Amicus Curiae Brief — Harris v. Forklift Systems, Inc.

vicea™

FILED

| APR 3.0 1993

No. 92-1168 7

——— ies CLERK

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1992

TERESA HARRIS,

7 Petitioner,

FORKLIFT SYSTEMS, INC.,

Respondent,

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF AMICI.CURIAE OF THE

EMPLOYMENT LAW CENTER, A PROJECT OF

THE LEGAL AID SOCIETY OF SAN FRANCISCO,

THE CALIFORNIA WOMEN’S LAW CENTER, AND

EQUAL RIGHTS ADVOCATES, INC.

IN SUPPORT OF PETITIONER

PATRICIA A. SHIU

(Counsel of Record)

PAULINE T. KIM

CATHERINE K. RUCKELSHAUS

EMPLOYMENT LAW CENTER,

A PROJECT OF THE LEGAL AID

SOCIETY OF SAN FRANCISCO

1663 Mission Street, Suite 400

San Francisco, CA 94103

(415) 864-8848

Attorneys for Amici Curiae

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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QUESTION PRESENTED

Is a plaintiff in a sexual harassment case also required

to prove, in order to prevail, that she suffered severe

psychological injury when the Trial Court has found that

she was offended by conduct that would have offended a

reasonable victim in the position of the plaintiff?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED ..........2...2.02-0:0:ceveecceceecessenseneees

TABLE OF AUTHORITIES ...............2..----cccecceeceseecenseneees

STATEMENT OF INTEREST OF AMICI CURIAE..

SUMMARY OF ARGUMENT. 0000000000... ccceccecceeceees =

ARGUMENT ................. alsa laaehdiencientnatieenaenstinapgen wipes

I. A REQUIREMENT OF “SEVERE PSYCHO-

LOGICAL DAMAGE” IN SEXUAL HARASS-

MENT CASES IS CONTRARY TO VINSON

AND THE PURPOSES OF TITLE VII ............

THE EXISTENCE OF A HOSTILE WORK

ENVIRONMENT SHOULD BE _ DETER-

MINED BY AN OBJECTIVE EVALUATION

OF THE HARASSER’S CONDUCT ....... aes

II.

A.

C,

The Leading Cases Of Andrews And Ellison

Articulate A Clear Formulation Of This Ob-

jective Inquiry ....... 6 ED oe ene

. A Standard Which Takes Into Account The

Perspective Of The Plaintiff Is Essential To

Eradicating Sexual Harassment In The

Workplace ....... eee = eS

A Majority Of Courts Have Adopted The

Reasonable Woman Standard To Evaluate

Employers’ Conduct In Hostile Work Envi-

ronment Cases . ae sees

Ee

(iii)

10

15

17

iv

TABLE OF AUTHORITIES

Cases Page

Andrews v. City of Philadelphia, 895 F.2d 1469

RRR eR ERE Ronee ire passim

Austen v. State of Hawaii, 759 F. Supp. 612 (D.

ESSE SES eee ees st Sree ae 15

Brooms v. Regal Tube, 881 F.2d 412 (1989)... 16

Burns v. McGregor Electronic Industries, 955 F.2d

RRR a bs CU A 16

Caleshu v. Merrill Lynch, 737 F. Supp. 1070 (E.D.

ERE PR ae En a, 16

Campbell v. Kansas State University, 780 F. Supp.

8 RRS ee 16

Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991)... passim

Garvey v. Dickinson College, 775 F. Supp. 788

a 16

Jenson v. Evelethe Taconite, 189 F.R.D. 657 (D.

I I lhe ae eee 15

Meritor Savings Bank v. Vinson, 477 U.S. 57

STITT -caricibeiiinsedeaiitehbesarehi ban aana hk ennai 5-8

Rabidue v. Osceola Refining Co., 805 F.2d 611

er re 6,9, 12,14

Robinson v. Jacksonville Shipyards, 760 F. Supp.

BR RE ae 15-16

Rogers v. E.E.0.C., 454 F.2d 234 (5th Cir. 1971).. 6

Scott v. Sears, Roebuck & Co., 798 F.2d 210 (7th

EERE eae 6

Smolsky v. Consolidated Rail, 780 F. Supp. 283

nS Ts TR initia tie etait 15

Spencer v. General Electric, 697 F. Supp. 204

(E.D. Va. 1988), aff'd 894 F.2d 651 (4th Cir.

aes eS 16

Trotta v. Mobil Oil, 788 F. Supp. 1336 (S.D.N.Y.

