportunity in the future ....“ Berkman v. City of New York, 705 F.2d 584, 594 (2d Cir.1983).
*7 [10] Applying the foregoing standards, we conclude that the district court abused its discretion insofar as it denied the EEOC's request for injunctive relief specifically directed toward ensuring that Manwaring is no longer in a position to sexually harass KarenKim employees. Although we recognize that, in the ordinary case, terminating a lone sexual harasser may very well be sufficient to eliminate the “cognizable danger” that a defendant-employer will engage in “recurrent violation[s]” of Title VII, W.T. Grant, 345 U.S. at 633, this is not an ordinary case. Notably, in this case, the lone harasser, Manwaring, was not just one supervisory employee among many, but was the Store Manager, with authority over all the defendant-employer's employees. Moreover, he was and remains in a longstanding romantic relationship with Connors, the owner and highest officer of the defendant-employer. Moreover, the record makes evident that this romantic relationship between Connors and Manwaring was the primary reason why Manwaring's harassment went unchecked for years, subjecting an entire class of young female KarenKim employees to a sexually hostile working environment. Absent an injunction, nothing prevents Connors from once again hiring Manwaring as an employee. In addition, even if Manwaring is not re-employed at KarenKim, Manwaring's status as Connors's fiancé, as well as his relationships with other current KarenKim employees, renders it likely that he will remain a presence at the store. See id. (“[T]he effectiveness of the discontinuance” of the violating conduct is a relevant factor in determining the appropriateness of injunctive relief.). Finally, Connors's past refusal to adequately respond to multiple credible complaints about Manwaring's conduct suggests that, so long as Manwaring remains in a romantic relationship with KarenKim's owner and highest officer, KarenKim will not take adequate remedial measures in response to any future harassment on the part of Manwaring. See id. (The “character of the past violations” is a factor in determining the appropriateness of injunctive relief.).
Applying the foregoing standards, we conclude that the district court abused its discretion insofar as it denied the EEOC's request for injunctive relief specifically directed toward ensuring that Manwaring is no longer in a position to sexually harass KarenKim employees. Although we recognize that, in the ordinary case, terminating a lone sexual harasser may very well be sufficient to eliminate the “cognizable danger” that a defendant-employer will engage in “recurrent violation[s]” of Title VII, W.T. Grant, 345 U.S. at 633, this is not an ordinary case. Notably, in this case, the lone harasser, Manwaring, was not just one supervisory employee among many, but was the Store Manager, with authority over all the defendant-employer's employees. Moreover, he was and remains in a longstanding romantic relationship with Connors, the owner and highest officer of the defendant-employer. Moreover, the record makes evident that this romantic relationship between Connors and Manwaring was the primary reason why Manwaring's harassment went unchecked for years, subjecting an entire class of young female KarenKim employees to a sexually hostile working environment. Absent an injunction, nothing prevents Connors from once again hiring Manwaring as an employee. In addition, even if Manwaring is not re-employed at KarenKim, Manwaring's status as Connors's fiancé, as well as his relationships with other current KarenKim employees, renders it likely that he will remain a presence at the store. See id. (“[T]he effectiveness of the discontinuance” of the violating conduct is a relevant factor in determining the appropriateness of injunctive relief.). Finally, Connors's past refusal to adequately respond to multiple credible complaints about Manwaring's conduct suggests that, so long as Manwaring remains in a romantic relationship with KarenKim's owner and highest officer, KarenKim will not take adequate remedial measures in response to any future harassment on the part of Manwaring. See id. (The “character of the past violations” is a factor in determining the appropriateness of injunctive relief.).
[11] While it is not our role to fashion the specific measures necessary to prevent the recurrence of Manwaring's misconduct and the resulting hostile work environment at KarenKim, we conclude that, at minimum, the district court exceeded the scope of its discretion in declining to order (a) that KarenKim is prohibited from directly employing Manwaring in the future, and (b) that KarenKim is prohibited from permitting Manwaring to enter its premises. To be sure, the district court was well within its discretion in concluding that some of the EEOC's requested relief—such as requiring KarenKim to distribute wallet-sized photographs of Manwaring to its employees, or to hire and pay for an independent monitor to continually review KarenKim's employment practices and investigate possible instances of sexual harassment—are overbroad and disproportionate to the scale of KarenKim's unlawful behavior. And, while we share the EEOC's concerns regarding the adequacy of KarenKim's newly-adopted policies requiring sexual harassment training and instituting a complaint procedure,FN3 we leave to the district court's sound discretion whether reformation of these policies is necessary to prevent recurrence of the misconduct in this case.
