Deck 8: Sexual Harassment

Question 1

An employer asks an employee to go to dinner and drink and said they could "see what happen (ed) after that." Is this enough for a sexual harassment claim??

Answer 1

Case summary:
An employer offered a drink and dinner to an employee with him and commented "see what will happen after that".Sexual harassment stands for the unwelcome sexual advances that makes an employee to work under adverse work conditions in the organization making the employer liable for the sexual harassment of the employee.Solution:
The above case wherein an employer welcomes an employee for drinks and dinner and comments "see what will happen after this" shows a sexual harassment claim because indirectly an employer is making an employee aware of his sexual intentions and asking for sexual favor and for this he has invited the employee for drink and dinner. This shows a sexual harassment claim in a valid manner.

Question 2

Ross v. Double Diamond, Inc. 672 F. Supp. 261 (N.D. Tex. 1987)
Two discharged employees, sisters, brought this action against their former employer, alleging that he violated Title VII by creating a sexually harassing work environment and then constructively discharging them because they reported it and also because of their gender. The court found a hostile environment for acts occurring during a two-day period for one sister, Beverly Ross, but not the other, Sheila Stroudenmire.Mahon, J.
Within the first hour that twenty-year-old Ross was on her new job at Double Diamond, her supervisor, Larry Womack, asked her if she "fooled around," to which she answered no. A short time later, Womack asked Ross to bring him a cup of coffee. When she entered his office with the coffee, he told her he wanted to take her picture. She protested, he insisted, and Ross agreed for fear of Womack's reaction if she continued to refuse. Womack then told Ross to pull up her dress for the picture. Still afraid of his reaction to her refusal, she pulled her dress up two inches above her knee and Womack took the picture. A short time later Ross asked for the picture and Womack refused to give it to her.Later that day Womack called Ross on the phone and asked her to pant heavily for him. Ross immediately hung up. Still later the same day, Ross entered Womack's office during a meeting to give a message to one of the attendees. A salesman, Larry West, placed a Polaroid camera on the floor directly under Ross and took a picture up Ross's dress. The salesmen at the meeting laughed. Ross attempted to take the camera, but Womack prevented it. Ross asked for the picture and Womack refused, told her the picture did not develop and that she could not look for it in the trash can. Womack later called Ross on the phone and again asked her to pant heavily into the phone. Ross immediately hung up.The next day, when Ross came into Womack's office to bring him coffee, he told her to come over to him by the desk. She did so and Womack pulled her onto his lap. A salesman came into the office. The salesman testified that Ross was on Womack's lap and Womack had his arms around Ross's waist and Ross was feverishly trying to pull away. After the salesman came in, Womack, who the salesman said looked "perverted," released his hold on Ross.During this same day, Ross's sister, Stroudenmire, came to work for her first day of work as a sales trainee. She heard some employees laughing while looking at a picture in Womack's office. She told Ross and they went into the office to obtain the picture. Two salesmen were laughing at a picture, but slipped it into Womack's desk drawer when the two came in. Stroudenmire removed the picture from the drawer. It was the one taken up Ross's dress. Ross left the office in tears and went to the ladies' room. Later that day Womack called Ross into his office and told her to "bend over" and clean something off the wall. She refused to do so and started to leave. Womack proceeded to close the door to prevent her from leaving and trapped Ross against the door. Ross escaped by crawling out from under Womack's arm. Womack later entered a room in which Stroudenmire was studying and told her that he bet she liked to wear black boots and carry a whip in the bedroom. Womack also segregated Stroudenmire from the other sales trainees who were studying together, refused to allow her to take materials home to study with, and threatened in a loud voice to have Stroudenmire's husband fired and to make Stroudenmire and her husband lose their home because Stroudenmire reported Womack's activities to his supervisor. Stroudenmire and Ross called the sheriff and told him of the threats and asked him to come to Double Diamond. When he came and inquired as to what was going on, Womack said they were just having fun. Ross and Stroudenmire soon after left their jobs after being told they could not take the rest of the afternoon off or if they did so, they could not return.To determine severity or pervasiveness the court should consider several things. First, the nature of the unwelcome sexual acts or words. Generally unwelcome physical touching is more offensive than unwelcome verbal abuse.However, this is only a generalization and in specific situations, the type of language used may be more offensive than the type of physical touching. Second, a court should consider the frequency of the offensive encounters. It is less likely that a hostile work environment exists when, for instance, the offensive encounters occur once every year than if the encounters occur once every week. Third, the court would consider the total number of days over which all the offensive meetings occur. Lastly, the court should consider the context in which the sexually harassing conduct occurred. The court emphasizes that none of these factors should be given more weight than others. In addition, the nonexistence of one of these factors does not, in and of itself, prevent a Title VII claim. The trier of fact must consider the totality of the circumstances.Because of its importance in this case, the court chooses to elaborate on the reasons why a short duration of sexual harassment does not prohibit a Title VII claim. The courts are looking for a pattern of sexual harassment inflicted upon an employee because of her gender because this type of activity is a pattern of behavior that inflicts disparate treatment upon a member of one gender with respect to terms, conditions, or privileges of employment. Sexual harassment need not exist over a long period for it to be considered a pattern. If the sexual harassment is frequent and/or intensely offensive, a pattern can be established over a short period of time.The court finds that the acts and communications perpetrated against Ross at Double Diamond are sufficiently severe or pervasive to alter the conditions of Ross's employment and create an abusive work environment.This is not so with Stroudenmire. Title VII is not a shield which protects people from all sexual discrimination. The type of conduct listed above does not rise to the level of harassment which is actionable. It is not sufficiently severe and pervasive to alter the conditions of employment or create an abusive work environment. JUDGMENT for ROSS.Case Questions
1. Do you agree with the court's decision about Stroudenmire? Ross? Explain.2. As the manager, what would you have done about Womack?
3. Do you agree that there was sufficient severity and pervasiveness in the two-day period here? Specifically what makes you reach your conclusion?

Answer 2

Even though the instances of harassment lasted only for short time, the number of intimidating encounters that happened in few days increases the gravity of the issue. The court did not emphasize the temporal proximity of the both sister's harassment, the retaliatory posture of the supervisor, and stage of employment of the sisters in DDI. The nature of harassment was different for the sisters, but they were closely linked.
The supervisor should have been warned about his abnormal and bullying behavior. The salesman's account corroborates the perversion of the supervisor. The supervisor may be subjected to a psychotherapeutic procedure or other corrective measures.
The duration and frequency of the events cannot be the criterion to judge the severity of the harassment. The quantum of hostile events impacted the victim deeply, and there are three victims affected by the behavior of the supervisor, i.e. the worker, her husband and her sister. The subtle actions of the supervisor have affected the family severely and they require compensation for rehabilitation rather than penal eligibility. The court has been lenient on the supervisor and the employer.

Question 3

A female employee has an operation on her breast and when she returns to work, a male employee "jokingly" asks to see the scar. Actionable sexual harassment?

Answer 3

Case summary:
A female employee who went for a breast surgery when came back for work, she had been jokingly commented by one of the male employee to see the scar.
Sexual harassment stands for the unwelcome sexual advances that makes an employee to work under adverse work conditions in the organization making the employer liable for the sexual harassment of the employee.Solution:
This case where the male employee asks the female employee to show her scar over her breast after a surgery could lead to actionable sexual harassment case against him no matter if he said this in a joking manner or not. This is because commenting over one's private parts is not at all appropriate in a workplace setting and can lead for sexual harassment allegations. Thus, on this basis it could be said that the male employee is liable for getting sued by the female employee for sexual harassment.

