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Podcast: Sexual Misconduct and Safer Seas: What Merchant Mariners Need to Know
Read Time: 8 minsIn this installment of the More with McGlinchey Podcast, labor and employment attorney Susan Desmond and maritime attorney Marcelle Mouledoux discuss the Safer Seas Act and Title VII requirements for the marine industry. They review the legal obligations that Merchant Mariners have regarding sexual harassment and sexual assault claims.
Susan Desmond: Hi everyone. My name is Susan Desmond with McGlinchey Stafford. Marcelle Mouledoux, with us, will handle most of the SASH questions and the presentation. And I’m going to be handling the more general questions that we have under Title VII, which is our basic anti-discrimination law that was passed in 1964.
We know that Title VII prohibits sexual harassment in the workplace. That does include the marine industry. Of course, we have the Sexual Assault and Sexual Harassment (SASH) Act, which does have a number of significant reporting requirements that are very different from Title VII. So Marcelle, can you describe what types of reporting requirements Merchant Marines have when they receive a sexual harassment complaint?
You’re a responsible entity of a vessel if you are the owner, master, or managing operator of a documented vessel engaged in commercial service or the employer of a seafarer on such a vessel.
Marcelle Mouledoux: In December 2022, Congress passed the Safer Seas Act, and this is the statute that created the new reporting requirement for marine employers to the U.S. Coast Guard. The employers that have to report sexual harassment and sexual assault are identified in the Act as “responsible entities of a vessel.” You’re a responsible entity of a vessel if you are the owner, master, or managing operator of a documented vessel engaged in commercial service, or the employer of a seafarer on such a vessel. That’s a pretty broad category of people with this duty to report. And what they are going to have to report is, not just sexual assault and sexual harassment, but the statute requires harassment generally to be reported. So there’s a question about what qualifies as harassment. It’s not very clear under the statute.
Susan Desmond: So, of course, under Title VII, our broader anti-discrimination law, we don’t have a reporting requirement to a government agency like SASH. Of course, we do know that once an employer receives a sexual harassment complaint, it is their duty to investigate any sexual harassment claim immediately, and that investigation can be done internally. It could be done by sourcing it to a vendor, attorney, or the like. And it will depend on the circumstances in which the employer will make that determination and who will conduct that investigation. So Marcelle, what does the investigation process look like under SASH?
Once an employer receives a sexual harassment complaint, it is their duty to investigate immediately, and that investigation can be done internally. It could be done by sourcing it to a vendor, attorney, or the like. And it will depend on the circumstances in which the employer will make that determination and who will conduct that investigation.
Marcelle Mouledoux: One of the really important requirements under the SASH elements of the Safer Seas Act is that these things have to be reported immediately to the Coast Guard. That means you don’t have time as an employer to investigate or do any detailed investigation before that reporting requirement kicks in. Now, there’s been some disagreement. We’ve heard different things from different Coast Guard areas about what “immediate” means. Does it mean within 24 hours, or does it mean immediately? That hasn’t been fleshed out yet, but generally, you’re going to want to do it as soon as it’s practical.
I suggest you do at least a minimal investigation and make sure it’s credible. You’re going to have a reporting chain: so you’ll have your HR team involved, and you’ll have your in-house legal team, if you have it, involved. You’re going to want to get your outside counsel involved, including your maritime counsel because they’re used to dealing with the Coast Guard, as well as your labor and employment counsel, because they’re going to be much better versed in investigating this type of incident than your standard maritime lawyer.
There are definitely specific requirements in the Act about what needs to be reported immediately. It’s the person who originally reported it, the vessel involved, the time and date of the incident, the geographic location of the vessel at the time of the incident, and a brief description of the incident. So that’s what needs to be reported immediately. And then you have exactly a 10-day requirement to submit a document to the Coast Guard. That document needs to detail the actions taken by the responsible entity, meaning the vessel owner or the marine employer, the results of any investigation (to the extent you have them yet, it’s only been 10 days), and then any actions that have been taken against the offending individual.
One of the really important requirements under the SASH elements of the Safer Seas Act is that these things have to be reported immediately to the Coast Guard. I suggest you do at least a minimal investigation and make sure it’s credible.
Susan Desmond: When we talk about Title VII, the investigation process is not as formal as we see under SASH. Still, under Title VII, there is a duty to investigate things, similar to SASH, on an immediate basis. Just like SASH, there is no real definition of what is “immediate.” It will depend on the circumstances and can be decided on a case-by-case basis, taking into account the availability of witnesses and the like. But even though your witnesses may not be available immediately doesn’t mean you can’t start the process.
I suggest employers start that process within 24 hours of receiving a complaint. Just outline what the complaint is, get that statement from the individual as to what the complaint is, and outline what your investigation is going to entail, who you’re going to talk to, and what type of questions you’re going to ask. And of course, we will look at the availability of witnesses to determine the length of that investigation. As I said earlier, there’s still no requirement to report to any governmental agency about that investigation. Of course, the hope is to keep you out of litigation and away from the Equal Employment Opportunity Commission (EEOC). But of course, if you do have the unfortunate situation of finding yourself being sued, your investigation will be your all-important defense to a potential sexual harassment claim under Title VII.
Just outline what the complaint is, get that statement from the individual as to what the complaint is, and outline what your investigation is going to entail, who you’re going to talk to, and what type of questions you’re going to ask.
