Regardless of Harasser's Motive, Employee Must Report Harassment, August 8, 2001

An employee who delayed reporting her supervisors sexual advances until she could decide whether he was a sexual predator or merely an interested suitor cannot hold her employer liable for sexual harassment because she failed to take advantage of its sexual harassment policy. Matvia v. Bald Head Island Management Inc., No. 00-1650 (4th Cir., July 31, 2001).

Christina Matvia alleged that for three months her male supervisor showered her with unwanted attention, including hugs, tales of sexual relations, statements about her appearance, and repeated professions of love. After one incident where her supervisor tried to kiss her, her supervisor himself told the employer about the incident. He was ultimately terminated. In bringing her claim, Matvia explained that she hesitated in reporting her supervisor's conduct because she needed time to collect evidence against him to determine whether he was a "predator" or an "interested man" who could be rebuffed.

The Fourth Circuit held that there is no distinction between "predators" and "interested men." So long as conduct is unwelcome, based on the employee's gender, and sufficiently severe or pervasive to alter the conditions of employment, the label given to the harasser is immaterial.

Savvy Employment Contracts - Unconscionable Provisions Fail, August 13, 2001

A provision in an employment contract between a life insurance company and its agents stated that the agents would have a six-month statute of limitations under which to bring any claims against the company after termination was deemed enforceable under California law. On the other hand, a second provision requiring employees to give the insurance company ten days written notice before filing a lawsuit was deemed invalid because it unconscionably deprived the agent of his judicial forum. Soltani v. Western & Southern Life Ins. Co., No. 99-56612 (9th Cir., August 6, 2001).

Four agents brought this case, alleging they were wrongfully terminated in violation of public policy. The employment contract they signed stated that the agents agreed "not to commence any action or suit relating to this agreement or your relationship with [the life insurance company] more than six months after termination of this Agreement and to waive any statute of limitations to the contrary." Under California law, the plaintiffs would have had between two and four years to bring their claims. The Ninth Circuit held that the six-month limitation provision was not substantively unconscionable because numerous state and federal courts have upheld similar provisions.

The provision in the contract requiring agents to provide ten days notice prior to filing a complaint in court, however, was held to be unenforceable. The Ninth Circuit found little justification for the provision. It explained that ten days is not enough time for an employer to investigate the factual basis of a claim, to attempt to settle claims without litigation, to consider the potential fiscal implications of potential litigation, or to take corrective action.

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