Question 4

Ellison v. Brady 924 F.2d 872 (9th Cir. 1991)
An employee brought a sexual harassment suit because, among other things, her co-worker, whom she barely knew, kept sending her personal letters. The court found that while some may think it only a small matter, viewed from the employee's perspective as a female in a society in which females are often the victims of violence, the action was offensive and a violation of Title VII.Beezer, J.
The case presents the important issue of what test should be applied to determine whether conduct is sufficiently severe or pervasive to alter the conditions of employment and create a hostile working environment.Ellison worked as a revenue agent for the IRS in San Mateo, California. During her initial training in 1984 she met Sterling Gray, another trainee also assigned to that office. The two never became friends and did not work closely together. Gray's desk was twenty feet from Ellison's, two rows behind and one row over.In June of 1986 when no one else was in the office, Gray asked Ellison to go to lunch. She accepted. They went past Gray's house to pick up his son's forgotten lunch and Gray gave Ellison a tour of his house. Ellison alleges that after that June lunch, Gray began to pester her with unnecessary questions and hang around her desk.On October 9, when Gray asked Ellison out for a drink after work, she declined, but suggested lunch the following week. Ellison did not want to have lunch alone with him and she tried to stay away from the office during lunch time. The next week Gray asked her out to lunch and she did not go.On October 22, 1986 Gray handed Ellison a note written on a telephone message slip which read: "I cried over you last night and I'm totally drained today. I have never been in such constant termoil [sic]. Thank you for talking with me. I could not stand to feel your hatred for another day." Ellison was shocked at the note, became frightened and left the room. Gray followed Ellison into the hallway and demanded that she talk to him. Ellison left the building. While Gray reported this to her supervisor and asked to try to handle it herself, she asked a male co-worker to talk to Gray and tell him she was not interested in him and to leave her alone. The next day, Gray called in sick. Ellison did not work the following day, Friday, and on Monday started a four-week training session in Missouri.While Ellison was at the training session, Gray mailed her a card and a three-page, typed, single spaced letter. Ellison described the letter as "twenty times, a hundred times weirder" than the prior note. In part, Gray wrote:
I know that you are worth knowing with or without sex. … Leaving aside the hassles and disasters of recent weeks, I have enjoyed you so much over these past few months. Watching you. Experiencing you from O so far away. Admiring your style and elan. … Don't you think it odd that two people who have never even talked together, alone, are striking off such intense sparks…I will [write] another letter in the near future.Ellison stated that she thought Gray was "crazy. I thought he was nuts. I didn't know what he would do next. I was frightened." Ellison immediately called her supervisor and reported this and told her she was frightened and wanted one of them transferred. Gray was told many times over the next few weeks not to contact Ellison in any way. On November 24 Gray transferred to the San Francisco office. Ellison returned from Missouri in late November. After three weeks in San Francisco, Gray filed a grievance to return to San Mateo and as part of the settlement in Gray's favor, he agreed to be transferred back provided he spend four more months (a total of six months) in San Francisco and promise not to bother Ellison. When Ellison learned of Gray's request to return in a letter from her supervisor indicating Gray would return after a six-month separation, she said she was "frantic" and filed a formal sexual harassment complaint with IRS. The letter to Ellison also said that they could revisit the issue if there was further need.Gray sought joint counseling. He wrote another letter to Ellison seeking to maintain the idea that he and Ellison had a relationship.We do not agree with the standard set forth in Rabidue. We believe that Gray's conduct was sufficiently severe and pervasive to alter the conditions of Ellison's employment and create an abusive working environment. We believe that, in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim. If we examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy.We therefore prefer to analyze harassment from the victim's perspective. A complete understanding of the victim's view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women. See, e.g., Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir. 1988) ("A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a 'great figure' or 'nice legs.' The female subordinate, however, may find such comments offensive"); Yates, 819 F.2d at 637, n.2 ("men and women are vulnerable in different ways and offended by different behavior"). See also, Ehrenreich, Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law, 99 Yale L. J. 1177, 1207-1208 (1990) (men tend to view some forms of sexual harassment as "harmless social interactions to which only overly-sensitive women would object"); Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 Vand. L. Rev. 1183, 1203 (1989) (the characteristically male view depicts sexual harassment as comparatively harmless amusement).We realize that there is a broad range of viewpoints among women as a group, but we realize that many women share common concerns which men do not necessarily share. For example, because women are disproportionately victims of rape and sexual assault, women have stronger incentives to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hypersensitive employee, we hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Of course, where male employees allege that co-workers engage in conduct which creates a hostile environment, the appropriate victim's perspective would be that of a reasonable man.We adopt the perspective of a reasonable woman primarily because we believe that a gender-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women. The reasonable woman standard does not establish a higher level of protection for women than men. Instead, a gender-conscious examination of sexual harassment enables women to participate in the workplace on an equal footing with men. By acknowledging and not trivializing the effects of sexual harassment on reasonable women, courts can work towards ensuring that neither men nor women will have to "run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living."
We note that the reasonable woman victim standard we adopt today classifies conduct as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment. Well-intentioned compliments by co-workers or supervisors can form the basis of a sexual harassment cause of action if a reasonable victim of the same gender as plaintiff would consider the comments sufficiently severe or pervasive to alter a condition of employment and create an abusive working environment. That is because Title VII is not a fault-based tort scheme. Title VII is aimed at the consequences or effects of an employment practice and not the motivation of co-workers or employers.The facts of this case illustrate the importance of considering the victim's perspective. Analyzing the facts from the alleged harasser's viewpoint, Gray could be portrayed as a modern-day Cyrano de Bergerac wishing no more than to woo Ellison with his words. There is no evidence that Gray harbored ill-will toward Ellison. He even offered in his "love letter" to leave her alone if she wished [though he said he would not be able to forget her]. Examined in this light, it is not difficult to see why the district court characterized Gray's conduct as isolated and trivial.Ellison, however, did not consider the acts to be trivial. Gray's first note shocked and frightened her. After receiving the three-page letter, she became really upset and frightened again. She immediately requested that she or Gray be transferred. Her supervisor's prompt response suggests that she too did not consider the conduct trivial. When Ellison learned that Gray arranged to return to San Mateo, she immediately asked to transfer and she immediately filed an official complaint.We cannot say as a matter of law that Ellison's reaction was idiosyncratic or hyper-sensitive. We believe that a reasonable woman could have had a similar reaction. After receiving the first bizarre note from Gray, a person she barely knew, Ellison asked a co-worker to tell Gray to leave her alone. Despite her request, Gray sent her a long, passionate, disturbing letter. He told her he had been "watching" and "experiencing" her; he made repeated references to sex; and he said he would write again. Ellison had no way of knowing what Gray would do next. A reasonable woman could consider Gray's conduct, as alleged by Ellison, sufficiently severe and pervasive to alter a condition of employment and create an abusive working environment.Sexual harassment is a major problem in the workplace. Adopting the victim's perspective ensures that courts will not "sustain ingrained notions of reasonable behavior fashioned by the offenders." Congress did not enact Title VII to codify prevailing sexist prejudices. To the contrary, "Congress designed Title VII to prevent the perpetuation of stereotypes and a sense of degradation which serve to close or discourage employment opportunities for women." We hope that over time both men and women will learn what conduct offends reasonable members of the other gender. When employers and employees internalize the standard of workplace conduct we establish today, the current gap in perception between the genders will be bridged. REVERSED and REMANDED.Case Questions
1. Do you agree with the court's use of the "reasonable victim" standard? Explain.2. Do you think the standard creates problems for management? If so, what are they? If not, why not?
3. Do you think Ellison was being "overly sensitive"? What would you have done if you had been the supervisor to whom she reported the incidents?

Question 5

Joan, a female supervisor asks Margaret, one of her subordinates, out on a date. When Margaret refuses, Joan becomes mean to her at work and rates Margaret's work poorly on her next evaluation. Margaret wants to bring a sexual harassment claim, but feels she cannot do so since her boss is female. Is Margaret correct?

Question 6

Burlington Industries, Inc. v. Ellerth 524 U.S.742 (1998)
Employee claimed she was constructively discharged because of unwanted, persistent sexual advances by her supervisor. While she lost no tangible job benefit because of his actions toward her, and even had a promotion during her employment, the Court held she could still bring a cause of action based on hostile environment sexual harassment. Though employer had an anti-sexual harassment policy, employee did not report the harassment until a few weeks after she left. The Court said that employee could still bring the sexual harassment action, but in cases such as this where there is no loss of tangible job benefits, the employer could use as an affirmative defense the existence of procedures for reporting and handling sexual harassment complaints, and an employee's failure to use them.Kennedy, J.
The employee is Kimberly Ellerth. From March 1993 until May 1994, Ellerth worked as a salesperson in one of Burlington's divisions in Chicago, Illinois. During her employment, she alleges, she was subjected to constant sexual harassment by her supervisor, one Ted Slowik.Against a background of repeated boorish and offensive remarks and gestures which Slowik allegedly made, Ellerth places particular emphasis on three alleged incidents where Slowik's comments could be construed as threats to deny her tangible job benefits. In the summer of 1993, while on a business trip, Slowik invited Ellerth to the hotel lounge, an invitation Ellerth felt compelled to accept because Slowik was her boss. When Ellerth gave no encouragement to remarks Slowik made about her breasts, he told her to "loosen up" and warned, "you know, Kim, I could make your life very hard or very easy at Burlington."
In March 1994, when Ellerth was being considered for a promotion, Slowik expressed reservations during the promotion interview because she was not "loose enough." The comment was followed by his reaching over and rubbing her knee. Ellerth did receive the promotion; but when Slowik called to announce it, he told Ellerth, "you're gonna be out there with men who work in factories, and they certainly like women with pretty butts/legs."
In May 1994, Ellerth called Slowik, asking permission to insert a customer's logo into a fabric sample. Slowik responded, "I don't have time for you right now, Kim-unless you want to tell me what you're wearing." Ellerth told Slowik she had to go and ended the call. A day or two later, Ellerth called Slowik to ask permission again. This time he denied her request, but added something along the lines of, "are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier."
A short time later, Ellerth's immediate supervisor cautioned her about returning telephone calls to customers in a prompt fashion. In response, Ellerth quit. She faxed a letter giving reasons unrelated to the alleged sexual harassment we have described. About three weeks later, however, she sent a letter explaining she quit because of Slowik's behavior.During her tenure at Burlington, Ellerth did not inform anyone in authority about Slowik's conduct, despite knowing Burlington had a policy against sexual harassment. In fact, she chose not to inform her immediate supervisor (not Slowik) because "it would be his duty as my supervisor to report any incidents of sexual harassment." On one occasion, she told Slowik a comment he made was inappropriate.We must decide, then, whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate's terms or conditions of employment, based on sex, but does not fulfill the threat.Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors. The supervisor often must obtain the imprimatur of the enterprise and use its internal processes. For these reasons, a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer. Whatever the exact contours of the aided in the agency relation standard, its requirements will always be met when a supervisor takes a tangible employment action against a subordinate. In that instance, it would be implausible to interpret agency principles to allow an employer to escape liability.An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.Although Ellerth has not alleged she suffered a tangible employment action at the hands of Slowik, which would deprive Burlington of the availability of the affirmative defense, this is not dispositive. In light of our decision, Burlington is still subject to vicarious liability for Slowik's activity, but Burlington should have an opportunity to assert and prove the affirmative defense to liability. AFFIRMED.Case Questions
1. What do you think of the Court not allowing the affirmative defense if there was a tangible employment action such as a discharge, demotion, or undesirable reassignment?
2. Does it make sense to you to allow an employee to bring a sexual harassment cause of action if the employee suffered no adverse tangible employment action?
3. Do you understand why the Court would allow this affirmative defense in cases where there is no loss of tangible job benefit, but not in cases where there is such a loss?