EEE SEN es eS ew AS 16

Vermett v. Hough, 627 F. Supp. 587 (W.D. Mich.

EE a ee ie See ee 16

Yates v. Aveo Corp., 819 F.2d 630 (6th Cir.

SID cicieiipeliiithei ibn eme i 15

Statutes

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

Lk SR ee passim

v

TABLE OF AUTHORITIES—Continued

Miscellaneous Page

Brenneman, Comments: From A Woman’s Point

of View: The Use of the Reasonable Woman

Standard in Sexual Harassment Cases, 60 U.

Cin. L. Rev. 1281 (1981) —......... ee 13

Estrich, Sex at Work, 43 Stan. L. Rev. 813

STITT csinciieerittdastnlatinnienpmmnseainnestiaiaeatatastabinilssietiadaamianbens 11-12

In THE

Supreme Court of the United States

OcTOBER TERM, 1992

No. 92-1168

TERESA HARRIS,

7 Petitioner,

FORKLIFT SYSTEMS, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF AMICI.CURIAE OF THE

EMPLOYMENT LAW CENTER, A PROJECT OF

THE LEGAL AID SOCIETY OF SAN FRANCISCO,

THE CALIFORNIA WOMEN’S LAW CENTER, AND

EQUAL RIGHTS ADVOCATES, INC.

IN SUPPORT OF PETITIONER

STATEMENT OF INTEREST OF AMICI CURIAE

Amici curiae listed below file this brief in support of

Petitioner Teresa Harris. Both parties have consented

to the submission of this brief.

The EMPLOYMENT LAW CENTER (ELC), a

project of the Legal Aid Society of San Francisco, is a

private, non-profit, public interest law firm which repre-

sents indigent workers in cases involving employment

2

discrimination and workplace rights. The ELC special-

izes in, among other areas of the law, sex discrimination.

The ELC was counsel of record for Katherine Vinson

in Vinson v. Superior Court, 43 Cal.3d 833, 239 Cal.

Rptr. 292 (1987), in which the California Supreme

Court ruled that a mental examination is not warranted

in a simple sexual harassment case where the claimant

seeks compensation for having to endure an oppressive

work environment or for wages lost following an unjust

dismissal.

Prior to the Vinson case, the ELC was counsel of

record in Priest v. Rotary, 98 F.R.D. 755 (N.D. Ca.

1983), a sexual harassment case in which the Court

denied discovery of detailed information about plaintiff's

sexual history, including the name of each person with

whom she had sexual relations in the ten years prior to

the defendants’ discovery request.

The ELC represented Lillian Garland in California

Federal Savings & Loan Ass'n v. Guerra, 479 U.S. 272

(1987), which upheld California Government Code Sec-

tion 12945(b)(2), a state law which provides up to four

months of pregnancy disability leave and a right to re-

turn to the same or similar job.

The ELC also represented Queen Foster in Johnson

Controls. Inc. v. Fair Employment & Housing Commis-

sion, 218 Cal.App.3d 517, 167 Cal.Rptr. 158 (1990),

where the California Court of Appeal ruled that the em-

ployer’s gender-based exclusionary “fetal protection” pol-

icy violated the Fair Employment and Housing Act. The

ELC also appeared as amicus curiae in the United States

Supreme Court in /nternational Union, UAW vy. Johnson

Controls, USS. , 111 S.Ct. 1196 (1991), in

which the Court held that the employer’s “fetal protec-

tion” policy constituted sex discrimination prohibited by

Title VII of the Civil Rights Act of 1964.

3

The ELC has participated as amicus curiae in many

discrimination cases before the United States Supreme

Court, including Price Waterhouse v. Hopkins, 490 U.S.

228 (1989), and Wygant v. Jackson Bd. of Education,

476 U.S. 267 (1986), reh. den. 478 U.S. 1014 (1986).

EQUAL RIGHTS ADVOCATES, INC. (ERA) is a

San Francisco-based public interest legal and educational

corporation dedicated to working through the legal sys-

tem to secure equality for women. ERA has a twenty

year history of representing the interests of working

women in the courts, legislatures, and public education

campaigns.

