Solution Manual for Employment Law for Human Resource Practice, 5th Edition

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 Chapter 9
HARASSMENT

OUTLINE
Harassment as a Form of Discrimination
Because of Sex
Elements of a Claim: Harassment
Clippings
The Changing Workplace: Workplace Bullying

Recognizing Harassment
What Behaviors Constitute Harassment?
Harassment that Results in Tangible Employment Actions
Hostile Environment Harassment
Just the Facts
Severe or pervasive
Gerald v. University of Puerto Rico
Clippings
Are the Harassing Behaviors Unwelcome?

Liability for Harassment

Harassment by Top Officials, Managers, and Supervisors
Table 9.1: Employer Liability for Harassment
Clippings
Just the Facts
EEOC v. Management Hospitality of Racine
Hardage v. CBS
Harassment by Co-Workers or Third Parties
Just the Facts
Clippings

Eliminating Harassment
Harassment Policies and Complaint Procedures
Clippings
Responding to Reports of Harassment
Investigating Reports of Harassment
Remedies for Harassment

KEY TERMS
CHAPTER SUMMARY
PRACTICAL ADVICE SUMMARY
CHAPTER QUESTIONS
 CASE QUESTIONS
Gerald v. University of Puerto Rico
707 F.3d 7 (1st Cir. 2013)

Dr. Melissa Gerald, a scientist who worked at the University of Puerto Rico in its
Caribbean Primate Research Center, encountered difficulty with her supervisor, Dr.
Edmundo Kraiselburd. After working together without incident for several years, the two
engaged in a one-week sexual liaison while attending a conference. Upon return to work.
Kraiselburd wanted to continue, but Gerald, embarrassed, did not. There followed a
number of incidents in which Kraiselburd groped her, solicited sex from her, threatened
to fire her and demote her, and other actions. Gerald resigned, and sued for sexual
harassment, and the trial court entered summary judgment in favor of the University and
Dr. Kraiselburd. Dr. Gerald appealed.

1. What were the legal issues in this case? What did the court decide?

The legal issues in this case were whether the alleged harassment experienced by a
college professor was legally actionable, because it constituted a hostile environment or
because it resulted in a tangible employment action. The court decided that material
questions of fact had been raised precluding summary judgment on both the hostile
environment claim and the quid pro quo claim. It remained for the jury to decide the
factual questions.

2. Why did the appeals court decide that the alleged conduct of the supervisor was
sufficiently severe or pervasive to create a hostile environment for the plaintiff? Do you
agree? Why or why not?

The appeals court said that a single incident, if severe enough, could constitute a hostile
environment. In this case, the court said that the sexual propositioning, and uninvited
touching could be viewed as severe, and in the case of the breast grabbing incident,
physically threatening (not to mention criminal). But the court also seemed to believe
there were more incidents than the 3 alleged. There does seem to be sufficient evidence to
support a finding of hostile environment, and a finding of quid pro quo harassment. It
will depend on how the jury decides the facts.

4. Do you think that the alleged harassment was “unwelcome” to the plaintiff” Why or
why not?

Yes, after the initial 1 week fling, for which Gerald was embarrassed, she tried to make it
clear that she was not interested, and did so on several occasions.
5. Material facts are disputed in this case; the plaintiff and defendants offered very
different accounts of the relevant events. At trial, do you think that the plaintiff will be
able to prove her allegations of harassment? Why or why not?

Yes, it is certainly possible. Much of the ancillary evidence supports Gerald’s version of
events, including the evidence that Kraiselburd, who previously gave her glowing
reviews and recommendations, changed after she rebuffed him, and also the fact that he
sought out evidence from others at the facility, trying to get them to complain about
Gerald, and other supporting documentation regarding her duties.

EEOC v. Management Hospitality of Racine

666 F.3d 422 (7th Cir. 2012)

The EEOC brought suit on behalf of two servers who alleged sexual harassment under
Title VII, resulting in a hostile work environment. The trial court found in their favor, and
the employer appealed, relying on the Faragher/Ellerth affirmative defense.

1. What were the legal issues in this case? What did the appeals court decide?

The legal issues in the case were whether the defendant had a valid anti-harassment policy in
place, and whether the complainants failed to take advantage of it. The court found that the
employer’s anti-harassment policy was deficient in several ways, and so could not be used as an
affirmative defense, and also that the claimants had done all they could do in the circumstances to
take advantage of these “preventative or corrective measures.”

2. Why does the court agree that the employer failed to exercise reasonable care to prevent
harassment? Why was its harassment policy not sufficient?

The harassment policy is not sufficient, by itself, to shield an employer from liability. In this case,
of the 3 managers, Gutierrez committed the sexual harassment, and after both servers complained
to the other two managers with responsibility in this area, and both failed to report or investigate
Gutierrez’s harassment. A rational jury the court ruled, could have found that the policy was not
taken seriously by any of the managers.

3. Why does the court agree that the employer failed to exercise reasonable care to correct
harassment? That the employees did not unreasonably fail to take advantage of he employer’s
preventive and corrective measures?

In addition to the reasons given in support of question 2, the evidence at trial suggested that the
sexual harassment training was inadequate. Del Rio said she received no training when she
became assistant manager, even though this became part of her duties as assistant manager. And
Del Rio “blew off” the servers’ complaints, even though Del Rio knew she had an absolute duty
to report sexual harassment allegations to upper management. She did not do so only because one
of the servers did not seem to be “afraid” of Gutierrez.

4. The restaurant industry seems to produce more than its share of sexual harassment cases.
What things about this industry might be conducive to problems with sexual harassment?
Many of the servers working at restaurants are younger, student-aged people, who are often the
object of unwanted sexual harassment. Also, the atmosphere of a restaurant is often quite
informal, in contrast to an office, and if a bar is present, often a party atmosphere prevails.

