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

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No. 92-1168 } Bipreme cour, U5

IN THE {

Supreme Court of the Wnited Srevtesor te 1-2,

OCTOBER TERM, 1993

>_>

TERESA HARRIS,

Petitioner,

FORKLIFT SYSTEMS, INC.,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF AMICI CURIAE

NOW LEGAL DEFENSE AND. EDUCATION FUND, CATHARINE

A. MACKINNON, THE AMERICAN JEWISH COMMITTEE,

AMERICAN MEDICAL WOMEN’S ASSOCIATION, INC., ASIAN

AMERICAN LEGAL DEFENSE AND EDUCATION FUND,

ASSOCIATION FOR UNION DEMOCRACY, THE CENTER FOR

WOMEN POLICY STUDIES, CHICAGO WOMEN IN TRADES,

THE ILLINOIS COALITION AGAINST SEXUAL ASSAULT,

NATIONAL ORGANIZATION FOR WOMEN, INC., NATIONAL

TRADESWOMEN’S NETWORK, NORTHERN NEW ENGLAND

TRADESWOMEN INC., PUERTO RICAN LEGAL DEFENSE

AND EDUCATION FUND, THE WOMEN’S LAW PROJECT

IN SUPPORT OF PETITIONER

CLEARY, GOTTLIEB, STEEN Deborah A. Ellis

AND HAMILTON Counsel of Record

1 Liberty Plaza Anne L. Clark

New York, New York 10006 NOW LEGAL DEFENSE AND

(212) 225-2000 EDUCATION FUND

Richard F. Ziegler 99 Hudson Street

Shari Siegel New York, New York 10013

Amy W. Schulman (212) 925-6635

James Q. Walker

Denise C. Morgan

Deborah A. Hymowitz

Sarah E. Burns

NEW YORK UNIVERSITY SCHOOL OF LAW

249 Sullivan Street

New York, New York 10012

(212) 998-6430

;

‘.

{

TABLE OF CONTENTS

PAGE

SPU Cmte COU AGILE CURIAL .... co cccccscccccsccccees |

DUPUOPNIR DS CW ATRTIUUIGEING 6 occ ccs cccccccccccescccvcers 2

I ob 4 tig tdaddveesdsennde sebnsedakabanbadvdes 2

POINT I—A SEXUAL HARASSMENT TEST THAT

FOCUSES ON THE EMPLOYEE RATHER THAN

ON THE HARASSING CONDUCT THWARTS

Pee GED GED POURED GUE biddcccccccceccsccccees 2

This Court Correctly Defined The Standards

For Hostile Work Environment Liability In

Meritor Savings Bank v. Vinson................ 2

The Sixth Circuit's Additional And More

Stringent Requirements To Establish Hostile

Work Environment Liability Are Improper And

EE Rn 7

Liability In Sexual Harassment Cases,

Like Other Discrimination Cases, Turns

On The Harmful Nature Of The

Discriminatory Conduct................... 10

Proof Of Serious Psychological Injury Is

ED ae eee cane ae hales Died aveaw's 11

The Reasonable Person Standard Is

ED ctcncaeitetussepsedbiawees de: 15

POINT II—THIS COURT SHOULD REAFFIRM

MERITOR BY USING A CONDUCT BASED

TEST FOR ASSESSING LIABILITY UNDER

EE AEE aa Nab obdbedadecvececcueeecensrexesse¥see: 22

PAGE

B. How Harris Would Have Been Analyzed

Using A Conduct-Based Test................... 25

CRPPCRPOEIOS occ csecccess06easeinei eee 27

APPENDIX

Interest Of Amicus Curiae NOW Legal Defense and

DOD OGNS FUE oo occ cccecccceestuhssbenseeeeee la

Interest Of Amicus Curiae Catharine A.

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Interest Of Amicus Curiae The American Jewish

Fe la

Interest Of Amicus Curiae American Medical

Women’s Association, Inc. .............. 00. c ccc e eee. 2a

Interest Of Amicus Curiae Asian Legal Defense

rrr are 2a

Interest Of Amicus Curiae Association For Union

DOMBOTNGE «os 00s000006000000ensnn ene 2a

Interest Of Amicus Curiae The Center For Women

PORCY BOGIES « 0.0.0.00000086000K8snnneeeeeeeeee 3a

Interest Of Amicus Curiae Chicago Women In

BORBEB. « vcccccecccesisecenenadunesianaee 3a

Interest Of Amicus Curiae The Illinois Coalition

Against Sexual Assawll......cccccccccsccscccceccces 3a

Interest Of Amicus Curiae National Organization

Gar WGRGM, WEB. occcccddxsiteceeeneteeneee 4a

Interest Of Amicus Curiae National Tradeswomen’s

POGOUIOOR.. «ov ccccccccceseeseccesesneeeeeee 4a

Interest Of Amicus Curiae Northern New Eng! 1nd

TROGSOWONGR FEB. .000cccccccsiveanensesunesusdianene Sa

Interest Of Amicus Curiae Puerto Rican Legal

Defense and Education Fund........................ Sa

Interest Of Amicus Curiae Women’s Law Project .. Sa

TABLE OF AUTHORITIES

Cases PAGE

Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir.

