Jessica Neilson

1
Employment Law

• Jessica Neilson

2
EEOC Definition of Sexual Harassment

• Unwelcome sexual advances, requests for sexual
  favors, and other verbal or physical conduct of a
  sexual nature
• That are made a condition of employment
• A basis for employment decisions
• That unreasonably interfere with individuals
  work performance or create an intimidating
  hostile or offensive working environment
• 29 CFR 1604.11

3
Quid Pro Quo

• Manager or supervisor
• Engages in
• Unwelcome sexual conduct that
• Explicitly or implicitly
• Makes submission to conduct a term or condition
  of employment or uses EEs response as basis for
  employment decisions
• EE suffers tangible job detriment

4
Hostile work environment

• Not just managers or supervisors
• Er liable for acts by coworkers or nonemployees
  where the Er, its agents, or supervisors knew or
  should have known of conduct
• Sexual harassment (even if not sexual just
  gender based)
• Severe or pervasive
• That a reasonable person (or woman) would find
  hostile or abusive
• that alters the conditions of employment and
  create an abusive work environment

5
Faragher/Ellerth decisions

• If SUPERVISORY quid pro quo or hostile work
  environment harassment results in tangible
  employment action, Er is vicariously liable.
• If not, Ers new affirmative defense applies
• A. Er exercised reasonable care to prevent or
  correct any sexually harassing behavior
• and
• B. Plaintiff EE unreasonably failed to take
  advantage of any preventive or corrective
  opportunities provided by the Er or to avoid harm
  otherwise
• NONSUPERVISORY misconductStandard is based on
  negligence - Er can argue it lacked actual and
  constructive knowledge of the harassment

6
Retaliation

• P engaged in activity protected by Title VII
• An adverse employment action occurred
• A causal connection (does not need to be sole)
  exists between the Ps participation in the
  protected activity and the adverse employment
  action
• Burden shifts to ER to articulate legitimate,
  nondiscriminatory reason for the alleged acts or
  reprisal
• Burden returns to P to show pretext

7
Same-Sex Harassment

• Oncale v. Sundowner Offshore Serv., Inc.
• Holding

8
EEOC INVESTIGATIONS

• http//www.eeoc.gov/employers/investigations.html

9
Investigations

• Receive Notice of Charge and/or Request for
  Information
• Undertake investigation (HR, management, legal,
  outside counsel)
• Respond to EEOC Charge Position Statement
• Answer Complaint/Remove to Federal court
• Notify insurance carrier
• Decide on representing alleged harasser
• Ensure Sexual Harassment Policy is effective
• Consider Offer of Judgment
• Take discovery

10
Sample Charge

• http//www.law.stetson.edu/courses/empdis/charge.p
  df

11
Sample Notice of Charge

• http//www.law.stetson.edu/courses/empdis/notice.p
  df

12
Sample Position Statement

• Re Rod Van Mechelen v. Microsoft
  CorporationEEOC Charge No. 330920336EEOC Charge
  No. 38G920215Dear Mr. Brewer
• Microsoft Corporation ("Microsoft") denies the
  allegations of sex discrimination contained in
  the above-reference charges. Microsoft has asked
  us to respond to these charges and we, in turn,
  ask that you direct all further inquiries and
  correspondence to the undersigned for reply.
• EEOC Charge No. 330920336
• Mr. Van Mechelen was terminated in October 1991
  for long-standing performance and interpersonal
  problems with coworkers, culminating in the
  following electronic message authored by Mr. Van
  Mechelen about a female coworker on October 9,
  1991

13
Sample Position Statement, Contd

• Question If a woman wears a perfume laced with
  female pheromones and then goes out partying, if
  her perfume so effects the mental state of a guy
  that he literally loses control of himself and
  rapes her, while sic we might agree he has
  violated the laws prohibiting such, is he really
  guilty? The question came to mind just now
  because one of the accountants with whom I work
  likes to wear this awful perfume (Eternity, I
  think it's called) to which I'm not only very
  allergic (I get a slight whiff of the stuff and
  my skin burns and my face gets puffy), but it
  quite literally makes me feel rage (not anger,
  not irritation, not grumpy, but gnashing of the
  teeth, growl and lunge for the jugular with eyes
  glowing a feral red type rage). Copy of the
  electronic bulletin board posting by Mr. Van
  Mechelen is appended as Attachment A.