5. What should this employer have done differently?

At a minimum, provided the training necessary for management to understand and act on
its anti-harassment policy, investigate promptly any complaints; report complaints, and
follow through. Here, despite complaints of sexual harassment in March and April, 2005,
no investigation was commended until May 23, 2005. This employer should also have
revised its policy to give contact information for who to report claims to, as no contact
information at all was provided, not who to call to what number to call.

Hardage v. CBS
2006 U.S. App. LEXIS 3017 (9th Cir.); cert. denied, 127 S. Ct. 55 (2006).

The plaintiff was a male who held the position of Local Sales Manager for a TV station.
He was supervised by General Sales Manager Patty Dean and the two were under the
supervision of General Manager Kathy Sparks. Hardage worked in the Seattle sales
office, while Sparks worked out of the corporate office in Tacoma. He alleged that he
was harassed by General Manager Sparks who made sexual advances toward him. Most
of the incidents in question occurred outside of the workplace. Hardage mentioned the
situation to Dean and subsequently to an HR manager, but did not provide specifics and
said that he preferred to handle the situation himself. No action was taken by CBS
management. Hardage eventually resigned from his job and sued.

1. What were the legal issues in this case? What did the court decide?

The plaintiff sued for sexual harassment under both Title VII and Washington state law.
He raised both tangible employment action and hostile environment claims. Specific
issues included whether he had been constructively discharged, whether he was subjected
to any tangible employment action(s) based on his rejection of the General Manager’s
advances, and whether the employer had established the affirmative defense. The appeals
court affirmed a grant of summary judgment to the employer.

2. What tangible employment actions does Hardage allege he was subjected to? Why
does the court not agree?

Hardage points to constructive discharge and adverse performance memos as tangible

employment actions. Regarding constructive discharge, he claimed that his quit was a
response to the harassment by Sparks, an adverse performance memo, snide remarks
from Sparks, a second memo warning that his performance would be re-evaluated after
30 days, and the failure of CBS to do anything about the harassment. The court rejected
this argument because while the last incident occurred in March 2001, Hardage did not
resign until at least five months later at the end of August. Nor was this set of conditions
“sufficiently extraordinary and egregious” to constitute a constructive discharge. The
performance memos, even if they might be viewed as tangible employment actions by
themselves, were based on assessment of his performance and were not linked in any way
to his refusal to submit to Sparks’ sexual advances. Although the point is not emphasized,
his claim that a constructive discharge constituted a tangible employment action also
failed because under Suders there must be an official act that precipitates the resignation.
Neither the performance memos (because they were not linked to his rejection of her
advances) nor the snide remarks (because they were not official acts) met this
requirement.

3. Was Hardage subjected to a hostile environment? Were Spark’s actions toward him
“unwelcome?” Was this harassment or simply a workplace romance that went awry?
Would you view the case any differently if the alleged harasser was a male and the
plaintiff a female?

Students should apply the criteria for determining whether a sufficiently severe or
pervasive hostile environment existed. This case also raises questions about the extent to
which conduct outside of the workplace, but involving employees who regularly socialize
as part of their professional lives, should be considered in determining the existence of a
hostile environment. The questions of whether the harassment was unwelcome to
Hardage or whether it was “just flirting” in which he was also an active participant
should lead to some interesting discussion. The alleged actions of the General Manager
were quite outrageous. Chances are, if the exact same set of facts was presented but with
the plaintiff being a female and the harasser being a male, they might be viewed quite
differently.

4. What did the employer do to prevent and promptly correct any harassment? Do you
think that the company did enough in this case to meet its legal obligations?

CBS had an anti-harassment policy in place. As a supervisor, Hardage was familiar with
that policy. These facts were sufficient to show that reasonable care was taken to prevent
harassment. After a complaint to his immediate supervisor Dean, she relayed the
information to higher-level managers and Hardage was contacted the same day by an HR
representative. An in-person meeting occurred shortly thereafter. At that meeting,
Hardage indicated that he wanted to handle the situation by himself. Two weeks later, the
HR representative followed up by phone. Hardage indicated then that he still did not
desire any intervention. CBS did not conduct an independent investigation of the matter
or take any disciplinary action against Sparks. The court says that was enough because of
Hardage’s failure to provide all of the specifics to the HR representative and his
expressed desire to handle the matter on his own. The court amended its original opinion
in this case to specifically address this point: “There may be circumstances where an
employer's "remedial obligation kicks in," regardless of the employee's stated wishes. In
other words, the mere fact that the employee tells the employer not to take any remedial
action may not always relieve that employer of the obligation to do so. Here, however, it
is uncontested that Hardage did not want Falcone to take further action, and that
Hardage's wishes were not insincere or uninformed. Moreover, Hardage did not disclose
to Falcone the details of the harassment, so Falcone had no way to know of its severity.”
Courts are not always so forgiving as in this case. It seems that an investigation was
warranted and that any reluctance to do so had at least as much to do with Sparks’
position in the organization as with Hardage’s behavior. Dean and others in the
organization seem to have had a pretty good idea as to the nature of Sparks’ conduct and
certainly could have obtained all of the relevant information from Hardage had they
chosen to do so.

5. Why do you suppose that Hardage acted as he did (i.e., continuing to socialize with
Sparks, waiting months to complain, not supplying all of the “gory details,” saying that
he preferred to deal with the matter on his own)? Was he unreasonable in failing to take
advantage of the employer’s preventive and corrective mechanisms?