Question 7

Andrews v. City of Philadelphia 895 F.2d 1469 (3d Cir. 1990)
Two female police officers, Andrews and Conn, filed a Title VII action against their employer and supervisors for sexual harassment. The court found sufficient basis for hostile environment sexual harassment even though sex, per se, was not the basis of the activity directed toward them though gender clearly was.Rosenn, J.
While employees were assigned to the Auto Investigation Division (AID) of the Philadelphia police department, males dominated the division and according to Andrews, the AID squadroom was charged with sexism. Women were regularly referred to in an offensive and obscene manner and they personally were addressed by obscenities. There was evidence that the language was commonplace in police headquarters, but also testimony that one of the plaintiffs, a twelve-year police veteran, "had never been called some of the names that [she] was called in AID." There was also evidence of pornographic pictures of women displayed in the locker room on the inside of a locker which most often was kept open. Plaintiffs contend that the language and pictures embarrassed, humiliated, and harassed them.Both employees further claimed that their files often disappeared from their desks, or were ripped or sabotaged. When Conn reported the sabotage, she was told by her supervisor, "You know, you're no spring chicken. You have to expect this working with the guys." Male officers who were to assist them in their work often hindered them or refused to help, although the men would help each other. The women experienced vandalism of their personal property, with Andrews having her car thrice vandalized while parked on the AID lot, with tires slashed, car scratched and windshield wipers removed; soda was poured into her typewriter; someone tore the cover off Andrews' book needed to keep track of investigations. Someone spit on Conn's coat, cut the band off her hat, and scratched her car. A roll of film Conn was using in an investigation disappeared before it was dispatched for developing.Both employees also received obscene phone calls at their unlisted home phone numbers which AID had access to. One of the time periods for the calls was after the lawsuit was filed. One caller told the daughter of Andrews that her mother was sleeping with Conn, and that "those bitches ain't getting no money because they think they trying to get money but they not going to get none." During one of the conversations Andrews heard someone say "Yoh, sarge" in the background. Conn testified that the calls made her very scared and nervous and unable to function emotionally. She was also harassed by co-workers placing sexual devices and pornographic magazines in her desk drawer and gathering around and laughing at her reaction. When she reported this to her superior, he remained unresponsive. Another time a caustic substance was placed inside Andrews' shirt in her locker in the women's locker room. Andrews' back was severely burned by what was later determined to be a lime substance. Lime was found in other clothing in the locker and on the handle. Andrews also says that lewd pictures were posted on the walls and that she was embarrassed by pornographic pictures placed in her personal desk drawer.Some of Conn and Andrews' complaints were investigated, others were not, but nothing significant came of any investigations. In both cases there was some sexually-based activity directed toward the women, such as suggestive remarks or tones used in connection with them.We believe that the trial court too narrowly construed what type of conduct can constitute sexual harassment. Great emphasis was put on the lack of sexual advances, innuendo, or contact. In the lower court's opinion, evidence was extremely minimal and would not, standing alone, support a finding of a sexually hostile work environment, noting the lack of evidence of direct sexual harassment. To the extent that the court ruled that overt sexual harassment is necessary to establish a sexually hostile environment, we are constrained to disagree.To make out a case under Title VII it is only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff had been a man she would not have been treated in the same manner. To constitute impermissible discrimination, the offensive conduct is not necessarily required to include sexual overtones in every instance or that each incident be sufficiently severe to detrimentally affect a female employee. Intimidation and hostility toward women because they are women can obviously result from conduct other than explicitly sexual advances. Meritor appears to support this proposition as well, "Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule and insult." The Supreme Court in no way limited this concept to intimidation or ridicule of an explicitly sexual nature.More specifically, we hold that the pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidence of a hostile environment. Similarly, so may the posting of pornographic pictures in common areas and in the plaintiff's personal work spaces.Although the employer's attorney argues vigorously that a police station need not be run like a day care center, it should not, however, have the ambience of a nineteenth century military barracks. We realize that it is unrealistic to hold an employer accountable for every isolated incident of sexism; however, we do not consider it an unfair burden of an employer of both genders to take measures to prevent an atmosphere of sexism to pervade the workplace.On remand, the trial judge should look at all incidents to see if they produce a work environment hostile and offensive to women of reasonable sensibilities. The evidence in this case includes not only name calling, pornography, displaying sexual objects in desks, but also the recurrent disappearance of plaintiffs' case files and work products, anonymous phone calls, and destruction of other property. The court should view this evidence in its totality, as described above, and then reach a determination. VACATED and REMANDED.Case Questions
1. Why do you think the employer did little to remedy this situation?
2. Do you think sexual overtones should have been required here?
3. What would you have done if you were the manager?

Question 8

Employer uses the "f***" word frequently in the workplace and makes statements to employee such as a in regard to an installer, he was always confused and bet that as a baby he "probably didn't know which tit to suck;" and in discussing a motorcycle seat, cupped his hands and said he would be "glad to fit employee's ass for the right size seat". Is this likely to be successful as a sexual harassment suit? [LaPorte v. Fireplace and Patio Center, Inc., 2004 U.S. Dist. LEXIS 2113 (W.D. IL, WD, 2004)]

Question 9

A truck driver trainer sexually harassed a trainee and she brought suit for sexual harassment. The trainer claimed to have power over the trainee, but in reality, the trainer was not a supervisory employee. Is it possible for her to make her claim of quid pro quo sexual harassment if the trainer actually is not a supervisor? [Vernarsky v. Covenant Transport, Inc., 2003 U.S. Dist. LEXIS 18330 (E D Tenn. 2003). ]

Question 10

Rabidue v. Osceola Refining Co. 805 F.2d 611 (6th Cir. 1986)
An employee asserted gender discrimination and sexual harassment in violation of Title VII due to "vulgarity" and nude posters in the workplace. The court rejected her claim. However, the case is cited more for the dissent than the majority opinion. The dissenting view is now the one that generally prevails in sexual harassment cases. The majority opinion helps you see the evolution of sexual harassment claims from the more provincial view, to the more enlightened position now taken by the courts.Krupansky, J.
Rabidue was a credit manager and office manager. Her charge of sexual harassment arose primarily as a result of her unfortunate acrimonious working relationship with Douglas Henry, a supervisor of the company's key punch and computer sections. Henry exercised no supervisory authority over Rabidue nor Rabidue over him. Henry was an extremely vulgar and crude individual who customarily made obscene comments about women generally, and, on occasion, directed such obscenities to Rabidue. Management was aware of Henry's vulgarity, but it had been unsuccessful in curbing his offensive personality traits. Rabidue, and other female employees, were annoyed by Henry's vulgarity. In addition to Henry's obscenities, other male employees from time to time displayed pictures of nude or scantily clad women in their offices and/or work areas, to which Rabidue and other women employees were exposed. Rabidue was discharged from her employment at the company as a result of her many job-related problems, including her irascible and opinionated personality and her inability to work harmoniously with co-workers and customers.Rabidue to have prevailed in her cause of action against Osceola on this record must have proved that she had been subjected to unwelcome verbal conduct and poster displays of a sexual nature which had unreasonably interfered with her work performance and created an intimidating, hostile, or offensive working environment that affected seriously her psychological well-being.The record disclosed that Henry's obscenities, although annoying, were not so startling as to have affected seriously the psyches of the plaintiff or other female employees. The evidence did not demonstrate that Henry's vulgarity substantially affected the totality of the workplace. The sexually oriented poster displays had a negligible effect on Rabidue's work environment when considered in the context of a society that condones and publicly features and commercially exploits open displays of written and pictorial erotica at the newsstands, on prime-time television, at the cinema, and in other public places. In sum, Henry's vulgar language and the sexually oriented posters did not result in a working environment that could be considered intimidating, hostile, or offensive under the guidelines. AFFIRMED.Keith, C. J., concurring in part, dissenting in part.
I dissent, for several reasons, as I believe the majority erroneously resolves Rabidue's substantive claims.First, after review of the entire record I am firmly convinced that although supporting evidence exists, the court is mistaken in affirming the findings that Osceola's treatment of Rabidue evinced no anti-female animus and that gender-based discrimination played no role in her discharge. The overall circumstances of Rabidue's workplace evince an anti-female environment. For seven years plaintiff worked at Osceola as the sole woman in a salaried management position. In common work areas Rabidue and other female employees were exposed daily to displays of nude or partially clad women belonging to a number of male employees at Osceola. One poster, which remained on the wall for eight years, showed a prone woman who had a golf ball on her breasts with a man standing over her, golf club in hand, yelling "Fore." And one desk plaque declared "Even male chauvinist pigs need love." Plaintiff testified the posters offended her and her female co-workers.In addition, Henry regularly spewed anti-female obscenity. He routinely referred to women as "whore," "cunt," "pussy," and "tits." Of plaintiff, Henry specifically remarked "All that bitch needs is a good lay" and called her "fat ass." Plaintiff arranged at least one meeting of female employees to discuss Henry and repeatedly filed written complaints on behalf of herself and other female employees who feared losing their jobs if they complained directly. Osceola Vice President Charles Meutzel stated he knew that employees were "greatly disturbed" by Henry's language. However, because Osceola needed Henry's computer expertise, Meutzel did not reprimand or fire Henry. In response to subsequent complaints about Henry, a later supervisor testified that he gave Henry "a little fatherly advice" about Henry's prospects if he learned to become "an executive type person."
In addition to tolerating this anti-female behavior, Osceola excluded Rabidue, the sole female in management, from activities she needed to perform her duties and progress in her career. Unlike male salaried employees, she did not receive free lunches, free gasoline, a telephone credit card or entertainment privileges. Nor was she invited to the weekly golf matches. Without addressing Osceola's disparate treatment of Rabidue, the district court dismissed these perks and business activities as fringe benefits. After Rabidue became credit manager, Osceola prevented her from visiting or taking customers to lunch as all previous male credit managers had done. Upon requesting such privileges, Rabidue's supervisor replied that it would be improper for a woman to take a male customer to lunch and that she might have car trouble on the road. On another occasion, he asked her "how would it look for me, a married man, to take you, a divorced woman, to the West Branch Country Club in such a small town?" Osceola saw no problem in male managers entertaining female clients regardless of marital status. Rabidue's later supervisor stated to another female worker, "[Rabidue] is doing a good job as credit manager, but we really need a man on that job," adding "She can't take customers out to lunch."
Rabidue was consistently accorded secondary status. At a meeting to instruct clerical employees of their duties after a corporate takeover, Rabidue was seated with female hourly employees. The male salaried employees, apparently pre-informed of the post-takeover procedures, stood at the front of the room. There are many other instances in the record of how Rabidue was treated differently in negative ways because of her gender. I conclude that the misogynous language and decorative displays tolerated at the workplace, the primitive views of working women expressed by Osceola supervisors and Osceola's treatment for their only female salaried employee clearly evinces [sic] anti-female animus.Nor do I agree with the majority's holding that a court considering hostile environment claims should adopt the perspective of the reasonable person's reaction to a similar environment. In my view, the reasonable person perspective fails to account for the wide divergence between most women's views of appropriate sexual conduct and those of men. I would have courts adopt the perspective of the reasonable victim which simultaneously allows courts to consider salient sociological differences as well as shield employers from the neurotic complaint.The majority also mandates that we consider the "prevailing work environment," the obscenity that pervaded the environment before and after Rabidue came there and her reasonable expectations upon "voluntarily" entering the environment. The majority suggests through these factors that a woman assumes the risk of working in an abusive anti-female environment. Moreover, the majority contends that such work environments somehow have an innate right to perpetuation and are not to be addressed under Title VII. In my view, Title VII's precise purpose is to prevent such behavior and attitudes from poisoning the work environment of classes protected under the Act. As I believe no woman should be subjected to an environment where her sexual dignity and reasonable sensibilities are visually, verbally, or physically assailed as a matter of prevailing male prerogative, I dissent.Nor can I agree with the majority's notion that the effect of pin-up posters and misogynous language in the workplace can have only a minimal effect on female employees and should not be deemed hostile or offensive "when considered in the context of a society that condones and publicly features and commercially exploits open displays of erotica." "Society" in this scenario must primarily refer to the unenlightened; I hardly believe reasonable women condone the pervasive degradation and exploitation of female sexuality perpetuated in American culture. In fact, pervasive societal approval thereof and of other stereotypes stifles female potential and instills the debased sense of self worth which accompanies stigmatization. The presence of pin-ups and misogynous language in the workplace can only evoke and confirm the debilitating norms by which women are primarily and contemptuously valued as objects of male sexual fantasy. That some men would condone and wish to perpetuate such behavior is not surprising. However, the relevant inquiry at hand is what the reasonable woman would find offensive, not society, which at one point also condoned slavery. I conclude that sexual posters and anti-female language can seriously affect the psychological well-being of the reasonable woman and interfere with her ability to perform her job.In conclusion, I dissent because the record shows that Osceola's treatment of Rabidue evinces anti-female animus and that Rabidue's gender played a role in her dismissal. I also believe the hostile environment standard set forth in the majority opinion shields and condones behavior Title VII would have the courts redress.Case Questions
1. Is the majority decision or the dissent closer to your view of sexual harassment? Explain.2. Why do you think the majority decision did not cite the factors brought out in the dissent and conclude that they presented a hostile environment?
3. If you were management and needed Henry's expertise, what would you have done about his actions?

