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Okay today I wanted to talk about *** harassment. I guess this is um the most em egregious uh
type of employment discrimination that occurs. So -so under the Title uh VII of 64, 72, and
91 Civil Rights Act it is what, uh *** harassment ends up being considered a form
of gender discrimination or *** discrimination. Um and uh. There is a, the way we ended up
getting to *** harassment is we have an EEOC definition of *** harassment and it
is very very broad. So the EEOC, that is the Equal Employment Opportunity Commission, which
is the uh administrative agency in charge of in uh employment discrimination. They have
defined *** harassment uh as -very broadly they say it is an un-welcomed advance [writing] right? It is an un-welcomed
advance and so any unwelcome advance may subject the employer to um a liability. Okay. So we
have two types of *** harassment. One is know as quid pro quo um which is Latin for
this for that. [writing] This for that *** harassment. That is what? An exchange of ***
uh favors for an enhanced uh uh job uh um you know job pay, or time off, or uh uh overtime
pay. Um. So an exchange for sex -eh *** favors for an uh job enhancement. And a job
enhancement can be so little as just keeping your job. Okay? So that is quid pro quo. Have
sex with me and you get to keep your job. A hostile work uh environment is uh is an
easier uh uh matter to prove. A hostile work environment is really that un-welcomed advance
that um effects the way an employee um is able to perform their task. I like my work,
I love going into work but I hate this one guy who is just, you know, he is always harassing
me and uh is always um making comments and innuendos. I am getting so tired of him, I
do not, you know, it is not fun anymore. Okay. So, hostile work environment. Okay. The one
that causes the most monetary damages and the most uh problem for businesses are the
quid pro quo and I might as well state it now. Punitive damages in *** harassment
cases [writing]. Punitive damages, you know, to punish for wrong doing, [writing] right,
is three-hundred-thousand dollars. Right? So it is not insignificant. So if you have
a quid pro quo harassment or if you have a supervisor that is you know, making um constant
innuendos and attempts at qu- um quid pro quo harassment, in most corporations can not
afford to keep that around with a three-hundred- with a three-hundred-thousand dollar punitive
damage case. But I wanted to talk about two cases. Meritor Savings Bank vs Vinson and
Harris vs Forklift Systems. Meritor Saving Bank, we are going to look at the first uh
quid pro quo case and hostile work environment was created by uh uh the Harris case, okay.
So, this is an area where we are doing judicial interpretation and so court cases are -are
particularly important here. In the Meritor Saving Bank versus Vinson case um, Vinson
was an employee, a young female employee, of the uh Savings Bank and I I think the co
-the court took this case, not just because of the Bank, but because of the nature of
the industry. The industry was one where you had lots of mid uh mid managers who were male
um middle aged males, and lots of young what, female tellers, and the industry was ripe
for uh uh for problems. Uh, in Meritor Savings Bank versus Vinson, Vinson was a young uh
uh um clerk, or excuse me, a young teller, um and she testified that when um she first
work -when -went to work uh for Meritor Saving Bank, her immediate supervisor treated, was
wonderful to her, treated her like uh he was her granddad, but then when her probationary
period was over, um he uh started demanding *** favors from her, and she testified
that she had sex with him um so -because she was fearful that if she did not, uh she would
lose her job. Magic words. Magic words. All that the uh court needs to hear. Um. And so
she had sex with him some, I do not know, sixty-six, more than sixty times. And everybody
just kind of goes, wow, this sounds like consensual uh sex to us. Um, but if we go back to this
concept of an un-welcomed advance, what uh uh what was once welcome may become un-welcomed
and if that continues then you have what, *** harassment, quid pro quo. Um. In this
case, Vinson ends up with a uh boyfriend who then ends up becoming a fiancee, and Vinson
has to go to her manager and say, listen, I am getting engaged, I am getting married,
and my boyfriend only has one wish and that is that you do not stay as much my boyfriend,
you know. And uh I can not -I can not continue to have sex with you and get married but but
the manager could not let her go, uh after she told him that uh that she was going to
get married, he -he did crazy stuff like he um pulled up her blouse one day and took uh
uh uh a xerox copy uh picture of her *** um. He followed her into a bathroom, a female
bathroom one day. Uh. And uh uh and well, the testimony is, had sex with her and I guess
it was what, forcefully, so you could maybe, even make out a case for ***. Anyhow! It
goes all the way up to the Supreme Court. And and Meritor savings banks defense is well
we have never we have never heard of this. We did not know anything about it and basically
what the court said is well if you did not know you should have known. You had a supervisor
and li - - uh line supervisor sexually har - - harassing a subordinate employee and the
the court just through the book at em. And and the reason is they they fear that well
there is two reasons. One is the supervisors - - the agent of the Meritor savings bank
of the of the principle and they should be careful about who they pick as their agents.