Since its early days, ERA has worked to end sexual

harassment both through litigation and public policy initi-

atives. ERA represented plaintiff in the first case in the

Ninth Circuit to find sexual harassment a violation of

Title VII (Miller v. Bank of America, 600 F.2d 211

(9th Cir. 1979)). Even prior to that, ERA had appeared

as amicus curiae in sexual harassment cases (e.g., Tom-

kins v. Public Service Electric and Gas Co., 568 F.2d

1044 (3rd Cir. 1977)).

The law firm has continued its efforts to eradicate sex-

ual harassment from the work place. ERA represents in-

dividual plaintiffs in sexual harassment cases (e.g., Co-

lombano v. City and County of San Francisco, Superior

Court No. 838-649—woman police officer harassment

case resulting in a settlement worth over $800,000). It

has appeared before this Court as amicus curiae in cases

involving sexual harassment issues (Meritor Savings

Bank v. Vinson, 477 U.S. 57 (1986)) and in numerous

lower court cases where various issues concerning sexual

harassment have arisen.

In addition, ERA advises hundreds of women each

year through its advice and counseling “hot line” regard-

ing their legal right to be free from this invidious form

of discrimination. The firm also provides technical assist-

ance to scores of attorneys each year who are represent-

4

ing clients with sexual harassment claims. ERA has ap-

peared before this Court as amicus curiae in dozens of

sex and race discrimination cases interpreting Title VII

and other anti-discrimination laws.

The CALIFORNIA WOMEN’S LAW CENTER was

established in 1989 as the first Law Center in Southern

California solely devoted to addressing the civil rights of

women and girls. The Law Center has identified the fol-

lowing priorities for its work: Sex Discrimination in Em-

ployment, Sex Discrimination in Education, Reproductive

Rights, Family Law, Domestic Violence and Child Care.

The Law Center’s primary efforts in addressing these

priorities emphasize support and technical and legal as-

sistance to legal services agencies, community-based or-

ganizations, attorneys and policymakers.

Sex discrimination is clearly within the priority con-

cerns of the Law Center. Therefore, the CALIFORNIA

WOMEN’S LAW CENTER not only has a significant

interest in the issues before the court, but has extensive

background and expertise in the issues presented to the

court in this appeal.

Amici believe that this Court’s opinion in this case will

set important precedent for the enforcement of Title VII

of the Civil Rights Act of 1964, in the context of hostile

work environment sexual harassment cases.

SUMMARY OF ARGUMENT

A requirement that a plaintiff prove “severe psycho-

logical damage” in order to establish liability in a hostile

work environment sexual harassment case is contrary to

this Court’s prior holding in Meritor Savings Bank v.

Vinson, 477 U.S. 57 (1986). Moreover, imposing such

a requirement would contravene the purposes of Title

VIL.

Amici respectfully submit that the proper inquiry for

determining whether conduct is sufficiently “severe or

3

pervasive” to give rise to Title VII liability is to examine

the harassing conduct complained of, not the plaintiff's

response to it, from the perspective of a reasonable per-

son of the same gender as the plaintiff. Adopting a

gender-conscious perspective is essential to eradicating

stereotyped notions and prevailing prejudices about

women and eliminating all barriers to true equality in

the workplace.

ARGUMENT

I. A REQUIREMENT OF “SEVERE PSYCHOLOGI-

CAL DAMAGE” IN SEXUAL HARASSMENT

CASES IS CONTRARY TO VINSON AND THE

PURPOSES OF TITLE VII.

The question presented to the Court by this case is a

narrow one: “Is a plaintiff in a sexual harassment case

required to prove that she suffered severe psychological

injury in order to establish the defendant’s liability?”

This Court’s precedent mandates that the answer to that

question is “no.”

In the landmark case of Meritor Savings Bank v.

Vinson, 477 U.S. 57 (1986), this Court first recognized

that a claim of hostile environment sexual harassment is

actionable under Title VII of the 1964 Civil Rights Act.

This Court rejected the argument that a violation of

Title VII occurs only where the plaintiff can show “eco-

nomic” or “tangible loss,” finding Congress’ intent was

“to strike at the entire spectrum of disparate treatment

of men and women.” 7d. at 64 (citations omitted). Rec-

ognizing that conduct “which creates a hostile or offen-

sive environment for members of one sex is every bit the

arbitrary barrier to sexual equality” that racial harass-

ment is to racial equality, this Court held that sexual

harassment which is “sufficiently severe or pervasive ‘to

alter the conditions of [the victim’s] employment and

create an abusive working environment,” is forbidden

under Title VII, whether or not a tangible loss results.