While it is not our role to fashion the specific measures necessary to prevent the recurrence of Manwaring's misconduct and the resulting hostile work environment at KarenKim, we conclude that, at minimum, the district court exceeded the scope of its discretion in declining to order (a) that KarenKim is prohibited from directly employing Manwaring in the future, and (b) that KarenKim is prohibited from permitting Manwaring to enter its premises. To be sure, the district court was well within its discretion in concluding that some of the EEOC's requested relief—such as requiring KarenKim to distribute wallet-sized photographs of Manwaring to its employees, or to hire and pay for an independent monitor to continually review KarenKim's employment practices and investigate possible instances of sexual harassment—are overbroad and disproportionate to the scale of KarenKim's unlawful behavior. And, while we share the EEOC's concerns regarding the adequacy of KarenKim's newly-adopted policies requiring sexual harassment training and instituting a complaint procedure,FN3 we leave to the district court's sound discretion whether reformation of these policies is necessary to prevent recurrence of the misconduct in this case.
*8 For the foregoing reasons, the post-judgment order of the district court denying EEOC's request for injunctive relief in its entirety is hereby VACATED and the case is REMANDED to the district court for further proceedings consistent with this Opinion.
Monday, October 29, 2012
Guest article from Professor Ely Karmon
The Geopolitical Poker Game in the Middle East
Dear friends and colleagues,
See my latest article in today’s Haaretz, “The geopolitical poker game that will define the new Mideast,” at:
Below the full text of the article for those who don’t have a subscription to Haaretz.
The geopolitical poker game that will define the new Mideast
Analysts from across the Middle East shed light on what kind of Syria and what kind of regional blocs will emerge from the current crisis.
By Ely Karmon | Haaretz, Oct.29, 2012
The uprising in Syria will have a tremendous influence on the future strategic landscape of the Middle East. The struggle inside Syria between the Alawite regime and the amalgam of opposition forces is the battle-ground for powerful regional players: Iran’s Shi'ite coalition against the recently reborn and assertive Sunni alliance.
The international community has been unable to reach an agreement to solve the Syrian crisis, divided as it is between, on the one hand, the anti-Assad bloc: the U.S. and its allies, amongst whom can be counted the 110 countries who participated in recent "Friends of Syria" conferences; and on the other, pro-Assad Russia, China and Iran. This has produced an unstable deadlock, a "limited cold war" (a description given by former Iranian diplomat Mohammed Ali Sobhani), but one that constantly threatens to transmutate into a "hot" war in Syria with the active participation of armies and proxies from all sides.
The analyses, predictions and scenarios of experts based in the Middle East shed some light on the complicated events and repercussions of what is happening in Syria, and these opinions are surveyed below.
Hamas
If Bashar Assad’s regime falls, Iran will be the main loser. Tehran suffered a serious blow when Hamas abandoned the so called “axis of resistance” (the pact between Iran, Syria and their proxies) and its leaders left Assad’s sinking ship like thieves in the night. It was a predictable step by Hamas, the Palestinian branch of the Muslim Brotherhood, which had enjoyed, until then, membership in (what I refer to as) the “coalition against nature” (see at www.carlisle.army.mil/proteus/docs/karmon-iran-syria-hizbollah.pdf) - allying themselves with the very regime that butchered the Syrian Muslim Brothers in 1982. Until now, Hamas has been an important Palestinian and Sunni asset for Iran’s legitimacy in the Arab world and a helpful proxy in its fight against Israel.
Hamas leaders returned to their natural Egyptian Muslim Brotherhood home, building on a symbiotic Islamist relationship in order to successfully challenge the Fatah-controlled Palestinian Authority first, and Israel next.
Qatar
The recent visit by the Emir of Qatar, Hamad bin Khalifa al Thani, to Gaza is a clear sign that Hamas is now part and parcel of the Sunni coalition (with Egypt, Saudi Arabia, Turkey and Qatar) against the Iranian Shia-only coalition (Syrian Alawites, Iraqi Shiites, and Lebanese Hezbollah).
Qatar’s ambitions go further. In a recent analysis of Middle East’s changing geopolitics, Dr. Mehran Kamrava, professor at the Georgetown University Qatar Branch, claimed that “The power structure in the Middle East and the Persian Gulf is changing and it is directed towards Qatar.” Qatar’s political, financial and military support for the Syrian opposition, after its intervention on the ground against the Gadhafi regime in Libya and its financial support to the Muslim Brotherhood and the Salafists in Egypt, indeed testify to its growing role in the region.
Turkey
Looking at Syria’s northern border, Turkey, it is not clear who benefits from the continuing low-level military confrontation between Syria and Turkey. Even Hossein Alaei, the former Navy Commander of the Iranian Revolutionary Guards Corps, thinks that such a “war is to Assad’s disadvantage.”
There are various viewpoints on the utility of the border skirmishes: Some analysts believe that Syria's objective in launching shells on Turkey’s border regions is to create a foreign war to cover up its civil war. Others suggest that Turkey sees developments in Syria as an opportunity for proto-empire building, sometimes called a "Neo-Ottoman revival." Syria is keen to punish Turkey for these geopolitical ambitions, whether by shelling Turkish territory or by exploiting the conflict between the Kurdish PKK and Turkey to damage Turkey. Alaei notes that Iran would make efforts to prevent Turkey from declaring war on Syria – but in the case that these efforts were to fail, he hints that such a changed situation could lead to possible Iranian intervention, on behalf of Syria and against Turkey.