14
Sample Position Statement, Contd

• Just five months earlier, Mr. Van Mechelen had
  been formally disciplined for inappropriate and
  unprofessional workplace conduct, which included
  the following unsolicited computer message
  ("e-mail") transmitted by Mr. Van Mechelen on May
  18, 1992 to yet another female coworker
• Alright (sic), so it's none of my business, but .
  . .I've noticed that you've been taking more care
  with your makeup lately, and while you look
  really pretty made up, I think you may be
  disregarding and glossing over your natural
  appeal. The color of lipstick you use compliments
  your natural coloration very well, but your lips
  have character no lipstick can either match or
  enhance. You have the kind of eyes a man could
  get lost in. I'm not sure what you could do with
  makeup that you don't already have. And you have
  a unique and exquisitely aristocratic nose.
  Seriously! Every time you walk by, I have to
  admire your profile. I'm not saying you shouldn't
  wear makeup. It doesn't detract from your looks,
  and you do look very pretty with it. But I think
  it's like putting vinyl on fine walnut -- you
  only hide the beauty beneath a layer of pretty
  plastic. Like I said, it's none of my business.
  Just take the source into consideration and
  discount where necessary. Copy of the e-mail
  message by Mr. Van Mechelen is appended as
  Attachment B. The female coworkers about whom or
  to whom Mr. Van Mechelen directed these messages
  were offended and frightened. See, e.g.,
  Attachment C. Both employees demanded remedial
  action by Microsoft. The company investigated and
  deemed remedial action appropriate and necessary
  given the content of the messages and the impact
  of the communications on Mr. Van Mechelen's
  coworkers.

15
Sample Position Statement, Contd

• Thus, on May 23, 1991, Mr. Van Mechelen was
  issued a formal disciplinary warning for
  inappropriate and unprofessional conduct,
  including the e-mail message (Attachment B) in
  which he made inappropriate comments about the
  physical appearance of a coworker (A copy of the
  warning is appended as Attachment D).
  Notwithstanding this warning, Mr. Van Mechelen's
  inappropriate behavior persisted, as exhibited in
  his message about the rage he felt in response to
  the perfume worn by another coworker. For this
  reason, he was terminated on October 16, 1992.
• (Termination memo appended as Attachment E).

16
Notice of Right to Sue

• http//www.law.stetson.edu/courses/empdis/dismissa
  l.pdf
• http//www.law.stetson.edu/courses/empdis/noticecf
  .pdf
• http//www.law.stetson.edu/courses/empdis/noticrti
  r.pdf

17
What is Sex-Plus discrimination?
18
Overview of Pregnancy Discrimination

• Pregnancy Discrimination Act 1978 amended Title
  VII

19
Prima Facie case (See p. 312 for specific acts of
discrimination)

• P establishes adverse employment decision
  unlawfully motivated by intent to discriminate
  against person who is or can be pregnant
• Suspicious timing
• Evidence of employees with a similar situation,
  other than pregnancy, who received better
  treatment
• Proof that the pregnant employee was qualified
  for the job in question, but was passed over in
  favor of, or replaced by, a nonpregnant employee
• Disparate impact is possible

20
PDA

• Er should treat like any other temporary
  disability
• Ex Accommodations similar to other temporary
  disabilities are appropriate
• Pregnancy leave policies are not required and, if
  offered, Ee cannot be mandated to take leave
• If health insurance benefits cover temporary
  disability, they must also cover pregnancy,
  childbirth, and related medical conditions

21
Employer defenses

• Action did not relate to pregnancy (related to
  job performance, for example)

22
What are fetal protection policies?
23
What is reproduction discrimination?