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Missouri Lawmakers Propose Ending Sexual Harassment By Telling Interns To Dress Modestly

Wednesday, August 19th, 2015

tara-culp-resslerSome Missouri state lawmakers have a controversial idea for preventing future sexual harassment cases in the legislature: Imposing a new “modest” dress code for teenage interns.

State representatives are trying to figure out how to respond to several incidences of harassment among their ranks. In July, State Sen. Paul LeVota (D) resigned amid allegations that he sexually harassed two interns. And in May, House Speaker John Diehl (R) — perhaps the most powerful lawmaker in the state — stepped down after the Kansas City Star reported that he exchanged sexually explicit text messages with a 19-year-old intern.

In response, lawmakers are attempting to make changes to the current internship program to provide more oversight. And at least two state legislators — Reps. Bill Kidd (R) and Nick King (R) — have thrown their weight behind an intern dress code.

“We need a good, modest, conservative dress code for both the males and females,” King wrote in an email to the rest of his colleagues after Kidd made the initial suggestion. “Removing one more distraction will help everyone keep their focus on legislative matters.”

The idea was met with derision from Kidd and King’s Democratic colleagues, as well as roundly mocked on Twitter. Critics pointed out that changing interns’ dress codes won’t get at the fundamental issue of lawmakers potentially harassing their staff or colleagues. Plus, they argued there isn’t anything inherently distracting about interns’ bodies that should prevent their bosses from being able to go about doing their jobs.

“If my plaid jacket or the sight of a woman’s bare knee distracts you from your legislative duties, I would look for other work,” Rep. Jeremy LaFaver (D) responded.

Missouri’s legislature isn’t the first to wade into this fight. Last year, Montana lawmakers madenational headlines for approving new dress code guidelines that stipulated “leggings are not considered dress pants” and women should be “sensitive to skirt lengths and necklines.” Female politicians in the state objected, saying the new rules created “this ability to scrutinize women” and were “totally sexist and bizarre and unnecessary.”

The argument over gender-based dress codes has also spread to middle schools and high schools across the country, as female students push back against the assumption that the way they dressmay distract their male peers from concentrating in class. Critics say this approach to dress codesreinforces the idea that women’s bodies are inherently tempting to men and that women are responsible for covering themselves up. The implicit message, then, is that it’s women’s job to change their behavior to prevent men from committing sexual crimes.

“Maybe voters should insist on a special requirement for men applying to be a Missouri lawmaker,” Kansas City Star columnist Yael Abouhalkah wrote on Tuesday. “It could rule out any men who consider themselves to be lascivious, salacious and simply indecent.”

This blog originally appeared on ThinkProgress.org on August 18, 2015. Reprinted with permission

Tara Culp-Ressler is a Senior Editor at ThinkProgress. She was previously a Health Editor, Health Reporter, and Editorial Assistant for the site. Before joining the ThinkProgress team, Tara worked at several progressive religious nonprofits, including Faith in Public Life, the National Religious Campaign Against Torture, and Interfaith Voices. Tara graduated from American University and is originally from Lancaster County, Pennsylvania.


Joan Would Have Lost Her Sexual Harassment Suit Against McCann Erickson

Wednesday, May 6th, 2015

millhiser_ian_bioThe following contains spoilers from Sunday night’s episode of Mad Men. The big reveal in Sunday night’s episode of Mad Men was that Sterling Cooper, a company where racist jokes are frequently thrown about and where the company’s only female partner literally earned that partnership because she was prostituted out to a client, is actually a progressive employer by the standards of its era. The episode is the first after Sterling Cooper is absorbed into the advertising behemoth McCann Erickson, and it begins with an African American secretary telling her casually racist boss that she won’t be going over to McCann with him because “advertising is not a very comfortable place for everyone.” Yet the highlight of the episode is Joan’s sexual harassment at the hands of a senior member of her new firm, and her eventual decision to take a buyout worth only half of her partnership stake in the now defunct Sterling Cooper rather than take McCann to court. (Joan, of course, is the partner who agreed to an indecent proposal from a client). In response to Joan’s fictional experience with sex discrimination, the real-life American Civil Liberties Union (ACLU) urged Joan to contact them in a tweet announcing that “sexual harassment has no place at work!” Yet the sad truth is that, had Joan actually pursued a lawsuit against McCann in 1970, the year when the final half-season of Mad Men takes place, she would have almost certainly lost.

Sunday’s episode focuses on Joan’s increasingly terrible interactions with three male colleagues. Early in the episode, Joan is matched with Dennis, an account executive who botches a call with a client and then dismisses Joan’s feedback (“Who told you you got to get pissed off!”) when she calls him out on his incompetence. Fearful that Dennis will destroy the client relationships that are her only capital within the firm, she approaches Ferg, a more senior colleague, seeking help.

Though Ferg initially presents himself as a lifesaver — he takes Dennis off Joan’s business and promises that she will report directly to him – he soon makes it clear that his real interest in Joan is sexual. Ferg suggests that the two of them travel together to Atlanta to meet the client Dennis upset and tell her that he’s “not expecting anything more than a good time.” Once Joan goes over Ferg’s head, she’s informed that Ferg is a high-status player at McCann and that she needs to fall in line. At first, Joan threatens to bring in the Equal Employment Opportunity Commission (EEOC), Betty Friedan and the ACLU to press her sexual harassment claim, but she ultimately takes what amounts to a settlement offer consisting of only half of what McCann owes her for her stake in Sterling Cooper.

Had Joan sued McCann, she would have relied on a legal theory that wasn’t even in its infancy in 1970. The ban on sexual harassment in the workplace flows from Title VII of the Civil Rights Act of 1964, which forbids employment discrimination because of “race, color, religion, sex, or national origin.” Six years after the law’s passage, however, the courts had only barely begun to grapple with how sex discrimination actually manifests in the workplace, and the term “sexual harassment” didn’t even exist yet.

According to the National Organization for Women, “Cornell University activists coined the term sexual harassment in 1975,” five years after Joan’s fictional harassment took place. The first successful sexual harassment suit was decided in 1976, and that was only the decision of a single federal district judge. The EEOC did not issue guidelines targeting sexual harassment as a kind of sex discrimination until 1980. And the Supreme Court did not recognize Title VII’s prohibition on sexual harassment until its 1986 decision in Meritor Savings Bank v. Vinson.

Had Joan filed suit against McCann, her lawsuit would have preceded all of these legal developments. For that reason, despite her threat to get the ACLU involved, it is unlikely that top-notch civil rights lawyers would have wanted to use her case as the vehicle to try to blaze a new legal trail. When lawyers bring a “test case” seeking to create new law, they typically choose their plaintiff or plaintiffs very carefully, selecting someone with an especially compelling case who is likely to win the sympathy of judges or justices. Bad facts make bad law, and a lawyer who offers a novel legal theory on behalf of a client who experienced subtle or uncertain harassment is likely to not only lose their case, they are likely to create a bad precedent that will harm future plaintiffs.