Id. at 97.

6

Vinson clearly stated that a hostile environment sexual

harassment claim, to be successful, need not entail eco-

nomic harm or other tangible discrimination; therefore,

a plaintiff cannot be required to prove that she suffered

severe psychological injury in order to prevail on such a

claim. To require a demonstration of tangible harm at

the liability stage is contrary to the plain language of this

Court’s unanimous opinion in Vinson. “Conduct can un-

reasonably interfere with work performance without caus-

ing debilitation and without seriously affecting an em-

ployee’s psychological well-being.” Ellison v. Brady, 924

F.2d 872, 878, n.8 (9th Cir. 1991)."

Requiring a plaintiff to demonstrate “severe psycholog-

ical injury” in order to prove the existence of a hostile

work environment is not only contrary to Vinson, it

would also undermine the strong public policies underly-

ing Title VII. Victims of sexual harassment would be

forced to endure demeaning and degrading treatment long

enough to sustain psychological injuries before they could

take legal action to enjoin the harassing conduct. Em-

ployers would be shielded from liability for conduct which

1 The Ellison court aptly notes the source of confusion which led

the courts in Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th

Cir. 1986), cert. denied, 481 U.S. 1041, and Scott v. Sears, Roebuck

& Co., 798 F.2d 210 (7th Cir. 1986), gmstakenly to require severe

psychological harm. The courts in Rebidue and Sears misconstrued

a citation in Vinson (Vinson at 66) from Rogers v. E.E.0.C., 454

F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972),

in which the Rogers court contemplates a working environment

“so heavily polluted with discrimination as to destroy completely

the emotional and psychological stability of minority group work-

ers.” As the Ellison court recognized, “|t|he Rogers court did not

hold that a hostile environment only exists when the emotional and

psychological stability of workers is completely destroyed.” Ellison

at 878, n.8 (emphasis in original). Requiring plaintiffs to show

severe psychological damage as an element of plaintiff’s case on

this erroneous reading of Vinson in the Rabidue and Sears cases

would create an altogether new and unprecedented element in sex-

ual harassment law and compound Rabidue and Sears’ defective

legal analysis.

7

is “every bit the arbitrary barrier to sexual equality” at

the workplace, when an employee understandably chose

to leave a sexually hostile workplace before her psycholog-

ical health was damaged. The myriad ways in which a

requirement of “severe psychological injury” would

thwart Title VII’s goal of eliminating barriers to equal

opportunity in the workplace are more fully discussed

by other amici on behalf of petitioner and need not be

repeated here.

In addition to undermining the goals of Title VII, a

requirement of “severe psychological injury” also intro-

duces a highly subjective and individualized element into

the analysis which will make it difficult for employers to

recognize and eliminate sexual harassment in their work-

places. Individual women may have widely differing psy-

chological responses to the exact same conduct. The

same behavior may cause psychological damage to one

woman, while another feels offended, but is not psy-

chologically injured. Without a clear standard employers

are unable to determine what conduct is “severe or per-

vasive” enough to create a hostile work environment and

to act affirmatively to ensure that such behavior stops.

Where the harassing conduct complained of is exactly

the same, there is no reason to find liability in one case

and not another, simply because different individuals may

be affected to different degrees.

An analysis of the degree of harm suffered as a result

of the harassment may, of course, be relevant to deter-

mine the amount of damages. However, it is irrelevant

to the determination of liability, and contravenes the

language of Vinson when used for that purpose. Rather,

a finding of hostile work environment sexual harassment

should rest on an evaluation of the conduct of the de-

fendant, not the effect it may have on a particular in-

dividual plaintiff.

The proper inquiry, as mandated by Vinson, is whether

that conduct is sufficiently “severe or pervasive” to affect

8

the terms and conditions of employment and create an

abusive working environment. The degree of the psy-

chological effect on the plaintiff simply has no part in this

analysis. In answering the narrow question presented by

this case, this Court need not look beyond the standard it

articulated in Vinson. If, however, any further explication

of what constitutes a “hostile or abusive working environ-

ment” is necessary, this Court should follow the great

weight of appellate court opinion, which has held that the

harasser’s conduct should be evaluated from the perspec-

tive of a reasonable person of the same gender as the

plaintiff.

