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Topic: "Harassment" | Main

$22,000 settles retaliation suit
April 27, 2011 by Ross Runkel at LawMemo

A long-term care facility will pay $22,000 to settle a lawsuit for retaliation brought by the EEOC.

EEOC charged that the employer fired a housekeeping supervisor because she had complained about racial harassment and racial discrimination. She was fired within days of her complaint.

[Press Release]

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$428,500 settles sexual harassment claim
January 31, 2010 by Ross Runkel at LawMemo

EEOC and Eagle Wings Industries have settled a sexual harassment suit for $428,500, which will go to a class of females.

EEOC claimed that the company discriminated against a class of female employees by subjecting them to sexual harassment, retaliated against one woman for engaging in protected activity, and also required one woman to undergo an unlawful medical examination, contrary to the ADA.

[Press release]

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School not liable when it passed off sexual assaulter to another school where student was assaulted.
January 24, 2010 by Ross Runkel at LawMemo

The sad facts alleged in this case are that officials at School #1 knew one of its teachers had been sexually assaulting grade-schoolers, they did not report this, and instead they allowed the teacher to resign and get a new job at School #2.

Guess what? The teacher assaulted a student at School #2.

The student sued School #1 and its officials and lost. The 7th Circuit held that the student could get no legal help from either title IX or Illinois tort law.

Doe-2 v. McLean Cnty Unit Dist (7th Cir 01/22/2010)

Doe-2, a grade school student at Urbana school district, was sexually assaulted by a teacher. The teacher previously worked at McLean school district, where he had assaulted students. Doe-2 sued the McLean district and its officials, claiming its officials knew of the assaults, did not report them, and then allowed the teacher to resign and get a new job at Urbana. The 7th Circuit held that Doe-2 did not state a claim under Title IX or Illinois tort law.

(1) Doe-2 did not state a claim under Title IX. A student can recover damages from a school district for a teacher's sexual harassment, but only if the district had "substantial control over both the harasser and the context in which the known harassment occurs." Davis ex rel LaShonda D v. Monroe Cnty Bd of Educ, 526 US 629 (1999). Here, even if McLean officials knew of the risk of future assaults, they "lacked the requisite control over such harassment to incur Title IX liability" because they had no supervisory authority over the teacher after he ended his employment there.

(2) Doe-2 did not state a claim under Illinois tort law for willful and wanton misconduct for four reasons: (a) a person ordinarily has no duty to act affirmatively to protect another from criminal attack by a third person; (b) Illinois' child abuse reporting statute does not create any duty to the abused child when a person fails to report abuse; (c) McLean officials had no "special relationship" with Doe-2 that would trigger a legal duty to protect her; and (d) even though McLean officials may have foreseen a risk that the teacher would assault Urbana students, this did not create a duty to protect them, absent a special relationship.

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$140,000 for racial harassment of black manager
January 20, 2010 by Ross Runkel at LawMemo

The EEOC claimed that that a car dealer allowed a white male management consultant to subject an African American sales manager to a racially hostile work environment over a four-month period.

The EEOC said that although two white managers asked the consultant to stop his discriminatory behavior, the consultant continued to make the derogatory comments at every opportunity.

The suit settled for $140,000 plus other relief.

[Press release]

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EEOC sues for sexual harassment and retaliation
January 20, 2010 by Ross Runkel at LawMemo

EEOC has sued Monterey Gourmet Foods, claiming that it allowed a supervisor to sexually harass four Latino workers. 

The EEOC also alleged that the company unlawfully retaliated against each worker by terminating them after they reported the harassment.

[Press release]

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EEOC sues grape grower
January 15, 2010 by Ross Runkel at LawMemo

EEOC has sued one of the nation's largest growers of table grapes, claiming sexual harassment and retaliation.

The suit claims that Giumarra Vineyards Corp subjected a teenage female farm worker to sexual harassment.

Another claim is that a class of farm workers came to the aid of the teenage female victim and complained to Giumarra Vineyards, and then one day later the teenage victim and the class of farm workers were summarily discharged in retaliation for their opposition to the sexual harassment.