So Marcelle, how can a Merchant Marine’s license be affected if there is a finding of sexual assault or sexual harassment under SASH?
Marcelle Mouledoux: Well, essentially, it can be revoked. So if there’s an official finding of sexual harassment within five years of a hearing about a Merchant Mariner’s license, it can be suspended or revoked. And if there’s a finding of sexual assault within 10 years, then it will be revoked. So there’s a little bit of leeway for sexual harassment, not so much for sexual assault. Basically, within 10 years, your license is going to be revoked. An official finding is a legal proceeding or agency finding or decision, or it’s a determination after an investigation by the Coast Guard that, by a preponderance of the evidence, the individual committed sexual harassment or sexual assault.
If there’s an official finding of sexual harassment within five years of a hearing about a Merchant Mariner’s license, it can be suspended or revoked. And if there’s a finding of sexual assault within 10 years, then it will be revoked.
Susan Desmond: So it’s really quite different under Title VII. Of course, we know that before they can even file a suit, individuals have to file a charge with the Equal Employment Opportunity Commission, which conducts their investigation. They can find cause to believe that the complaint is legitimate, and they will enter into settlement negotiations with the employer. That can include potential monetary damages and even orders to post notices at the workplace, or the like, of the employer’s policies against sexual harassment.
The potential monetary damages are compensatory and punitive damages. That was a part of the Civil Rights Act of 1991, expanding potential damages under Title VII. Those damages are capped depending on the employer and the number of employees. It can go anywhere from $50,000 to $350,000.
Even if the EEOC finds cause, or they don’t find cause, they will issue a right-to-sue notification that will give the individual the right to file a private lawsuit against the employer. The potential monetary damages are compensatory and punitive damages. That was a part of the Civil Rights Act of 1991, expanding potential damages under Title VII. Those damages are capped depending on the employer and the number of employees that the employer does employ. It can go anywhere from $50,000 to $350,000.
And, of course, if someone was terminated for reporting a sexual harassment complaint or some type of retaliation, they would also be entitled to back pay, potential front pay, or even reinstatement. And the kicker is always that the employer or the Merchant Marine, in this case, would be paying their attorneys to defend the case, as well as the attorney for the would-be plaintiff.
The kicker is always that the employer or the Merchant Marine, in this case, would be paying their attorneys to defend the case, as well as the attorney for the would-be plaintiff.
Marcelle Mouledoux: Yeah, and it’s important to stress that Title VII and the Safer Seas Act are not mutually exclusive. You very much have a Title VII issue as an employer if you have a reportable sexual assault or sexual harassment event. So you want to get those employment lawyers involved and work on both aspects in tandem.
Susan Desmond: That’s a good point. And then, of course, that leads me to the next question, Marcelle. Let’s discuss just what sexual harassment is and whether there is any difference between SASH and Title VII. Of course, in Title VII, we know that a sexual harassment claim can be established, or what we call a quid pro quo, a “this for that,” where a supervisor is making decisions or threatening to make decisions with regard to hiring, firing, promotions, et cetera, in exchange for some type of sexual favors.
We don’t see that many of those cases, but we do see a lot of what we call “hostile working environments,” which is a more difficult standard to go by, in trying to figure out what is actually a sexual harassment claim. But it is defined as something severe or pervasive. It’s not a conjunction; it is severe or pervasive. So, it doesn’t have to be both, it can be just one or the other, but severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. And, of course, it could be claims brought by men versus women, women versus men, or even females complaining of other females or males complaining of other males.
In litigation, we do get into the inevitable question of what is severe or pervasive, and it’s hard to determine. We find cases all over the place determining how you reach that level of something that could be considered sexual harassment. But in large part it is often what the jury believes is severe or pervasive, if it gets that far in front of a jury. But how is that different, Marcelle, when we talk about SASH?
It’s important to stress that Title VII and the Safer Seas Act are not mutually exclusive. You very much have a Title VII issue as an employer if you have a reportable sexual assault or sexual harassment event. So you want to get those employment lawyers involved and work on both aspects simultaneously.
Marcelle Mouledoux: Well, that is a great question because “harassment” and “sexual harassment” are not defined under the Safer Seas Act. So, I think at this point, people are probably looking to Title VII for those definitions, because that’s what we have. There is some potential for this to be clarified by Congress.
The Safer Seas Act was a bipartisan bill. So I do think there’s pretty strong support in Congress for it. There’s also a pretty strong industry response in which people are pushing for clarification. Because there is a general feeling that it was needed, but may need some fine-tuning. So we’ll see where that goes.
We do see a lot of what we call hostile working environments, which is a more difficult standard to go by, in trying to figure out what is actually a sexual harassment claim. But it is defined as something severe or pervasive… enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
Susan Desmond: And I will say that sexual harassment is a top priority of the EEOC. As you said, Marcelle, a Merchant Marine needs to be worried about their reporting requirements under SASH and how to do that investigation. But never forget Title VII as well.
Marcelle Mouledoux: The other thing I wanted to mention about the Safer Seas Act is that there are many more provisions than we’ve discussed today. This is not the sum total of everything related to the Safer Seas Act. So, if it does apply to you, certainly go look it up and see what those other provisions are.
Well, thanks, Susan, for a good conversation. I’m always interested to learn about the interplay between maritime law and labor and employment law.
Susan Desmond: And I thank you as well, Marcelle, and thank everyone for listening. If you need anything in this area, please don’t hesitate to call us.
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