Here, for example, are the allegations in Vinson, the first Supreme Court case to recognize that sexual harassment suits are viable:

Respondent testified that during her probationary period as a teller-trainee, Taylor treated her in a fatherly way and made no sexual advances. Shortly thereafter, however, he invited her out to dinner and, during the course of the meal, suggested that they go to a motel to have sexual relations. At first she refused, but out of what she described as fear of losing her job she eventually agreed. According to respondent, Taylor thereafter made repeated demands upon her for sexual favors, usually at the branch, both during and after business hours; she estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, respondent testified that Taylor fondled her in front of other employees, followed her into the women’s restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions.

Though Vinson recognized that this egregious level of harassment-becoming-assault violates the law, it set a very high bar for future sexual harassment plaintiffs. “For sexual harassment to be actionable,” Justice William Rehnquist wrote for the Court, “it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” The Court also cited favorably to a racial harassment case establishing that the “‘mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee’ would not affect the conditions of employment to sufficiently significant degree to violate Title VII.”

Ferg’s advances, though clearly inappropriate, did not even approach the egregious level of discrimination that allegedly occurred in Vinson. He began his conversation with Joan by excusing Dennis’s sexism, but ultimately promised to give Joan the professional “respect you desire.” And he propositioned Joan more through innuendo than through the direct demands that allegedly occurred in Vinson. There’s little doubt what kind of “good time” Ferg was looking for, but it would be difficult for Joan to prove that this one incident constituted the kind of “severe or pervasive” harassment Vinson demands.

That’s not to dismiss the reality of Ferg’s harassment of Joan, or to suggest that the working conditions that she faced were anything less than disgusting. But sexual harassment claims are notoriously difficult to win, and even our modern, more developed sexual harassment law is inadequate to combat the kind of harassment women like Joan continue to face in the workplace.

Had Joan filed suit against McCann, she would have been a true pioneer, bringing a novel legal case years before the term “sexual harassment” even existed. She also would have almost certainly lost her case in a legal system that was not the least bit prepared to hear it.

This blog was originally posted on Thinkprogress.org on May 4, 2015. Reprinted with permission.

About the Author. The author’s name is Ian Millhiser. Ian Millhiser is a Senior Fellow at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal. Ian’s first book is Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.


Unpaid Intern Cannot Bring Sexual Harassment Claim Under NYC Human Rights Law, Judge Rules

Monday, October 7th, 2013

davidyamadaA New York federal district court has ruled that a former unpaid intern for Phoenix Satellite Television US, Inc., cannot bring a sexual harassment claim under the New York City Human Rights Law, because the lack of compensation renders her unable to meet the requirement of employee status under the statute.

Judge P. Kevin Castel issued the ruling in Lihuan Wang v. Phoenix Satellite Television US, Inc., on Thursday. The alleged harassment included ongoing social and sexual overtures and physical touching by a bureau chief who supervised the plaintiff’s work.

As reported by Jay-Anne B. Casuga for the BNA’s Daily Labor Report (subscription required):

A female former unpaid broadcasting intern cannot bring a sexual harassment claim under the New York City Human Rights Law because she is not an “employee” within the meaning of the law, a federal judge in New York held Oct. 3, addressing an issue of first impression . . . .

. . . Relying on federal and New York case law, the district court said unpaid interns do not qualify as employees under Title VII of the 1964 Civil Rights Act or the New York State Human Rights Law because of the “absence of remuneration,” which is an “essential condition to the existence of an employer-employee relationship.”

O’Connor v. Davis (1997)

The district court cited favorably to the leading decision on the legal question of whether unpaid interns have standing to sue under employment discrimination laws, O’Connor v. Davis, a 1997 Second Circuit Court of Appeals decision involving a student social work intern who alleged that she was sexually harassed by a staff psychiatrist in the course of an internship with the Rockland Psychiatric Center in New York.

The plaintiff filed suit, claiming, in part, that she was subjected to sexual harassment in violation of Title VII of the federal Civil Rights Act. The Second Circuit Court of Appeals held that O’Connor was not an “employee” within the statutory meaning of Title VII, reasoning that compensation “is an essential condition to the existence of an employer-employee relationship.” The absence of any kind of salary, wages, health insurance, vacation and sick pay, or any promise of such direct or indirect remuneration from Rockland was fatal to O’Connor’s claim of employee status, and consequently, to the Title VII count of her complaint.

EEOC’s position, too

The holding of O’Connor v. Davis apparently represents the current position of the Equal Employment Opportunity Commission, the federal agency charged with interpreting and enforcing America’s employment discrimination laws. Blair Hickman and Christie Thompson reported on this question for ProPublica:

Federal policies echo court rulings. The laws enforced by the U.S. Equal Employment Opportunity Commission, including the Civil Rights Act, don’t cover interns unless they receive “significant remuneration,” according to commission spokesperson Joseph Olivares.

“At least with respect to the federal law that we enforce, an unpaid intern would not be legally protected by our laws prohibiting sexual harassment,” Olivares said in an email to ProPublica.

It’s unclear how many interns are sexually harassed at work. The commission doesn’t keep those statistics, according to Olivares.


October 7 additional comments: Because I wanted to post news of this case promptly, I didn’t spend a lot of time parsing out the legal and policy implications. But I’d like to add a few words now.

The court’s holding in this case raises the related issue of whether or not unpaid internships violate federal and state minimum wage laws, a topic that I’ve addressed frequently on this blog, such as this report on the June 2013 Glatt v. Fox Searchlight Pictures decision in which a federal district court held that unpaid interns were entitled to back pay. In instances where an unpaid intern should’ve been paid under the law, the employer benefits two-fold by claiming the lack of pay renders an intern unable to bring a discrimination or sexual harassment claim, no matter how bad the underlying alleged behavior. By not paying an intern in violation of the law, the employer also may escape liability for discrimination or sexual harassment. How’s that for a bad result?!

I soon will be posting a draft of a new law review article that discusses the many recent legal, policy, and advocacy developments concerning the internship economy. It will serve as an update and sequel to my 2002 article, “The Employment Law Rights of Student Interns” (Connecticut Law Review), that discusses the above-mentioned O’Connor v. Davis decision in some detail.

For reasons I explain in my forthcoming article, I believe that the question of covering interns under employment discrimination laws should be dealt with separately from the issues of compensation under minimum wage laws.

This article was originally printed on Minding the Workplace on October 5, 2013.  Reprinted with permission.

About the Author: David Yamada is a tenured Professor of Law and Director of the New Workplace Institute at Suffolk University Law School in Boston.  He is an internationally recognized authority on the legal aspects of workplace bullying, and he is author of model anti-bullying legislation — dubbed the Healthy Workplace Bill — that has become the template for law reform efforts across the country.  In addition to teaching at Suffolk, he holds numerous leadership positions in non-profit and policy advocacy organizations.

Few And Far Between: Court Decides Female on Male Hostile Environment Sexual Harassment Case

Wednesday, October 20th, 2010

Assumption That Men Welcome Sexual Harassment Is Sex Stereotyping In Violation Of Title VII

You don’t often see sexual harassment cases in which the woman is the aggressor and the man is the victim. Many people (including some judges) don’t interpret those facts to constitute sexual harassment in violation of Title VII. That’s why the recent case of EEOC v. Prospect Airport Services from the Ninth Circuit Court of Appeals is so important.

What Happened In The Case

Rudolpho  Lamas worked for Prospect Airport Services at McCarran International Airport in Las Vegas. He worked as a passenger assistant helping passengers who needed wheelchair assistance.