II. THE EXISTENCE OF A HOSTILE WORK ENVI-

RONMENT SHOULD BE DETERMINED BY AN

OBJECTIVE EVALUATION OF THE HARASSER’S

CONDUCT.

A. The Leading Cases Of Andrews And Ellison Artic-

ulate A Clear Formulation Of This Objective In-

quiry.

Andrews y. City of Philadelphia, 895 F.2d 1469 (3rd

Cir. 1990), provides a straightforward and often-cited

statement that the perspective of “a reasonable person

of the same sex” as the plaintiff should be used in analyz-

ing the employer’s conduct.* /d. at 1482. The court

emphasized that this is an objective inquiry, and that

“it is here that the finder of fact must actually determine

whether the work environment is sexually hostile.” /d.

at 1483. “[This] objective standard protects the em-

ployer from the ‘hypersensitive’ employee, but still serves

the goal of equal opportunity by removing the walls of

2 Andrews goes beyond Vinson in that it sets out a rigid five-part

test plaintiffs are required to meet before prevailing in a hostile

work environment claim. Three of the five Andrews requirements

relate to standing. Amici curiae take exception to these require-

ments to the extent that they go beyond the Court’s requirements

in Vinson regarding a hostile work environment.

9

discrimination that deprive women of self-respecting em-

ployment.” /d. at 1483.

Following the lead in Andrews, the Ninth Circuit Court

of Appeals in Ellison, supra, articulates a similarly prac-

tical and fair standard for evaluating whether an employ-

er’s conduct is sufficiently severe or pervasive to alter the

terms and conditions of employment. After rejecting

Rabidue’s requirement that plaintiffs show that their psy-

chological well-being is “seriously affected,” the Ellison

court offers a sound framework for the inquiry mandated

by Vinson: a female plaintiff states a case of hostile

environment sexual harassment when she alleges “con-

duct which a reasonable woman would consider suffi-

ciently severe or pervasive to alter the conditions of

employment and create an abusive working environment.”

Ellison, 924 F.2d at 879. In determining whether sexual

harassment is sufficiently severe or pervasive to be action-

able, the fact-finder should “analyze the harassment from

the victim’s perspective.” Jd. at 878.

Like the analysis set out in Andrews, the Ellison court’s

“reasonable woman” standard contemplates an objective

standard for determining whether the severe or pervasive

requirement has been satisfied. This standard “shield{s]

employers from having to accommodate the idiosyncratic

concerns of the rare hyper-sensitive employee.” Ellison,

924 F.2d at 879. At the same time, adopting the per-

spective of a “reasonable woman,” rather than the

perspective of the alleged harasser, avoids the risk of

“reinforcing the prevailing level of discrimination.” /d.

at 878.

The Ellison formulation of this objective requirement

is squarely in accord with Andrews. While Ellison speaks

of the “reasonable woman,” this standard is simply the

application of the “reasonable victim” standard to that

particular case, where the plaintiff was a woman. The

Ellison court noted that “where male employees allege

10

that co-workers engage in conduct which creates a hostile

environment, the appropriate victim’s perspective would

be that of a reasonable man.” Z/d. at 879, n.11. Thus,

the Ellison “reasonable woman” test is substantively iden-

tical to the Andrews court’s “reasonable person of the

same sex” standard for purposes of determining liability

in a hostile work environment sexual harassment case.

B. A Standard Which Takes Into Account The Per-

spective Of The Plaintiff Is Essential To Eradicat-

ing Sexual Harassment In The Workplace.

Although the “reasonable woman” or “reasonable vic-

tim” standard takes into account the perspective of the

plaintiff, it should not be confused with the “reasonable

person” standard used in traditional tort analysis. The

purpose of this objective standard in sexual harassment

cases is not to judge the reasonableness of the response

of the particular woman, but to evaluate the conduct of

the harasser. Properly used, the Andrews/Ellison stand-

ard focuses attention solely on the harasser’s actions. It

is used to “determine whether the work environment is

sexually hostile” as a result of the harassing conduct.

Andrews, 895 F.2d at 1483. This determination is made

without any reference to the “reasonableness” of the

response by the particular individual affected. By focus-

ing on the defendant’s conduct, this standard advances

Title VII’s goal of “‘prevent[ing] the perpetuation of ster-

eotypes and a sense of degradation which serves to close

or discourage employment opportunities for women.” An-

drews, 895 F.2d at 1483.