Iraq
If Assad falls, the political system of Iraq will face a significant challenge. A former Iranian deputy foreign minister, Sadegh Kharazi, has pointed out Saudi Arabia and Qatar’s various efforts to weaken the Shia–dominated Iraq's stability, but so far they have not succeeded. It is with this in mind that Iran’s Defense Minister Vahidi visited Baghdad at the beginning of October, the first trip of its kind. The visit’s importance has been highlighted by Hossein Rooyvaran, an Iranian expert on Middle East affairs, describing it as “a type of aggressive diplomacy”. He notes further that Iran and Iraq's cooperation has deepened because of the crisis in Syria, and the threat of turmoil spreading throughout the region is a clear opportunity for the strengthening of relations between Iran and the Baghdad Shia government.
Russia
Russia, which supports the Assad regime in order to safeguard its assets in the region - its naval base in the Syrian harbor of Tartous and its presence in the strategic waters of the Mediterranean - recently proposed organizing a “Taif conference between all the players of the conflict," in the words of Russian Deputy Foreign Minister Mikhail Bogdanov. He was referring to an agreement signed in the Saudi city of Taif that brought the Lebanon civil war to an end in 1990.
Many Iranian political analysts believe that any decision regarding the political future of Syria will be postponed until after the U.S. elections. The Iranian Mohammed Sadegh Al-Hosseini stresses the threat of a “Syrian Taif” scenario to the Assad regime because in his opinion this “will break the back of the resistance” and therefore Syria’s allies, Iran, China and Russia, cannot approve it. He predicts that the Syrian army, transformed by Hafez Assad “from a national army into an ideological army” which proved its loyalty to the central government, in spite of some desertions, “will never collapse,” as it happened to the Lebanese army.
Iran
Amid indications of diplomatic failure, Iran hosted an international conference on Syria to discuss the possibility of ending the bloodshed there, but it failed to meet its goal of bringing together at least a dozen foreign ministers to discuss the crisis. Foreign Minister Ali Akbar Salehi said in an interview that "Iran seeks a solution that is in the interest of everyone” and “opened the door to including Syria's opposition in a national dialogue.” It seems that Iran is searching for the right price for dropping its support to President Bashar Assad, as it is aware that sooner or later, Assad will fall.
Fortress Alawi: Worst-case scenario
The worst-case scenario would be the formation of an Alawite statelet, or mini-state, where the backbone of the Syrian Alawite army would retreat with most of its heavy weaponry, part of the air force plus the chemical weapons it possesses, as an insurance card against a bloody offensive by the Sunni opposition on its last stronghold.
Back in July of last year Michael Young, the Beirut Daily Star opinion editor, was one of the first to suggest the prospect of an Alawite statelet in northwest Syria if the regime arrives at the conclusion that its days in power are numbered. Young warned that if “the Assads manage to retreat to an Alawite fortress, the repercussions in Lebanon (not to say Iraq) could be frightening.” One scenario he proposed would be a completely new kind of cooperation between Hezbollah (and other Shi'ites) and Lebanese Christians, who might together support an Alawite statelet, a “de facto scheme of disconnection from Lebanon” as the single nation-state it is now. This would be a desperate move, but one that is still preferable to the threat to these groups of a Lebanon dominated by victorious Syrian and Lebanese Sunnis.
In such a scenario, mentioned today by other pundits, an Alawite regime could count on the deterrent presence of an Iranian expeditionary force and the strategic support of Russia, which would retain its naval presence in Tartous and possibly receive Latakia's port as a gesture of thanks.
It is clear to all the analysts and pundits that Syria and the countries of the Middle East will be very different entities in the near future, but the end game remains open.
------------------------------------------------------
In the context of the events described in my article I warmly recommend several other interesting articles:
1. “Golan Heights War Games Are Israel's Warning to Iran,” by former Mossad head Efraim Halevy, at:
2. Hussein Agha and Robert Malley, “This Is Not a Revolution,” a very comprehensive and realistic picture of today’s Middle East at:
http://www.nybooks.com/articles/archives/2012/nov/08/not-revolution/?pagination=false&printpage=true
3. “All-out Middle East war as good as it gets” by Spengler, at:
4. Prof. Raymond Tanter’s article “Delaying or Preventing a Nuclear-Armed Iran,” a subject that it seems was postponed by Israeli PM Netanyahu for the next spring or summer, at:
Sorry for duplicates.
Ely Karmon, Ph.D.
Senior Research Scholar
International Institute for Counter-Terrorism (ICT) and
The Institute for Policy and Strategy (IPS) at
The Interdisciplinary Center (IDC)
Herzlyia, Israel
Tel.: 972-9-9527277
Cell.: 972-52-2653306
Fax.: 972-9-9513073, 972-9-7716653
E-mail: ekarmon@idc.ac.il
Subscribe to:
Posts (Atom)