There aren’t many jobs in the United States that are tougher than farmwork-—picking crops under a sweltering sun, earning just enough to survive, jumping from one unstable seasonal job to another. But the job is especially unbearable if you have to work yourself to exhaustion all day under the watch of the man who raped you.

There have over the years been numerous reports of widespread sexual abuse of women farmworkers-—everything from being called demeaning names by supervisors to brutal sexual assault. Many of the victims suffer in silence, cut off from law enforcement and social services and fearful of losing their jobs if they come forward to authorities, according to a report on sexual violence in agricultural work by Human Rights Watch.

The report, based on dozens of interviews with survivors and advocates, outlines the multiple barriers to justice that women face-—not just institutional sexism but also crippling poverty and discrimination in law enforcement. Women may feel they have little choice but to suffer humiliating treatment and abuse in order to support their families. The consequences of reporting sexual violence can be devastating for the whole household, because the boss might fire both the victim and the family members who work alongside her.

Women make up a sizable minority in a male-dominated agricultural workforce. The economic oppression that afflicts the farmworker population generally is exacerbated by a climate of gender oppression, in which women are viewed as sexual objects, and victims of abuse may face devastating social stigma even from their own community.  Single women, indigenous, and lesbian, gay, bisexual, and transgender workers are especially at risk, according to HRW researchers.

The testimonial of Angela G. describes how her abuse was enforced by layers of silence and impunity ingrained in the workplace culture:

In her experience, women in general were not valued by the supervisors and the foremen, but Angela reported that because she did not have a partner, she was singled out for abuse. “I was called a dyke; they said I was a lesbian…. [The supervisor] and the foreman would laugh.” She was afraid to say anything because others who had complained of sexual harassment had been fired immediately. But to listen in silence day after day caused her a great deal of pain…

Angela stayed on, however, because she wanted to get promoted, earn a higher salary, and be better able to support her family. And then one day, a supervisor asked her to come over to his house to pick up some boxes. Angela reported that after she entered the house, he raped her.

Angela said she felt powerless: “For me, it felt like an eternity. I wanted to scream but I couldn’t. Afterward, he said I should remember that it’s because of him that I have this job, and if I say anything, I’ll lose my job…. I was afraid to call the police, to do anything. I didn’t know what to do. My mind was completely blocked off.”

No one knows how often this scene is repeated every day on the vast industrial farms that have drawn hundreds of thousands of migrants. But since the migrant farm workforce is the product of federal labor, food and immigration policies, the government is at least complicit in, if not at the crux of, this system of exploitation.

Although the law should theoretically protect all women from such abuse, immigrant workers are deterred from reporting work-related sexual violence because the law tends to criminalize them rather than treat them as survivors deserving of justice. As federal and state authorities have focused on arresting and deporting the undocumented, immigrant communities have every reason to see police as a source of terror, not protection.

Although special immigration relief known as the U-Visa is available to victims of crime, advocates are concerned that the qualifications for the visa are too stringent for people who are dealing with trauma and economic hardship. Access to counseling and other services is also severely constrained by language and culture barriers that make it hard for social agencies to build trust with underserved communities.

At the same time, sexual victimization is part of a continuum of exploitation, and as long as farmworkers, whether they’re here legally or not, are excluded from equal labor and civil rights, suffering in all forms will remain an intrinsic part of the agricultural system. Grace Meng, a researcher in Human Rights Watch’s U.S. Program who authored the report, said that while farmworkers face unique threats on the job, “a lot of the factors that make them vulnerable are true of unauthorized immigrant workers in a lot of industries.” Although special remedies like the U-Visa might help address individual violations, she said, “We think that the most practical and effective way to deal with the vulnerability of these workers and this population to crime and other abuses is to enact comprehensive immigration reform.”

It should be no surprise that on America’s farms, so many women are treated as less than human, since not even the government sees them as worthy of respect under the law.

An earlier version of this article was published on Alternet.

This blog originally appeared in In These Times on May 28, 2012. Reprinted with permission.

About the author: Michelle Chen’s work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen @ inthesetimes.com.

“We don’t go to work to be touched, to be talked down to, to be told what our bodies look like. We know what our bodies look like when we put on our clothes in the morning,” Uylonda Dickerson said.

But constant remarks about their bodies, and unwanted touching, advances, mean-spirited “pranks” and other forms of sexual harassment are a regular occurrence for many of the more than 30,000 women—like Dickerson—who work in the warehouse industry in the Chicago area, according to a report (PDF) released this week by the group Warehouse Workers for Justice (WWJ). And women often face retaliation for reporting harassment.

