In the latest Weekly Wright Report:
No “Hellish” Standard For Workplace Harassment Claims
By Paul Evelius
A federal appellate court’s February 20 decision in Gates v. Board of Education gives employers useful guidance as to when workplace harassment crosses the line into hostile (i.e., unlawful) territory. Gates, an African American building engineer, alleged that in verbal exchanges over an approximately eight-month period, his supervisor racially harassed him in violation of Title VII—by twice calling him the N-word and once threatening to write his “black ass up.” A federal district judge snubbed Gates’ claim, reasoning that workers can’t win such cases without proving a “hellish” work environment and that infrequent slurs like those alleged by Gates aren’t severe or pervasive enough to warrant that label, absent an unusually severe, physically threatening, or humiliating incident. Shunning that “Inferno” standard, the appellate court held instead that a reasonable jury can find even infrequent racial slurs, if imposed by a supervisor and sufficiently poisonous, unlawful under Title VII. The court observed that its ruling likely would have been different if Gates’ aggressor had been a co-worker, rather than his supervisor. While the decision involved racial hostility, its reasoning would apply to slurs betraying gender, religious, or other unlawful prejudice.
The Importance of Claim Notices and Lien Waivers
A recent case from the United States District Court for the District of Maryland points out the fact that with governing subcontract terms you can’t just rely on what you have been told, you must follow the terms of the subcontract. In the case of Hagen Construction, Inc. v. Whiting-Turner Contracting Company (2/4/19), Hagan was a subcontractor to Whiting-Turner tasked with performing drywall, rough carpentry, millwork and case work on a project in New Jersey. Hagan contended that the project was mismanaged by Whiting-Turner and as a result Hagan was forced to work out of sequence and inefficiently, which impacted its ability to perform its work and caused increased costs. Hagan estimated that its impact claim was worth approximately $750,000. Hagan contends that it discussed these impacts on a nearly weekly basis with Whiting-Turner and that it was assured by Whiting-Turner’s project manager that it was aware of the impacts and that it would work with Hagan and treat Hagan fairly. However, Hagan did not provide any formal written notice of a claim for the impact as required by the subcontract and did not provide any support for its alleged damages to Whiting-Turner. In addition, throughout the project, Hagan completed lien release and waiver forms with each pay application but did not specifically identify and preserve its impact claim on the forms in the space provided. As a result, the Court granted summary judgment in favor of Whiting-Turner holding that Hagan failed to provide proper notice of its impact claim and that Hagan had waived its impact claim in the lien release and waiver forms. Hagan made other arguments such as estoppel and waiver by Whiting-Turner, but the court held that such defenses did not apply under the facts of the case.
There are many instances where one party will say to the other “don’t worry about it, we will settle up at the end.” The Hagan case serves as a reminder that you should “worry about it” and you should document any claims that you have during the course of a project in accordance with the terms of the subcontract and that such claims should also be carved out of any lien release and waiver form.
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