And the the other thing um that the court was uh concerned about was there was what?
Economic power perhaps being used here to uh have uh the um um the subordinate have
sex with the supervisor. So um it is the it is that level of economic power that the manager
has over his subordinate that that becomes a problem here. Anyhow that is a it is a classic
what? Quid pro quo case. These are the ones that are going to cause the most problems
and um basically what came out of this case is the requirement that what um corporations
need a policy against *** harassment. This is all part of their due diligence. They need
a policy against sex harassment. They have to uh uh they have to educate their workforce
about their uh policy against *** harassment. They have to have a separate complaint procedure
because most complaint procedures were male dominated and they did not think female employees
who had been sexually harassed would want to go in front of another male supervisor
to make their complaints about a mal - - another male supervisor and so um uh uh separate complaint
procedure is required. Um and then other things that really show due diligence is that in
under cases uh the uh uh corporation has taken action against the uh uh harassing supervisors
either in the form of suspension from work or losing their job or diminishing uh pay.
Um so uh if you can show that the the company is taking action you are showing some pretty
good things for the corporation because you you are showing that they do their due diligence.
They are concerned about harassment and um maybe that will lessen the three-hundred thousand
dollar punitive uh damage award. Okay, the second kind of hot um *** harassment is
hostile work environment. And as I say it is something - - it is uh it is uh jokes,
innuendos, words, actions, uh um oh anything that uh is can be construed as uh as being
you know rude uh uh a little beyond that . It co- - uh pervasive uh and this kind of pervasive
conduct ends up what? Effecting the employee and effecting the way that that employee can
perform their job. Okay? Um and the case here we have is Harris verses Forklift system.
Uh it is uh it was uh uh an early nineteen-nineties case. Um in this case uh we are dealing with
a forklift system in uh in uh Nashville Tennessee. They had gone wild CEO and Harris was a vice
president, a female vice president of the of the forklift company and she was being
harassed by her employer who apparently thought it was pretty funny just to sexually harassed
all his female employees. Anyhow the employee did some crazy stuff like um - - oh he uh
- - this is before cell phones so he would have a quarter in his pocket to make a telephone
call and he would what? Ask his uh female subordinate to reach into his front pocket
and pull out a a quarter so that he could be able to make a phone call. Um real nice,
good move, smooth move as they say. Um lets see what else did he do? Oh in a meeting with
all the vice presidents once he said to Harris oh I see you got uh I see you got a uh contract
with you know the XYZ firm way to go. What did you do promise to sleep with the guy?
Um and the the uh uh straw that broke broke the camels back in this case was with another
meeting of all the vice presidents. He came over to Harris and said you know it is time
for your annual evaluation and uh Holiday Inn same as last year. So she sues and uh
uh - - well no she quits and it and so then we start to talk about constructive discharge.
So Harris quits and then it sets up a constructive discharge. [knocking] Okay and Harris quits,
sets up this constructive discharge. She quits when he says something like well wuh uh Holiday
Inn same as last year. Says she says I am not taking this anymore and so she quits and
uh he thinks well all my problems are gone but then she turns around and sues. Um uh
uh for um uh for hostile work environment, harassment, and um and the court says that
she can turn around and sue because um she was forced out of her job. It was a constructive
discharge and it is - - that is a form of wrongful discharge. So if if the situation
at work is so bad that what? A reasonable person would not put up with it then you can
what? Go through this whole rigmarole about uh uh quitting and then turning around and
suing. So constructive discharge. If nobody - - if uh reasonable person would not put
up with it then then you can bring a suit. Even though you quit. Bring an action. Right?
So uh thi - -this case is also important for what the court did not decide. The forklift
uh company had some pretty good lawyers and they were arguing where look this is a case
where all we have is what? A hostile work environment, there is only words. Nobody is
having sex here. There is only words. Oh and and the the the president of the company claims
that everybody knows that he is just a joker and the court says yeah but the jokes on you.
