- SEXUAL HARASSMENT--UNITED STATES SUPREME COURT--EMPLOYER LIABLE EVEN ABSENT ADVERSE JOB CONSEQUENCES: The United States Supreme Court held that under Title VII of the EEO Act, an employee who refuses the unwelcome and threatening sexual advances of a supervisor, but suffers no adverse, tangible job consequences, may recover against the employer without showing that the employer is negligent or otherwise at fault for the supervisor's actions. In Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2278 (1998), Ellerth, a salesperson, was subjected to constant sexual harassment by her indirect supervisor. The indirect supervisor made repeated boarish and offensive remarks, gestures, and comments which could be construed as threats to deny Ellerth tangible job benefits, including "I could make your life very hard or very easy at Burlington;" "you're going to be out there with men who work in factories, and they certainly like women with pretty butts/legs;" and, "are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier."
Ellerth did not inform management about the supervisor's conduct, despite knowing that the employer had a policy against sexual harassment. The Court reasoned that Burlington was subject to liability for the tortious conduct of the indirect supervisor because the indirect supervisor misused his apparent authority.
- COMMENT: The United States Supreme Court has affirmed many circuit court holdings imposing near strict liability for supervisor harassment, even with the existence of an insulating sexual harassment policy. Burlington has imposed this liability, even without the existence of an adverse job consequence to the victim.
- SEXUAL HARASSMENT--UNITED STATES SUPREME COURT--EMPLOYERS' ACTIONS ARE UNDER SCRUTINY: The United States Supreme Court examined the parameters of employers' affirmative defenses examined by Burlington, above. When liability is based on hostile work environment created by a supervisor, employers may raise an affirmative defense by showing that (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. In Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), the United States Supreme Court examined parameters of this affirmative defense. In this case, the employee had had an informal talk with a low-level supervisor about the harassment, but she did not complain to city officials. Nevertheless, the Court found that the city was liable for the harassment because it wholly failed to establish reasonable care, the first element of the affirmative defense. Although the city had maintained a sexual harassment policy, it failed to distribute the policy among lifeguards, which was the employee's job position. The Court also indicated that the policy was deficient because it required employees to report harassment to their supervisor - offering no alternative means to report in the event the supervisor was the harasser, as was in this case. Under these circumstances, the Court found the city failed to exercise reasonable care to prevent and correct promptly any sexually harassing behavior, and reinstated a judgment for the plaintiff.
- COMMENT: The Faragher case illustrates the importance of all employers to not only have a proper policy and complaint procedure in place, but also to exercise reasonable care to prevent and correct any harassing behavior by utilizing the policy and providing for a proper and wide-ranging complaint procedure through education of its work force.
- SEXUAL HARASSMENT--SUPREME COURT RECOGNIZES SAME-SEX HARASSMENT: The United States Supreme Court has clarified a split in the federal appellate courts and has held that same-sex sexual harassment is actionable under Title VII. The plaintiff in the case, Joseph Oncale, worked as part of an eight-man crew on an oil platform in the Gulf of Mexico. He was forcibly subjected to sex-related, humiliating actions against him by members of the crew. Several members physically assaulted Oncale in a sexual manner, and one threatened him with rape. Both the district court and the Fifth Circuit Court of Appeals had ruled that a male had no Title VII cause of action for harassment by male co-workers. The Supreme Court, however, ruled that Title VII prohibits discrimination "because of sex" and protects men as well as women. The Court noted, "because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of that group." Oncale v. Sundowner Offshore Servs, Inc., 118 S. Ct. 998, 1000 (1998).
- COMMENT: Employers must protect against and discourage all forms of harassment: gender-based harassment, sexual harassment or other protected category harassment. Although the Oncale court stated that courts and juries will distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive, the best way for an employer to insulate itself from any liability is to prevent any conduct which is inappropriate or unwelcome.
- SEXUAL HARASSMENT--COMMENTS ABOUT PREGNANCY ARE ACTIONABLE: The Michigan Supreme Court held that harassing comments and conduct relating to a woman's pregnancy may give rise to a claim of sexual harassment as defined under the Elliott-Larsen Civil Rights Act. In Koester v City of Novi, plaintiff was employed as a police officer for the City of Novi. She was the first officer to take pregnancy leave in the department. When she met with the assistant city manager relative to her leave, she was allegedly subjected to several comments about her pregnancy, including, "how can I give more [leave time] for an intentional act than for an officer who is accidentally injured;" "you should have thought about having kids before you made your career choice;" and other pregnancy-related comments. In addition, the officer was told that she could not have a light-duty assignment, could not have a new uniform to accommodate her pregnancy, and she was given a written reprimand for declining extra work when she could not find a baby-sitter. The Michigan Supreme Court, in a case brought under the Elliott-Larsen Civil Rights Act, held that remarks about an employee's pregnancy can be construed as a form of sexual harassment because the critical inquiry is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the opposite sex are not. Koester v. City of Novi, 458 Mich. 1 (1998).