[Press release]

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EEOC charges sexual assault
January 15, 2010 by Ross Runkel at LawMemo

EEOC has sued a hotel operator, claiming that a restaurant manager sexually assaulted a female employee while she was asleep in her room.

[Press release]

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$21,500 settles sex harassment suit
January 13, 2010 by Ross Runkel at LawMemo

EEOC and Crowell Contract and Design have settled a sex harassment suit for $21,500 plus corrective measures.

EEOC charged that the president and a co-owner of the company created a sexually hostile work environment which ultimately forced an employee to resign her position.

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EEOC claims sexual harassment at restaurant
December 28, 2009 by Ross Runkel at LawMemo

EEOC sued a Jack in the Box franchisee December 22, claiming it allowed a manager to sexually harass female employees under his supervision.

EEOC claims the harassment included frequent remarks about female employees’ anatomy and unwelcome sexual advances and innuendos. 

[Press release]

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$1,260,000 settles harassment claims
December 16, 2009 by Ross Runkel at LawMemo

$1,260,000 settles a claim that national restaurant chain Bahama Breeze managers committed numerous and persistent acts of racial harassment against 37 black employees, including frequently addressing black staff with slurs such as “n….r,” “Aunt Jemima,” “homeboy,” “stupid n….r,” and “you people.”

Additionally, managers allegedly imitated what they perceived to be the speech and mannerisms of black employees, and denied them breaks while allowing breaks to white employees.

[Press release]

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$500,000 harassment settlement
December 14, 2009 by Ross Runkel at LawMemo

EEOC settlement

$500,000 settles an EEOC claim that two car dealerships knew about and tolerated a work environment permeated by sexual and racial harassment.

An EEOC attorney described the incidents as "shocking." The EEOC claimed the dealerships failed to take corrective action and instead retaliated against employees who challenged the discriminatory conduct.

[Press release]

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EEOC suit claims male-on-male harassment
December 14, 2009 by Ross Runkel at LawMemo

EEOC has sued a retail and wholesale fish market, claiming that some of the owners and managers created a hostile work environment for male employees, including physical and verbal sexual harassment and offensive and degrading comments based on race and national origin.

EEOC also alleges that employees left because of the harassment and that the man who originally complained faced retaliation. To punish him for complaining, the EEOC said, managers instructed other employees not to speak to him, yelled at him when he spoke to others, assigned him more frequently to garbage duty and sent him home when he did speak to others.

[Press release]

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WI - No negligent supervision for security manager's internet posting of adulterated photos
September 01, 2009 by Ross Runkel at LawMemo

Maypark v. Securitas Security Svcs (Wisconsin Ct App 09/01/2009)

The employer of a security manager was not liable for negligent training and supervision when the manager took ID badge photos, ejaculated on them, and posted them on adult web sites.

Securitas provided security services for Polaris Industries. Securitas's security manager was responsible for creating ID badges, so he had access to photos of Polaris employees. The manager copied 30 photos while at work, took them home, ejaculated on them, and posted the adulterated photos on adult web sites he created. Some affected employees sued Securitas for negligent training and supervision, and won a bench trial.

The Wisconsin Court of Appeals reversed, holding that Securitas was not negligent as a matter of law, and that the injuries were too remote from the alleged negligence. The negligence claim failed because it was not reasonably foreseeable that unsupervised access to photos would result in harm. Securitas had provided theft and sexual harassment training, and Polaris owned, maintained, and monitored the guard shack. In addition, the court held that the injuries were too remote from the alleged negligence. The court characterized the manager's conduct as "bizarre," "unexpected," and "unimaginable," and said that allowing recovery "would have no sensible or just stopping point."

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Who is "management" in co-worker sexual harassment cases?
June 12, 2009 by Ross Runkel at LawMemo

Priscilla Huston claimed she was sexually harassed by co-employees. A couple of other folks at the company had knowledge of the harassment.

The legal question was whether these other folks were "management." If they were management, then their knowledge would be inputted to the company, so now the company would know. Huston v. Procter & Gamble (3rd Cir 06/08/2009)

Huston lost.

More important, however, is that the 3rd Circuit spelled out the legal basis for holding the employer liable for co-worker harassment.

