Legal Blog
On February 9, 2018, Katherine Witherspoon was interviewed on WILM 1450/ WDOV 1410 radio station about sexual harassment and sexual orientation discrimination in the workplace. If you’d like to listen to the interview or read the transcript, please see below.
Questions about sexual harassment and sexual orientation in the workplace? Contact Katherine Witherspoon at
Dace Blaskovitz: Welcome back to Money and Politics in Delaware. I’m your host. I’m Dace Blaskovitz and I’m the President and majority owner of the Wealth Advisors LLC, which is a full service brokered firm headquartered in Wilmington, Delaware. We bring you a great program segment one sexual harassment. Katherine Witherspoon is back with us, a local attorney fascinating story that we continue to chat about. Segment 2 we continue our monthly series with the local SBA, which have been a huge success. Second half, arguably our most popular guests and that is John Stapleford, economist. If he gets on the air and says what I think he is, the fact is he is the player with the numbers at least that is what he might suggest. So we will come back to the program.
Katherine Witherspoon: Thanks Dace, it’s great to be here.
DB: You are an attorney and you are an attorney with Offit Kurman and you’re headquartered in Wilmingon, Delaware and you know how we play the game. We get first-time listeners, 30 seconds about you and 30 seconds about your business.
KW: Yes. I’m with the firm of Offit Kurman. I’m a principal in the office in Wilmington. We are a full-service firm with over 140 attorneys ranging from Virginia up to New York and I focus my practice on defense of employers and helping employers avoid lawsuits more importantly in the first place.
DB: Alright, we got to do two or three primer questions so we all can play along. You’re aware of that. So, let us start at the beginning. What is the legal definition of sexual harassment?
KW: Sexual harassment is unwanted attention directed towards someone based on their sex.
DB: Okay and then what is Title 7:
KW: Title 7 is the federal employment law which prohibits discrimination in employment based upon certain factors including sex. So if you have a sexual harassment claim, you are claiming that you have been discriminated against based on your sex pursuant to Title 7 if you’re going under federal law. If you’re going under state law in Delaware you are alleging violation of Title 19, Chapter 7 of the Delaware Code which mirrors the provisions of Title 7, the Federal Code.
DB: So, is there any discrepancy between 7 and 19?
KW: There are. There are interesting discrepancies. Delaware is somewhat more protective of its employees than federal law and has made explicit several categories which are protected under Title 19 which are not protected under Title 7. Most notably would be sexual orientation is a protected class under Delaware law and that means that it is illegal also to discriminate against someone or harass someone based on their sexual orientation.
DB: And I got a sidebar real quick and then I’ll bring you back on the subject but did I understand in our pre-interview I can hypothetically fire somebody in Delaware if they are gay, if I have three employees but not two?
KW: Technically, you can fire someone for being gay anytime you want, but are you going to be caught and is it going to be an issue in court is another matter. The employment law applies to companies with four or more employees. Technically, it is illegal to fire someone based on their sexual orientation if you have four or more employees and not if you have less than four employees.
DB: That is dramatic as I can be on the radio. I find you fascinating, this topic fascinating, we get into it and I am trying to put as much on the air, but let me tee it up for you here. It is something that is headed to the Supreme Court and it revolves around discrepancy that is your story, tell it.
KW: Right, so very interesting developments in this area regarding sexual orientation and whether sexual orientation is considered sex under title 7. Now because title 7 does not have the explicit provision of prohibiting employment discrimination based on sexual orientation, creative minds have asserted that actually sexual orientation is sex as intended under title 7 and various middle courts have come down differently on that issue. So we have the seventh circuit with the first opinion on the issue last year saying that in fact sexual orientation is sex under title 7 and you can’t discriminate based on sexual orientation. And you know one rationale used by the court in its several opinions, there was a concurring opinion, the majority opinion is that for instance, a woman is married to a woman, a woman has a wife and she is fired, a man has a wife and he is not fired, therefore because you are firing the woman for doing the same exact thing as the man did then that is actually discrimination based on sex. So that is a very straightforward upfront rationale. Then you have the second circuit which is the circuit which covers New York. And that is another very influential circuit. I should say the seventh circuit, I should back up, the seventh circuit is very influential as well. It sits in Chicago. And so the second circuit disagrees and says that is not what was intended in 1964 and that is not what title seven means. The eighth circuit agrees with the second circuit. So we have eighth and second versus seventh circuit and who knows there may be another opinion that just came down of which we are not aware, but what happens in these cases is when the circuits are split, they are split on an issue, then it makes it right for review by the United States Supreme Court and I am predicting that this issue is coming to the United States Supreme Court, because it’s not going away, more courts are going to come down on either side and we are going to get this issue decided once and for all.