The “reasonable woman” standard also differs from

the traditional “reasonable person” test in that it recog-

nizes and takes into account the differing experiences of

men and women. The Ellison and Andrews courts recog-

nized that a “sex-blind reasonable person standard tends

to be male-biased and tends to systematically ignore the

experiences of women.” Ellison at 879. The differences

11

in the historical and cultural experiences between men

and women are significant and numerous. An obvious

example, on which the Ellison court focused, is the dis-

parity in the rates of sexual assaults against men and

women. /d. at 879.

What makes sexual harassment more offensive, more

debilitating, and more dehumanizing to its victims

than any other form of discrimination is precisely

the fact that it is sexual. Not only are men exercis-

ing power over women, but they are operating in a

realm which is still judged according to a gender

double standard, itself a reflection of the extent to

which sexuality is used to penalize women. In my

view, these cases are such a disaster in doctrinal

terms precisely because, as with rape, they involve

sex and sexuality. And yet however clear all that

might be, the argument for treating these cases as

violations of Title VII begins from the premise that

the sexuality which lies at their core is legally in-

visible: They are simply cases of differential treat-

ment based on gender. Estrich, Sex at Work, 43

Stan. L. Rev. 813, 819 (1991).

Acknowledging these differences is absolutely critical to

understanding the principles underlying the “reasonable

woman” standard for female plaintiffs. “A complete un-

derstanding of the victim’s view requires, among other

things, an analysis of the different perspectives of men

and women.” Ellison, 924 F.2d at 878.

A gender-conscious standard like those of Andrews and

Ellison acknowledges the social reality that sexual harass-

ment in the American workplace is rampant and that

women are disproportionately harmed by it.’ Only by

* Estrich refers to a 1976 Redbook magazine questionnaire asking

its readers “whether they had been subject to unwanted sexual

‘attention’ at work from male bosses or colleagues. 9 out of 10

women who responded said yes, and 75% called the advances em-

barrassing, demeaning, or intimidating.” Estrich at 821. Estrich

12

employing a gender-conscious standard will the law reflect

the fact that offensive and oppressive sexual harassment

is part of the daily working environment of many women

and ensure the removal of these barriers to sexual equality

in the workplace.*

The “reasonable woman” is not any particular person,

nor even the average of some group of actual persons.

Rather, the “reasonable woman” is a theoretical con-

struct which assists the trier of fact in taking into account

the differing life experiences of men and women in this

society as a whole when evaluating the conduct of an

alleged harasser. The purpose of the “reasonable woman”

standard is to make conscious the unconscious stereotypes

and biases which might otherwise color an evaluation of

what is or is not acceptable behavior in the workplace.

It “discards the male-biased definition of acceptable be-

also cites to a “more scientific study by the federal government four

years later, [wherein] 42% of the women respondents reported

being subjected to some form of ‘sexual harassment,’ at an esti-

mated cost to the federal government of $189 million from 1978

to 1980. The harassment figures were roughly the same when the

government resurveyed in 1987, but the costs over a two-year

period rose to $267 million. Smaller surveys during this period,

sometimes phrased in terms of harassment or unwelcome advances,

consistently found that anywhere from 36 to 53 percent of the

women questioned identified themselves as victims.” Estrich at 822

(citations omitted).

* The decision of the Sixth Circuit in Rabidue, supra, demon-

strates the dangers of omitting a gender-conscious perspective and

relying solely on the purportedly neutral “reasonable person” stand-

ard in the context of sexual harassment cases. In Rabidue, the

Court’s use of a “reasonable person” standard permitted it to

evaluate plaintiff's claims from the perspective of the male em-

ployees who dominated that work environment. It completely ig-

nored the degrading effects of that environment on women. By a

perversion of logic, the Rabidue court excused the sexual jokes,

sexual conversations and pornography in the workplace because of

their pervasiveness, rather than recognizing these conditions for

what they are—a significant barrier to equality in the workplace.

13

havior and substitutes a viewpoint that acknowledges the

effects of sexual harassment on women.” Brenneman,

Comments: From a Woman's Point of View: The Use of

the Reasonable Woman Standard in Sexual Harassment

Cases, 60 U. Cin. L. Rev. 1281, 1296 (1981).

