By employment attorneys Tammy Marzigliano and Delyanne Barros. In Crawford v. Metropolitan Gov’t of Nashville & Davidson County, Tennessee, the Supreme Court unanimously decided that protection under Title VII of the Civil Rights Act extends to an employee who speaks out about discrimination when answering questions during an employer’s internal investigation. Employment attorneys Tammy Marzigliano and Delyanne Barros.
Vicky Crawford was an employee of Metro for over 30 years. In 2002, Veronica Frazier, a Human Resources employee, conducted an internal investigation regarding allegations of “inappropriate behavior” by the relations director, Gene Hughes. Frazier asked Crawford if she had witnessed any “inappropriate behavior” by Hughes. Crawford told Frazier that Hughes had asked to see her breasts on numerous occasions, grabbed his genitals in front of her and, on one occasion, and pulled her head down towards his crotch. The employer took no action against Hughes; however, a few months later Crawford and two other accusers were terminated. The employer alleged that it terminated Crawford and the other accusers because they embezzled money.
Crawford brought a lawsuit against her employer for retaliation in violation of Title VII. The district court ruled for the employer and the 6th Circuit affirmed the decision, holding that Crawford did not “oppose” the harassment under Title VII because she had not “instigated or initiated a complaint” and no EEOC charge had been filed.
However, the Supreme Court found the embezzlement allegation was completely unfounded and unsupported. In addition, the Court rejected the Circuit Court’s reasoning that Crawford’s actions did not qualify as “opposition” because she had not “instigated or initiated any complaint.” The Court applied the ordinary meaning to “opposition” finding that it merely means to “resist or antagonize” and that Crawford’s statement to Frazier clearly fell within that definition. As a result, the Court reversed the 6th Circuit’s decision granting judgment for the employer and sent the case back to the 6th Circuit to be decided in accordance with the Court’s analysis.
In Crawford v. Metropolitan Gov’t of Nashville & Davidson County, Tennessee, the Supreme Court unanimously decided that protection under Title VII of the Civil Rights Act extends to an employee who speaks out about discrimination when answering questions during an employer’s internal investigation.
Why So Many Victims Of Sexual Harassment Stay Silent, Still
Kathleen Peratis, The Atlantic, January 4, 2013
Two decades after Anita Hill's testimony against Supreme Court nominee Clarence Thomas, women are still punished for confronting their harassers.
I'm a lawyer, a long-time practitioner of employment discrimination law, and a partner at Outten and Golden LLP in New York City. I guess I am what some people disparage by calling a "slick lawyer," a way to put down those who are passionate about justice. The work is hard and in Anita Hill's day even more so than today, claimants were so far ahead of the times that they were often unsuccessful in their legal claims. The law was so inhospitable in the 1990s and for many years thereafter that had Anita brought a legal claim—which she never did—it is likely that she would have lost in a court of law.
At about the same time as Anita Hill's claims exploded onto the public scene, my firm was involved in a very similar case, unsuccessful at the trial stage and then successful on appeal, which is why I am able to speak publicly about it. The details of this case give you a flavor of what the law was like in 1991. The claimant was a woman named Lisa Petrosino who worked for Bell Atlantic, which is now Verizon, repairing telephone lines. She worked out of a garage in Staten Island with an all-male crew who tormented her every day. The banter among the men in the workplace was crude and misogynistic, which would have been bad enough for Lisa, but they also singled her out. They drew crude pictures of headless women, women with their legs spread in the air, pictures of men having sex with animals, and of her having sex with supervisors, and left them in terminal boxes she was assigned to work on so she would find them. She felt threatened by the depictions of dismembered women. She said, "It's not that I don't have a sense of humor, but this stuff is not funny." They ridiculed her appearance, they told her to "calm her big tits," they said she complained because she was "on the rag." Bell Atlantic not only did nothing to stop it, their supervisors joined in. Bell Atlantic's lawyers, one of whom was a woman, argued that none of this was illegal, it was just boys being boys. The federal district court judge agreed with them and dismissed the case.