Question 11

Blakey v. Continental Airlines, Inc. 164 N.J. 38, 751 A.2d 538 (2001)
An airline employee brought suit against her employer for sexual harassment because of, among other things, statements posted about her on an electronic bulletin board that the employer maintained offsite for the use of employees. The court had to answer the question of whether the employer could be held liable for sexual harassment committed in this way. The Supreme Court of New Jersey decided that it could.O'Hern, J.
Tammy S. Blakey, a pilot for Continental Airlines since 1984, appears from the record to be a highly qualified commercial airline pilot. In December 1989, Blakey became that airline's first female captain to fly an Airbus or A300 aircraft (A300). Shortly after qualifying to be a captain on the A300, Blakey complained of sexual harassment and a hostile working environment based on conduct and comments directed at her by male co-employees. In February 1991 she began to file systematic complaints with various representatives of Continental about the conduct of her male co-employees. Specifically, Blakey complained to Continental's management concerning pornographic photographs and vulgar gender-based comments directed at her that appeared in the workplace, specifically in her plane's cockpit and other work areas.In February 1993, Blakey filed a charge of sexual discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991 against Continental with the Equal Employment Opportunity Commission in Seattle, Washington, her home state. She simultaneously filed a complaint in the United States District Court in Seattle, Washington, against Continental for its failure to remedy the hostile work environment.In the midst of that federal litigation, her fellow pilots continued to publish a series of what plaintiff views as harassing gender-based messages, some of which she alleges are false and defamatory. From February to July 1995, a number of Continental's male pilots posted derogatory and insulting remarks about Blakey on the pilots' on-line computer bulletin board called the Crew Members Forum ("Forum"). The Forum is accessible to all Continental pilots and crew member personnel through the Internet provider, CompuServe. The CMS contains information on flights, crew member schedules, pay and pilot pairings. Continental requires that pilots and crew "access" the CMS in order to learn their flight schedules and assignments
Continental management was not permitted to post messages or reply to any messages on the Forum, but its chief pilots and assistant chief pilots had access to the Forum if they signed up with CompuServe to utilize the CMS. Plaintiff asserts that chief pilots are considered management within Continental. Although Continental may have no duty to monitor the Forum, it is possible that a jury could find that Continental had knowledge, either direct or vicarious through managerial employees, of the content of certain messages posted on the Forum.Harassment by a supervisor that takes place outside of the workplace can be actionable. Standing alone, the fact that the electronic bulletin board may be located outside of the workplace (although not as closely affiliated with the workplace as was the cockpit in which similar harassing conduct occurred), does not mean that an employer may have no duty to correct off-site harassment by co-employees. Conduct that takes place outside of the workplace has a tendency to permeate the workplace. A worker need not actually hear the harassing words outside the workplace so long as the harassment contributes to the hostile work environment.The problems that developed in our fathers' offices are likely to develop in the offices of the future. Business counselors caution employers that they should have policies that deal with sexual harassment on the message centers of this changing world. That does not mean that employers have a duty to monitor employees' mail.Employers do not have a duty to monitor private communications of their employees; employers do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace. Besides, it may well be in an employer's economic best interests to adopt a proactive stance when it comes to dealing with co-employee harassment. The best defense may be a good offense against sexual harassment. "[W]e have afforded a form of a safe haven for employers who promulgate and support an active, anti-harassment policy." Effective remedial steps reflecting a lack of tolerance for harassment will be "relevant to an employer's affirmative defense that its actions absolve it from all liability. Surely an anti-harassment policy directed at any form of co-employee harassment would bolster that defense. REVERSED and REMANDED.Case Questions
1. Does the court's decision surprise you? Discuss. Does it make sense to you? Explain.2. What would you have done if you were a manager and had seen the postings about Blakey on the bulletin board?
3. What provisions would you include in a workplace policy you developed for electronic harassment?

Question 12

Employer, a 33 year old unmarried male, is frequently teased by the other males in his plant about being unmarried and still living at home with his mother. Is this sexual harassment?

Question 13

Trudy comes to Pat, her supervisor, and tells her that Jack has been sexually harassing her by making suggestive remarks, comments, and jokes, by constantly asking her for dates, and by using every available opportunity to touch her. Pat has been friends with Jack for a long time and can't imagine Jack would do such a thing. Pat is hesitant to move on Trudy's complaint. What should Pat do?

Question 14

Showalter v. Allison Reed Group, Inc. 767 F. Supp. 1205 (D.R.I. 1991)
Two male employees allege sexual harassment in violation of Title VII of the Civil Rights Act of 1964 because their manager forced them to engage in sexual activities with his secretary by threatening them with the loss of their jobs if they did not comply. The court found sexual harassment even though the harassees were male.Lagueux, J.
Employees allege that a series of several sexual incidents occurred on the Techni-Craft premises beginning the summer of 1988 and lasting until June or July of 1989. Defendants Smith and Marsella deny that most of it ever occurred, as does the Allison Reed Group.Smith, the general manager, was having a sexual liaison with his secretary, Marsella. Employee Showalter alleges that in the Spring of 1988, Smith began talking incessantly and obsessively about Marsella to Showalter. The talks were of a sexual nature and usually described to Showalter Smith's sexual relationship with Marsella, including showing Showalter nude photos, pornographic drawings, and X-rated letters, all involving Marsella. By the end of the summer, Smith began telling Showalter that Marsella was interested in Showalter and prodding Showalter to join his sexual liaison with Marsella. Showalter declined on the ground that he was married, but Smith immediately told Showalter that he and Marsella were also married, but what their spouses didn't know wouldn't hurt them. Angrily, Smith told Showalter that Marsella controlled the hiring and firing decisions at Techni-Craft, and that if he valued his job he would follow Smith's demands. Smith continued to press Showalter to engage in a menage-a-trois, and reminded Showalter of Smith's extensive connections in the jewelry business in Rhode Island, implying that Showalter would be shut out of the jewelry business if he did not comply with Smith's request. Smith also told Showalter that he had to please Marsella in order for everything between Smith and Marsella "to be okay." At one point, Smith also threatened Showalter with the loss of his medical benefits if he failed to participate in the sexual activity. Smith knew that this was especially important to Showalter because Showalter's son had a heart defect and had undergone three open heart surgeries.Showalter first acceded to Smith's demands in September 1988 when Smith orchestrated an after hours striptease performance by Marsella on company premises. Before the actual event Smith gave Showalter explicit instructions outlining the various sexual activity Smith expected Showalter to engage in with Marsella and him. This occurred at least twice and each time Showalter was unable to maintain an erection to do what was demanded of him, and was berated by Smith and Marsella. Showalter was also forced to observe and engage in other sexual activity at Techni-Craft from September 1988 to June 1989, including during work hours and after work hours. Smith tried to get Showalter to bring his wife into the activity in the Spring of 1989, but Showalter resisted. [Employee] Phetosomphone [FET-o-SOM-fo-nee] was also forced by Smith to engage in sexual activity at Techni-Craft and observe it between Smith and Marsella. He feared he would lose his job if he did not accede.Here, Showalter and Phetosomphone were clearly the victims of both hostile environment sexual harassment and quid pro quo sexual harassment. For the quid pro quo sexual harassment, the employees were clearly required to trade the requested sexual activity for the privilege of keeping their jobs. The hostile environment sexual harassment occurred and drastically altered the conditions of plaintiffs' employment and created a hostile and abusive work environment. The frequency and nature of the unwelcome sexual activity certainly was severe and pervasive. Sexual advances were made to plaintiffs for months and the harassment completely infected the work environment. JUDGMENT for PLAINTIFFS on this issue.Case Questions
1. What can an employer do to protect against liability for sexual harassment in situations such as this, where the person responsible for the workplace is the perpetrator?
2. This is a 1991 case. Do you think males who complain of sexual harassment are still less likely to be believed today? Explain. Do you think they are less likely to sue? Explain.3. Should it make any difference that the request for sex with Showalter did not come directly from Marsella, the person who wanted to engage in the activity with him, but rather came from Smith? Explain.

