Closing out the year, here's a valuable reminder from the Fourth Circuit that the decision of whether an employee has objectively suffered severe or pervasive harassment belongs to the jury, not the district court judge. The panel reverses summary judgment, on facts that the opinion recognizes are "close to the line," recognizing that important judgment calls on fact-finding and credibility cannot be resolved without a trial.
Lawyers who represent employees in the state and local public sector know that, for sex discrimination and harassment claims, they can bring suit under both Title VII of the Civil Rights Act of 1964 and Section 1983 of the Civil Rights Act of 1871. The former law was passed specifically to combat sex discrimination, while the latter attacks discriminatory practices by way of the Fourteenth Amendment Equal Protection Clause. Yet while section 1983 has some specific advantages to employees - there is no administrative prerequisite to file a charge with the EEOC, the limitations period is longer, there is individual liability, and legal relief is uncapped - there are also some distinct disadvantages, such as overcoming qualified immunity. So, in this case, the Second Circuit holds that in contrast to Title VII, a plaintiff must show that each individual defendant was personally motivated by gender in order to establish liability. On this basis, the panel mostly reverses denial of qualified immunity for several individual police officers charged with sex harassment and discrimination.
This case presents the nice question of whether an employer violated Title VII by punishing a woman more harshly than her male counterpart for the same misconduct, i.e., jointly carrying on a workplace affair. The Seventh Circuit says that there is enough of a genuine dispute of facts to reverse summary judgment and remand for further discovery. The court also remands a claim of sex harassment, which included the extraordinary complaint that the employer tolerated employees having after-hours sexual liaisons on the plaintiff's office desk (which the panel found, notably, was not a form of sex harassment).
The Tenth Circuit today issued a terribly important read for people interested in fighting workplace sex harassment. The panel reverses summary judgment in a Title VII case where a woman jail employee was (allegedly) sexually assaulted by a sergeant, repeatedly, and yet failed to complain immediately for fear of losing her job. While not a complete win for the employee, the opinion points the way to Theres trapped in similar workplace dilemmas.
You do not have to be a die-hard football fan to have heard about the latest bullying scandal at the N.F.L. Richie Incognito, the left guard for the Miami Dolphins, has been suspended indefinitely for bullying and hazing his teammate, Jonathan Martin, the left tackle. Hazing and locker room pranks are common in the N.F.L., but Incognito's conduct had apparently crossed a line which caused the N.F.L. to step in and investigate the matter.
The Fifth Circuit, in a 10-6 en banc decision, affirms a jury verdict in favor of the government on a male iron worker's claim that he was sexually harassed by a male supervisor on a nearly-daily basis at his worksite, the Twin Spans bridges between New Orleans and Slidell, Louisiana. The full court considers what an employee must prove to establish that a hostile-work-environment is "because . . . of sex," and whether the incident here was severe or pervasive. Meanwhile, the six dissenters between them contribute four separate opinions, lashing out at every aspect of the majority's interpretation of the record and Title VII law.
Plaintiff, a female employee, brought a sexual harassment and retaliation claim under the New York City Human Rights Law, N.Y.C. Adm. Code §8-101 et seq. ("NYCHRL"), against her employer, claiming that her supervisor ran the office like a "boys' club" and subjected her to sexually suggestive comments including propositioning her for sex. The Second Circuit, in a 39-page opinion, reversed the lower court's dismissal of Plaintiff's claims and remanded for trial, holding that Plaintiff's claims should be "broadly construed" under the NYCHRL's protections which are intended to go above and beyond the floor provided by federal law.
The U.S. Equal Employment Opportunity Commission (EEOC) has recently released its 2012 Enforcement and Litigation Statistics which provides that although the number of sexual harassment charges filed has decreased from 7,809 in 2011 to 7,571 in 2012, the percentage of charges filed by males has increased from 16.1% to 17.8%. Although women are still filing the majority of EEOC sexual harassment charges, it is worth noting this significant increase in charges filed by men.
A recent lawsuit filed in California state court against The Oprah Winfrey Network sheds light on pregnancy and leave discrimination issues in the workplace.
After a jury found that Defendant KarenKim, Inc. ("KarenKim") had subjected a class of female employees to a sexually hostile work environment under Title VII of the Civil Rights Act of 1964 and New York State Law, the EEOC moved to alter the judgment to impose broad injunctive relief against KarenKim to ensure that the pervasive sexual harassment that had occurred would not continue which included barring the re-hire of the sexual harasser, Allen Manwaring. The district court denied the EEOC's request in its entirety and the EEOC appealed. The Second Circuit found that such injunctive relief was necessary to address the "cognizable danger" of an employer "engaging in 'recurrent violations' of Title VII."