ALI-ABA Course of Study Current Developments in Employment Law Harassment in the Workplace

166 Pages·2003·0.33 MB·English

by  Susan Krull

ALI-ABA Course of Study
Current Developments in Employment Law
July 24-26, 2003
Santa Fe, New Mexico
Harassment in the Workplace
by
Debra S. Katz and Alan R. Kabat
Bernabei & Katz, PLLC
Washington, D.C.
TABLE OF CONTENTS*
INTRODUCTION .
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APPLICABLE FEDERAL STATUTES .
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Section 1981 .
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Sections 1985(3) and 1986 .
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Title VII .
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1. Title VII’s Scope and Procedural Issues .
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2. Title VII’s Coverage and Employer Size .
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3. Title VII’s Coverage of Law Firm Partners .
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4. WORKPLACE HARASSMENT .
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1. Definition . .
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2. Elements of the Claim
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3. Membership in Protected Class . .
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4. Unwelcome Nature of Conduct . .
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5. Harassment Based on Sex . .
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6. Conduct Sufficiently Pervasive or Severe . .
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5. The Quantity of Harassing Conduct . .
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6. The Continuing Violation Doctrine . .
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7. Single Incident Harassment . .
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7. Single Incident Harassment Is a Hostile Work Environment 22
8. Single Incident Harassment Is Not a Hostile Work Environment 26
8. The Spectrum of Sexual and Racial Harassment . .
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9. Employer Liability (Respondeat Superior) . .
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9. The Ellerth/Faragher Affirmative Defense to Employer Liability
for Damages Under Title VII . . . . . 46
10. Is Constructive Discharge a Tangible Employment Action? . 49
11. How the Federal Courts Have Applied the Affirmative Defense 53
12. How the State Courts Have Applied the Affirmative Defense 63
13. The Kolstad Limitation to Punitive Damages Under Title VII 67
14. The Application of Kolstad by the Circuit Courts . .
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15. The Application of Kolstad by the State Courts . .
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16. When Is a Supervisor Not a Supervisor? . .
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17. Employer Liability for Co-Worker and Customer Harassment 99
10. Individual Liability . .
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18. NATIONAL ORIGIN AND RELIGION HARASSMENT . .
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11. Definition of Harassment Because of National Origin . .
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12. Definition of Harassment Because of Religion . .
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13. Elements of a National Origin or Religion Harassment Claim . 105
14. National Origin Harassment and Discrimination Appellate Cases . 106
15. Religion Harassment and Discrimination Appellate Cases . .
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19. THE CONSPIRACY STATUTES . .
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20. PROCEDURAL ISSUES: RECENT DEVELOPMENTS . .
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16. Status of At-Will Employees and Independent Contractors . .
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17. Employer Status of Corporate Affiliates and Subsidiaries . .
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18. Employer Status of Public Entities . .
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19. Anti-Harassment Policies and the Unionized Workplace . .
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20. Extension of Weingarten Rights to Non-Unionized Workplaces . 127
21. USE OF JURY AND TRIAL CONSULTANTS FOR HARASSMENT CASES . .
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22. JURY INSTRUCTIONS . .
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23. STATE LAW CLAIMS . .
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21. Overview . .
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22. Supplemental Jurisdiction . .
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23. State Anti-Discrimination Laws . .
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24. RIGHTS OF THE ACCUSED HARASSER . .
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134
25. CONCLUSION . .
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135
* Page numbers refer to the number at the bottom of each page.
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Harassment in the Workplace
by
Debra S. Katz
Alan R. Kabat1
Bernabei & Katz, PLLC
1773 T Street, N.W.
Washington, D.C. 20009-7139
[phone]
26. INTRODUCTION
This chapter provides an overview of harassment employment law claims under Title VII
and Section 1981, with an emphasis on sexual and racial harassment claims, and a briefer
presentation of concurrent state civil rights remedies.
There are no comprehensive statistics for the total number of all workplace harassment
complaints, formal and informal, since there is no central repository for the reporting of
complaints that are resolved before going through the agency or judicial stage. The EEOC’s
most recent enforcement statistics show there were 14,396 sexual harassment charges filed
during fiscal year 2002, which represented about 56% of all gender-based charges; the remainder
were gender discrimination charges. See EEOC, “Enforcement Statistics” (Feb. 6, 2003)
<http://www.eeoc.gov/stats/>. These statistics do not include charges filed with state or local
agencies but not cross-filed with the EEOC. The EEOC no longer provides comparable
statistical information for racial or national origin harassment claims.

1 Debra S. Katz is a name partner with Bernabei & Katz, PLLC, a civil rights firm based
in Washington, D.C., that specializes in the representation of plaintiffs in employment law, civil
rights and civil liberties matters. Alan R. Kabat is an associate with the law firm of Bernabei &
Katz, PLLC. Lindy Lucero and Mike Perez, summer associates with Bernabei & Katz, assisted
with researching and updating several sections.
© Copyright 2003, Debra S. Katz and Alan R. Kabat, Bernabei & Katz, PLLC,
Washington, D.C.
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27. APPLICABLE FEDERAL STATUTES
Most racial and sexual harassment claims are brought under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.; racial harassment claims can also be brought under the
Reconstruction-Era civil rights statute, 42 U.S.C. § 1981. Racial harassment claims against state
or local governments can be brought under 42 U.S.C. § 1983, if the employee alleges that her
constitutional rights were violated by defendants’ discriminatory conduct. In similar
circumstances, a claim may also be brought under the conspiracy statutes, 42 U.S.C. §§ 1985(3)
and 1986. The state statutes covering racial and sexual harassment are tabulated in § 8 infra, but
these statutes are only analyzed with regard to litigation in federal courts pursuant to their
supplemental jurisdiction and the issues of state sovereign immunity.
24. Section 1981.
Section 1981, part of the Civil Rights Act of 1866, was enacted pursuant to the Thirteenth
Amendment and bars racial discrimination. 42 U.S.C. § 1981. In 1989, the Supreme Court
interpreted Section 1981 as excluding claims arising during the employment context from its
protection. Patterson v. McLean Credit Union, 491 U.S. 164, 171 (1989). In response, the Civil
Rights Act of 1991 expressly amended Section 1981 to add subsections (b) and (c), which
provide for a broader reading of the right to “make and enforce contracts” and reaffirm the
applicability of Section 1981 to private employers. Thus, courts now recognize that racial
discrimination and harassment claims by employees lie within the statutory protection of Section
1981. See Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1033-34 (7th Cir. 1998).
Section 1981 provides, in relevant part, that:
(a) All persons . . . shall have the same right in every State and Territory to make
and enforce contracts . . . as is enjoyed by white citizens . . .
(b) For purposes of this section, the term “make and enforce contracts” includes
the making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.
(c) The rights protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of State law.
42 U.S.C. § 1981 (emphasis added).
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