- SEXUAL HARASSMENT--FORMER MALE EMPLOYEE CAN MAINTAIN LAWSUIT: A former male employee presented sufficient evidence to support a jury's finding that he was fired for rejecting his female supervisor's sexual advances, where he testified that the female supervisor sat on his knee one night without his consent while they were entertaining clients in a nightclub and rubbed the inside of his thigh for several minutes during the same evening. The male employee was terminated shortly afterward for failing to appear at a convention sales booth, even though he was an excellent salesperson. Dornfeld v. Omega Optical, 76 F.E.P.Cas. 759 (E.D. La. 1998).
- PREGNANCY DISCRIMINATION ACT--ABSENTEE POLICY IS NOT EVIDENCE OF DISCRIMINATION: An employer that adopted a more restrictive leave of absence policy upon learning that an employee was pregnant did not violate the Pregnancy Discrimination Act, according to the Seventh Circuit. The employee, who had informed her employer in September of 1990 that she was five months pregnant, was assured by her supervisors that this would be no problem. Two months later, however, the company issued a written policy stating that employees with less than one year of service, like the plaintiff, had no guarantee that they would get their jobs back after such an absence. When she took the leave, the company treated her as a voluntary quit. The Seventh Circuit held that, although suspicious issuance of an employment policy can constitute circumstantial evidence to support a claim of discrimination, timing alone is insufficient. The court concluded that employers do not need to treat pregnant employees well, but only need to treat them like other employees. Piraino v. International Orientation Resources, 76 F.E.P.Cas. 518 (7th Cir. 1998).
- RELIGIOUS DISCRIMINATION--PILGRIMAGE DURING BUSINESS SEASON NOT JUSTIFIED: The Ninth Circuit Court of Appeals held that a Roman Catholic sales employee who was discharged after she took an unauthorized leave of absence during the company's busy season in order to go on a pilgrimage to a religious shrine failed to state a prima facie case of religious discrimination, absent proof that a bona fide religious belief required her to go on the pilgrimage. The Ninth Circuit Court of Appeals held that, not only was there no evidence to corroborate the employee's claim that she needed to go on the pilgrimage at that time, but there was contrary evidence that the timing of her trip was for personal preference. Tiano v. Dillard Dep't Stores, 76 F.E.P.Cas. 561 (9th Cir. 1998).
- COMMENT: Title VII of the Civil Rights Act of 1964 does not protect secular preferences of employees in exercising religious beliefs. Employees who invoke the protections of Title VII or equivalent state discrimination laws must show a conflict between a sincerely held religious belief and the employee's work duties. Personal preferences, therefore, do not effectuate the intent of Title VII.
- FAMILY AND MEDICAL LEAVE ACT--EMPLOYEE'S FAILURE TO INFORM EMPLOYER FATAL TO CLAIM: An employee who did not reasonably inform her employer of a request to take time off for a serious health condition under the FMLA could be discharged for excessive unexcused absences. The employee, who only informed her employer through her mother that she was sick and "having a lot of pain in her side" and would not be able to work that day, did not establish a serious health condition under the FMLA for which leave should be granted. Satterfield v. Wal-Mart Stores, 4 W.H.Cas.2d 678 (5th Cir. 1998).
- COMMENT: The Satterfield case underscores the importance to employers of utilizing FMLA notices requiring a request for leave as well as properly educating supervisors and managers as to the qualifying or triggering events under the FMLA. In Satterfield, the employee's failure to provide the requested information or to satisfy the definition of serious health condition allowed the employer to take action based upon her unexcused absences.
- AMERICANS WITH DISABILITIES ACT--PANIC DISORDER NOT COVERED BY ADA: The Second Circuit Court of Appeals held that a former airport operations supervisor with a panic disorder and a fear of open spaces failed to establish that his condition substantially limited the major life activity of "everyday mobility" under the ADA. The employee was terminated by his employer for allegedly pressuring two co-workers to buy union raffle tickets. The employee sued under the ADA (and a New York state law) alleging that the employer fired him because of his disability (panic disorder and agoraphobia). Although the Second Circuit Court of Appeals agreed that his condition constituted a mental impairment under the ADA, the court noted that the basic principle of the ADA does not guard against discrimination based on any physical or mental impairment, but only those impairments that are significant. Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144 (2d Cir. 1998).
- AMERICANS WITH DISABILITIES ACT--EMPLOYER NEED NOT CREATE JOBS FOR DISABLED WORKERS: The Seventh Circuit Court of Appeals has held that the ADA does not require an employer to find jobs for employees who are disabled or unable to continue in their former positions. The court noted that this "duty to reassign" under the ADA only requires employers to consider a transfer to a position in which the disabled employee would be able to satisfy the employer's legitimate, non-discriminatory qualifications for the new position. In this case, the employer did not have to find new jobs for several employees who had developed carpal tunnel syndrome, since the company had no openings for which the workers would have been qualified. Dalton v. Subaru-Isuzu Auto., 7 A.D.Cas. 1872 (7th Cir. 1998).
- COMMENT: The ADA only requires employers to reassign a qualified individual with a disability to a vacant position for which the disabled employee meets the job qualification standards. An employer need not create a job or bump another worker from an already-filled position. In Michigan, there is no duty under state law to transfer an employee to another job as an accommodation.
January 1999 Civil Rights Alert
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