Lamas, a recent widower, started working for Prospect in April of 2002. That fall, Sylvia Munoz, a married co-worker began making sexual advances to Lamas. Munoz repeatedly:

  • propositioned him for sex
  • asked him out
  • wrote him love notes which were sexually explicit
  • performed gestures simulating fellatio when he walked by
  • recruited co-workers who were telling him that she loved him and wanted him
  • approached him in the parking lot at work and gave him a sexually suggestive photograph

Lamas never made overtures towards Munoz and told her and their co-workers over and over that he was not interested – but she didn’t stop.

Lamas complained to his boss but nothing was done. He talked to his next supervisor up the chain, Dennis Mitchell, and gave him one of the “love” notes. Mitchell told Lamas that he “did not want to get involved in personal matters.” Eventually Mitchell told Munoz that he knew she was “pursuing a coworker … and the coworker wanted the advances to stop.”

But Munoz did not stop and the harassment continued. He testified that every time he walked by her there was something — a gesture, licking her lips suggestively, asking if he “wanted to have some fun”, performing “blow job imitations” — and that it was embarrassing and causing constant pressure at work.

Co-workers began to speculate that Lamas was a homosexual — so in addition to having to deal with Munoz’s remarks and gestures, Lamas had to face co-workers remarks suggesting that he was gay. Lamas complained to four different Prospect management officials about the harassment, but nothing was done to stop it. Munoz kept up the behavior.

Lamas felt helpless, was crying, and consulted a psychologist about his distress. His performance began to suffer. Lomas was demoted because of “complaints about job performance “and his “negative attitude.” A few months later, in June of 2003, Lamas was fired.

The District Court Decision

Munoz filed a lawsuit in the federal district court in Nevada for sexual harassment. The district court concluded as a matter of law that Munoz’s conduct was not severe and pervasive enough to amount to sexual harassment for a reasonable man.

In its decision grating judgment against Lamas, the district noted that most men would have “welcomed” the behavior, but Lomas admitted that due to his Christian background he was embarrassed instead. It also noted that Munoz never filed a written report complaining about the conduct.  Lamas appealed.

The Ninth Circuit Court Of Appeals Reverses

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, which includes sexual harassment in the form of a hostile work environment. Both sexes are protected under the law.

In a hostile environment sex harassment claim, the plaintiff must prove that he or she:

  • was subjected to verbal or physical conduct of a sexual nature
  • which was unwelcome
  • and sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment

In addressing the each of the elements and burden of proof as applied to this case, the Court found the following:

Conduct of a sexual nature

Whether Lamas was subjected to “verbal or physical conduct of a sexual nature” is an “easy question” according to the court.

Munoz propositioned him for sex. Munoz wrote to him that she dreamed of him in a bath, that she gave good “body wash,” and that she wanted him sexually. She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes. His proposition was for sex, not a cup of coffee together. After she recruited coworkers to pressure Lamas, they mocked him suggesting he was homosexual.


In addressing whether the conduct was welcome or not the Court stated:

It cannot be assumed that because a man receives sexual advances from a woman those advances are welcome. …. This is a stereotype and welcomeness is inherently subjective, so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual advances.

Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons.

… Lamas unquestionably established a genuine issue of fact regarding whether the conduct was welcome.

Severe or Pervasive

It is well established that sporadic use of abusive language, gender-related jokes, and occasional teasing will not, standing alone, establish a hostile environment sexual harassment claim.

As stated above, in order to establish a violation, an employee must prove that the unwelcome sexual conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

Whether a working environment is objectively abusive is determined only by looking at all of the circumstances which may include:

  • the frequency of the discriminatory conduct
  • its severity
  • whether it’s physically threatening or humiliating
  • whether it unreasonably interferes with an employee’s work performance

No single factor is required. In this case, the Court found that:

Monoz’s continued advances created an environment that Lamas reasonably perceived as hostile and abusive. Lamas’ emotional testimony about his co-worker statements about Munoz’s interest in him, his complaints to his supervisors and Prospect managers, as well as his complaints to the EEOC and State of Nevada all evidenced pervasiveness amounting to an abusive work environment.

Prospect Airport’s Response

An employer is liable for an employee’s sexual harassment of a co-worker if it knew, or should have known, about the harassment and failed to take prompt and effective remedial action. According to the Court:

The record established that a jury could reasonably find that Prospect knew about the harassment, and that its response was inadequate. Lamas complained to his employer, but Prospect’s responses were ineffectual, and known by Prospect to be ineffectual. … Prospect’s actions were not enough to establish an affirmative defense for Prospect.

With that, the case was reversed.

Take Away

What was really interesting about the case was the district court’s reaction to the evidence — that is, this was not a case of sexual harassment because Lamas’ reaction to the sexual advances was not the same reaction most men would have.  Other judges may have a tendency to view the evidence the same way.

This opinion clearly addresses the problem of erroneously stereotyping men in the context of a sexual harassment case in which the man is the victim. It doesn’t come up all that often, but when it does, this new opinion for the Ninth Circuit should be very helpful to male employees who find themselves in a similar situation.

images: www.rollingrains.com www.stencilease.com

This article was originally posted on Employee Rights Blog.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Mad Men, Madder Women: Have Roles Really Changed in the Workplace?

Tuesday, September 28th, 2010

Vivian DillerLike many baby boomers who regularly watch AMC’s “Mad Men,” I marvel at how accurately they get it: the smoky ambiance, the retro style and the subtleties of how people lived, worked and played in those good/bad ole days. Each Sunday we watch history unfold through the characters who work at the Sterling, Draper, Cooper and Pryce Ad Agency. A recent episode (aired on 9/12/10) particularly intrigued me, as a psychologist and author who writes about women’s issues in contemporary society. The episode brilliantly illustrated a cultural phenomenon that I have called “the beauty paradox.” (see my recent Huffington Post piece by that name), highlighting its origins and continued influence in today’s world.

The beauty paradox is the ambivalence women feel about the role beauty plays in their personal and professional lives. Should or shouldn’t looks matter? Are smart women taken less seriously if they place importance on their appearance? Are sensuality and femininity at odds with ambition and success at work? In “Mad Men” — where women are growing increasingly madder about this burgeoning issue — we get to watch a dramatization of this cultural phenomenon.

This particular episode revolved largely around the two females leads: Joan, the voluptuous secretary and Peggy, the brainy creative director. They engage in a series of interchanges with their male office mates, who range from the crude and chauvinistic to the slowly emotionally evolving partner in charge, Don Draper. The boys view Joan both as an object of desire and derision, openly poking fun at the role she plays in the office. “Joan’s on the desk with boobs on the blotter,” they laugh, underestimating her innate, instinctive intelligence, even if we viewers know better. Peggy is portrayed as smarter and more ambitious, the worker-bee who can hardly relate to Joan. The men devalue her too, as the gal trying to be one of the boys, although they hardly view her, or any woman, as a serious professional threat. When Peggy asks advice of Draper — the only male who seems unfazed by either of these women — he encourages her to take the matter into her own hands. A cultural revolution is beginning.