In an extreme example that is currently the subject of a lawsuit, 19-year-old Priscilla Marshall, her mother and her teenage friend allege they were repeatedly subject to aggressive and abusive sexual assaults and language by a 45-year-old manager at the Partners Warehouse in Elwood, Ill. After the three women and Marshall’s uncle and the mother’s boyfriend complained, they were fired or suspended and accused of theft, which resulted in Marshall and her mother spending 15 and seven days in jail, respectively, according to the lawsuit filed March 9.

WWJ’s Leah Fried told me that the same industry structure that allegedly allows for widespread violations of labor law, extremely low wages and unhealthy conditions also contributes to a climate of unchecked sexual harassment and retaliation. The warehousing (or logistics) industry is based on layers of subcontractors, so that major companies like Wal-Mart rarely own and operate the warehouses where their goods are stored and distributed. Fried said:

A major factor is the layering of management, it’s another way the owners say of WalMart shirk responsibility and subcontract and subcontract so no one is taking responsibility for a very basic legal obligation (avoiding sexual harassment). There’s also the low unionization rate – because so many jobs are temp jobs and because very few warehouse workers have a union, it makes it easier for management to get away with violating people’s rights. Not having a union is a big deal – and a big reason people can be exploited more easily.

WWJ (launched by the United Electrical workers union, for which Fried is an organizer) is trying to fill the gap by educating women and men about sexual harassment and their rights and responsibilities, and providing resources for legal action and a forum for organizing and leveraging community support. Various elected officials, religious leaders and other residents attended a forum on International Women’s Day, called “Take Back the Warehouse,” in reference to Take Back the Night marches.

WWJ’s extensive surveys of the Chicago-area industry found that about one quarter of warehouse workers are women; the Bureau of Labor Statistics reports similar numbers nationwide.

The report and forum are part of WWJ’s three-year-old campaign to improve conditions and accountability in the warehouses where consumer goods destined for stores around the country are staged for distribution.

The group has also recently launched a Warehouse Women’s Legal Defense Fund to subsidize legal action for women with sexual harassment or other gender-based complaints. In conjunction with the Working Hands Legal Clinic, WWJ recently helped Marshall and her mother, friend, uncle and mother’s boyfriend sue Partners Warehouse manager Brian Swaw, and people whom Swaw allegedly enlisted to intimidate and threaten the plaintiffs after they complained about his conduct. The lawsuit alleges Swaw repeatedly touched their breasts and buttocks, thrust his crotch in their faces and told Marshall’s then-17-year-old friend that when she turned 18 he would have sex with her.

The lawsuit also alleges Swaw also made frequent racial slurs toward Latinos, and suspended, and then fired, the plaintiffs after they complained. It also alleges he enlisted a former police officer (who was facing a federal indictment) and a private investigator to intimidate the plaintiffs and falsely charge them with theft, forgery and filing a false police report.

While that was an extreme situation, many other women told WWJ organizers that they deal with unequal pay, constant verbal and physical harassment and the threat of retaliation if they complain on a daily basis.

Elizabeth Labrador said after she complained about being paid $2 to $3 an hour less than men doing the same job at a warehouse for Petco, she was assigned to lift heavy fish tanks and ended up hurting her back.

Female workers report sexual harassment from both top managers and co-workers lower down the organizational hierarchy, so WWJ is trying to convince men they should be joining with their female co-workers to fight for better conditions rather than making their jobs even rougher. Fried told me:

A lot of men need to receive some education about what’s appropriate in the workplace. Because that’s not happening from the companies that employ them and operate the warehouse, because the industry is not doing their job, WWJ founded a women’s committee with one of the roles being to develop sexual harassment training for both women and men. The men have been incredibly supportive, it’s been eye-opening for them. They’ve found that absolutely this is an issue that affects women and also that it’s about making warehouses better for everybody.

Women quoted in the report describe constant patterns of humiliating and threatening behavior that left them exhausted and dreading their jobs. Dickerson, who worked at a Wal-Mart warehouse, said she was locked in a trailer and constantly derided by men asking things like “Did you chip a nail?” Latasha Davis described men gathering to watch women bend over to pick up boxes.

Samantha Rodriguez, a former Wal-Mart warehouse worker, is quoted in the report:

When I went to another supervisor about the harassment, he asked me out on a date. I said “no,” and eventually I got fired. I pride myself on being an independent woman. I do remodeling, I hang drywall, I put in floors. That’s my profession. So I went to warehouses because I like doing that kind of work. Now, I won’t step foot in a warehouse. I refuse to. Because, the way they treated me wasn’t right.

