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The EEOC and Sexual Harassment

The EEOC and Sexual Harassment. Jennifer Goldstein Senior Appellate Attorney EEOC Office of General Counsel July 19, 2011. EEOC – Appellate Division EEOC cases Amicus Briefs. Topics. 1. “Because of sex” Directed at women but not sexual or gender-specific

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The EEOC and Sexual Harassment

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  1. The EEOC and Sexual Harassment Jennifer Goldstein Senior Appellate Attorney EEOC Office of General Counsel July 19, 2011

  2. EEOC – Appellate Division • EEOC cases • Amicus Briefs

  3. Topics • 1. “Because of sex” • Directed at women but not sexual or gender-specific • Sexual or gender-specific, but not directed at women • 2. Remote Locations • The Teenager problem • The Truck Driver problem

  4. Oncale v. Sundowner Offshore Services, 532 U.S. 75 (1998) SCT • Rejects categorical rule excluding same sex harassment • “The critical issue … is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” • Harassment need not be motivated by sexual desire • Can prove “because of sex” by using comparative evidence about harasser treats men and women in workplace

  5. Post-Oncale confusion 1. What if conduct is directed at women but not sexual or gender-related? --or-- 2. What if conduct is sexual or gender-related but not directed at women?

  6. EEOC v. NEA-Alaska, 422 F.3d 840 (9th Cir. 2005)

  7. EEOC v. NEA-Alaska, 422 F.3d 840 (9th Cir. 2005) District Court: EEOC failed to prove either that the harasser was “motivated by lust” or that he was trying to drive women out of the workplace

  8. EEOC v. NEA-Alaska, 422 F.3d 840 (9th Cir. 2005) Ninth Circuit • “abuse …directed at women, whether or not it is motivated by ‘lust’ or by a desire to drive women out of the organization, can violate Title VII.” • this case: “an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men.” • “There is no logical reason why such a motive is any less because of sex.”

  9. Reeves v. C.H. Robinson Worldwide, 594 F.3d 798 (11th Cir. 2010) (en banc) Co-workers: “bitch,” “fucking bitch,” “stupid bitch,” “fucking whore,” “crack whore,” “cunt” Branch manager: “talk to stupid bitch on line 4,” “what are Asian bitches good for,” “lazy good-for-nothing bitch,” “she may be a bitch but she can read”

  10. Reeves v. C.H. Robinson Worldwide, 594 F.3d 798 District Court: • offensive conduct “was not motivated by Reeves’s sex, because the derogatory language in the office was not directed at her in particular” • “because the language was used …in the presence of all employees,… both men and women were afforded like treatment”

  11. Reeves v. C.H. Robinson Worldwide, 594 F.3d 798 • A woman “cannot be forced to endure pervasive, derogatory conduct and references that are gender-specific in the workplace, just because the workplace may be otherwise rife with generally indiscriminate vulgar conduct”

  12. Reeves v. C.H. Robinson Worldwide • “even if the words were not directed specifically at the plaintiff, … [i]t is enough to hear co-workers on a daily basis refer to female colleagues as ‘bitches,’ ‘whores,’ and ‘cunts,’ to understand that they view women negatively, and in a humiliating or degrading way.”

  13. Reeves v. C.H. Robinson Worldwide • “the terms ‘bitch’ and ‘whore’ have gender-specific meanings. Calling a man a ‘bitch’ belittles him precisely because it belittles women. It implies that the male object of ridicule is a lesser man and feminine…. [I]t insults the man by comparing him to a woman, and, thereby, could be taken as humiliating to women as a group as well.”

  14. Remote Locations • The teenager problem

  15. EEOC v. V & J Foods, Inc., 507 F.3d 575 (7th Cir. 2007)

  16. EEOC v. V & J Foods, Inc., 507 F.3d 575 (7th Cir. 2007) District Court: • what “matters most” was that “the complaint did not reach V & J”

  17. EEOC v. V & J Foods, Inc., 507 F.3d 575 (7th Cir. 2007) • complaint mechanism must be reasonable, “and what is reasonable depends on ‘the employment circumstances.’” • “the company was obligated to suit its procedures to the understanding of the average teenager.” • Age and education relevant to adequacy of complaint mechanism

  18. Remote Locations • The notice problem • Who is a supervisor anyway? a/k/a the truck driver problem

  19. EEOC v. CRST Van Expedited, No. 09-3764 (8th Cir.)

  20. EEOC v. CRST Van Expedited District Court: • Trainers not “supervisors” • Anti-harassment training would be difficult • CRST had no notice (or notice after the fact) • Every complaint “he said/she said” • Verbal warnings/“no females” sufficient

  21. EEOC v. CRST Van Expedited EEOC arguing 1. Trainers control truck/work environment – makes them “supervisors” 2. Constructive notice – aware of a serious problem

  22. EEOC v. CRST Van Expedited 3. No effective remedial action • “no females” is not discipline • Women in trucks isolated and vulnerable – employer needs to be more vigilant • Not a remedy to do nothing just because alleged harasser denies it

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