It could be that this is attributable to Hardage’s self-described “flirtatious” behavior and

evidence that any harassment was not unwelcome. But certainly, he had to be concerned
about directly confronting or reporting on a manager at least two levels above him.
Retaliation against persons who report harassment is very common. Additionally, as a
male subjected to the unwanted attentions of a female, he might have felt somewhat
embarrassed. Both as a male and a manager, he might have felt that he should be able to
handle the situation by himself.
 JUST THE FACTS
Page 303 of text
A 16-year-old worked in a concession stand at a theme park. The owner of the park, a
48-year-old man who was a long-time friend of her parents, came to the concession
stand and began talking to her and another young female about the subject of
birth control. The owner told them that they needed “to be with a guy that had a
vasectomy” and “really needed to be on birth control.” The 16-year-old said that his
comments made her feel “awkward,” “a little embarrassed,” and “kind of confused.”
The 16-year-old was then instructed to work in the gift shop rather than her usual
assignment at the concession stand. The owner again approached the girl and wanted
to talk about sex and birth control. He asked the girl whether she had ever had sex
and said that she looked like the type of girl that would have already had sex. He
said that young guys didn’t know how to have real sex and weren’t as experienced
as somebody his age. The owner said that that if the girl ever got a chance to get out
of the house for a day, she could call him up and he would take her to a motel and
give her “the experience of a lifetime.” He said that he would show her “what real
sex is like.” The owner also said that when the girl turned twenty-one, he would take
her to Las Vegas. The conversation, which lasted about ten minutes, was interrupted
by customers coming into the gift shop. At the end of her shift, the girl left work and
never returned. Was this girl subjected to a hostile environment by the park owner?
Why or why not? (See Ward v. Oakley, 2013 Ohio 4762 (12th App. Dist.).)

The trial court, which considered only whether Oakley’s alleged conduct was frequent
and physically threatening, found they were not, and so ruled against the minor. But the
appeals court also reviewed the totality of circumstances, including whether Oakley’s
statements to her were severe, humiliating, and/or unreasonably interfered with her work
performance. The appeals court found that reasonable minds could conclude that
Oakley’s conduct toward the minor was sufficiently severe to constitute hostile work
environment and sexual harassment.

Page 313 of text

A young woman was hired to work at a McDonald’s restaurant. She was fifteen
years old but had indicated on her application that she was sixteen. She often
worked with a 21-year-old male who was a “shift leader” at the restaurant and a
participant in a Manager-in-Training program. In his capacity as shift leader, he
directly oversaw the work of crew members, assigned them to specific duties, and
scheduled breaks during shifts. He was also able to authorize crew members to stay
on the clock past their scheduled shifts and send employees home before the end of
their shifts if the restaurant was overstaffed. Shift leaders are authorized to impose
certain forms of discipline, including writing up employees or making them clock
out early for misconduct. Shift leaders also have some influence in hiring, firing,
and promotion decisions but lack the authority to make those decisions on their
own. The shift leader asked the 15-year-old if she would be able to work an extra
shift the next day and she agreed to do so if he picked her up at school. The shift
leader went to the school and arranged to check the 15-year-old out of class early.
Rather than go to work, the shift leader took her to a variety of locations where he
gave her drugs and alcohol. The two remained together for several days, during
which they had sex on several occasions. Eventually, the shift leader was arrested
on drug charges and the young woman was placed in a mental health treatment facility.
Is McDonald’s liable for the actions of the shift leader? Why or why not? (See
McCafferty v. Preiss Enterprises, 534 Fed. Appx. 726 (10th Cir. 2013).)

Employers are not automatically liable for harassment perpetrated by their employees. If
the harassing employee is the victim’s co-worker (rather than a supervisor), the employer
is liable only if it was negligent in controlling working conditions. The plaintiff posed
two theories of vicarious liability: first, that the shift leader was a supervisor, and that he
took a tangible employment action against her. The court rejected this argument. The test
in this case is whether the employee can affect tangible employment actions against the
victim; if so, then he is a supervisor. In this case, he had no such authority. Second,
plaintiff alleged that the shift-leader acted with apparent authority, so that Preiss is
responsible for his actions under general agency principles, but this argument, too, fails.
An employer is not liable for the tortious actions of his employee acting outside the scope
of employment. His actions, which took place outside work, could have been committed
by any individual with proximity to the plaintiff regardless of employment with Preiss.

Page 324 of text

A woman who worked in the deli department at a Wal-Mart was assaulted in a
walk-in cooler by a male coworker. The coworker lured her into the cooler, pulled
her against him, kissed her, slipped his hand under her shirt, and felt her breast. The
woman told two coworkers about the incident immediately after it occurred. She
reported it to a supervisor the next day. She was asked to speak with a number of
managers but was still upset over the incident and was allowed to take sick leave.
Coworkers were interviewed over the next couple of days. The woman returned
to work and completed a written statement a week later. The alleged harasser
was away on vacation by that time. When he returned about two weeks later, he
admitted to hugging the woman in the cooler but denied the other allegations.
The company concluded that it could not substantiate the assault, given the lack
of witnesses and conflicting statements. Rather than terminate the coworker, they
issued a “decision-making day,” essentially a one-day suspension with the threat of
subsequent termination. Unbeknownst to the woman, there had been an incident
two years earlier in which the coworker had been accused of leering at and asking
personal questions of another female employee. At that time, he was issued a
warning about engaging in such conduct. When the coworker returned to work,
Wal-Mart adjusted the two workers’ schedules to minimize the amount of time they
would be working together and stationed them about 80 feet apart in their work
area. Unsatisfied with the outcome, the woman decided to report the incident to the
local police. The police interrogated the coworker and he confessed to the assault.
Wal-Mart then immediately terminated the coworker. Is Wal-Mart liable for the
coworker’s harassment? Why or why not? (See Sutherland v. Wal-Mart Stores, 632 F.3d
990 (7th Cir. 2011).)
Plaintiff maintained Wal-Mart should be liable because it knew the male coworker was pt
on notice about a prior complaint of harassment against a woman, but failed to prevent
this assault. But liability was denied; one prior incident which may or may not rise to the
level of actionable harassment does not make the employer liable. Plaintiff also alleged a
delayed and inadequate response by Wal-Mart to her harassment, but the court found the
response sufficiently prompt, since it began its investigation the day of the complaint.
She also complained that they should have done more than separate her from her harasser
by more than 80 feet, but the court found that the actions taken did end the harassment.
 PRACTICAL CONSIDERATIONS

Under what circumstances is termination of a harasser the appropriate remedy?