Question 15

Faragher v. City of Boca Raton 524 U.S. 775 (1998)
A former city lifeguard sued the city under Title VII for sexual harassment based on the conduct of her supervisors. The Supreme Court held that an employer is subject to vicarious liability under Title VII for actionable discrimination caused by a supervisor, but the employer may raise an affirmative defense that looks to the reasonableness of the employer's conduct in seeking to prevent and correct harassing conduct and to the reasonableness of employee's conduct in seeking to avoid harm. The Court held that the employer was vicariously liable here because it failed to exercise reasonable care to prevent harassing behavior.Souter, J.
This case calls for identification of the circumstances under which an employer may be held liable under Title VII of the Civil Rights Act for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination. We hold that an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of a plaintiff victim.Between 1985 and 1990, while attending college, petitioner Beth Ann Faragher worked part time and during the summers as an ocean lifeguard for the Marine Safety Section of the Parks and Recreation Department of respondent, the City of Boca Raton, Florida (City). During this period, Faragher's immediate supervisors were Bill Terry, David Silverman, and Robert Gordon. In June 1990, Faragher resigned. In 1992, Faragher brought an action against Terry, Silverman, and the City, asserting claims under Title VII, and Florida law. The complaint alleged that Terry and Silverman were agents of the City, and that their conduct created a "sexually hostile atmosphere" that amounted to discrimination in the "terms, conditions, and privileges" of her employment at the beach by repeatedly subjecting Faragher and other female lifeguards to "uninvited and offensive touching," by making lewd remarks, and by speaking of women in offensive terms.Throughout Faragher's employment with the City, Terry served as Chief of the Marine Safety Division, with authority to hire new lifeguards (subject to the approval of higher management), to supervise all aspects of the lifeguards' work assignments, to engage in counseling, to deliver oral reprimands, and to make a record of any such discipline. Silverman and Gordon were captains and responsible for making the lifeguards' daily assignments, and for supervising their work and fitness training. The lifeguards and supervisors were stationed at the city beach. The lifeguards had no significant contact with higher city officials like the Recreation Superintendent.In February 1986, the City adopted a sexual harassment policy, which it stated in a memorandum from the City Manager addressed to all employees. In May 1990, the City revised the policy and reissued a statement of it. Although the City may actually have circulated the memos and statements to some employees, it completely failed to disseminate its policy among employees of the Marine Safety Section, with the result that Terry, Silverman, Gordon, and many lifeguards were unaware of it.Faragher did not complain to higher management about Terry or Silverman. In April 1990, however, two months before Faragher's resignation, Nancy Ewanchew, a former lifeguard, wrote to Richard Bender, the City's Personnel Director, complaining that Terry and Silverman had harassed her and other female lifeguards. Following investigation of this complaint, the City found that Terry and Silverman had behaved improperly, reprimanded them, and required them to choose between a suspension without pay or the forfeiture of annual leave.Since our decision in Meritor, Courts of Appeals have struggled to derive manageable standards to govern employer liability for hostile environment harassment perpetrated by supervisory employees. While indicating the substantive contours of the hostile environments forbidden by Title VII, our cases have established few definite rules for determining when an employer will be liable for a discriminatory environment that is otherwise actionably abusive.A "master is subject to liability for the torts of his servants committed while acting in the scope of their employment." Restatement § 219(1). This doctrine has traditionally defined the "scope of employment" as including conduct "of the kind [a servant] is employed to perform," occurring "substantially within the authorized time and space limits," and "actuated, at least in part, by a purpose to serve the master," but as excluding an intentional use of force "unexpectable by the master."
A justification for holding the offensive behavior within the scope of Terry's and Silverman's employment was well put in Judge Barkett's dissent: "[A] pervasively hostile work environment of sexual harassment is never (one would hope) authorized, but the supervisor is clearly charged with maintaining a productive, safe work environment. The supervisor directs and controls the conduct of the employees, and the manner of doing so may inure to the employer's benefit or detriment, including subjecting the employer to Title VII liability."
It is by now well recognized that hostile environment sexual harassment by supervisors (and, for that matter, co-employees) is a persistent problem in the workplace. An employer can, in a general sense, reasonably anticipate the possibility of such conduct occurring in its workplace, and one might justify the assignment of the burden of the untoward behavior to the employer as one of the costs of doing business, to be charged to the enterprise rather than the victim. As noted, developments like this occur from time to time in the law of agency.We agree with Faragher that in implementing Title VII it makes sense to hold an employer vicariously liable for some tortious conduct of a supervisor made possible by abuse of his supervisory authority. The agency relationship affords contact with an employee subjected to a supervisor's sexual harassment, and the victim may well be reluctant to accept the risks of blowing the whistle on a superior. When a person with supervisory authority discriminates in the terms and conditions of subordinates' employment, his actions necessarily draw upon his superior position over the people who report to him, or those under them, whereas an employee generally cannot check a supervisor's abusive conduct the same way that she might deal with abuse from a co-worker. When a fellow employee harasses, the victim can walk away or tell the offender where to go, but it may be difficult to offer such responses to a supervisor, whose "power to supervise-[which may be] to hire and fire, and to set work schedules and pay rates-does not disappear… when he chooses to harass through insults and offensive gestures rather than directly with threats of firing or promises of promotion." Recognition of employer liability when discriminatory misuse of supervisory authority alters the terms and conditions of a victim's employment is underscored by the fact that the employer has a greater opportunity to guard against misconduct by supervisors than by common workers; employers have greater opportunity and incentive to screen them, train them, and monitor their performance.In order to accommodate the principle of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Burlington Industries, Inc. v. Ellerth, also decided today. An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.Applying these rules here, it is undisputed that these supervisors "were granted virtually unchecked authority" over their subordinates, "directly controll[ing] and supervis[ing] all aspects of [Faragher's] day-to-day activities." It is also clear that Faragher and her colleagues were "completely isolated from the City's higher management."
While the City would have an opportunity to raise an affirmative defense if there were any serious prospect of its presenting one, it appears from the record that any such avenue is closed. The City entirely failed to disseminate its policy against sexual harassment among the beach employees and its officials made no attempt to keep track of the conduct of supervisors like Terry and Silverman. The City's policy did not include any assurance that the harassing supervisors could be bypassed in registering complaints. Under such circumstances, we hold as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors' harassing conduct. Unlike the employer of a small workforce, who might expect that sufficient care to prevent tortious behavior could be exercised informally, those responsible for city operations could not reasonably have thought that precautions against hostile environments in any one of many departments in far-flung locations could be effective without communicating some formal policy against harassment, with a sensible complaint procedure. REVERSED and REMANDED.Case Questions
1. How could the city have avoided this outcome? Explain.2. Do you think that it would have made sense for the city to consider the particulars of the circumstances here, such as that these were lifeguards, in a remote location, who by the nature of the job would be dressed in fairly little clothing, and who, because of the environment (the beach and recreational facilities) might need a different approach to sexual harassment than, say, office employees? Explain.3. What do you think of the Court's affirmative defense given to employers and employees? What are the pros and cons?

Question 16

Employee sues employer for sexual harassment because her supervisor once touched her on her back and made an "untoward" statement to her. Will she win? Explain.