In order to prevail on a claim for hostile environment sexual harassment under Title VII, an employee must establish a basis for employer liability. In the context of co-worker (rather than supervisor) sexual harassment, employer liability exists “only if the employer failed to provide a reasonable avenue for complaint, or alternatively, if the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action.”

The 3rd Circuit concluded that an employee’s knowledge of co-worker sexual harassment may be imputed to the employer in two circumstances:

First, knowledge of sexual harassment will be imputed where the employee is sufficiently senior in the employer’s governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, so that such knowledge is important to his general managerial duties. The court identified departmental or plant managers as examples of such employees.
Second, knowledge of sexual harassment will be imputed to the employer when the employee is specifically employed to deal with sexual harassment. The court stated, “[w]e clarify that mere supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status [in this context].” The court explained, “to the extent that such a supervisor does not have a mandate generally to regulate the workplace environment, that supervisor does not qualify as management level.”

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$161,000 settlement of EEOC sexual harassment suit
February 28, 2009 by Ross Runkel at LawMemo

Big Vanilla Athletic Club to Pay $161,000 to Settle EEOC Lawsuit for Sexual Harassment is the tile of the EEOC's press release:

A Maryland athletic club will pay $161,000 and furnish other substantial relief to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced [February 26, 2009].

According to EEOC’s suit, (1:08:00518-CCB, filed in U.S. District Court for the District of Maryland, Northern Division), BVP, LLC and N.F.A.C., Inc., doing business as Big Vanilla Pasadena and Big Vanilla Athletic Club, violated federal law by sexually harassing several female employees at the company’s Pasadena and Arnold, Md., locations. The EEOC said Joella Hopkins, Melissa Mendez, Michelle Cabral and Dawn Wooden were subjected to repeated and unwanted sexually offensive remarks and sexual advances. Further, the EEOC charged that Hopkins, Cabral and Wooden were fired in retaliation for their complaints about the discrimination.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a voluntary settlement.

In addition to the monetary relief to the women, the three-year decree settling the suit enjoins Big Vanilla Pasadena and Big Vanilla Athletic Club from engaging in harassment on the basis of sex and from retaliating against employees who complain about it. The employer agreed to monitoring by the EEOC, to train its current and future managers on anti-discrimination laws, and to post notices stating its commitment to maintaining an environment free of sexual harassment and retaliation.

“Employers have a responsibility to maintain an environment free of sexual harassment and retaliation, which are clearly and simply illegal,” said EEOC Acting Regional Attorney Debra Lawrence. “This settlement achieves the EEOC’s objectives by providing appropriate relief to the victims while implementing measures to prevent this kind of misconduct in the future.”

According to its web site (www.bigvanilla.com), “Big Vanilla Athletic Club is the premier fitness facility in Anne Arundel County, offering you a wide variety of fitness, wellness and recreation opportunities in the future.”

In fiscal year 2007, retaliation charges surged 18% to a record high level of 26,663, making retaliation the second-highest charge category (behind race) for the first time ever. Additionally, sexual harassment filings increased for the first time since fiscal year 2000, numbering 12,510 – a 4 percent increase from the prior fiscal year.

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2.5 MILLION for harrassing one employee
January 03, 2008 by Ross Runkel at LawMemo

Here's the EEOC press release:

EEOC Says African American Electrician Subjected to ‘N-Word’ and Threats of Lynching at Worksites Across the Country

HONOLULU -- The U.S Equal Employment Opportunity Commission (EEOC) today announced a major settlement of a race discrimination and retaliation lawsuit against Lockheed Martin, the world’s largest military contractor, for $2,500,000 and other relief on behalf of an African American electrician who was subjected to a racially hostile work environment at several job sites nationwide – including threats of lynching and the “N-word.”

The monetary relief for former Lockheed employee Charles Daniels is the largest amount ever obtained by the EEOC for a single person in a race discrimination case, and one of the largest amounts recovered for an individual in any litigation settlement by the agency. Additionally, the Bethesda, Md.-based company agreed to terminate the harassers and make significant policy changes to address any future discrimination, the EEOC said at a press conference in Hawaii.