Here is where it gets complicated. As we see roles start to change and power begin to shift, we also witness an internal battle growing within women themselves. And it is there that “Mad Men” gets it right again. Peggy is shown trying to deal with these bad boys in the professional manner suggested by her boss. Being new to this role, she tries first to give them fair warning about Joan’s true influence in the office, but she gets nowhere. They continue the banter, mocking Joan, “What do you do around here besides walking around like you’re trying to get raped?” Peggy is then faced with an internal debate, one that I believe continues in the minds of many women today: does she side with her own sex against the men’s demeaning attitude toward a fellow female worker? Or does she look the other way in order to side with the men, who clearly dominate the coveted roles at the agency? Mustering up courage, she decides to fire Joey, Joan’s most flagrant abuser and as he leaves, he tells Peggy, “Well, I was wrong about you.” To his fellow ad men, Joey warns “Watch out fellas, the fun is over.” These may be the episode’s most revealing and interesting moments. Clearly, Peggy is hurt by the men’s disappointment in her, but she also feels triumphant as she exercises, for the first time, the authority granted by her boss. She feels, in fact, more like one of the boys than she ever has, excited by the power she senses will grow.

That is, until she shares her courageous act with Joan, who is not at all pleased by Peggy’s defense of her womanhood. From Joan’s perspective, she has only been further devalued, this time by her female cohort whose actions have painfully highlighted Joan’s position — the beautiful secretary who needs to be saved by someone with more male-like power. We, as viewers, also shift from applauding Peggy’s new found consciousness to lamenting any diminution of Joan, a woman we know is capable of defending herself. The beauty paradox is played out between these two women for us all to see. It is a drama surprisingly similar to the one played all too often (albeit, behind closed doors) in women’s lives today.

While the reality of sexual harassment has changed somewhat since the “Mad Men” days, women continue to struggle with how to mesh beauty and sensuality with their professional lives. They struggle with one another — like Joan and Peggy did — and within themselves. They worry if their looks will interfere with their climb up the ladder. They are not sure if overt femininity displays power or weakness. The dilemma still remains; which side to take? Should the Joans of today minimize their beauty in the service of establishing themselves as smart, clever women? Should today’s Peggys let themselves enjoy being a girl and embellish their femininity or will that put them at risk of losing out in their race to the top?

Joan was on to something in that elevator when she told Peggy she would not be seen as a heroine so much as just “another humorless bitch.” The Women’s Movement was supposed to resolve this dilemma as the glass ceilings were being broken at Sterling, Draper, Cooper, Pryce and elsewhere. But the truth is, women continue to struggle with this issue in spite of all the crashing and breaking they’ve done over the past 50 years. We may have a female Secretary of State. Women sit as judges on the Supreme Court. There are Peggy Olsens all over the media world. Yet still, being female, attractive and powerful at the same time remains a complicated equation. The title of AMC’s hit series may be “Mad Men,” but in many ways the show is about its women and the evolution of their revolution.

Oh, and let’s not forget Betty Draper, suffering out there in stagnant suburbia. Her unhappy, stay-at-home mother role is about to undergo its own revolution. Fast forward (which means an episode sure to be coming soon) to another Betty, with the last name Friedan. She will give an identity to the “no name illness,” being increasingly experienced by the women of “Mad Men’s” era. And from what women tell me today, I’m not sure we have yet found a full cure for this cultural malady. Your thoughts?

This article was originally posted on The Huffington Post

About The Author: Vivian Diller, Ph.D., is a psychologist in private practice in New York City. After completing her Ph.D. in clinical psychology, she went on to do postdoctoral training in psychoanalysis at NYU. She has written articles on beauty, aging, eating disorders, models, and dancers, and served as a consultant to a major cosmetic company interested in promoting age-related beauty products. Her book, “FACE IT: What Women Really Feel As Their Looks Change” (2010), written with Jill Muir-Sukenick, Ph.D. and edited by Michele Willens, is a psychological guide to help women deal with the emotions brought on by their changing appearances. “Today” co-host Hoda Kotb called it “a smart book for smart women.” For more information, please visit www.VivianDiller.com.

Crossing the Line: The Ninth Circuit’s Guidelines for Flirting at Work

Friday, September 17th, 2010

Patrick KitchinAfter months of complaining that a female co-worker had repeatedly harassed him to have sex with her, Rudolpho Lamas’s boss offered a suggestion.  Maybe, the boss said, Rudolpho should try walking around the office singing, “I’m too sexy for my shirt.”  Everyone at work thought the situation was hilarious:  a widower turning down the explicit sexual advances of an attractive woman.  But Rudolpho Lamas and his lawyers are not laughing.

When does flirting at work cross the line and become sexual harassment under Title VII of the Civil Rights Act, Lamas’s lawyers asked.  And, does Title VII impose different standards on men and women in sexual harassment cases?  Finally, do gender stereotypes have a place in the jurisprudence of Title VII?

Earlier this month the Ninth Circuit Court of Appeals in San Francisco answered Rudolpho’s attorneys’ questions in a case involving a man who alleged he had been sexually harassed by a female co-worker in direct violation of Title VII.  (E.E.O.C. v. Prospect Airport Services (9th Cir. 9/3/2010).) The Court’s decision is interesting, not so much for its ultimate finding—that Title VII indeed provides equal protection to male and female victims of sexual harassment is well established—but for the way the Court considers socio-cultural stereotypes about gender in the context of a Title VII claim.

Before turning to the drama of E.E.O.C. v. Prospect Airport Services, a few words about the stage on which Rudolpho Lamas’s story is now playing out.

It is illegal to discriminate in the terms and conditions of employment based on the gender of a person under Title VII of the Civil Right Act.  Under Title VII, sexual harassment is considered to be a form of sex discrimination.

A Title VII sex harassment claim can be based on two theories of liability:  (1) economic quid pro quo; or (2) hostile environment.

In a typical case of quid pro quo sexual harassment, “a supervisor relies upon his [or her] apparent or actual authority to extort sexual consideration from an employee.”  Hensen v. City of Dundee 682 F.2d 897 (11th Cir. 1982). “Have sex with me,” says the supervisor, “and you’ll get that promotion.”

In a hostile work environment Title VII case, a co-worker or a supervisor’s gender-biased conduct is so severe or pervasive that the employee’s work environment is severely impacted.  “[W]hen a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex.”  Meritor Savings Bank, FSB v. Vinson, 477 US 57 (1986). And, of course, that is what Title VII’s gender provisions guard against:  discrimination based on sex.

This month’s Ninth Circuit case was based on the second of these two Title VII liability theories.  To maintain a gender-based, hostile environment case, a worker must show that:

(1) he or she was subjected to verbal or physical conduct of a sexual nature

(2) the conduct was unwelcome, and

(3) the conduct was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir.1991)

Element 1:  Conduct of a sexual nature

Lamas presented evidence that a female co-worker repeatedly asked him to go out with her and on several occasions made explicit references to her desire to have sex with him.  She wrote to him, “I’ve been thinking of you a lot lately. I’ve been having crazy dreams about us in the bath tub yeah in the bath tub… Seriously, I do want you sexually and romantically!”

The Court had no trouble finding that the conduct was sexual.  “She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes on.  Her proposition was for sex, not a cup of coffee together.”

Having established the conduct was of a sexual nature, the Court went on to consider whether Lamas might have welcomed the conduct.