The severity of the harassment and whether the harasser has ignored previous warnings to
stop are clearly important considerations. Are there means short of termination that
would reasonably ensure that further harassment will not occur? An adequate
investigation should precede any termination of an employee for harassing others. Interim
measures like placement on administrative leave or a paid suspension can be utilized to
protect against continued harassment while an investigation is being conducted. Zeal for
enforcing harassment policies cannot drive out consideration of the alleged harasser’s
rights. Procedures that an employer is required to follow under other circumstances (e.g.,
pursuant to a collective bargaining agreement, civil service laws) must still be adhered to.

Try drafting a harassment policy for an employer. How does your policy compare to the
policy of the employer that you work for or school that you attend?

The policy should include the elements discussed in Chap. 9 (e.g., clear definition of
harassment, accessible reporting procedure, protection against retaliation, sanctions for
violators, etc.). The idea of looking at an employer’s or university’s policy is worthwhile
in its own right so that students will be better informed about the sexual harassment
policies of the organizations with which they are involved. This also provides an
opportunity to critique the adequacy of those policies.

Should employers attempt to prevent harassment by restricting romantic relationships

between employees? If so, what should such a policy entail?

It is difficult to mix the exercise of authority with romantic feelings. There are many
good reasons for employers to limit relationships between supervisors and persons they
supervise. But the more Draconian the restrictions, the more likely it is that they will be
resented, that people will find surreptitious ways of circumventing those restrictions, and
that enforcement will be arbitrary or discriminatory. Legitimate concerns about
harassment should not become an excuse for sweeping incursions into the private affairs
of employees. Policies that require notification of such relationships when they involve
supervisors and the employees they supervise and recusal from certain decisions
involving those persons (e.g. pay decisions) should often be sufficient. Regulation of
relationships between co-workers or between supervisors and persons they do not
supervise seems to be overreaching.
 END OF CHAPTER QUESTIONS

1. A female who worked in a supermarket bakery complained of mistreatment by a female

coworker. The coworker smacked the employee’s buttocks on at least six occasions,
molded dough into shapes resembling genitalia and shoved them into the employee’s
face, pushed the employee up against a wall and held her there for ten to fifteen seconds
while she demonstrated how she would conduct a rape, and showed the employee Barbie
dolls that the coworker had placed in sexual positions. Besides this conduct directed at
the employee, the coworker also regularly told dirty jokes, baked sexually explicit cakes,
struck other male and female employees on the buttocks, and engaged in simulated sex
acts with both male and female employees. The woman’s complaints about the coworker
were ignored by managers. She sued for sexual harassment. What should the court
decide? Why? (Smith v. Hy-Vee, 622 F.3d 904 [8th Cir. 2010])
As is common in same-sex harassment cases, this case centered on the issue of whether
the alleged harassment was “because of sex.” The appeals court affirmed the lower
court’s grant of summary judgment to the employer. Although the case was brought
under Missouri state law, the court looked to the Supreme Court’s Oncale decision and
applied basically the same analysis as under Title VII. In essence, the court determined
that this was a case of an “equal opportunity harasser” who indiscriminately subjected
both males and females to the same conduct. Physical touching of the plaintiff’s body and
the sexual nature of the co-worker’s actions were not sufficient to establish that the
conduct was “because of sex.” According to the court, the evidence did not show that the
co-worker was motivated by sexual desire or attraction toward the plaintiff. Regarding
another of Oncale’s evidentiary routes, there was also insufficient evidence to show that
the acts were motivated by a general hostility to the presence of females in the workplace.
Nor did the plaintiff treat male and female employees differently. “Instead, the facts on
record show that Lynch treated all employees, both male and female, in the same vulgar
and inappropriate way.” Although it could be argued that the co-worker singled out the
female plaintiff for particular humiliation, including a simulated rape, the court chose not
to take notice of any such differences. This case is another example of how the
availability of same-sex harassment claims is more apparent than real.

2. Over a period of about 12 months, a female employee at a car dealership was

subjected to four incidents of unwanted touching. On each occasion, a manager of the
dealership sat down next to her at a meeting, placed his hand on her knee, slid his hand
under her skirt, and moved his hand up and down her thigh. The employee complained to
several managers and was told to keep a record of the incidents, but no other action was
taken. The employee sued. What should the court decide? Why? (Parrish v. Sollecito,
2003 U.S. Dist. LEXIS 2225 [S.D.N.Y.])

The employer’s motion for summary judgment on the plaintiff’s hostile environment
claim was denied. The decision hinged on whether the alleged acts of harassment were
sufficiently severe or pervasive. The court determined that there was an issue of material
fact as to the severity of the harassment. The court noted that the case involved four
separate occasions in which the manager touched her leg under her skirt and well above
the knee. “[A] supervisor’s repeated, unwanted invasions near the private parts of a
subordinate cannot be lightly dismissed as mere discourtesy or rudeness or insensitivity
…” For purposes of deciding whether to grant summary judgment, the plaintiff had
alleged facts sufficient for a rational jury to conclude that harassment had occurred.

3. A female mechanic worked at a truck assembly plant. Women made up less than 10
percent of the workforce at the plant. On one occasion, the woman found a tampon
hanging from the key ring of a truck to which she was assigned. On another occasion, a
picture of a nude woman appeared on the screensaver of a PC when the woman logged
into the system. A number of male employees had pictures of scantily clad women taped
to the tops of their company issued toolboxes where they were readily visible to the
woman and anyone else. An employee brought in copies of calendars with sexually
provocative pictures and placed them at various locations throughout the plant. Repeated
complaints to management resulted in the removal of some offensive materials, but no
disciplinary actions were ever taken. The woman was involuntarily reassigned to a
position involving mostly janitorial work. She sued for harassment. What should the court
decide? Why? (See Hoyle v. Freightliner, 650 F.3d 321 (4th Cir. 2011).)