This blog originally appeared in Working in These Times on April 19, 2012. Reprinted with permission.

About the Author: Kari Lydersen, an In These Times contributing editor, is a Chicago-based journalist whose works has appeared in The New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book isRevolt on Goose Island. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached atkari.lydersen@gmail.com.

Colorado newspapers have covered extensively the recent trial, conviction and sentencing of former 7th Judicial District Attorney Myrl Serra on extortion and unlawful sexual contact charges. The conviction against Serra stemmed from his illegal maltreatment of three female employees in his Montrose and Delta, Colorado western slope offices – sexually harassing and assaulting them, threatening their jobs, and forcing them to provide sexual favors.

This case, of a public official and lawyer breaking the law, reminds us that sexual harassment continues to occur in all types of occupations and workplaces. There are steps everyone can and must take to stop and prevent it.

If you experience sexual harassment on the job, remember that you’re not alone. Trust your instincts, and don’t blame yourself. Be assertive and say no clearly. Document every incident in detail. Look for witnesses and other evidence from co-workers or former employees. Research your employer’s and your union’s channels for reporting sexual harassment, and use them. As Serra’s staff found out, addressing sexual harassment in the workplace is difficult, so seek emotional support. If all else fails, take legal action.

If you are not the one being harassed, support your co-worker by validating that harassment is wrong, affirming her feelings, and listening without judgment. Be sure that your behavior isn’t part of the problem. Challenge the harasser’s inappropriate behavior. Work with others toward a harassment-free work environment, whether that harassment is sexual in nature or based on someone’s race, sexual orientation or other characteristics.

If you’re a manager, you have special responsibilities. You also have special opportunities to be part of the solution. Be a role model. Be a good listener. Be objective and consistent. Be informed, and be willing to ask for help when you need it. Be vigilant, and don’t wait for a crisis.

Employers can develop, update and uniformly implement policies to stop and prevent sexual harassment. Emphasize prevention through education and training. Clearly define procedures, give several options for reporting, and be sure that investigations are prompt and fair. Administer appropriate discipline, regardless of the position of the harasser.

To learn more about what you can do at work and what your legal rights are concerning sexual harassment, call the 9to5 Job Survival Helpline at 1-800-522-0925 or visit us online at www.9to5.org.

About the Author: Linda Meric is the Executive Director of 9to5, National Association of Working Women, a multi-racial membership organization founded in 1973 to strengthen the ability of low-wage and low-income women to win economic justice through grassroots organizing and policy advocacy on workplace and safety net issues. Linda helped found 9to5 Colorado in 1996 and served as the chapter’s Director until the Fall of 2004 when she became 9to5’s national Executive Director. Under Linda’s leadership, 9to5 has won important victories in the arenas of work-family, anti-discrimination, wages, good jobs, welfare, unemployment and child care.

Like 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.

After 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 (9^th 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 (11^th 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.

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.

Here are a few Short Takes worth sharing:

Sex Discrimination

Ninth Circuit Certifies Wal-Mart Class Action: In Dukes v. Wal-Mart, a decision from the Ninth Circuit Court of Appeals on April 26^th, the Court certified a class in a Title VII lawsuit involving 1.5 million women seeking compensation for back pay. The Court remanded the case to the district court for a determination regarding punitive damages based upon several factors set forth in the decision. The next step is most likely a request for the Supreme Court to hear the case. For more about the case, see the California Punitive Damages Blog. For an interesting story about Betty Dukes, the Wal-Mart greeter and lead plaintiff  see the article here from the Huffington Post. This case is reported to be the largest class action in history.

Sexual Harassment

EEOC Collects $471,000 In Sex Harassment Case: The EEOC reported last week that Everdry Marketing and Management paid $471,096 in damages, plus $86,581 in post-judgment interest to 13 victims of sexual harassment. The payout stems from a four week jury trial in Rochester, New York and a Second Circuit Court of Appeals decision which affirmed the award in favor of the plaintiffs. The case involved a prolonged period of physical and verbal sexual harassment of mostly teenage telemarketers by male managers and co-workers at Everdry’s Rochester, N.Y. location including demands for sex, groping, sexual jokes and constant comments about the bodies of women employees. The story presents another example of the widespread problem of teenage sexual harassment in the U.S

Has The Sixth Circuit Had An Attitude Adjustment?

Two cases last month out of the Sixth Circuit  Court of Appeals made me think that attitudes on employment discrimination cases may be shifting.