The EEOC’s suit, filed in August 2005, alleged that Daniels was subjected to severe racial harassment while working on military aircrafts as part of a field service team in Jacksonville, Fla., Whidbey Island, Wash., and Oah’u, Hawaii. The EEOC charged that Daniels was the target of persistent verbal abuse by coworkers and a supervisor whose racial slurs and offensive language included calling him the “N-word” and saying “we should do to blacks what Hitler did to the Jews” and “if the South had won then this would be a better country.” Daniels was also subjected to multiple physical threats, such as lynching and other death threats after he reported the harassment. Despite its legal obligations, Lockheed failed to discipline the harassers and instead allowed the discrimination against Daniels to continue unabated – even though the company was aware of the unlawful conduct.

Commenting on the settlement, Daniels said: “As an armed forces veteran who swore to defend the rights and interest of Americans around the globe, I find it sad that the U.S. government had to sue its largest defense contractor Lockheed Martin -- whose slogan is ‘We never forget who we’re working for’ -- to protect my rights here at home!”

Daniels added, “I am pleased that we stood up for justice, because it should help all hard-working Americans of every race and gender to know that we have rights and protections guaranteed under the laws of this nation.”

EEOC Regional Attorney William Tamayo said, “This is a very good resolution because Lockheed Martin agreed to terminate and permanently bar Daniel’s harassers from employment. It sends a powerful message that racism cannot and must not be tolerated.”

Raymond Cheung, the EEOC attorney who led the government’s litigation effort, added, “To combat the harassment and threats faced by Mr. Daniels is at the heart of why the EEOC was created. Despite concerns of retaliation, this man had the courage to stand up and make public what happened to him, in an effort to ensure that it would not happen to anyone else. It has been a once-in-a-lifetime honor to work on this case.”

The litigation and consent decree were filed by the EEOC under Title VII of the Civil Rights Act in the U.S. Court for the District of Hawaii (U.S. Equal Employment Opportunity Commission v. Lockheed Martin, CV-05-00479).

EEOC Honolulu Local Office Director Timothy Riera praised the agency’s lead investigator in the case, Gloria Gervacio, and said: “The overt harassment to which Mr. Daniels was subjected in Hawaii represents some of the most severe misconduct this office has come across. It is imperative that employers here take proactive measures to ensure that discrimination complaints are taken seriously and that all employees work in an environment free of harassment.”

Racial harassment charge filings with EEOC offices nationwide have more than doubled since the early 1990s from 3,075 in Fiscal Year 1991 to approximately 7,000 in FY 2007 (based on preliminary year-end data). Additionally, race remains the most frequently alleged basis of discrimination in charges brought to the EEOC, accounting for about 36% of the agency’s private sector caseload.

On Feb. 28, 2007, EEOC Chair Naomi C. Earp launched the Commission's E-RACE Initiative (Eradicating Racism And Colorism from Employment), a national outreach, education, and enforcement campaign focusing on new and emerging race and color issues in the 21st century workplace. Further information about the E-RACE Initiative is available on the EEOC’s web site at http://www.eeoc.gov/initiatives/e-race/index.html

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Harassment and constructive discharge
August 01, 2006 by Ross Runkel at LawMemo

Sexual harassment can create fear that a manager "was capable of, and desirous of, physically assaulting [an employee] in a serious way." If so, then the employee "should have quit immediately to protect herself."

These quotes from Patton v. Keystone RV Company (7th Cir 08/01/2006).

Brenda Patton alleged that she was sexually harassed, and that her "quit" was a constructive discharge. The trial court didn't think so, but the 7th Circuit easily found enough to justify going to trial on both issues.

It's a sad tale that was told by the employee. The court summarizes it this way (read the whole opinion for the shocking details):

The conduct alleged in this case occurred over the course of approximately one month and consists of (1) four instances of physical contact, (2) a few sexually charged comments, and (3) alleged stalking.
The most serious of these is the inappropriate touching.
[The manager's] groping of Patton under her shorts might be sufficient alone to create an abusive working environment.

This was enough for the 7th Circuit to send the case to a jury on the question of sexual harassment.

What about constructive discharge? The harassment must be "more egregious" - "so intolerable that a reasonable person would have felt compelled to resign."