The issue revolved around whether the conduct complained of was sufficiently severe or
pervasive to constitute harassment. Rhere is both a subject and objective component to
this element. Subjectively, the victim must perceive the environment as hostile or
abusive. Objectively, the severity of the harassment should be judged from the
perspective of a reasonable person in the plaintiff’s position, considering all the
circumstances, including conduct not directed at the plaintiff. Evidence of a general
atmosphere of hostility toward those of plaintiff’s gender is also considered. The appeals
court found that a reasonable juror could reasonably find that, taken together, the various
incidents and displays that consistently painted women in a sexually subservient and
demeaning light were sufficiently severe or pervasive to alter the conditions of her
employment and to create an abuse working environment. The plaintiff has raised
genuine issues of material fact. Summary judgment was vacated, and the case remanded
for trial.

4. A female doctor, just out of medical school, went to work at a family medical clinic.
Her supervisor, a doctor, was also the sole owner of the clinic. A few weeks after she had
started work, her supervisor showed her an X-ray of his hip that clearly displayed his
penis (which he referred to on many occasions as “Mr. Happy”). During a staff meeting
the supervisor said that he “was very glad that his wife had had a c-section with their
triplets because she still had a nice, tight pu**y” (the female doctor was not at that
particular meeting but it was reported to her). The supervisor regularly made comments
about his wife and their sex life. Without apparent justification, he admonished the
female doctor about dressing appropriately and not displaying her breasts. The
supervisor showed the female doctor photos from his beach vacation that featured topless
women and men in speedos. On another occasion, the supervisor emerged from an
examination room with his shirt off and asked the female doctor if she wanted to join him
in the room. While the female doctor was away, the supervisor told one of her patients
that she was busy “screwing” her husband. The supervisor told dirty jokes within the
plaintiff ’s hearing two or three times a month. He made derogatory comments about
female drug representatives, including that one representative looked good for having
had three kids and that he “would like a piece of that.” When the female doctor was
pregnant, the supervisor made comments about “how fat she looked” and the size of her
breasts. He made numerous offers to assist her in pumping breast milk and speculated
about how breast feeding affected her libido (“probably a wild thing in bed”). On yet
another occasion, the supervisor claimed to have seen a drop of breast milk on the
plaintiff ’s desk and said that he “wanted to lick it up.” He also said that the female
doctor owed it to him to let him help her pump breast milk because he was helping her
pay certain legal fees. The woman resigned shortly after the last incident, after a little
over two years of employment at the clinic. She sued. What should the court decide?
Why? (See EEOC v. Fairbrook Medical Clinic, P.A., 609 F.3d 320 (4th Cir. 2010).)

The court decided in favor of the female doctor. “This case involves more than general
crudity … . [Her supervisor, Dr.] Kessel targeted her with highly personalized comments
designed to demean and humiliate her. In some cases, the remarks seemed intended to
ridicule her in the eyes of patients and drug representatives. We have previously
recognized that there is a difference between "generalized" statements that pollute the
work environment and "personal gender-based remarks" that single out individuals for
ridicule. … [T]he latter have a greater impact on their listeners and thus are more severe
forms of harassment. Many of Kessel's comments ventured into highly personal territory.
…When assessing the severity of Kessel's conduct, a jury could give significant weight to
the intensely personal nature of this interaction.” There was evidence that the harassment
in this case occurred with regularity. The incidents took place over several years and
increased in frequency following her return from maternity leave.

Many of the complained of comments were made multiple times per week. Although this
case was based largely on verbal conduct and there was no evidence of inappropriate
touching or physical threats, there were implicit proposals of sexual activity. “But even if
a jury concluded that such comments were merely intended to humiliate Waechter on the
basis of gender, it could nonetheless find that her environment was hostile. ‘A work
environment consumed by remarks that intimidate, ridicule, and maliciously demean the
status of women can create an environment that is as hostile as an environment that
contains unwanted sexual advances.’"

5. A woman hired as a prison librarian complained about harassment by a supervisor

from another agency that operated within the prison. The behavior that was the subject of
her complaint, some of which was witnessed by other employees, occurred about four
times a week from the time that she was hired in July 2000 to October 2001. Her
complaints about the supervisor included his comments to another male supervisor that
the woman should be “spanked” every day; insistent compliments on her appearance and
“how attractive” she was; staring at her breasts during conversations; measuring her
skirt for the purported purpose of determining whether it complied with the prison’s
dress code; and repeatedly remarking that if he had such an attractive wife he would
never allow her to work in a prison around so many inmates. Allegedly for safety
reasons, the supervisor had a security camera installed in the librarian’s office,
permitting him to observe her as she worked at her desk. Right after the objectionable
conduct began, the librarian complained to her immediate supervisor who said that
“boys will be boys” and took no action. She never filed a formal complaint. She believed
that she was ineligible to file a formal complaint during her first year of employment due
to her probationary status. After she had been on the job for more than a year, she
complained to another manager and an internal investigation was undertaken at that
point. The woman sued. What should the court decide? Why? (Singleton v. Department of
Correctional Education, 2004 U.S. App. LEXIS 24059 [4th Cir.])

The appeals court affirmed the lower court’s grant of summary judgment to the employer
on the librarian’s hostile environment claim. The decision hinged on the issue of whether
the alleged conduct was sufficiently severe or pervasive. Terming the requirements for
showing harassment under Title VII a “high standard,” the court stated that “the conduct
she complains of, though boorish and offensive, is more comparable to the kind of rude
behavior, teasing, and offhand comments that we have held are not sufficiently severe
and pervasive to constitute actionable sexual harassment.” The court noted that the
alleged harasser had never requested a sexual act, touched her inappropriately, discussed
sexual subjects, showed her obscene materials, or threatened her. Additionally, the
plaintiff did not claim that the conduct interfered with her ability to do her job.