Summary Judgment Reversed In Race Discrimination Case: In Thompson v UHHSS Richmond Heights Hospital, Inc, the plaintiff was terminated from her position as a food production supervisor when she was told that her position was eliminated in a restructuring. Thompson believed  that she was selected for termination because of her race and filed a lawsuit. The district court granted summary judgment against her. The Sixth Circuit reversed finding that evidence of Thompson’s superior qualifications in comparison to the employee who assumed most of her job duties showed that she was replaced and also showed pretext. In addition, evidence that a supervisor said to “get rid of” certain black employees whom he called “troublemakers,” which the district court gave “little weight,” corroborated accusations of discriminatory behavior according to the Court.

Sexual Harassment Verdict Affirmed On Appeal: In West v. Tyson Foods,Inc. the Court affirmed a sexual harassment award including $750,000 for past and future mental distress, and $300,000 in punitive damages. In addition to great language on damages, the Court also addressed the sufficiency of reporting sexual harassment to one supervisor as constituting “notice” and a “missing evidence” jury instruction from which the jury is entitled to draw a negative inference. The plaintiff, an assembly line worker, was subjected to a barrage of verbal and physical harassment – 10 to 15 times per shift — during her five weeks of employment at the Tyson Foods plant in Robards, Kentucky. The jury awarded more in damages that West’s lawyer requested which the Sixth Circuit both addressed and confirmed.

images: www.hickmankytourism.com

www.reclaimdemocracy.org

*This post originally appeared in Employee Rights Post on May 12, 2010. Reprinted with permission.

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.

Bankers and Police Officers Charged With Gender Discrimination, Sexual Harassment and Retaliation

Two vastly different professions – banking and law enforcement – yet they share something in common and that is a culture of gender discrimination.

It’s the same stuff that’s been going on for decades in spite of federal laws which make sex discrimination, pregnancy discrimination, and sexual harassment illegal in the workplace. I have heard similar complaints from women for close to 30 years. That’s one of the reasons why I think it’s important to to spread the word about some courageous women  who are out there fighting for their rights.

Here are some of the cases that made the news.

Citigoup and Goldman Sachs Accused Of Discrimination Against Mothers

Two women filed gender discrimination cases against Wall Street banks claiming they were discriminated against after taking time off to have children.

According to ABC news, Charlotte Hanna, a former Golden Sachs VP in the HR department claimed that she was demoted and moved from her private office into a cubicle after the birth of her first child.

She was then fired while she was on maternity leave with her second child. Hanna was told that her position was eliminated, but leaned that another employee was hired to take over her duties.

Dorly Hazan-Amir complained about a long standing “boys club” culture at Citigroup’s asset finance division since the beginning of her employment. When she got pregnant, things got worse.

One manager asked whether she planned to be a “career mom” or “mom mom.” Another told her if she planned to continue working, she would have to put her career first and family second. Her pregnancy became the butt of office jokes.

Wall Street has had an ongoing problem with sex discrimination. Morgan Stanley settled two class action lawsuits brought by thousands of employees for more than $100 million dollars in 2004 and 2007. Smith Barney paid out $33 million in settlement of a case two years ago.

Syracuse Police Officer Gets $400,000 Jury Award

Last month, a New York jury found in favor of Officer Katherine Lee on her claim of sex discrimination and retaliation against the Syracuse police department. It was the third significant verdict against the police department for discrimination, sexual harassment and retaliation of female officers in the last ten months.

Sgt. Therese Lore was awarded $500,000 by a jury in May, and Officer Sonia Dotson was awarded $450,000 last month.

Lee, a police officer for 14 years claimed she was repeatedly subjected to sexual harassment, and denied equal pay and promotions to her male counterparts.

Lee claimed that male officers frequently watched pornographic movies at the workplace and made sexually derogatory remarks about women. When she complained about male officers’ behavior, the department would conduct sham investigations, and then accuse her of misconduct for making those complaints.

A similar lawsuit was filed last week by Maj. Martha Helen Haire, a 22-year veteran of the LSU Police Department.

She sued the university claiming she was denied the position of chief of police, for which she was clearly qualified, because she is a woman.

Haire also claimed that she was harassed on account of her gender and “subjected to illegal retaliation/reprisal on account of her whistle-blowing activities consisting of protesting and opposing gender-based discrimination in the workplace.’”

Retaliation for complaining about discrimination and opposing discriminatory practices is illegal under Title VII.

It’s been decades since this kind of conduct has been declared illegal throughout the country yet sadly, the culture of discrimination and harassment in male dominated professions is awfully slow to change.

Images: corporette.com farm4.static.flickr.com

*This post originally appeared in Employee Rights Post on April 4, 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.

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)

Retaliation

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/.

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

www.hush-collection.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