Element 2:  Welcomeness

The Court next considered how the welcomeness element of the three-part prima facie case must be proved in a case involving a male victim and female harasser.  What evidence does a male victim of sexual harassment need to present to establish that the sexual advances of a co-worker were unwelcome?  The short answer is, the same evidence a woman needs to present.

Lamas’s employer apparently argued in the lower court that men are more likely than women to welcome the sexual advances of a co-worker.  Even Lamas admitted that “most men in his circumstances” would have welcomed the invitations.  So, what did the Ninth Circuit think about this digression into cultural stereotypes?  Not much.

The Court was quick to point out that suppositions about what most men wanted at work was itself a stereotype and, thus, was not evidence of anything.  “[W]elcomeness is inherently subjective, (since the interest two individuals might have in a romantic relationship is inherently individual to them), so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual propositions.”

“Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons.”  Though the reference to Marilyn Monroe is a bit old school, the message is clear and contemporary.  Men, like woman, have lots of reasons to reject sexual advances by co-workers, including religious beliefs, fear of sexual harassment lawsuits, fear of complications in the workplace, fear of pregnancy or, as the Court explained, fears about facing two decades of child support payments.  Or, the Court explained, “[Lamas] might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not.”

While the Court focused on the subjectivities of welcomeness, it observed that welcomeness has an objective component as well.  To hold the employer liable under Title VII, the unwelcomeness must be communicated. The employer must be told about the harassment so it can evaluate and respond to the allegations.  “Sometimes the past conduct of the individuals and the surrounding circumstances may suggest that conduct claimed to be unwelcome was merely part of a continuing course of conduct that had been welcomed warmly until some promotion was denied or employment was terminated. That is a credibility issue.”

Element 3:  Severe or Pervasive

Title VII is not a “general civility code” either.  It is not meant to protect workers against “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.”  Faragher v. Boca Raton, 524 US 775 (1998).

Title VII is designed to provide legal remedies to those employees who have been subjected to significant gender-based harassment and discrimination.  In other words, it protects employees who have been subjected to sexual conduct that is severe or pervasive.

Some conduct, such as a sexual assault of a co-worker, is severe enough to provide an immediate remedy to a worker under Title VII.  A sexual assault immediately creates an abusive working environment.

Less egregious conduct can provide grounds for a Title VII claim, as well, if:  (1) it happens often; and (2) it is of such nature that it is offensive to both the victim and a reasonable person in the victim’s circumstances.

Having a co-worker flash a nude picture of himself (or herself) to you one time at a holiday party might be offensive. The one-time, alcohol-driven transgression of a co-worker would not provide grounds for a Title VII claim, however.  But what if a co-worker (male or female) constantly displayed pornography on his (or her) computer in a cubicle shared with another worker?  What if this conduct was part of an attitude that permeated the workplace with gender bias?  If the cubicle mate’s objections and complaints were ignored by the employer, and the conduct continued, it might become pervasive enough to alter the conditions of the workplace in violation of Title VII.

Most Title VII claims involve a series of such increasingly troublesome events, none of which alone would support a strong Title VII lawsuit.  But taken together, they often do.  So, on a behavioral scale ranging from off-color jokes to things you only see on Mad Men episodes, the case law teaches that the more outrageous the conduct, the fewer times it must occur to be actionable, and vice versa.  The courts treat it as a classic inverse relationship.

Putting It All Together

By looking at the all of the circumstances of the workplace in Prospect Airport Services, the Ninth Circuit found sufficient evidence of unlawful sexual harassment to send the case back to the trial court for further proceedings.   The female employee’s conduct obviously was sexual.  And Lamas made it clear that he wanted the conduct to stop.  The conduct was pervasive and had a serious negative impact on conditions at work.  Lamas’s job performance suffered.  When the harasser told her co-workers about her efforts to seduce the victim, they mocked Lamas and questioned his sexuality.  Lamas complained several times to his supervisors about the harassment, but nothing was done.

If Rudolpho Lamas can convince a jury that all of this is true, then he will have proved all of the elements of a Title VII sex harassment case.

Guidelines for Flirting at Work?

In its decision earlier this month, the Ninth Circuit made it clear it does not consider all romantic overtures, or even all sexual propositions, to constitute unlawful sexual harassment

People spend most of their waking hours with other people at their workplaces, so that is where many meet and begin social relationships, and someone has to make the first overture. Some people have more social finesse than others, and many might suggest coffee or a trip to an art exhibition rather than sex, but mere awkwardness is insufficient to establish the “severe or pervasive” element.

Directly propositioning a co-worker to have sex might be incredibly cheeky and against company policy (it could get a person fired), but it does not violate Title VII.  “Had Munoz merely asked Lamas to go out on a date, or to see whether they might have a romantic relationship, or straightforwardly propositioned him for sex, and then quit when he clearly told her no, the EEOC would not have shown enough evidence to survive summary judgment.”

Does this mean that acting like a normal, socio-sexual human being at work is legal under federal law?  Undoubtedly so; but the definition of normal remains as subject to context, credibility and the uncertainties of the civil litigation system as ever before.

Has the Ninth Circuit now established federal guidelines for flirting at work that are applicable to men and women across the country?  Not really.  But, what the Court has done is to restate well established principles of law: men and women have identical employment rights, as well as identical burdens of proof, in sexual harassment cases brought under the Civil Rights Act.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere. For more information about his practice you can visit his website here.

Employee Rights Short Takes: Hostile Work Environment, GINA, FMLA And More

Thursday, June 3rd, 2010

Here are a few Short Takes worth sharing:

Sex Bias Case Ends With Huge Punitive Damages Award

The drug maker Novartis was hit with $250 million in punitive damages last week because of discrimination against thousands of female sales representatives. Issues involved discrimination in pay, promotion and pregnancy. The punitive damages award represented 2.6 of the company’s 2009 $9.5 billion revenue. Earlier in the week, the jury awarded $3.3 million dollars in compensatory damages to 12 of the women who testified. The case is reported to be the largest discrimination verdict ever.

Genetics Discrimination

Complaints were filed against MX Energy, a Connecticut natural gas retailer, under Title II of  Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment. The new federal law took effect on November 21, 2009.

GINA prohibits discrimination against employees or applicants because of genetic information. GINA also restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.

The charging party Pamela Fink, claims that her employer fired her, despite years of glowing evaluations, after learning she tested positive for the breast cancer gene. Fink filed complaints against her employer with the Connecticut Commission on Human Rights and Opportunities and the federal Equal Employment Opportunity Commission. About 90 GINA-related complaints have been filed nationwide since the law went into effect. This should be an interesting case to follow. For more about genetic discrimination, read here.

Rights Of Undocumented Workers

With all the talk about illegal immigration, one might wonder what the rights are of the over eight million undocumented workers in this country. Carolina Nunez, a law professor at Brigham Young University’s Reuben Clark Law School, wrote an interesting article about the topic which you can read here. The piece appeared in the Spring 2010 issue  of the Clark Memorandum, a publication of BYU’s J. Reuben Clark Law School.

Should undocumented workers enjoy the same workplace protections that authorized workers enjoy? When and how much should immigration status matter? Does being here count for anything? It is no surprise that the answers are less than clear.