6. A convenience store cashier was subjected to the following behavior by a co-worker

over a period of 8-9 weeks: throwing objects at her; sneaking up behind her and touching
her; smacking her buttocks; discussing his sex life, inability to sleep, and need for a
girlfriend; commenting that the woman looked “hot” in her uniform and would look good
as a “biker chick;” commenting on his sexual desire for female customers; referring to
women as dumb and stupid; and standing over the woman as she counted her register
and calling her a “dumb blonde” if she made a mistake. The woman complained to
managers. They responded by changing her to the third shift, which she did not like. The
co-worker would then hang around after his shift in order to see her. Eventually, she was
told by the manager that it was not possible to always schedule the two employees for
different shifts. A manager spoke to the co-worker about his behavior, but there was no
investigation or review of store videotapes. Another female co-worker had complained to
managers about the co-worker’s behavior six months earlier, but did not go into detail
because she was embarrassed. The cashier sues. What should the court decide? Why?
(Speedway America v. Dupont, 933 So.2d 75 [Fla. Dist. Ct. App. 2006])

The state appeals court initially reversed the trial court and ordered that it enter judgment
in favor of the employer. The court then had second thoughts and substituted the decision
cited above which upholds the lower court’s decision. The court stated “Speedway
contends that sexual harassment did not occur because the physical touching of Dupont's
buttocks and body occurred only a few times over the months the two worked together.
However, only one instance of physically harassing conduct, if extreme, can constitute a
hostile work environment. There are also cases where a few physical and intimate
touching or batteries, as were established in this case, when coupled with verbal
intimidation, humiliation, and threats of physical violence over a course of time (here
continuously over a number of weeks) have been held sufficient to constitute a hostile
work environment and appropriate for determination by a jury. Uninvited fondling or
groping, as was established in this record, in other contexts constitutes actionable sexual
battery, and clearly should not be tolerated in the work place. … Dupont clearly
established she was subjectively damaged by Coryell's [the harassing co-worker]
conduct. She testified she was unable to competently perform her work because of
Coryell. She could not sleep, was nervous and upset, and eventually sought medical help.
… Speedway also contends that the behavior was not sexual, but merely violent and
directed at both genders, not just females. However, the evidence shows that the bulk of
Coryell's improper behavior was directed at females, and specifically at Dupont. Coryell
did not proposition or rape Dupont. However, the evidence at trial, taken in the light most
favorable to Dupont, established that she perceived Coryell's remarks, jokes, and physical
touching as sexual and that his demeaning and intimidating actions were directed at her
because she was female. His verbal abuse confirmed that he both lusted after females and
enjoyed demeaning them.”

The employer also argued that it had taken appropriate action in response to the
harassment and should not be held liable. The court pointed to a number of contrary facts:
the failure to ever investigate the plaintiff’s reports, despite having video cameras
throughout the store; a report to her supervisor that was made quite early and not acted
on; and the failure to initially take any action against the harasser, followed by the
ineffectual and inappropriate measure of changing the plaintiff’s shift to a more
disadvantageous schedule.

7. The married owner of a company touched and kissed a female salesperson at work,
made comments about oral sex, and suggested that they be alone together. A few months
later the woman began making hotel arrangements and meeting the owner in hotel
rooms. The two had sex approximately 10 times during their relationship. The woman
testified that she felt that she had to have sex with the owner in order to keep her job. She
admitted that the owner never explicitly threatened her with loss of her job if she did not
go to hotels with him. After about a year, the woman decided that she couldn’t take it
anymore and told him that she would not continue with the affair. At that point, the owner
told her that she would be fired if she stopped seeing him. The owner then informed his
wife (the co-owner of the business) about the affair and the salesperson was fired. She
sues. What should the court decide? Why? (Miles v. DDF, Inc. 2004 Minn. App. LEXIS
524; review denied, 2004 Minn. LEXIS 409)

The appeals court reversed the lower court’s grant of summary judgment to the employer.
The case hinged on whether the conduct in question was “unwelcome.” The lower court
had concluded that the plaintiff welcomed the sexual relationship, based on the facts that
she had arranged and paid for the hotel rooms, purchased drinks, took her clothes off,
talked to friends and coworkers about the relationship, and failed to complain to any
supervisor. The appeals court criticized the lower court for making credibility
determinations and deciding questions of material fact on a motion for summary
judgment and without benefit of a trial. The court noted that there were also facts that
supported the claim of unwelcome harassment. The plaintiff claimed that the overtures
were initially unwelcome, she pulled away from the first kiss, she was threatened with
termination if anyone found out about the relationship, she objected to inappropriate
touching and kissing, she said no before they had intercourse, and she only went along
with the relationship because she wanted to keep her job. The court also reiterated the
Supreme Court’s admonition that the relevant inquiry is whether the conduct was
welcome, not whether the plaintiff engaged in the conduct voluntarily.

8. A female nursing home employee was subjected to repeated conduct by her supervisor
that included calling sex chat lines and talking to them over her shoulder while she
worked; calling her a “stupid bitch”; unlocking the door to the restroom while she was
using it and coming in with another coworker; squirting cream into a glove to make
it look like he had ejaculated and rubbing it on her arm; telling her that there was an
emergency phone call regarding her children when it was actually a funeral director
needing directions to the facility; telling her that they were going to make believe she
stole medicine from the medicine cart; and taking her narcotics keys from the pocket of
her pants. The supervisor told the woman that nothing would happen if she reported him
because he had a previous sexual relationship with the head of the Human Resources
department. On one occasion, the woman was “pantsed” by the supervisor, as he pulled
down her pants and underwear in front of coworkers. The incident drew laughter from
the coworkers and the woman herself. The nursing home’s “Conduct and Behavior
Policy” states that “Department directors/ supervisors should assist employees in
settling conflicts. When conflicts cannot be settled, a grievance should be filed in
accordance with our grievance procedures…” The woman never filed a grievance or
otherwise reported the conduct to the nursing home. She eventually quit her job and sued.
What should the court decide? Why? (See Ladner v. Woodland Village Nursing Center,
2013 U.S. Dist. LEXIS 61464 (S.D. Miss.).)