Because the “reasonable woman” is a theoretical con-

struct, not an empirical derivation, the particular re-

sponses of specific individuals cannot be used to define

what is “reasonable.” For example, the testimony of

other women employees that they were not offended by

the alleged harassment is largely irrelevant. These

women may believe that they are unaffected by certain

types of harassment because their indifference is a coping

mechanism for dealing with the harassment, or because

they have been conditioned to accept sexual stereotyping

as a condition of employment, or simply because they are

afraid of losing their jobs. The true test of “reasonable-

ness” from this theoretical perspective is whether the

conduct complained of operates as a barrier to the full

participation of women in the workplace. Thus, for ex-

ample, from this perspective, pornographic displays which

undermine the legitimacy of women’s presence in the

workplace are seen as barriers to equal opportunity:

It is doubtful that a female worker can believe her

male counterparts are taking her seriously when

depicted on the wall behind her is a male using

another woman’s naked breast as a golf tee. The

poster makes the statement that women are play-

things. That message flows from the wall of the

workplace into the heart of it. When women in the

workforce are viewed as a sexual obsession, it can

prevent men from taking them seriously, and can

preclude women from being able to focus on their

jobs. That is an obstacle to equal opportunity. That,

to the reasonable woman, is sexual harassment.

Brenneman at 1295.

As the Filison court noted, “a gender-conscious examina-

tion of sexual harassment enables women to participate

14

in the workplace on an equal footing with men.” 924

F.2d at 879.

If adopted by this Court, the Andrews/Ellison stand-

ard will encourage employers to view the conduct of their

agents and supervisors through the eyes of the reasonable

woman rather than through the rose colored lens of the

seemingly well-intentioned “Cyrano de Bergerac,” Ellison,

924 F.2d at 880, whose conduct nonetheless threatens,

intimidates and offends his female co-workers. The “ob-

jective” or “reasonable” element protects the employer

from the “hypersensitive employee,” Andrews, 895 F.2d

at 1483; Ellison, 924 F.2d at 879, while adopting the vic-

tim’s perspective ensures that stereotyped notions or un-

conscious prejudices do not serve to reinforce rather than

eliminate barriers to full equality in the workplace.”

The Ellison court clearly understood the ramifications

of failing to adopt a gender-based perspective, noting that

“Congress did not enact Title VII to codify prevailing

sexist prejudices,” /d. at 881, and that “[a]jdopting the

victim’s perspective ensures that courts will not ‘sustain

ingrained notions of reasonable behavior fashioned by

the offenders.’ ”’ Jd. at 880-1, quoting Rabidue, 805 F.2d

at 626 (Keith, J. dissenting).° To reject a gender-

5 As the Ellison court noted, using the victim's perspective “does

not establish a higher level of protection for women than men.” /d.

at 879. On the contrary, it affirms the simple notion that an em-

ployee of either gender should be protected from a work environ-

ment that a reasonable person of that gender would find hostile.

* Amici curiae emphatically urge the Court to reject the reason-

ing embodied in the following passage from Rabidue: “Indeed, it

cannot seriously be disputed that in some work environments,

humor and language are rough hewn and vulgar. Sexual jokes,

sexual conversations and girlie magazines may abound. Title VII

was not meant to—or can—change this.” 805 F.2d at 620. This

position amounts to a complete abdication of the clear goal of Title

VII: eradicating invidious employment discrimination. Failure to

adopt a gender-based perspective will, as it did in Rabidue, freeze

into place prevailing discriminatory attitudes, even where the con-

duct in question violates Title VII.

15

conscious standard is to effectively ignore the social and

historical context of sexual harassment in this country

and to trivialize the significance of this insidious form

of gender discrimination.

C. A Majority Of Courts Have Adopted The Reason-

able Woman Standard To Evaluate Employers’

Conduct In Hostile Work Environment Cases.

The Andrews/Ellison standard has proven influential

and workable. In the short period since these decisions

have been published, courts have repeatedly followed

these cases in analyzing hostile work environment claims

from the perspective of a reasonable person of the same

gender. Indeed, enough courts have followed Andrews

and/or Ellison in sexual harassment hostile work envi-

ronment cases to establish a near-consensus among the

courts that have explicitly considered the perspective

from which the defendant’s conduct should be evaluated.