DB: Well, you are my guest today and you are super smart. What is your prediction?
KW: Ah, that is a great question. My prediction would be that the Supreme Court would hold that….it depends if we lose any justices in the meantime.
DB: Ha, ha, ha, ha, ha, ha, ha, ha, ha.
KW: That depends a little bit, but honestly, I think the analysis may be in the end that title 7 in the beginning was not intended to benefit people based on their sexual orientation.
DB: Alright, you got to do this one in 10 seconds and I will tell you why. Businesses listen to this program. What is called action?
KW: What is called action is to be careful. Ha, ha. Called action is pay attention to Delaware law if you are in Delaware, number one, and number two, why chance it. If someone reports harassment to you based on whatever type of class, take it seriously, investigate it.
DB: Alright. Well, look whatever what I was trying to get it… they better put you on a retainer.
KW: Ha, ha, ha, ha.
DB: Cuteness aside, hang on, what is, I know, in our pre-interview, you wanted to sneak this in, what is not harassment?
KW: Right, so it is important for people to realize when they do these investigations and for employees to realize when they think they are reporting harassment that in fact discipline is not harassment, it is saying that someone is suspended or yah, writing them up or even a verbal, you know, say so is not harassment. You are allowed to disappoint your employees, but the tip here is to be consistent in applying policy. If you are for instance disappointing only the males in your workplace or only your females in your workplace or only the gay people or lesbian people in your workplace, then you are going to be attacked, but simple discipline applied equally towards many different people or different groups is not harassment. Another example of what is not harassment would be giving instructions that the employee does not like, directing them to pay more attention, directing them to show up for shifts, directing them to do certain tasks is not harassment. I have had over the years many calls from people who say, well, he is just so mean to me and he says I have to do this and that and the other. Yes, but is that based upon your sex, does it have to do with the fact that you are a woman that he is mean to you or that he gives you certain tasks and that is a factual analysis that is usually just not true; you can be a jerk and not be sexually harassing someone.
DB: Ha, ha, ha, ha. I got to interrupt. Briefly, give us your direct dial phone number please.
KW: Sure. I am at 302-351-0902 if anyone needs advice about any of these things.
DB: Katherine Witherspoon, Offit Kurman, what is going to happen now? We are going to take a very short break and when we come back have a good story on SBA. Katherine, you were great. We will be right back.
ABOUT KATHERINE R. WITHERSPOON
kwitherspoon@offitkurman.com | 302.351.0902
Ms. Witherspoon has 22 years of litigation experience in every Delaware court, the U.S. Court for the District of Delaware, and the U.S. Court of Appeals for the Third Circuit. She has also represented clients in proceedings before the Delaware Department of Labor, the Equal Employment Opportunity Commission, the Merit Employee Relations Board, and the Delaware State Board of Education. Her employment practice focuses on discrimination; employment termination; unemployment compensation appeals; Fair Labor Standards Act issues; creation and review of employee handbooks and policies; severance agreements; and labor relations.
ABOUT OFFIT KURMAN
Offit Kurman is one of the fastest-growing, full-service law firms in the Mid-Atlantic region. With over 140 attorneys offering a comprehensive range of services in virtually every legal category, the firm is well positioned to meet the needs of dynamic businesses and the people who own and operate them. Our eleven offices serve individual and corporate clients in the Virginia, Washington, DC, Maryland, Delaware, Pennsylvania, New Jersey, and New York City regions. At Offit Kurman, we are our clients’ most trusted legal advisors, professionals who help maximize and protect business value and personal wealth. In every interaction, we consistently maintain our clients’ confidence by remaining focused on furthering their objectives and achieving their goals in an efficient manner. Trust, knowledge, confidence—in a partner, that’s perfect.
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