Regarding the plaintiff’s hostile work environment claim, the court found that there was a
genuine issue of material fact as to whether the alleged harassment occurred, and whether
it was unwelcome, precluding summary judgment on this issue. The court also considered
the employer’s affirmative defense that it had an anti-harassment policy, and that plaintiff
failed to take advantage of it. Although the employer had a Conduct and Behavior Policy
that encouraged settlement of disputes, there was no evidence of a standing policy or of
training on sexual harassment.

9. A woman was hired as parks maintenance foreperson. She was the first female to
occupy this position. Other employees questioned her competence and decisions on a
daily basis, were insubordinate, called her names such as “bitch,” spread rumors about
her relationships with other employees and alleged sexual promiscuity, made daily
comments about her appearance and clothing, slipped a note addressed to “superbitch”
under her door, keyed her personal and work vehicles, and evaluated her more harshly
than other probationary employees. Following her complaint to city officials, the woman
had her door glued shut on three occasions, her shift changed, and faced numerous
allegations of wrongdoing. The city’s HR Department handled her complaint and
concluded that she was a victim of harassment. The HR Department held a two hour
training session on the harassment and discrimination policy for Parks Department
employees, had numerous meetings with supervisors and employees about the city’s
policy, provided personal counseling and other assistance to the woman, transferred an
employee, disciplined a manager and two supervisors, and terminated a seasonal
employee. However, the HR Department itself, concluded that “despite all of these
actions, selected supervisory personnel and hourly employees are increasingly directing
harassing comments and initiating extremely negative rumors towards [the woman].”
The woman sues. What should the court decide? Why? (Nievaard v. City of Ann Arbor,
2005 U.S. App. LEXIS 3690 [6th Cir.])

The appeals court affirmed a grant of summary judgment to the city. The court
determined that the city “made a good faith effort” to deal with the co-worker harassment
that the plaintiff was experiencing. It was undisputed that the city knew of the
harassment. The remaining issue with respect to assigning liability was whether the city
took actions that were “prompt and appropriate.” That the remedy was ultimately
ineffective does not mean that the employer failed to meet its responsibilities under the
law. The court concludes that “… because the City actually made several attempts to
remedy the discrimination, the City has not exhibited ‘such indifference as to indicate an
attitude of permissiveness that amounts to discrimination.”

10. The female head of the physical therapy department at a medical clinic encountered
problems with a male chiropractor who also worked at the clinic. The chiropractor
regularly put his arm around and touched the woman. She initially tried to avoid contact
with him. She was told by a nurse at the clinic that she should “get used to it . . . that’s
just the way he is.” Following an incident in which the chiropractor kissed her on the
forehead, she complained to the one of the clinic’s managers. It was decided that the
woman should draft a letter to the chiropractor clearly informing him that it was not
okay to touch or kiss her and that she did not want him to do so again. The letter was
read and approved by the manager. The woman presented the letter to the chiropractor
and he apologized to her. About a month later, the woman heard reports from several
patients regarding inappropriate touching and kissing by the chiropractor. She reported
this information to the manager. A couple of months later, the chiropractor resumed
touching the woman, including an incident in which he felt her breasts. This information
was reported to the manager and to the clinic’s owner. For the first time, clinic managers
talked with the chiropractor about these complaints. They asked him to sign a statement
acknowledging that he had engaged in “acts of sexual impropriety and familiarity,” but
he refused to do so. He also rejected a recommendation that he undergo psychological
counseling. The chiropractor did attend one sexual harassment training session, but he
declined to return for follow-up training. During this period of time, the chiropractor did
not touch the woman but acted aggressively toward her (e.g., blocking access to a
doorway) and was the object of a complaint from another patient. Eventually, the woman
was told that the chiropractor would be terminated within forty-five days. This period
elapsed, the chiropractor remained on the job, and the woman was not given any further
information about the situation. She quit and sued. What should the court decide? Why?
(Sheriff v. Midwest Health Partners P.C., 619 F.3d 923 [8th Cir. 2010])

The appeals court affirmed a jury’s award to the plaintiff in her hostile environment
claim. The complained of conduct included kisses on the forehead, other physical
contact, embraces, and brushes of his hand against her breast. The document that the
harasser was asked to sign described his conduct as "acts of sexual impropriety and
familiarity." While the employer tried to argue that the harasser was just a "touchy
person" who also patted men on the buttocks, there was no evidence that he pulled men
into his body or touched their breasts. There were no complaints against him from males,
while, the plaintiff and three female patients complained that he had touched them
inappropriately. “The sexual nature of that conduct justifies an inference that it was
sexually discriminatory.” A reasonable jury could find, as this one did, that the harasser’s
conduct was severe or pervasive. It included repeated unwelcome and offensive physical
contact over approximately two years. The harassment was physical and invasive in
nature. Efforts to mitigate the harm, including attempting to maintain distance from the
harasser, were circumvented by the harasser. The employer’s response to the harassment
evidenced negligence. “Midwest took no action after Sheriff's first complaint, waited
seven weeks to confront Meyer after her second complaint, failed throughout to keep
Sheriff informed, and never identified who was responsible for the investigation.
Moreover, Meyer never fully consented to Midwest's remedial demands, and he
continued to harass Sheriff by trying to mock and intimidate her.”

11. In light of workplace bullying and the difficulties plaintiffs face in same-sex
harassment cases, would it be better to have laws prohibiting unwelcome, offensive
treatment regardless of whether the motive behind the treatment is discriminatory? Why
or why not?

In many instances, it is entirely appropriate to view harassment as discrimination

actionable under more general discrimination laws. Severing the connection between
harassment and discrimination might obscure one of the most objectionable aspects of
harassment. Crafting and enforcing a statute that provides the desired protection from
harassment without becoming an onerous “civility code” is tricky, although model anti-
bullying legislative language exists. Yet, it remains troubling that employees can be
subjected to “bullying” and other abuse, but be left with few or no viable avenues of legal
recourse. Certainly, the adverse effects of such conduct on an employee are likely to be
similar, regardless of the specific motivation behind it.