Here's how the 7th Circuit saw that issue:

A reasonable fact finder could agree with Patton’s fear that her supervisor was an obsessed man who - based on previous acts showing no regard for Patton’s right to control who could touch intimate areas of her body - was capable of, and desirous of, physically assaulting her in a serious way. We need not conclude that a rape or other assault was likely, but only whether a reasonable fact finder could find that Patton should have quit immediately to protect herself. We think the answer is yes.

My view: Was the district judge reading a different record?

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Statutory rape is never "welcome" sexual harassment
July 28, 2006 by Ross Runkel at LawMemo

Say a 16-year-old girl voluntarily has sex with her supervisor and then claims sexual harassment in violation of Title VII. Can the employer get off the hook because the sex was "welcome"?

It's important to know, because the usual definition of sexual harassment involves "unwelcome" sexual advances.

The 7th Circuit says there should be a bright line. Look to the law of the state where the girl was employed and see if she was below the age of consent. If she was, then it's automatic. She cannot "welcome" the sexual advances of an older man.

Doe v. Oberweis Dairy (7th Cir 07/28/2006)

Jane Doe's claim has to jump some more hurdles. The case simply reversed a trial court's grant of summary judgment for the employer. Jane still has to prove her facts. Even if she can prove harassment by the supervisor, she has to connect that to her employer (which could be a little difficult because the supervisor wasn't really a full-blown supervisor). Also, the 7th Circuit suggested that her damages might be reduced because she was a willing participant.

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Bathroom peeping did not create hostile work environment
April 09, 2006 by Ross Runkel at LawMemo

A male supervisor used a bathroom peephole 2-3 times a day for more than three years to watch a female employee use the toilet. This did not create a hostile work environment because the employee was unaware of it. So says the 8th Circuit in a 2-1 decision.

Cottrill v. MFA, Inc (8th Cir 04/07/2006).
Employment Law Memo notified its readers about this case in the April 10 issue, which was emailed April 9.

If that were the whole story, I could understand a court saying that an employee's terms and conditions of employment are not changed by a supervisor's actions when the employee doesn't know about them.

There's more to the story:

  • The employee suffered a rash from an unknown cause. She believed it was caused by a sticky substance frequently found on the toilet seat. Later, management found corn starch and old leaves that an agronomist thought was poison ivy - located in the room from where the peeping took place.
  • Management asked the employee to use the restroom so they could catch the supervisor on video. She testified that she agreed "because I was told that was the only way they could fire him."
  • The employee testified there were other peepholes that management did not cover up.
  • When the employee found out about the peeping, she got physically ill and left work.

The majority said the employee could not rely on the peeping because she was not aware of it.

The dissent cited a series of things that, taken together, could lead a reasonable jury to conclude that the harassment was pervasive or serious enough to be actionable:

  • Employee got physically sick when she learned of the peeping.
  • Management enlisted her as bathroom bait.
  • The rash, the substance on the toilet seat, and the stuff found in the supervisor's break room.
  • Another employee had a burning sensation after using the toilet.
  • The employee testified that, after the bathroom incident, management delayed her workers compensation claim, reluctantly granted it, shamed her publicly, and told her to "forget" what happened.

My view:

  • Can't help noticing this was two male judges vs. one female judge.
  • Can't help noticing this was two Republican appointees vs. one Democrat appointee.
  • I like juries. Juries are supposed to be the fact-finders. Deciding this case on summary judgment is an example of a court that weighed the evidence itself instead of letting a jury do it. This seems to be a frequent theme in the 8th Circuit.

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One million dollars for a hangman's noose
March 22, 2006 by Ross Runkel at LawMemo

"It is shocking that such egregious racial harassment still occurs in the 21st century workplace, more than 40 years after passage of the landmark Civil Rights Act." Quoting EEOC’s Houston District Director.

EEOC got a $1 million settlement of a racial harassment case. The allegations were:

A black employee was subjected to a barrage of racial epithets, culminating in an incident where white co-workers placed a noose around his neck in the company bathroom and choked him. The employer did not stop its employees, including managers, from harassing the employee on the basis of his race (black) and subjecting him to a racially hostile work environment - including verbal and physical abuse.