Recent Cases Of Interest From The Circuits

Plaintiff Wins FMLA Appeal: In Goelzer v. Sheboygan County, Wisconsin Dorothy Goelzer was fired from her administrative job with the county government after 20 years. Her supervisor told her about the termination decision two weeks before she was scheduled to begin two months of leave under the Family and Medical Leave Act.

Goelzer had taken a significant amount of authorized FMLA during the four preceding years to deal with her own health issues as well as those of her husband and mother. The defendants claimed she was fired because they wanted to hire someone with a “greater skill set.” The district court granted judgment against Goelzer.

The Seventh Circuit Court of Appeals reversed this month stating that comments suggesting frustration with her use of leave, Goelzer’s favorable performance reviews, and the timing of her termination could lead a jury to conclude that Goelzer was fired because she exercised her right to take FMLA. This is a very good case for those who are claiming an interference or retaliation claim under the FMLA.

Employers Liable For Third Party Harassment: In Beckford v. Department of Corrections, Melanie Beckford, and thirteen other female employees, claimed that the Florida Department of Corrections failed to remedy the sexually offensive conduct of inmates  — including the frequent use of gender-specific abusive language and pervasive gunning, the notorious practice of inmates openly masturbating toward female staff. The jury found in favor the plaintiffs and awarded each $45,000 in damages.

The Department appealed and contended that it could not be liable under Title VII unless its staff actively encouraged or participated in the harassment. The Eleventh Circuit affirmed the verdict and concluded that the jury was entitled to find the Department liable because it unreasonably failed to remedy the sexual harassment by its inmates. The Court said:

It is well established that employers may be liable for failing to remedy the harassment of employees by third parties who create a hostile environment. …It makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer.

Employees are often harassed at work by individuals who are not employees. This case, which holds that employers are liable for harassment by third parties, is an important affirmation of this particular aspect of employer liability under Title VII.

images: www.hivplusmag.com charityrisk.squarespace.com

*This post originally appeared in Employee Rights Post on May 24, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

JetBlue Loses Appeal On Hostile Work Ennvironment Age Discrimination And Retaliation Claims

Wednesday, March 10th, 2010

Complaints To Supervisor/Harasser Are Sufficient To Overcome Affirmative Defense On Hostile Environment Claim

There’s lots of meaty reading in the Second Circuit case of Gorzynski v JetBlue Airways Corporation decided this month. The 31 page opinion hits multiple issues including sexual harassment, age discrimination, race discrimination, and retaliation.

The Federal District Court threw out the case on summary judgment. The Second Circuit Court of Appeals reversed and this is why.

Facts Of The Case

It’s a long story, but here’s the gist of it.

JetBlue hired Diane Gorzynski as a customer service agent in January 2000 for its operation at Buffalo International Airport. She was 54 years old at the time. In May 2000 she was promoted to the position of Customer Service Supervisor and stayed in that position until she was fired on July 5, 2002.

The customer service supervisors were managed by James Celeste, the General Manager. William Thro, a regional manager, was responsible for overseeing the General Managers of several JetBlue stations.

During her employment, Gorzynski experienced age and gender discrimination including sexual harassment. She also observed discrimination of other employees. The main culprit was her supervisor, James Celeste.

Gorzynski complained to Celeste on numerous occasions about the discrimination and harassment she experienced and about the discrimination and harassment of her co-employees.

She was retaliated against and fired, she believed, because of her complaints.

The Lawsuit

Gorzynski filed a lawsuit claiming that JetBlue:

* discriminated against her because of gender in violation of Title VII of the Civil Rights Act of 1964

* discriminated against her because of age in violation of the Age Discrimination in Employment Act

* retaliated against her for complaints to her supervisors about age and gender discrimination and race discrimination of co-employees in violation of Title VII and the ADEA

She also claimed numerous violations on the New York Human Rights Law.

The federal District Court granted JetBlue’s Motion for Summary Judgment of all claims. Gorzynski filed an appeal.

The Second Circuit Reverses

The Faragher/Ellerth Defense

One of the most important and interesting parts of the decision is its holding regarding JetBlue’s affirmative defense on which the District Court hung its hat to throw out Gorzynski’s sexual harassment claim – and it’s a holding which can effect lots of people.

In order to establish a hostile environment sexual harassment claim, a plaintiff must produce enough evidence to show that the workplace was:

* permeated with discriminatory intimidation, ridicule, and insult that is

* sufficiently severe or pervasive to alter the conditions of the victim’s employment and

* create an abusive working environment

In analyzing a hostile environment claim, the court is required to “look at the record as a whole and assess the totality of the circumstances.”

In this case, Gorzynski presented evidence that Celeste:

* grabbed Gorzynsi and other women around the waist

* tickled them

* stared at them as if” he was mentally undressing them”

* made numerous sexual comments including remarks about wanting to suck on or massage their breasts.

The District Court did not consider this evidence. Instead, it found that JetBlue was entitled to win as a matter of law because of its “affirmative offense” under the Supreme Court Faragher and Ellerth decisions.

The employer is entitled to raise the defense in certain sexual harassment scenarios involving supervisors and co-workers if it can show that:

* it exercised reasonable care to prevent and promptly correct any harassing behavior and

* the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm

With respect to the first element, JetBlue presented evidence of its sexual harassment policy (contained in its employee handbook) which stated that: “any crewmember who believes that he or she is the victim of any type of discriminatory conduct, including sexual harassment, should bring that conduct to the immediate attention of his or her supervisor, the People Department or any member of management.”

JetBlue argued that Gorxynski was not entitled to proceed on her sexual harassment claim because she failed to take advantage of the policy in the handbook when she:

* only complained to her supervisor — the harasser

* did not complain to other members of management.

The District Court agreed with JetBlue and granted judgment in its favor on Gorzyynski’s sexual harassment claim.

The Second Circuit rejected the District Court’s conclusion and reversed. It stated:

We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints.

Considering the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations, we decline to read the rule so rigidly.

Accordingly, we hold that an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser.

Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures.

In this case, the Court noted that:

* the other manager Gorzynski could have complained to was Thro — the regional manager

* the evidence showed that Thro was not receptive to receiving complaints from employees

* the evidence also showed that Thro was intimidating

* Thro retaliated against those who made complaints

Therefore, the Second Circuit held — in reinstating the sexual harassment claim — the question of whether or not Gorzynski unreasonably failed to take advantage of the options provided in the sexual harassment policy was a jury question.

Remaining Issues Of Fact For The Jury

Age Discrimination

Gorzyski established a prima facie case of age discrimination:

* she was over 40

* she was qualified for her position

* she was fired

* she was replaced by a woman in her 40’s

JetBlue countered this inference of age discrimination with its “legitimate business reason”: it fired Gorzynski because of her “management style,” “unprofessional conduct and poor interpersonal skills” and the “hostile work environment she created.”

The District Court found that Gorzynski did not present any evidence that JetBlue’s reasons were false or pretextual – and threw out her age discrimination claim.