12. Do courts give sufficient weight to the obstacles that might make employees reluctant
to report harassment? Why do you say that? (Anne Lawton. “Between Scylla and
Charybdis: The Perils of Reporting Sexual Harassment.” University of Pennsylvania
Journal of Labor & Employment Law 9 [Spring 2007], 603-655).

Employees who are being harassed have many good reasons to be leery about reporting
it. If the harassers are co-workers, victims may fear ostracism, exclusion from informal
work groups, inability to obtain needed assistance, intensified harassment, or even
physical harm. When supervisors are the perpetrators of harassment, as they often are, the
above concerns are magnified by victims’ reasonable apprehension that future decisions
about employment opportunities might be negatively affected. Lawton’s account of her
own experience with contesting harassment in a university setting is a plea for greater
understanding by the courts of the real obstacles that victims of harassment face in
reporting. In Lawton’s view, the current law places victims in an untenable position: “If
she reports the harassment, she is likely to experience retaliation. If the employer’s
intervention stops the harassment, all she has accomplished is replacing one problem –
harassment – for another – retaliation.” In applying the affirmative defense, many courts
have closely scrutinized the actions of plaintiffs and found that they unreasonably failed
to take advantage of preventive and corrective measures by delaying their reports for a
few months. Courts have been almost uniformly unsympathetic to plaintiffs’ claims that
they hesitated in coming forward due to fears of retaliation.

13. In what ways do the standards used to attribute liability for harassment to employers
differ depending on whether the harassers are managers or coworkers? Is it appreciably
easier for plaintiffs to establish liability under the affirmative defense? (See David J.
Walsh. “Small Change: An Empirical Analysis of the Effect of Supreme Court
Precedents on Federal Appeals Court Decisions in Sexual Harassment Cases, 1993–
2005.” Berkeley Journal of Employment and Labor Law 30, 2 [2009], 461–525)

While employers bear the burden of establishing the affirmative defense and it was
portrayed by the Supreme Court as more stringent than the negligence standard, an
empirical analysis of nearly 600 federal appeals court decisions suggests that outcomes
are quite similar regardless of the liability standard employed. There are worrisome
aspects to the developing case law on the affirmative defense – including a tendency of
courts to place too much weight on the mere existence of a harassment policy and to
require that plaintiffs utilize the formal complaint process almost immediately - but there
has been less change in how courts decide liability in harassment cases than one would
surmise based on law review articles or the Supreme Court’s proclamations.
 FOR A CHANGE OF PACE
Role plays can be used to good advantage in employment law courses,
particularly to analyze situations that involve interactions between employees and
managers. It is important for students to learn to listen carefully and to recognize legal
issues as they emerge in the course of work – often in the form of spoken words. The
following brief role play affords students the opportunity to critique a manager’s response
to an employee who is complaining of potential sexual harassment.

The manager fails, among other things, to maintain neutrality and objectivity, to
obtain the necessary facts about what happened, to display awareness of the employer’s
harassment policy (if indeed, there is one), to act with the appropriate sense of urgency,
to recognize that the company is necessarily “in the middle of things” once a report is
made, to provide appropriate assurances regarding protection from retaliation and
discrete handling of her complaint, etc.

Just Another Day at the Office?

Bill Bruno is a supervisor at the XYZ Company. Jill Anderson, a quality control
specialist, has requested a meeting with Mr. Bruno. She enters Bruno’s office.

Anderson: Is this still a good time for you?

Bruno: [pleasantly] Yes, of course. Make yourself comfortable. How are things in the
QC world?

Anderson: [sounds distracted] They could be better. … Listen, I’ve got a problem. Sam
West on the evening shift has been paying a bit too much attention to me, if you know
what I mean.

Bruno: [quizzical] Oh?

Anderson: He’s keeps mentioning how much he likes the clothes I wear and the way that
I move. He also has a habit of getting really close and putting his arm around me when I
need to go over statistical reports with him. …. I’ve tried to tell him that I’m not
interested, that quality control and pleasure don’t mix, that I have a firm policy of never
dating co-workers named Sam, that I have a large dog and a mean boyfriend … None of
it seems to get through to him. This has been going on for over a month now and it’s just
getting worse.

Bruno: Well, you know, Sam has always been quite the lady’s man. I’m sure that he
doesn’t mean anything by it.

Anderson: [irritated] Hello! Whose side are you on here? Isn’t this harassment? Aren’t
you supposed to do something about it?
Solution Manual for Employment Law for Human Resource Practice, 5th Edition

Bruno: Let’s not jump to any hasty conclusions here. If you want to know the truth of
the matter, this sounds more like some harmless flirting than anything else.

Anderson: [sounds determined] Well I want to file a complaint of harassment anyhow.

What do I need to do?

Bruno: I’ll have to ask around to see if there is any particular procedure. … I’ll tell you
what. When I get the chance, I’ll have a chat with Sam. It might not be right away
though, because I’m not usually here in the evening.

Anderson: [sarcastically] And then what? You two guys go off and have a beer
together?

Bruno: [voice rises] I don’t think that I like your tone. Look. There are two sides to
every story. Did you ever think that those skimpy dresses that you wear might be part of
the problem? And haven’t you dated half the evening shift?

Anderson: [incredulous] I don’t believe this!

Bruno: I’ll do what I can. In the meantime, I suggest that you go speak to Sam yourself
and tell him what you have told me. Be direct. These personality conflicts are best
worked out by the individuals involved, rather than by getting the company in the middle
of things.

Anderson: And what if he takes it badly, or tries to get back at me for coming to see
you? Sam is tight with a lot of people in this company.

Bruno: You worry too much Jill. Ol’ Bill Bruno will take care of you.

Anderson: [rolls her eyes] Is there any other information you need?

Bruno: No, that should pretty much do it. When I have something to tell you, I’ll get
back to you.

Anderson: [speaking so Bruno cannot hear] Yeah, you’ll be able to reach me at my

lawyer’s office.

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