In addition to the Third’ and Ninth * Circuits, courts

in the Fourth, Sixth, Eighth, and Eleventh Circuits

have employed the perspective of the reasonable person

of the same gender as plaintiff in analyzing sex harass-

ment hostile work environment claims.’ While the lan-

7 Andrews v. City of Philadelphia, 895 F.2d 1469 (3rd Cir. 1990) ;

Smolsky v. Consolidated Rail, 780 F. Supp. 283, 294 (E.D. Pa.

1991) ; Garvey v. Dickinson College, 775 F. Supp. 788, 800 (M.D.

Pa. 1991).

8 Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991); Austen v. State

of Hawaii, 759 F. Supp. 612, 628 (D. Hawaii 1991).

* See Smolsky v. Consolidated Rail, 780 F. Supp. 283, 294 (E.D.

Pa. 1991) (perspective of “reasonable woman” used in sexual hostile

work environment analysis); Yates v. Aveo Corp., 819 F.2d 630,

637 (6th Cir. 1987) (perspective of “reasonable woman” used in

analysis of sexual harassment allegations relevant to constructive

discharge claim) ; Jenson v. Eveleth Taconite, 139 F.R.D. 657, 665

(D. Minn. 1991) (necessity of proof of work environment hostile

to a “reasonable woman” held to be a common question of law for

purposes of certification of a class of fernales); Robinson v. Jack-

16

guage varies slightly from circuit to circuit, the analysis

is conceptually identical.

The few court opinions that still insist on using a

“reasonable person” standard in sex harassment cases do

not discuss the standard to be used, nor do they reject a

victim-based perspective." There is no evidence from

these opinions that these courts considered the perspec-

tive question when choosing their language. Therefore,

courts that have considered this issue are nearly unani-

mous in analyzing employers’ conduct from the perspec-

tive of a reasonable person of the same gender, as An-

drews and Ellison did.

sonville Shipyards, 760 F. Supp. 1486, 1524 (M.D. Fla. 1991)

(perspective of “reasonable woman” used in hostile work environ-

ment sexual harassment analysis) ; Vermett v. Hough, 627 F. Supp.

587, 607 (W.D. Mich. 1986) (court denies liability using “reason-

able woman” standard) ; Spencer v. General Electric, 697 F. Supp.

204, 218-19 (E.D. Va. 1988), aff'd 894 F.2d 651 (4th Cir. 1990)

(court uses “reasonable person”, “reasonable employee in her sit-

uation”, and “reasonable female employee” interchangeably) ;

Garvey v. Dickinson College, 775 F. Supp. 788, 800 (M.D. Pa.

1991) (court uses “reasonable person of the same sex in that

position” in hostile work environment sexual harassment case).

10 See, e.g. Brooms v. Regal Tube, 881 F.2d 412, 423 (7th Cir.

1989) ; Burns v. McGregor Electronic Industries, 955 F.2d 559, 566

(8th Cir. 1992) ; Campbell v. Kansas State University, 780 F. Supp.

755, 762 (D. Kan. 1991); Caleshu v. Merrill Lynch, 737 F. Supp.

1070, 1082 (E.D. Mo. 1990), aff'd 985 F.2d 564 (8th Cir.).

The only opinion that does analyze its choice of a standard and

uses a “reasonable person” standard is Trotta v. Mobil Oil, 788

F. Supp. 1336 (S.D.N.Y. 1992). However, the court qualified its

description of the standard so as to make its position functionally

indistinguishable from Andrews and Ellison by noting that “[i]n

applying a reasonable person standard, courts can take account of

gender-based differences.” Jd. at 1350, n.1.

17

CONCLUSION

For all of the foregoing reasons, the Court should

hold that a plaintiff in a Title VII hostile environment

sexual harassment case is not required to prove severe

psychological injury in order to prevail. Rather, the ex-

istence of a hostile work environment should be evalu-

ated from the perspective of a reasonable person of the

same gender as the plaintiff.”

Respectfully submitted,

ATRICIA A. SHIU

(Counsel of Record)

PAULINE T. KIM

CATHERINE K. RUCKELSHAUS

EMPLOYMENT LAW CENTER,

A PROJECT OF THE LEGAL AID

SOcIETY OF SAN FRANCISCO

1663 Mission Street, Suite 400

San Francisco, CA 94103

(415) 864-8848

Attorneys for Amici Curiae

"The EMPLOYMENT LAW CENTER wishes to express its

appreciation to Julian Gross and Jan Proudfoot for their valuable

assistance in preparing this brief,