The Second Circuit disagreed. Some of the evidence it noted was:

* the negative evaluation Gorzynski received from Celeste — a 2 out of 5 — was conducted after he had supervised her for only one week

* a contemporary, anonymous crewmember gave her a 4 out of 5

* at the same time Celeste gave Crowly, a 30 year old customer service rep. a 4 out of 5 even though Crowly had been written up and counseled on numerous occasions –Celeste then promoted him

* JetBlue’s investigation regarding an incident which immediately preceded Gorzynski’s discharge was “questionable at best”

* Celeste told Gorzynski she reminded him of his 80 year old aunt

* younger employees were not disciplined for violating numerous policies including smoking and sleeping on the job

The Court stated:

Given the cumulative weight of this evidence, we believe that a reasonable jury could find not only that the explanations given by JetBlue for Gorzynski’s termination were pretextual, but also that, together with Celeste’s passing comment about his aunt, it was her age that was the ‘but for’ cause of Gorzynski’s termination.

Accordingly, we vacate the District Court’s dismissal of Gorzynski’s age discrimination claims.

(the case also has a very interesting discussion of “age plus” discrimination in connection with her claim that Celeste discriminated against older women)


The District Court also dismissed Gorzynski’s claim that she was discharged in retaliation for complaining about race, gender and age discrimination.

In order to establish a retaliation claim, the plaintiff must show

1. that she participated in a protected activity
2. suffered an adverse employment action
3. a causal connection between her engaging in the protected activity and the adverse employment action

The Second Circuit reversed the District Court’s holding on the retaliation claims noting in part:

* five months – the time between Gorzynski expressed concern about a co-workers race discrimination and her discharge – was “not too long to find a causal relationship.”

* a complaint about a sexual harassment incident two months before her discharge sufficiently alleged a causal connection between her protected complaint about sex discrimination and her termination

* Gorzynski’s statements in her affidavit that there was unequal enforcement of the rules at the Buffalo station with respect to older employees versus younger employees should have been considered by the Court

In sum, the Court said

JetBlue has articulated a legitimate nondiscriminatory reason for Gorzynski’s termination, and Gorzynski has produced evidence that casts significant doubt on that rationale, leaving a triable issue as to whether JetBlue retaliated against her for complaining about prohibited discrimination.

Lessons To Be Learned

The decision is filled with points of law that are very helpful to employees who have filed employment discrimination claims. It gives numerous examples of what may be considered evidence of disparate treatment, pretext, and retaliation.

It also has a very interesting discussion of gender/age “plus” discrimination, where a subset of women are being discriminated against in the workplace, ie., older women, or black women, but not all women — which in reality is quite common.

Most noteworthy is the discussion of the Faragher/Ellerth defense. While it is critical for those who have been sexually harassed to complain to someone in management, the opinion makes it clear that victims of sexual harassment will not lose their rights because they did not complain to each person designated in a company’s sexual harassment policy.

Complaints to the supervisor/harasser are sufficient. That particular point of law will be a huge help to many victims.

Images: www.bajanfuhlife.com/news/news

*This article was originally published in Employee Rights Post on February 28, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

Sexual Harassment Victim Wins Important Appeal In Second Circuit

Tuesday, December 29th, 2009

When Do Discussions About Sexual Harassment At Work Constitute Reporting Which Requires Investigation?

This case addresses an issue in sexual harassment cases that comes up often in real life experience but is not often the central issue of an opinion from a federal court of appeals.

It has to do with reporting of sexual harassment when a victim talks about the harassment with others at work — but doesn’t file a formal complaint. Does the conversation constitute a complaint which requires an investigation?

The case also addresses discussions at work about sexual harassment where the victim says: “don’t tell anyone. What’s an employer to do?

The new case —  Duch v. Jakubek from the United States Court of Appeals for the Second Circuit — addresses these common but thorny issues.

Here’s what happened in the case:

The Harassment

Karen Duch was employed as a court officer by the New York Unified Court System and was assigned to the Midtown Community Court “(MDC) in August of 1999.

In May of 2001, Brian Kohn began working at MCA as a court officer along with Duch. Several months later Kohn and Duch had a consensual sexual encounter at Duch’s apartment. The encounter did not involve sexual intercourse.  

Duch told Kohn the next day that she had made a mistake and did not want to pursue any further relations with him.

After the encounter, and until January 2002, Kohn made a series of sexual advances towards Duch and continued to harass her with unwanted physical contact, sexually graphic language, and physical gestures.

In the months that followed Duch became seriously ill with depression. She stopped eating and began avoiding work. She became suicidal and eventually left the job.

The Reporting

Duch told three people about the harassment:

1. Edward Jakubek : The Highest Ranking Court Officer at MCC

    In October of 2001, when Duch learned that she was scheduled to work alone with Kohn on an upcoming Saturday she approached Jakubeck and asked for the day off. She didn’t tell him why she wanted the change.

    Later that day, Jakubek called Duch in her office and told her that he heard she wanted to change her schedule to avoid working with Kohn. He also told her that he had talked to Kohn and asked him directly why Duch didn’t want to work with him.

    Kohn responded to Jakubek by saying, “well, maybe I did something wrong or said something that I should not have.”

    Jaubek told Kohn to “cut it out and grow up.” He then asked Duch if she had a problem with Kohn. According to the testimony, Duch became emotional and after gaining her composure said, “I can’t talk about it.”

    Jakubek replied, “that’s  good because I don’t want to know what happened,” and then laughed.

    Jakubek offered to change Duch’s schedule so she would not have to work alone at night with Kohn, and thereafter did not schedule her to work alone with him.

    2. Rosemary Christiano: The EEO Liaison

      Later in October 2001, Duch told Christiano about Kohn’s harassment. When asked “are you speaking to me as a friend or as an EEO Liaison, Duch responded “I think I am telling you as a friend”.

      When Chritsiano asked Duch whether she wanted her to report Kohn’s behavior, Duch said “absolutely not.” Christiano did not report the harassment to anyone.

      3. David Joseph: Chrisitano’s Replacement As EEO Liaison

      In December of 2001, David Joseph replaced Christiano as the EEO Liaison. Within days, Duch informed him that she wanted to file a formal complaint about Kohn’s conduct.

      An investigation was conducted, and disciplinary charges were brought against Kohn. Duch refused to be cross-examined claiming that she was medically unfit to testify.

      All charges were eventually dropped against Kohn. Duch stopped working at the court in 2002 and filed a lawsuit in 2004.

      The Lower Court’s Opinion

      Duch filed a sexual harassment lawsuit pursuant to Title VII of the Civil Rights Act of 1964 and the statutory laws of the state of New York and New York City.

      The Defendants requested that Duch’s claims be dismissed as a matter of law and the federal District Court agreed holding that:

      • OCA provided a reasonable avenue of complaint
      • no reasonable fact-finder could conclude that the employer-defendants had actual or contsrtructive knowledge of the alleged harassment
      • even assuming the employer defendants did know or should have known about the harassment, their response was reasonable

      Duch filed an appeal to the Second Circuit Court of Appeals.

      Sexual Harassment Law

      The law of sexual harassment is a bit complicated.

      In short, in order to prove a hostile environment sexual harassment claim Duch was required to establish that:

      • the harassment was sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment and
      • there was a specific basis for imputing the conduct creating the hostile work environment to the employer

      Proving the harassment was not the problem — Duch could provide that proof with her testimony.

      The thorny issue in this case turned on whether Duch could impute the conduct that created the hostile work environment to her employer – and that depended on who did the harassing and who knew about it.

      When the harassment of an employee is done by an officer, owner, or manager the company will in most circumstances be automatically liable for the illegal conduct.