Question 17

Pennsylvania State Police v. Suders 542 U.S. 129 (2004)
In the U.S. Supreme Court's latest sexual harassment case, it further defined employer liability for supervisory employees. The Suders case, seen earlier, here addresses liability in constructive discharge cases. The plaintiff was subjected to fairly intense sexual harassment by her supervisors over the course of her employment. She eventually left, but without first going through the employer's sexual harassment complaint procedures. The U.S. Supreme Court heard the case in order to determine if constructive discharge is a tangible job benefit that made the employer strictly liable for the acts of its supervisor. It decided that it was not. Take a look at the facts and see if you think constructive discharge was warranted.Ginsburg, J.
Plaintiff-respondent Nancy Drew Suders alleged sexually harassing conduct by her supervisors, officers of the Pennsylvania State Police (PSP), of such severity she was forced to resign. The question presented concerns the proof burdens parties bear when a sexual harassment/constructive discharge claim of that character is asserted under Title VII of the Civil Rights Act of 1964.Suders' supervisors were Sergeant Eric D. Easton, Station Commander at the McConnellsburg barracks, Patrol Corporal William D. Baker, and Corporal Eric B. Prendergast. Those three supervisors subjected Suders to a continuous barrage of sexual harassment that ceased only when she resigned from the force.Easton "would bring up [the subject of] people having sex with animals" each time Suders entered his office. He told Prendergast, in front of Suders, that young girls should be given instruction in how to gratify men with oral sex. Easton also would sit down near Suders, wearing spandex shorts, and spread his legs apart. Apparently imitating a move popularized by television wrestling, Baker repeatedly made an obscene gesture in Suders' presence by grabbing his genitals and shouting out a vulgar comment inviting oral sex. Baker made this gesture as many as five to ten times per night throughout Suders' employment at the barracks. Suders once told Baker she "d[id]n't think [he] should be doing this"; Baker responded by jumping on a chair and again performing the gesture, with the accompanying vulgarity. Further, Baker would "rub his rear end in front of her and remark 'I have a nice ass, don't I?" Prendergast told Suders "the village idiot could do her job"; wearing black gloves, he would pound on furniture to intimidate her.In June 1998, Prendergast accused Suders of taking a missing accident file home with her. After that incident, Suders approached the PSP's Equal Employment Opportunity Officer, Virginia Smith-Elliott, and told her she "might need some help." Smith-Elliott gave Suders her telephone number, but neither woman followed up on the conversation. On August 18, 1998, Suders contacted Smith-Elliott again, this time stating that she was being harassed and was afraid. Smith-Elliott told Suders to file a complaint, but did not tell her how to obtain the necessary form. Smith-Elliott's response and the manner in which it was conveyed appeared to Suders insensitive and unhelpful.Two days later, Suders' supervisors arrested her for theft, and Suders resigned from the force. The theft arrest occurred in the following circumstances. Suders had several times taken a computer-skills exam to satisfy a PSP job requirement. Each time, Suders' supervisors told her that she had failed. Suders one day came upon her exams in a set of drawers in the women's locker room. She concluded that her supervisors had never forwarded the tests for grading and that their reports of her failures were false. Regarding the tests as her property, Suders removed them from the locker room. Upon finding that the exams had been removed, Suders' supervisors devised a plan to arrest her for theft. The officers dusted the drawer in which the exams had been stored with a theft-detection powder that turns hands blue when touched. As anticipated by Easton, Baker, and Prender-gast, Suders attempted to return the tests to the drawer, whereupon her hands turned telltale blue. The supervisors then apprehended and handcuffed her, photographed her blue hands, and commenced to question her. Suders had previously prepared a written resignation, which she tendered soon after the supervisors detained her. Nevertheless, the supervisors initially refused to release her. Instead, they brought her to an interrogation room, gave her [Miranda] warnings, and continued to question her. Suders reiterated that she wanted to resign, and Easton then let her leave. The PSP never brought theft charges against her.In September 2000, Suders sued the PSP. This Court granted certiorari to resolve the disagreement among the Circuits on the question whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and therefore precludes assertion of the affirmative defense articulated in Ellerth and Faragher. This case concerns an employer's liability for one subset of Title VII constructive discharge claims: constructive discharge resulting from sexual harassment, or "hostile work environment," attributable to a supervisor.The constructive discharge here at issue stems from, and can be regarded as, an aggravated case of sexual harassment or hostile work environment. For an atmosphere of sexual harassment or hostility to be actionable, the offending behavior "must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." A hostile-environment constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign. Essentially, Suders presents a "worse case" harassment scenario, harassment ratcheted up to the breaking point. Harassment so intolerable as to cause a resignation may be effected through co-worker conduct, unofficial supervisory conduct, or official company acts. Unlike an actual termination, which is always effected through an official act of the company, a constructive discharge need not be. A constructive discharge involves both an employee's decision to leave and precipitating conduct: The former involves no official action; the latter, like a harassment claim without any constructive discharge assertion, may or may not involve official action.To be sure, a constructive discharge is functionally the same as an actual termination in damages-enhancing respects. Both end the employer-employee relationship, and both inflict direct economic harm. But when an official act does not underlie the constructive discharge, the Ellerth and Faragher analysis, we here hold, calls for extension of the affirmative defense to the employer. Official directions and declarations are the acts most likely to be brought home to the employer, the measures over which the employer can exercise greatest control. Absent "an official act of the enterprise," as the last straw, the employer ordinarily would have no particular reason to suspect that a resignation is not the typical kind daily occurring in the work force. An official act reflected in company records-a demotion or a reduction in compensation, for example-shows beyond question that the supervisor has used his managerial or controlling position to the employee's disadvantage. Absent such an official act, the extent to which the supervisor's misconduct has been aided by the agency relation is less certain. That uncertainty, our precedent establishes, justifies affording the employer the chance to establish, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable.The plaintiff who alleges no tangible employment action has the duty to mitigate harm, but the defendant bears the burden to allege and prove that the plaintiff failed in that regard. The plaintiff might elect to allege facts relevant to mitigation in her pleading or to present those facts in her case in chief, but she would do so in anticipation of the employer's affirmative defense, not as a legal requirement. VACATE and REMAND.Case Questions
1. What would you have done about the situation if you were Suders?
2. How do you think this situation could have been avoided?
3. Do you understand the distinction between allowing employers to use the Ellerth/Faragher affirmative defense in cases involving tangible job actions versus constructive dismissal or hostile environment cases?

Question 18

Bryson v. Chicago State University 96 F.3d 912 (7th Cir. 1996)
A Chicago State University tenured professor alleged that she lost her job title and was banished from university committee work because of rejecting requests for sexual activity from her supervisor. The court looked at the causation between the loss of her job benefits and the activity by the supervisor and determined that the rejection caused the loss, thus resulting in quid pro quo sexual harassment.Wood, J.
Emily Bryson is a tenured full professor at Chicago State University. She claimed, in a lawsuit brought under Title VII, that she had been the victim of quid pro quo sexual harassment inflicted by then-Provost Chernoh Sesay. The district court granted summary judgment to Chicago State University, Sesay, and the other defendants named in the suit, on the ground that Bryson failed adequately to demonstrate that she had lost any tangible employment benefit as a result of her rejections of Sesay. Because we conclude that the record reveals genuine issues of fact on this point, we reverse and remand for further proceedings.Chernoh Sesay was appointed Provost and Vice-President of Academic Affairs at Chicago State in July 1990. The Provost has full control and responsibility over faculty affairs at the university; he reports directly to the President. Sesay knew Bryson and supported her in her successful bid for an Administrative Fellowship. In January 1991 (after her selection but before she began her Fellowship), he began to make sexually suggestive and derogatory comments to her and to attempt to engage in improper physical contact with her. For example, in December 1990 at the President's Christmas party, Sesay approached Bryson, caressed her shoulders, pushed his body against hers, and whispered "when are you going to come over and start cooking for me?" Bryson jerked away and retorted, "I don't cook for anybody." In February 1991, while both Sesay and Bryson were visiting Governor's State (another campus in the system), Sesay asked Bryson to get into his car and go back to his hotel with him, so that they could "relax." Bryson refused. On numerous other occasions, he also suggested that they "relax" together, but she consistently rejected him. Several times in his office, he tried to kiss her. Once he asked her into his office to discuss a library-related matter, but when she stood up to leave, he ran his hand up her dress and fondled her behind.Sesay's inappropriate behavior continued during Bryson's fellowship at Eastern Illinois University. At a President's function in October 1991, he approached Bryson and asked, "Why aren't you going to let me up into your room? Let's go relax. I have something big to show you." Her rejections continued, however, and when in May 1992 he again asked her to come to his room to "relax" and she again refused, he warned her, "You had better do what I say or you're going to be sorry."
In June 1992, Bryson met with Chicago State President Dolores E. Cross to discuss her return. She said that she intended to return to her old position of Special Assistant to the Dean. Cross then called Sesay into the meeting. Sesay told her that the administrative title of "Special Assistant to the Dean" had never existed and that she had never performed those duties. Bryson interpreted this to mean that if she did not give in to his advances, she would have to work her way back up again. Sesay also told Bryson that all her tasks of special assistance to the dean had been reassigned to other people, and that she would be returned to bibliographic instruction work, her entry level position in 1980. Guy Craft, the Dean of LLR, told Bryson the next day that he had been instructed by his supervisors to "put [her] back as bibliographic instruction librarian."
Upon her return to Chicago State, although her work assignment "units" reflected the same number devoted to special assistance tasks as before, both her job description and her actual duties were diminished. By January 1993, all her special assistance responsibilities were deleted from her assignment. She filed a grievance with her union, which had the effect of permitting her to continue performing the disputed administrative tasks pending the outcome of the proceeding. In the end, she retained her duties as Special Assistant to the Dean, but she lost her in-house title. She also found herself frozen out of the university's administrative committees, even though appointments were made on an annual basis to most of them. She was denied reappointment to the Budget Committee, the Assessment Committee, and the Retention Committee, in spite of her expressed desire to continue serving. Her written request to serve on several other committees also fell on deaf ears.In Bryson's view, Sesay had made good on his threats. She filed a charge with the EEOC alleging that she was the victim of sexual harassment by Sesay. She argued that she was denied the employment benefits of membership on various administrative committees and the title of Special Assistant to the Dean as a direct result of her rebuffing Sesay's unwanted sexual advances. She received her right to sue letter and filed a complaint with the district court alleging both quid pro quo and hostile work environment sexual harassment.In order to prove such a claim, many courts of appeals use a five-part test, asking whether the plaintiff has shown (1) that she or he is a member of a protected group, (2) the sexual advances were unwelcome, (3) the harassment was sexually motivated, (4) the employee's reaction to the supervisor's advances affected a tangible aspect of her employment, and (5) respondeat superior has been established. Element (1) is plain enough, and a common part of many kinds of discrimination claims. Element (2) focuses on the unwelcome nature of the sexual advances from the point of view of the recipient, while element (3) asks whether the harasser was looking for sexual favors or something else. Element (4) asks what the "quo" part of the quid pro quo was: what tangible aspect of employment was affected? Finally, element (5) recognizes that there is a need to link the employer to the actions of the harasser. We have no occasion here to decide whether these five elements perfectly capture today's law of quid pro quo harassment, or if it would be better to consolidate some or add others. For present purposes, they provide a useful framework for our discussion, which turns on only one element that we agree is critical.That element is number 4: what was the "tangible employment benefit" that was denied to Bryson, and was the denial a result of her refusal to submit to Sesay's demands? The question whether an employee has suffered a materially adverse employment action will normally depend on the facts of each situation.Bryson relies on the loss of two types of tangible employment benefits to meet this flexible test: first, she claims that her loss of the title Special Assistant to the Dean was a tangible adverse action, and second, she claims that her banishment from university committee work was such an action.Chicago State responds that the title had no independent meaning, and that committee work was nothing she could expect to do in any event. It stresses that she succeeded in retaining her tasks. The district court found that committee work was not essential to a tenured academic, and it expressed skepticism that anyone would really want to serve on committees in any event. It was similarly unimpressed with the loss of the title, which it found had only speculative value. The case would have been different, the court suggested, if Bryson had applied for tangible promotions such as a deanship and been unsuccessful.With respect, we believe that the district court failed to recognize that Bryson raised disputed issues of fact on the issue of loss of tangible employment benefit. Bryson came forward with evidence that her title conferred prestige and was important to further professional advancement. She came forward with similar evidence regarding her committee work. The title, for example, would communicate to others both within the State Colleges and Universities system and outside it what kind of responsibilities had been entrusted to her. Committee work, especially on important committees like Budget and Retention, is often a prelude to an administrative career.Bryson herself, it is undisputed, had been on a promising job track for such a career, since she won the coveted position of Board Administrative Fellow for 1991-92. A sudden loss of all committee responsibilities and the stripping of a title one formerly held (when similar titles continued to be used throughout the university), if proven at trial, would be a loss of tangible employment benefits just as serious as moving an office to an undesirable location, relocating someone's personal files, or isolating the employee from others-all actions courts have held to qualify under Title VII in other cases.Universities have few "carrots" to dangle in front of tenured faculty members who reach full professorhood. The subtle indicia of job status and reward thus may, in a particular institution, take on an importance that may be far greater in context than would appear on the outside-indicia like honorary or in-house titles (that may have no budgetary effect, unlike their administrative counterparts) and committee assignments. The trier of fact must resolve the factual dispute over the reward structure that prevailed at Chicago State and how it related to the particular actions taken in Bryson's case. As the district court implicitly recognized, committee assignments and titles may play a part in preparing for an administrative academic career.The court erred in assuming that nothing adverse had happened to Bryson because she had not yet applied for a deanship. Depriving someone of the building blocks for such a promotion, if that is what a trier of fact thinks Chicago State did, is just as serious as depriving her of the job itself.Chicago State also claims that Bryson did not offer sufficient evidence of causation. Here again, the record shows genuine issues of fact. Bryson pointed both to direct evidence of causation and circumstantial evidence. The direct evidence was Sesay's remark to her in May 1992 that she "had better do what I say or [she'll] be sorry."
The circumstantial evidence began building immediately thereafter. In the June 1992 meeting, Sesay made a statement that a trier of fact could interpret as a veiled threat, when he told her the administrative title of "Special Assistant to the Dean" had never existed and that she had never performed those duties. The title had obviously existed, whether it was an "in-house" title or something more formal, and she had just as plainly performed the duties. The contrast between her position at Chicago State prior to her fellowship and her position upon her return might also strike a trier of fact as telling. As Provost, Sesay was in a position to effect all these changes. This was all Bryson needed to defeat Chicago State's motion for summary judgment on the quid pro quo harassment charge. REVERSED.Case Questions
1. If you were the university president, what would you have done about this situation?
2. Do you agree with the lower court that there was not sufficient evidence of a connection between what the provost did and what happened to Bryson's job, or with the court of appeals, which said there was sufficient evidence of the connection? Explain.3. How could this situation have been avoided or liability lessened?