More details: EEOC press release.

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Another $2 million for harassment
March 13, 2006 by Ross Runkel at LawMemo

EEOC is on a roll. A $2 million consent decree against Cracker Barrel on a claim of sexual and racial harassment and retaliation. The money will be split by 51 employees. More details in the EEOC press release.

This follows announcements of a $1.3 million verdict and a $90,000 settlement discussed here.

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Sexual orientation: $1,914,104 verdict affirmed
November 30, 2005 by Ross Runkel at LawMemo

Employment discrimination because of sexual orientation is unlawful in California. And expensive.

Bruce Hope, a gay man, won a jury verdict for $914,104 in economic damages plus $1,000,000 in non-economic damages. On November 30 the California Court of Appeal affirmed. Hope v. California Youth Authority (California Ct App 11/30/2005).

Hope worked as a cook in one of California's youth correctional facilities. He claimed that he was harassed - because he was gay - over a period of about five years. The jury agreed. The employer appealed, arguing that the verdict was not supported by the evidence. (On an appeal the court has to assume that the winner's evidence was true, and I'll do the same here.)

The court did a nice job of laying out the facts (way too much detail to repeat here) and explaining the various elements of sexual orientation harassment.

  • Severe or pervasive. The harassment has to be because of Hope's sexual orientation, and also has to be severe or pervasive enough to alter the conditions of his employment.
    • His immediate supervisor called him a m**f** faggot and "homo." Perhaps 150 times.
    • A security officer in the kitchen called him the same names, and more.
    • He was promoted and then almost immediately that was revoked.
    • The security officer threw trash on the floor after Hope had cleaned it.
    • He was denied merit increases.

  • The employer knew. In order for the employer to be liable, the employer has to have knowledge or be in a position where it should have known.

    • Hope complained often.

    • His own supervisor was one of the perpetrators.

    • Another supervisor knew but did not report it up the chain of command.

    • Sounded to me like just about everybody knew.

  • Corrective action by the employer? There wasn't enough.

    • Hope complained to six people.

    • There was some "Don't do that again" instruction.

    • The offensive conduct continued, and got worse.

  • Economic damages - $914,104.

    • The jury implicitly found that Hope would have worked for the state until retirement age but for the harassment.

    • Although Hope was HIV positive, he had no obligation to prove that he had a normal life expectancy. He didn't have AIDS, and was responding well to medication.

    • Although the employer argued that Hope did not prove he could never work again, it was the employer's burden to prove what he would have earned. The employer produced no evidence as to the amount Hope would have earned, and no evidence as to the availability of comparable employment.

  • Non-economic damages - $1 million. "The award does not shock the conscience."

My view:

  • The appeal was based on a claim of insufficient evidence. I thought there was plenty.

  • Of the three judges, one concurred in the judgment without joining the opinion. I wonder why.

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Sexual harassment without sexual conduct
September 06, 2005 by Ross Runkel at LawMemo

Most sexual harassment cases involve conduct that is sexual.
Question: What if the conduct on its face is not sex-related or gender-related, with no sexual overtures, and no gender-specific words?

The 9th Circuit has held that conduct can be sexual harassment within the meaning of Title VII even though there is nothing "sexual" about the conduct. Christopher v. National Education Assoc (9th Cir 09/02/2005).

The court put it this way:

While sex- or gender-specific content is one way to establish discriminatory harassment, it is not the only way: “direct comparative evidence about how the alleged harasser treated members of both sexes” is always an available evidentiary route. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998). The ultimate question in either event is whether “ ‘members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ ” Id. at 80 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993)).

My view: The decision is correct.

  • Title VII does not focus on harassment and does not focus on sexuality. It's focus is on discrimination. Here, specifically discrimination because of sex.
  • "Because of sex" means because of gender, usually because of the gender of the person being harassed.
  • So the key is whether one gender is being treated differently than the other gender.
  • My favorite hypothetical from teaching a law school class on employment discrimination - the stink-bomb:

The supervisor puts a stink-bomb in an employee's desk. (Assume this is sufficiently "severe" (big stink-bomb) and pervasive (happens every day).) The Title VII question is "why?" Was it because of the employee's sex, race, national origin, religion? If so, then it violates Title VII. Racial harassment need not involve the use of racial slurs; religious harassment need not involve the use of religious words; sexual harassment need not involve anything that one would consider "sexual."