The Supreme Court had decided years before that sexual harassment and hostile environment were illegal, but the prejudices of the trial judges remained. In Lisa's case, the trial judge saw no illegality. The appellate court finally reversed and sent the case back to the trial court for trial, and at that point, the case was settled. So the wrong was righted, in a way, but only in a way. Like Anita, Lisa suffered greatly along that road to justice. Some women are transformed by the vindication of a legal victory but some find the process totally debilitating and demoralizing. Women who go public still get punished. It's a sad reality, but some of my happiest clients are the ones who settled for less than their claim was worth and even the ones who decided not to complain at all. Women were punished in 1991, they were punished in 2000, and the sad reality is they are punished still today. I was recently retained by a woman who works at a major education institution in New York City. She was having a business dinner with her boss and he put her hand on his crotch, on his erect penis, freaking her out. She will probably sue and it will be harder on her than she can imagine. These cases do happen less now than they used to but when it happens to you, that is cold comfort.
But let me tell you a little bit about what is actually illegal, then and now. The definition of an illegal hostile environment has not changed—it is an environment where there is an atmosphere of hostility and misogyny that is either severe or pervasive. These words are subject to interpretation, of course, but in most courts, "severe" means that the bad actor, as we call him in my business, has engaged in at least some unwanted or unwelcome touching. I will explain the "unwanted" part in a minute. As for the "touching," it doesn't have to be rape, but to have a really good case for hostile environment discrimination it has to be serious. In the absence of unwanted touching, the claimant has to show that the bad actions were pervasive, and that means a pattern of incidents. How many? No one can quantify what is enough and as in any legal case, it will depend on many things, such as how the claimant and the other witnesses come across to this particular judge or jury.
I mention that the conduct has to be "unwelcome." This is very important because it provides defendants with the opportunity to blame the victim by saying she was a willing participant. It is the "You asked for it" defense. "Why did you send your boss birthday cards or light-hearted emails, if you were bothered by his conduct?" "Why did you get drunk at the holiday party?" "Why did you let your boss come to your room when you were traveling?" "Why did you tell all those off-color jokes?" "Why did you wear a skirt so short, if you're not a slut?" "Why didn't you quit?"
Because this road is so tough, I often hear clients say, "Why me? Why did this have to happen to me? Why has my life been turned upside down by this creep who had no right to do this to me?" And it is unfair. But the law has been transformed by the many women who have bravely stepped up and paved the way for the rest of us. That is what Anita did.
This post is adapted from I Still Believe Anita Hill: Three Generations Discuss the Legacies of Speaking Truth to Power.
Happy Valentine's Day...Now Please Sign On The Dotted Line
Tammy Marzigliano and Delyanne Barros, Outten & Golden LLP, 2009
With Valentine’s Day around the corner, what better way to discuss love than in contractual terms? Workplace romances are increasingly common and employers are aware of this. In a 2008 survey by Vault.com, 58% admitted to having an office romance and another 12% would be willing to engage in one if given the opportunity. Not surprising in light of the reality that most of us have so little time left over after work and sleep that our place of employment is our main chance for finding a mate.
In the last few years, companies have responded to this reality by instituting what has been popularly dubbed as “love contracts.” These contracts may contain several different provisions, but most commonly it seeks to establish that the two employees are in a consensual dating relationship and that they will not allow the relationship to interfere with their work productivity. One sample love contract provided that by signing the love contract, the employees “notify the company that [they] wish to enter into a voluntary and mutual consensual social relationship” which they “are both free to end . . . at any time. Should the relationship end, [they] agree that [they] will not allow the breakup to negatively impact the performance of [their] duties.”
The contract can also refer to the company’s sexual harassment policy and “that entering into the social relationship has not been made a condition or term of employment.” Most important to employers, the contract may limit the grievance process to arbitration only, potentially limiting an employee’s right to file a lawsuit in court.