      When the harassment is that of a co-worker, the employer is not automatically liable. In a co-worker harassment case like this one, Duch was required to have proof that her employer:

      • knew about the harassment or
      • in the exercise of reasonable care should have known about the harassment  and
      • failed to act promptly to stop it

      The District Court found that Duch failed to properly report Kohn’s harassment and as a result her employer was not liable.  Duch appealed.

      The Court of Appeals Decision

      The Second Circuit Court of Appeals reversed and in its opinion gave us some helpful guidance on what does and does not constitute sufficient reporting by a victim of harassment for purposes of imposing employer liability.

      Conversations With Christiano

      Because Christiano was a co-worker without supervisory authority, her knowledge could only be imputed to her employer if:

      • she had an official duty to act, and whether in light of her knowledge
      • her response was unreasonable

      There was no dispute that Christiano knew about Kohn’s harassment.  Duch however told Christiano “absolutely not “  to tell Jukabek about it.

      The Court found that Christiano acted reasonably in honoring Jukabek’s request. In so doing, the Court acknowledged:

      [T]here is certainly a point at which harassment becomes so severe that a reasonable employee simply cannot stand by, even if requested to do so by a terrified employee.

      In this case, however, the Court sided with the defense. It did so because it concluded that:

      • there was no evidence that Christiano was aware of the psychological toll that Kohn’s harassment was allegedly inflicting on Duch
      • therefore the jury could not conclude that Christiano breached a duty to Duch and
      • the defendant employer could not be liable because of Christiano’s inaction

      Conversations With Jakubek

      The evidence involving Jukabek caused the Court to reach a different conclusion than it did with Christiano and reversed the district court.

      That’s because Jukabek was Kohn’s supervisor, and as such, “was charged with a duty to act on the knowledge and stop the harassment.”

      As the Court stated:

      Where the person who gained notice of the harassment was the supervisor of the harasser (e.g. had the authority to hire, fire, discipline, or transfer him, knowledge will be imputed to the employer on the ground that the employer vested in the supervisor.

      The Court held that there was sufficient evidence from which the jury could find that Jakubek knew, or should have known about the harassment including proof that Jakubek:

      • knew that Duch asked for a change in her work schedule when she was scheduled to work alone with Kohn
      • asked Kohn about it, and Kohn admitted that he did or said something “he should not have”
      • knew that Kohn had engaged in sex-related misconduct toward females in the past
      • told Kohn, in reference to his conduct towards Duch, to “cut it out and grow up”
      • knew that the subject of working with Kohn caused Duch to become emotional , teary and red, and lose her composure
      • said “good”, when Duch said she didn’t want to talk about it, because “I don’t want to know what happened
      • agreed to change Duch’s schedule so that she didn’t have to work with Kohn alone

      Based on the above, according to the Court, Jakubek had a duty to make at least a minimal effort to discover whether Kohn had engaged in sexual harassment, and encourage (rather than discourage) her to reveal the full extent and nature of the harassment.

      The Court wrote:

      In so holding, we do not announce a new rule of liability for employers who receive nonspecific complaints of harassment from employees.

      We merely recognize that, under the existing law of this Circuit, when an employee’s complaint raises the specter of sexual harassment, a supervisor’s purposeful ignorance of the nature of the problem – as Jakubek is alleged to have displayed —will not shield an employer from liability under Title VII.

      Accordingly, notwithstanding the District Court’s observation that Jakubek ‘was never told of, and did not witness, the alleged harassment,’ we hold that a reasonable jury could conclude that Jakubek knew, or in the exercise of reasonable care should have known about the harassment.

      The Adequacy Of The Response

      According to the District Court, even if the employer knew about the harassment, the response was reasonable. The Court of Appeals disagreed:

      Although Jakubek did adjust the schedule so that Duch and Kohn would not be working together without other court officers on duty, Kohn’s harassment persisted and escalated during the months that followed.

      A formal investigation of Kohn was not commenced until January 2002, after Duch informed another co-worker of the harassment and three months after the date upon which a jury could find that Jakubek first learned of the harassment.

      Under these circumstances, we cannot say as a matter of law, that defendants’ response was ‘effectively remedial and prompt.’

      Lessons To Be Learned

      It’s very common for victims of harassment to be fearful of reporting the harassment. It’s also common for an employee to confide in a co-employee, or supervisor, without making a formal complaint and to say,  “don’t tell anyone.

      What we learn in this case is that those informal and non-specific conversations can trigger an employer’s obligation  to investigate and take appropriate action to stop the harassment.

      We also learn that those conversations may not satisfy an employee’s obligation to report harassment — and that of this very much depends on what level of authority the person has who hears what the victim has to say and how much the victim reveals.

      This case provides lots of valuable legal analysis in some gray area of sexual harassment law which have been infrequently addressed in the past.

      In my opinion, it’s an important and useful decision for all employers, victims of harassment, and all practitioners of employment law.

      images:  thestar.com


      About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

      *prior results do not guarantee a similar outcome

      Harassment for All

      Monday, November 16th, 2009

      Image: Bob RosnerIn a landmark decision, California’s Supreme Court held that two women who were not involved in a workplace affair had grounds to sue because the women who were having affairs with the boss received preferential treatment.

      Prison and party don’t normally go together in my mind. But after reading about the workplace where the harassment took place, California’s Valley State Prison for Women, I’ll have to think again about what goes on behind those guard gates and razor wire.

      Let me explain. Two Valley State women employees sued because they claimed that the warden promoted women who he was romantically involved with over women who were not sleeping with him. This is where the case gets interesting. The warden wasn’t having one affair. He wasn’t sleeping with two women at the same time. He managed to maintain THREE concurrent affairs. Actually the CNN description didn’t even stop there; its report said that he had “at least” three affairs.

      This guy gives new meaning to the phrase “working around the clock.” I’m a guy and the thought of maintaining three affairs just wears me out. Then again, just being a warden, I thought, would manage to occupy your full attention too.

      This case also is a great example of the law of “unintended consequences.” This is where we are so focused on what we are doing, that we fail to see its unintended results on the people around us. After reading much of the commentary surrounding this decision, there was a common thread that this case would obviously be overturned by the right coast Supreme Court (isn’t it interesting how the coast of both so completely aligns with their political affiliations?).

      Whether the case is overturned or not, it clearly shows the danger of putting all your eggs in the workplace basket. Many of us spend a huge amount of time at work, we make all of our friends at work, we derive most of the meaning for our lives from work and yes, we often date the people at work.

      This case points out that our actions, especially dating, can have an impact far beyond us. It’s like when you throw a rock into a calm lake and the wake generated flows in all directions. Relationships not only make work complicated for the people involved, it makes things complicated for everyone that they come into contact with.

      What’s so ironic is that so many people seem to think that they are like Casper the Friendly Ghost at work—invisible. Nothing could be further from the truth. There is only one workplace dogma that I believe—no one can keep a secret indefinitely at work. And if you are a boss, well the odds go down even further. Because, whether you like it or not, every person who works for you is always watching everything that you do or say.

      So according to the California Supreme Court, if you are a supervisor who dates at work, don’t be surprised if you are suddenly greeted by an orgy of lawsuits.

      About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. If you have a question for Bob, contact him via [email protected]

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