Question 19

Robinson v. Jacksonville Shipyards, Inc. 760 F. Supp. 1486 (M.D. Fla. Jacksonville Div. 1991)
An employee brought this action against her employer because of the prevalence of nude photos, posters, reading material, plaques, and other nude representations in the workplace. She alleged that this, and the harassing activity toward her, constituted hostile environment sexual harassment in violation of Title VII of the Civil Rights Act of 1964. After an exhaustive 59-page, extremely detailed opinion, the court held for the employee and discussed the employer's handling of its sexual harassment complaints.Melton, J.
The shipyard had very few female skilled employees, so males greatly outnumbered females in the workplace. The employees bringing the complaint were skilled female craftworkers who had been subjected to a full range of harassing activity in the workplace including repeated requests for sexual activity, lewd comments, propositions, jokes, nude photos, posters, magazines and sexual teasing, all of the most egregious kind.In addressing the employer's response to the harassing activity in the workplace, the court finds that the policies and procedures at JSI for responding to complaints of harassment are inadequate. The company has done an inadequate job of communicating with employees and supervisors regarding the nature and scope of sexually harassing behavior. This failure is compounded by a pattern of unsympathetic response to complaints by employees who perceive that they are victims of harassment. This pattern includes an unwillingness to believe the accusations, an unwillingness to take prompt and stern remedial action against admitted harassers, and an express condonation of behavior that is and encourages sexually harassing conduct (such as the posting of nude and partially nude women). In some instances, the process of registering a complaint about sexual harassment became a second episode of sexual harassment.JSI cannot stand on an "ostrich defense" that it lacked knowledge of many of the complaints, because its handling of sexual harassment complaints deterred reporting and it did not conduct adequate investigation of the complaints it did receive. JSI received reports at the supervisory level and at the line level concerning incidents of sexual harassment. Additionally, many supervisory personnel admitted that they knew of the sexually oriented pictures throughout the workplace. JSI concedes it had reports of this and those reports should have alerted them to the need to conduct a more thorough investigation of conditions in the shipyards. Such a duty arises when reports show that the workplace may be charged with a sexually hostile atmosphere.JSI instead ignored the warning signs of a hostile environment. The evidence reveals a supervisory attitude that sexual harassment is an incident-by-incident matter; records were not maintained that would have permitted an analysis of sexual harassment complaints to determine the level of sexual hostility in the workplace. Under these circumstances, the court concludes that JSI received adequate actual knowledge of the state of the work environment, but, like an ostrich, the company elected to bury its head in the sand rather than learn more about the conditions to which female employees, Robinson in particular, were subjected.The court additionally imposes constructive knowledge on JSI for the sexually hostile state of its work environment. Constructive knowledge is measured by a practical threshold. An employer escapes liability for isolated and infrequent slurs and misogynist behaviors because even a reasonably prudent employer cannot exercise sufficient control over the workplace to put an end to such conduct; conversely, an employer incurs liability when harassing behavior happens frequently enough that the employer can take steps to halt it. The sexually harassing behaviors described here are too pervasive to have escaped the notice of a reasonably alert management. Moreover, the extent to which co-workers and supervisory personnel actually knew of the existence of sexually harassing behaviors is a good barometer of the company's constructive knowledge. The testimony establishes that Robinson's plight was widely known. To the extent that JSI contends that the physical size of its work environment diminished its ability to monitor incidents of sexual harassment, the company must realize that its expansive size may increase its burden in providing a workplace free of discrimination, but that expanse does not decrease the responsibility in its task. JUDGMENT for PLAINTIFF on the Title VII issue.Case Questions
1. How would you have handled this workplace if you had been manager?
2. Do you think the court imposed too heavy a burden on the employer for monitoring the workplace?
3. Should the "ostrich defense" be permitted?

Question 20

Two employee, Marge and Ben, are having a relationship and it later turns sour. When Marge does not get the promotion she goes up for, she sues the employer for sexual harassment, alleging it was committed by her ex-boyfriend, who has, since their breakup, left Marge alone. Will Marge win her suit?