Um so when and and in this situation uh what the forklift situation is saying listen punitive
damages here do not do not make any sense because we cannot - - we have not had any
showing of say a psychological injury or trauma. And so they were trying to turn the case into
uh uh uh a case that would uh start looking at the female employee. Um so and what the
court says is no we are not interested in a showing of whether or not there was psychological
trauma or damage all we are looking at is the actions of the employer um or their subordinate
here and so um uh that was aloud to stand and then and so Harris verses Forklift is
just as important for what was decided is what - - it was just as important for what
was not decided. Right uh uh a showing of psychological damage uh as what was decided
that this is uh uh uh constructive discharge in a hostile work environment. Um let me do
a follow up to this constructive discharge and and the case I want to do as a follow-up
shows you where where we are. In nineteen-ninety eight the the supreme court came down with
three big cases. Uh two of which are kind of set up the the rule that says listen um
we are tired of doing *** harassment what we want uh uh uh what the court wants the
companies to do [pause] what the court wants the companies to do is to you know do what
ever they can to to stop uh doing *** harassment. And if they do not there is going to be uh
what they called vicarious liability. Um and that is we are going to use the the law of
agency um and vicarious liability says that the principle - - right? The company is liable
for the wrongful actions of its agents, its supervisors. Um, okay so basically what you
have to do is to avoid that is the company has to show they have taken reasonable care
to prevent and and promptly correct any sexually harassing behavior. Um and to establish effective
harassment policies and that um and that uh the employees who are complaining uh follow
these policies or procedures. Okay? Alright so the follow-up case to Harris verses Forklift
in terms of constructive discharge is a case that involves the Pennsylvania state police
and it is a wild case. Pennsylvania State Police verses Suders. Pennsylvania State Police
[tapping] verses Suders. S. U. D. E. R. S. [tapping] Alright, know the Pennsylvania State
Police has a history of disciplining supervisors for *** harassment. Um they have taken
action against supervisors. Okay? In the past they have dismissed supervisors who sexually
harassed. Um they have laid em off, they have uh um they have required education, they have
their own way of complaining. Uh Suders is a female uh um dispatcher at a Pennsylvania
- - a rural Pennsylvania State Police force. And uh and she has had a she has had a history
of working for the police uh uh sheriffs offices, local police, you know she has been a dispatcher
before, she has been around cops, know how strange they are, uh and so she is not unaware
but she gets in this situation here where it is where there is uh at least two supervisors,
sometimes even three supervisors that are that are uh harassing her. Uh and it comes
to the point where they ask her - - so if they once asked her to take a a test and they
told her that she flunked the test and then she was going through the filing cabinet and
found the test and found that it was not even graded so you know they never they never graded
it to tell her that she flunked it. They just told her that she flunked it so she grabbed
the test um because it is evidence and they they claim that she is taking state property
and they are going to discipline here for it and she has already made a complaint to
the um uh um to the state police hearing board in Harrisburg um the state capitol of Pennsylvania
and so so basically when all this craziness is happening she ups and quits. And so and
says you know constructive discharge. She turns around, comes back and sues, and the
court says well listen this is a little different uh uh um than in the Harris verses Forklift
case because here the Pennsylvania State Police have done due diligence. [tapping] Right ? But
what they have done is they have a separate complaint procedure. [pause] Um they have
what? A policy against *** harassment so they have a *** harassment policy. They
even forced the policy. Right? They have they have taken action against the other supervisors.
[tapping] Right? So basically what happens in this case is sense the uh Pennsylvania
state police have done their due diligence right? The court does not like the idea that
Suders is going to use constructive discharge. What they feel is that Suders should exhaust
her administrative remedies before coming to court. [tapping] Right, so it strengthens
when a court - - when a company, when an employer does their due diligence. Okay? So that is
a limitation on uh constructive discharge right? Used to be you could use constructive
discharge. Now if your company is complying with the law to the best of their ability
well then in that case well when I am not gonna - - we are not going to allow constructive
discharge. Okay? So that is uh Pennsylvania State Police verses Suders a two-thousand
and four case. Back to the nineteen-ninety-eight um cases um which lay out some guidelines
uh in a second. [pause] Alright so I wanted to start with uh um the kind of uh - - the
the kind of uh division that the court uh made in nineteen-ninety-eight. They came - - they
came out with three cases in nineteen-ninety-eight and basically they ended up saying listen
we are tired of doing *** harassment cases. Um if a company is going to have a a have
a um have a supervisor that is engaged in *** harassment well we are going to go
go down *** that company unless that company has done its due diligence you know and that
is what uh uh having a policy - - enforcing the policy, educating on the policy, taking
action against uh uh supervisors that that sexually harass. You know in those cases we
will reduce the uh punitive damages to three-hundred thousand dollars. Okay? So there are three
cases in um uh nineteen-ninety-eight that were were important cases. The first one I
want to talk about is Oncale verses Sundown or Offshores incorporated. This has nothing
to do with really um uh the the the um the regular kind of uh uh *** harassment. This
recognizes Oncale verses Sundown or Offshore incorporated uh recognizes for the first time
that you can have what? Same-sex sex harassment. So same-sex sex harassment um is still sex
harassment and it it is uh it is a covered uh violation. It is Oncale verses Sundown
or offshore incorporated. The other two cases basically take the the position that listen
we are tired of doing this, we do not want uh uh companies to continue to be uh allowing
supervisors uh um to be engaged in in *** harassment um and so they identify this kind
of activity as vicarious liability and they are using the uh the concept of principle
and agency relationships to um drive home the point. Um and under the the uh agency
law um a a principle, a company is liable for the actions or the wrongful conduct of
its agents right? The supervisors. Um so the two cases are uh uh Flagler verses the city
of Bokereton down in Florida. Um Flagler was a was an Atlantic ocean lifeguard for em.