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Practical joke not covered by insurance
June 16, 2005 by Ross Runkel at LawMemo

True story. A dentist's employee needed an extraction. The dentist put her under anesthesia and had some fun with a practical joke. He put false teeth shaped like boar tusks into her mouth and took pictures, then finished the legitimate dental work.

That was the last day of work for the employee, who then sued the dentist for assault, outrage, and so on. The dentist asked his insurance company to defend him, and the company refused. After the dentist settled with the employee, he sued the insurance company alleging bad faith breach of the duty to defend. A jury returned a verdict for the dentist, but the Washington Court of Appeals reversed. Woo v. Fireman's Fund (Washington Ct App 06/13/2005).

The dentist had three insurance policies, none of which covered the situation.

  • Dental professional liability. The court said no reasonable person would believe a dentist would treat dental problems with false boar teeth, so when he did that he was not performing dental services. He was taking "actions for his own purposes rather than for her treatment."
  • Employment practices liability. To be covered by this policy, the employee must have been claiming "wrongful discharge" arising out of a "wrongful employment practice." The court pointed out that the employee's complaint against the dentist "would not conceivably constitute the tort of wrongful discharge."
  • General liability. This policy provided coverage for personal injury arising from the business. However, the dentist's actions were not part of his business, and what happened could not be called an "accident."

My view: Check the insurance policy before inserting the boar tusks.

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Skimpy EEOC charge was good enough
May 04, 2005 by Ross Runkel at LawMemo

Does an EEOC charge really have to state facts as to harassment in order to bring a Title VII suit? Maybe not, according to the 11th Circuit.

Freddy Green's pro se EEOC charge checked the box for race discrimination and gave one single date for both the "earliest" and "latest" dates. As for factual particulars he wrote:

I. I was employed from March 7, 1995 until my discharge January 2, 2001. I was terminated for violation of the attendance policy, but I have no written warnings for attendance. White males that have written warnings and have committed further violations were not terminated.

II. Management stated I was discharged because of violation of the attendance policy.

III. I believe that I have been discriminated against because of my race (black) in violation of Title VII of the Civil Rights Act of 1964, as amended.

When Green sued for both racially discriminatory (a) discharge and (b) harassment, the trial court found enough evidence of both, but ruled that his EEOC charge was procedurally defective as to the harassment claim. Green won a jury verdict on the discharge claim, and appealed from the denial of the harassment claim.

The 11th Circuit ruled (2-1) that the harassment claim could go forward. Green v. Elixir Industries (11th Cir 04/29/2005). The court said Green's harassment and discharge claims were "inextricable intertwined," pointing to pre-discharge harassment facts that were introduced as evidence of the employer's motive for the discharge. The reasoning: if this evidence was "related to" the discharge claim, then it was "related to" the harassment claim.

In addition, the EEOC charge mentioned race discrimination, which racial harassment clearly is. The court also emphasized that one purpose of the EEOC charge is to put the employer on notice of the allegations, and the person who was responsible for the discharge was intimately familiar with the alleged harassing conduct.

The dissent said Green failed to allege facts sufficient to inform the EEOC that he was complaining of hostile work environment. "Green's EEOC charge does not allege a single fact that reasonably could have been expected to prompt the EEOC to investigate a charge of hostile work environment."

My view: This case takes the rules to the outer limit.

There really was nothing in the EEOC charge that would suggest to the EEOC that Green had a harassment claim. Indeed, the statement of a single date plus Green's emphasis on discharge would suggest that harassment was not an issue.

Therefore, if the purpose of an EEOC charge is to allow the EEOC to investigate and try to resolve claims without law suits, then the charge was woefully defective.

If, however, the purpose of the EEOC charge is to put the employer on notice, you could look at it two ways. One is what the majority said, which is that the employer's decision maker knew all the harassment facts and didn't need to be told. The other is that Green's failure to even hint at harassment meant that he was not making a harassment claim.

I don't expect to see other Circuits following this decision.

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