Question 21

Miller v. Washington Workplace, Inc. 298 F. Supp. 2d 364 (E.D. Va. 2004)
In addition to suing for hostile environment sexual harassment, employee sued employer for assault, battery, and false imprisonment because of the employer's violent reaction when employee asked to see the company's sexual harassment policy. The court ruled that the claims should be handled under workers' compensation rather than tort law since they arose out of or in the course of employment and thus dismissed them.Workplace employed Miller as a salesperson. Murphy was her supervisor and the president of Workplace. When Miller interviewed for the position, Murphy represented that he distributed the business leads equally among his sales staff. Miller worked as a salesperson from December 1, 2000 until early June 2003.During her time at Workplace, Miller began to have difficulty with Murphy. Murphy failed to distribute the business leads equally, and often took business away from her. Murphy referred to her as a "screw up" or a "nothing sales person." He openly discussed her sales figures with other employees. Also, he claimed that she had accumulated unfounded draws on her sales commissions.Additionally, Miller complains of the hostile work environment created by Murphy. Murphy told Miller how he used the internet site "Match.com" to meet women. He showed her his personal ad and encouraged her to use the website so that she could have sex like he did. Murphy also submitted Miller's name to Match.com. He recommended that she post her personal information on a website for divorced Catholics. Murphy often referred to the office's sexual harassment policy as the "porno/internet" document. Miller alleges that Murphy made lewd comments about women's breasts, legs, buttocks, and made frequent comments about female customers and speculated whether they had "boob jobs." Murphy frequently questioned her about her sex life, encouraged others to discuss their sexual proclivities in front of Miller, and made lewd remarks about women.On June 3, 2003, Miller made an inquiry to Workplace's office manager requesting a copy of the sexual harassment policy and a copy of her most recent commissions/wage statement. Before she received these materials, Murphy called her at her desk and said, "why did you ask for a copy of the pornography/internet policy you signed?" Miller responded, stating "I did not ask you, John." Murphy then said, "I do not like your answer," and slammed down the phone. Moments later, Murphy charged into Miller's office, grabbed her by the arm, hurled her towards the door, and pushed her into a metal framed guest chair in her office. Murphy then shouted that Miller was fired. Murphy grabbed Miller's arm and attempted to remove some papers from her grasp. Murphy would not let her leave her office with her personal belongings and appeared out of control and physically threatening. Murphy continued to prevent Miller from retrieving her belongings, by sitting on her desk and kicking his heels against the drawer. When the police arrived, Miller was finally able to collect her belongings and leave the premises.Miller asserts three intentional tort claims against Murphy. Employer contends that Virginia Workers' Compensation Act provides the exclusive remedy for the injuries Miller claims were caused by Murphy's allegedly tortious conduct. The Court agrees with the employer and holds that the Court does not have jurisdiction over these claims.The Act provides an employee certain rights and remedies if the employee has suffered "an injury by accident arising out of and in the course of the employment." The Act precludes an employee from bringing common law personal injury claims against a co-employee or employer for injuries sustained during the course of employment.An injury is subject to the exclusivity provision of the Act if it is the result of an accident and "arises out of and in the course of the employment." Thus, the critical inquiry is whether Miller's injury was (1) an injury by accident, (2) arising out of, (3) and in the course of, her employment. If any one of these elements is missing, then Miller's claim is not covered by the Act.The first condition that the employer must show is that Miller sustained "an injury by accident." For an injury to be considered "by accident," it must have occurred at a particular time and place, as opposed to cumulative injury from repetitive trauma. The act covers injuries caused by an intentional or willful assault upon an employee by a co-worker. The Court holds that Workplace has shown that Miller sustained an injury by accident.The second element of coverage by the Act is also met. In cases involving intentional torts, "the necessary causal connection may be established if the evidence shows that the attack was directed against the claimant as an employee or because of the employment. Every event in this scenario, Miller's discontent with Murphy's workplace conduct, her request for a copy of the sexual harassment policy, and Murphy's attack upon her, was work-related. Furthermore, intentional torts committed during the course of a termination are covered by the Act. Murphy attacked Miller, because of her request for a copy of the sexual harassment policy. The requisite causal connection has been met.Finally, Miller's injury arose during the course of the employment. While the second element, "arising out of the employment," refers to causation, the third element refers to the time, place, and circumstances of the accident. The injuries occurred during the workday and at Miller's place of employment. MOTION TO DISMISS GRANTED.Case Questions
1. What would you have done to have avoided a situation like this?
2. Do you see how the court made sure the analysis of the facts would allow the employee to be able to bring her claims as a workers' compensation claim? Explain.3. Why do you think the employer engaged in the sexual harassment actions, yet had such a violent reaction when the employee requested the sexual harassment policy? Explain.

Question 22

Meritor Savings Bank, FSB v. Vinson 477 U.S. 57 (1986)
An employee alleged sexual harassment even though she lost no tangible job benefits. The Court determined that quid pro quo was not the only type of sexual harassment. For the first time, the U.S. Supreme Court determined that this kind of situation constituted hostile environment sexual harassment.Rehnquist, J.
Mechelle Vinson worked at Meritor Savings Bank, initially as a teller-trainee, but was later promoted to teller, head teller, and assistant branch manager, admittedly based upon merit. Sidney Taylor was the bank branch manager and the person who hired Vinson. Vinson alleged that in the beginning Taylor was "fatherly" toward her and made no sexual advances, but eventually he asked her to go out to dinner. During the course of the meal Taylor suggested that he and Vinson 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. Taylor thereafter made repeated demands upon Vinson for sexual activity, 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, she 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. These activities ceased in 1977 when Vinson started going with a steady boyfriend.Courts have applied Title VII protection to racial harassment and nothing in Title VII suggests that a hostile environment based on discriminatory sexual harassment should not be likewise prohibited. The Guidelines thus appropriately drew from, and were fully consistent with, the existing case law.Of course, not all workplace conduct that may be described as "harassment" affects a "term, condition, or privilege" of employment within the meaning of Title VII. For instance, mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee would not affect the condition of employment to a sufficiently significant degree to create an abusive working environment. For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Vinson's allegations in this case-which include not only pervasive harassment, but also criminal conduct of the most serious nature-are plainly sufficient to state a claim for hostile environment sexual harassment.The District Court's conclusion that no actionable harassment occurred might have rested on its earlier finding that if Vinson and Taylor had engaged in intimate or sexual relations, that relationship was a voluntary one. But the fact that sex-related conduct was "voluntary" in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is the alleged sexual advances were "unwelcome." While the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the "volun-tariness" of Vinson's participation in the claimed sexual episodes. The correct inquiry is whether Vinson, by her conduct, indicated that the alleged sexual advances were unwelcome, not whether her participation in sexual intercourse was voluntary.The district court admitted into evidence testimony about Vinson's "dress and personal fantasies." The court of appeals stated that testimony had no place in the litigation, on the basis that Vinson's voluntariness in submitting to Taylor's advances was immaterial to her sexual harassment claim. While "voluntariness" in the sense of consent is not a defense to such a claim, it does not follow that a complainant's sexually provocative speech or dress is irrelevant as a matter of law in determining whether she found particular sexual advances welcome. To the contrary, such evidence is obviously relevant. The EEOC Guidelines emphasize that the trier of fact must determine the existence of sexual harassment in light of "the record as a whole" and the "totality of circumstances," such as the nature of the sexual advances and the context in which the alleged incidents occurred.In sum we hold that a claim of "hostile environment" sexual harassment gender discrimination is actionable under Title VII. AFFIRMED.Case Questions
1. As a manager, what would you have done if Vinson had come to you with her story?
2. Under the circumstances, should it matter that Vinson "voluntarily" had sex with Taylor? That she received her regular promotions? Explain.3. As a manager, how would you determine who to believe?

Question 23

Dennis comes up to his supervisor, Mae, at a Christmas party and tells Mae he wants to sue for sexual harassment. Mae asks what happened. Dennis says that Linda came over to him and tweaked his cheek and called him sweetie. Dennis pursues the case. Does he win? Why or why not?

Question 24

McLean v. Satellite Technology Services, Inc. 673 F. Supp. 1458 (E.D. Mo. 1987)
An assistant salesperson contends she was wrongfully terminated after she spurned romantic advances by her supervisor. The court found no sexual harassment because it held that the supervisor's actions, if they occurred, were not unwelcome.Gunn, J.
McLean alleges she was at a business seminar meeting in Florida with Manning, who was making a presentation. McLean was to observe so she would ultimately be able to conduct a seminar. After one day's work, McLean, Manning, and another Satellite employee had dinner and went to the hotel's hot tub. Manning suggested to McLean that she should review his presentation, so he went to her hotel room. McLean claims that while they were in the room, with her dressed in a swim-suit and towel, and Manning in shorts and a shirt, they sat on the couch together and while Manning talked about his presentation, he put his arm around her back, touched her leg, and made an effort to kiss her once. McLean testified the effort was easily rebuffed and Manning then left the room. Manning denies making any advances to McLean. Following the trip McLean alleges Manning was cool to her. She attributes this and her subsequent dismissal to her rebuff of his advances.The court finds that there was [sic] a multitude of legitimate business reasons for terminating McLean and that her discharge was not based upon sexual harassment. It is undisputed that McLean was anything but demure, that she possessed a lusty libido and was no paragon of virtue. From the beginning of her short term of employment with Satellite in November of 1985, to its end in February 1986, she displayed a remarkable lust for those of the opposite sex. She displayed her body through semi-nude photos or by lifting her skirt to show her supervisor an absence of undergarments. Also, during work hours, she made offers of sexual gratification or highly salacious comments to employees, customers and competitors alike, though warned by Manning not to do so. There was uncontroverted evidence of acceptance of her offers.Though specifically ordered by her supervisor, Manning, to refrain from an obviously flirtatious telephone relationship with an employee of a customer, McLean flouted the order and carried on the dalliance. It was McLean's activities at a trade show in Las Vegas, Nevada, on February 22-23, 1986 that finally led to McLean's discharge. At the trade show, McLean missed meetings she was expected to attend, was not at her job station a large percentage of the time and continued her libidinous behavior, acknowledging she was "intimate" with an employee of a customer at least two or three times, entertaining him in her hotel room during the period of the trade show. This was despite orders from her supervisor to abstain from promiscuity with customers or dealers.On her return from Las Vegas, McLean was summarily discharged from her employment by the president of Satellite. His basis was McLean's performance at the Las Vegas trade show as related by Satellite's chief operating officer who was there and observed McLean's actions. Specifically, she was dismissed for missing work and meetings in Las Vegas.The court specifically finds that there was no sexual harassment of McLean by her supervisor. From McLean's character, it is apparent that she would have welcomed rather than rejected Manning's advance, if he did indeed do so. But the court finds that Manning made no sexual advance. McLean was not subjected to any unwelcome sexual harassment. Indeed, it is McLean who bears the responsibility for whatever sexually suggestive conduct is involved in this case. Satellite has stated nonpretextual, legitimate and absolutely nondiscriminatory reasons for its discharge of McLean. She was insubordinate, and displayed total disrespect for her supervisor, which would serve as a legitimate basis for termination. It is also abundantly clear that McLean was terminated because of her poor work performance, attitudes, and habits, e.g., excessively long lunch hours, personal phone calls, entertaining nonbusiness visitors during working hours, and being inattentive to her work, particularly at the Las Vegas trade show. As such, her termination was proper. JUDGMENT FOR DEFENDANT, COSTS TO BE PAID BY PLAINTIFF.Case Questions
1. Do you agree with the court's assessment of the evidence? Why or why not?
2. If you were McLean's supervisor and she exhibited the behavior alleged, what could you have done?
3. Do you think the court would have held the same way if McLean had been a male? Explain. Do you think a male employee would have been ordered by his supervisor to "abstain from promiscuity with customers"? Would it be gender discrimination to give such orders to employees of one gender and not the other? Explain.