Uh she was one of thirteen female um uh lifeguards. Uh three male supervisors. Two of the supervisors
where hostile uh uh work environment harassing the thirteen females. They got to the point
where they had a ma - - a heard mentality. They would come into work together, the would
take breaks together, they would uh shower together just so that they would avoid these
two guys. Um and and their *** harrassments. Their hostile work environment harrassments.
They would do things like tug on their bathing suit bottoms, snap their tops, tell them that
they wanted to drag them into the woods and have sex with em, can not wait until you take
a shower together. This kind of nonsense. So um what happened was uh uh the um the women
then went to the third supervisor was a decent kind of guy. He was not involved in ***
harassment and they complained to him about the actions of the other two supervisors and
his response was oh do not worry about those guys their they are not going to do anything
wrong. They they are just joking with you. Do not do not worry it is okay. Okay? So Flagler
quits work after a while there, has had enough, she goes down to Miami where she is uh Lifeguard
once again but she is also going to night law school at the University of Miami school
of law. She is in an employment law class, the professor is going about *** harassment,
she raises her hand says this is what happened to me in in uh in Bokereton do you think I
have a case? And the the the uh the law professor kind of salivates, asks for her to stay after
class and they start talking about what what punitive damages at the tune of what? A maximum
of three-hundred thousand dollars times thirteen employees, yes we can talk about this and
yes lets take an action and we will sue em. Okay? Bokeretons defense is of course that
always popular defense is what? We never knew it and the court in this case says bologna.
They said you knew it. You had actual notice because when the the female uh employees who
were being harassed went to the third supervisor and said these guys are harassing us, when
they went to that supervisor it is like going to the company. It is like going in this case
to the city of Bokereton. You had actually knowledge. When that supervisor, when that
third supervisor had actual knowledge you have actual knowledge and you are going to
be liable. Who-ah big deal. Huh? So um so we are using what? Uh principles of agency
law. Notice to the agent is notice to the principle. [marker squeaking] Okay, so take
it at - - take it to its illogical uh ending here. Lets go back to Meritor savings bank.
The Meritor savings bank said hey we did not know. Wait a second under this ruling in the
Bokereton case right we are using agency law. If the supervisor is having sex with the subordinate
employee and he has knowledge that he is having sex with the subordinate employee then under
this c- - uh case right you would say since he knows he is having sex with the subordinate
employee then so does the principle. So that whole non-sa - - nonsense about what we did
not know about this that that yes you did. You had what? Actual knowledge because the
subordinate is the um - - excuse me the supervisors knows knows when they are having sex with
subordinate employees. the big case that ends up changing a lot because of the impact of
the case is Burlington Industries verses Ellerth. Burlington Industries got a um uh they have
got a large facility in in Chicago. Um Ellerth is a a young uh graduate from Northwood university.
One of the best uh business schools in the country. She has got her MBA from there. She
is attractive but she is smart right? And so she goes to work with Burlington Northern
and everything is going uh a long well except she runs into this crazy vice president from
New Jersey who you know falls for her and says you know come out to - - lets go out
to lunch. So she makes the mistake of going out to lunch with him once. He says to her
basically if you have sex with me you will go far in this country. Uh uh uh if you have
sex with me you will have - - you will go far in this company. Um and she says to him
listen I am going to go far in this company without having sex with you but he is persistent.
He is a pain in the neck. He sends her flowers every chance he gets. He flies in the corporate
jet out to Chicago to ask her to lunch, dinner I promise you everything, and just keeps it
up. She has enough. Uh excuse me no. She does not do a constructive discharge. She quits
and finds another job and when she is in her new job she turns around and sues for a hostile
work environment. And and and Burlington industries defense is you have got to be kidding nothing
happened. He wanted to have sex but then he did not have sex. You know nothing happened,
we should not be liable. The court in this case says and this is this is a tough ruling.
They are tired of doing *** harassment. What the court says is what? An attempt at
quid pro quo by a supervisor. An attempted quid pro quo by a supervisor will be turned
into a hostile work environment. For so a mere attempt at uh at quid pro quo harassment
is in and of itself a hostile work environment. Nobody can afford to keep these characters
around anymore. It is to expensive so you know the rules changed all because of this
case. Okay so it is a real important case. Burlington industries verses Ellerth. Okay?