A brief discussion of teens and sexual harassment in the workplace, by employment lawyer Kathleen Peratis, The Forward, December 31, 2004.
Thousands of children will go to work with their mothers or fathers on Ms. Magazine’s “Take Our Daughters and Sons to Work Day” in April. Most of the kids will spend the day in a white-collar enclave, the sort of place they may hope or expect to inhabit in four or eight or 10 years. But much sooner, many of them will be going to work in places that are considerably less well-mannered — fast-food restaurants and large chain retail stores — and they will be ill prepared for what lies ahead.
The daughter of a friend of mine works in one such place, a fast-food restaurant. A few weeks ago, my friend asked me if the laws against sexual harassment apply to 16 year olds. She came to learn that the 19-year-old assistant manager (and scheduler) was hitting on her daughter. Her daughter was holding him off, but she knew her time was running out.
This girl’s experience is not uncommon. In early December, the Washington Post reported that the Equal Employment Opportunity Commission had filed a lawsuit on behalf of a 17-year-old high school student and part-time waitress against a St. Louis fast-food restaurant, Steak ’n Shake Operations. A cook had grabbed, threatened and exposed himself to her, she alleged, and when she complained, the manager suggested it would be better if she quit. This was the commission’s 25th sexual harassment lawsuit on behalf of teens in 2004, up from eight in 2002.
An essay on the differences in sexual harassment in Europe and the U.S, by employment law attorney Kathleen Peratis, The Forward, August 6, 2004.
In March, an American woman on the staff of the Office of the United Nations High Commissioner for Refugees accused the high commissioner himself of sexual harassment, saying he had “grabbed her behind.” The dashing and handsome high commissioner, Ruud Lubbers — a former Dutch prime minister who is currently charged with protecting 17 million refugees from violence, famine and sexual harassment — did not deny the act with which he was charged.
His defense, at least as explained in a letter to his staff widely circulated throughout the U.N., was that the woman had misunderstood his “friendly gestures.” In the course of the official investigation, four other women came forward and said the high commissioner had done the same to them. A few weeks ago, Kofi Annan, the secretary general of the U.N., “admonished” the high commissioner for his behavior but cleared him of sexual harassment charges.
There is probably not a single large company in the United States that would not have fired a manager for doing what Lubbers did. Most companies in Europe, and most other places for that matter, would have done what Annan did, which is pretty much nothing. Who is right, and why?
Developments In Harassment Law: Update For 2002-2003
Wayne N. Outten and Piper Hoffman, the 20th Annual Upper MidWest Employment Law Institute, May 28-29, 2003, St. Paul, MN.
The standard for employer liability depends on whether the harasser was a co-worker or a supervisor of the victim. If the former, the employer is liable only if it was negligent; if the latter, the employer is strictly liable, subject to the affirmative defenses discussed [within].
The Supreme Court observed that Title VII was enacted not only to provide redress for unlawful discrimination, but also to prevent such discrimination. The goal of preventing discrimination would be promoted, the Court held, by imposing on employers strict liability for the conduct of their supervisors under certain circumstances, because, as between employers and employees, the employers are better able to prevent discrimination by such supervisors. Specifically, the Court held that an employer is strictly liable for a supervisor’s sexually harassing behavior whenever the supervisor is the employer’s “alter ego” or the supervisor has taken a “tangible employment action” against the employee; examples of such actions include “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth at 761. The Court found that the occurrence of a tangible employment action justified holding an employer liable for its supervisor’s harassment because the action could not have been taken absent the agency relation.
Sexual Harassment In The Workplace Wendi S. Lazar and Deborah I. Volberg
Authored by Wendi S. Lazar and Deborah I. Volberg, Sexual Harassment In Employment Law, 1997 Supplement.
Clarence Thomas and Anita Hill, Mitsubishi, Tailhook, Senator Bob Packwood, the Citadel, Eve Bruenau, Paula Jones, the Army Hearings. Employment discrimination claims—and sexual harassment cases in particular—are unquestionably increasing, some say exponentially.