EEE ee 8, 11, 16, 24

Bennett v. Corroon & Black Corp., 845 F.2d 104 (Sth

cee knenaseccesscecesccoccces 7, 8, 16

Bishena v. Marriott Corp., 959 F.2d 239 (9th Cir. 1992) 11

Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir.

a os ccc eecccesecees 8, 16, 24

Brown v. Board of Education, 347 U.S. 483 (1954)...... 10

Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981)........ 11

Burns v. McGregor Elec. Indus., Inc., No. 92-2059,

1993 U.S. App. LEXIS 6336 (8th Cir. Mar. 30,

EEE ESE EEE OEE EDIT PEPE 13, 15, 21

Carey v. Piphus, 435 U.S. 247 (1978)..... 2.0.00. 0.0006.. 15

Cariddi v. Kansas City Chiefs Football, 568 F.2d 87

on. ccc cconcecces: 11

Carrero v. New York City Housing Auth., 890 F.2d 569

ee oad cneaseeseseces 5, 8, 13, 15

Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225 (D.C.

EE EEE LEE Ee 15

Carter v. Social Sec. Admin., 856 F.2d 202 (Fed. Cir.

1988) (available in No. 88-3088 (Fed. Cir.

Aug. 29, 1988) (WESTLAW, Allfeds File) ......... 19

Chalmers v. City of Los Angeles, 762 F.2d 753 (9th Cir.

1985), aff'd, 834 F.2d 697 (8th Cir. 1987).......... 15

Cody v. Marriott Corp., 103 F.R.D. 421 (D. Mass.

a ick ccccccccncceccssccccesss 14

Daemi v. Church's Fried Chicken, Inc., 931 F.2d 1379

ER ee nee ee 11, 22

Davis v. Monsanto ¢ hem. Co., 858 F.2d 345 (6th Cir.

1988), cert. denied, 490 U.S. 1110 (1989)..... 9,11, 18

DeGrace v. Rumsfeld, 614 F.2d 796 (1st Cir. 1980)...... 18

E.E.0.C. v. Beverage Canners, Inc., 897 F.2d 1067

BGI GE ncantddcunisageesenpenssedenessnseust 10

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

Ford Motor Co. v. E.E.0.C., 458 U.S. 219 (1982)...... 2,13

Gilbert v. City of Little Rock, 722 F.2d 1390 (8th Cir.

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ....... 2,10

Harris v. Forklift Sys., Inc., No. 3-89-0557, 1990 U.S.

Dist. LEXIS 20115 (M.D. Tenn. Nov. 27, 1990),

adopted by, No. 3-89-0557, 1991 U.S. Dist. LEXIS

20940 (M.D. Tenn. Feb. 4, 1991), aff'd, 976 F.2d

SE, Sic ncnndudsuniondiindddibbendos passim

Henson v. City of Dundee, 682 F.2d 897 (11th Cir.

Pee Pnncdnsncdesccisscsenssséevensnnsengnanbacnanses 18, 24

Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir.

SEED. ccdwneddasuaednosncesensnediasnuiaeuseussns 5, 8,22

Highlander v. K.F.C. Nat'l Management Co., 805 F.2d

ee SE inwincscewesuncsdesneseecsnsenes 11,12

Hunter v. Allis-Chalmers Corp., 797 F.2d 1417 (7th Cir.

Pi ncacdedsdiconsdudssdéascdssdducenseeneesénteenses 15

Jennings v. D.H.L. Airlines, 101 F.R.D. 549 (N.Dg Ill.

SE cenneseusennetsuinendediseinebnninesecmieds 16

Katz v. Dole, 709 F.2d 251 (4th Cir. 1983) ............ 11,21

PAGE

Kyriazi v. Western Elec. Co., 461 F. Supp. 894 (D.N.J.

1978), vacated in part on other grounds, 473 F.

Ss DEES DE cdndccianeséaccesonntesesese 21

Mary M. v. City of Los Angeles, 54 Cal. 3d 202, 814 P.2d

Fe CE ndndunnnnnedssdeteedceséuedccossdseestones 20

Meritor Savings Bank v. Vinson,

I a i i la passim

Morgan v. Massachusetts Gen. Hosp., 901 F.2d 186

SEDs SE innsdnannoedsessudsennsddcdetdaiauatdecs 16

Nazaire v. Trans World Airlines, 807 F.2d 1372 (7th Cir.

1986), cert. denied, 481 U.S. 1039 (1987)....... 10, 16

Palmore v. Sidoti, 466 U.S. 429 (1984) .................. 18

Patterson v. McLean Credit Union, 491 U.S. 164

ienadddebntbddsenedddetnesdetetnsdetsentensesees 4

People v. Griffen, 138 Misc. 2d 279, 524 N.Y.S.2d

153 (Sup. Ct. Kings County 1988) .................. 20

Priest v. Rotary, 98 F.R.D. 755 (N.D. Cal. 1983) ..... 19, 20

Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir.

1986), cert. denied, 481 U.S. 1041 (1987) ...... passim

Rabidue v. Osceola Refining Co., 584 F. Supp. 419 (E.D.

Mich. 1984), aff'd, 805 F.2d 611 (6th Cir. 1986),

cert. denied, 481 U.S. 1041 (1987)............... 15,21

Risinger v. Ohio Bureau of Workers’ Compensation, 883

ee ee Se cadcennnesscussssonceessens 9,11

Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp.

1486 (M.D. Fla. 1991), appeal pending, (11th Cir.

SE ie SEED bh ccdcsccesccccscces 6, 8, 11, 12, 18

Robinson v. Jacksonville Shipyards, Inc., 118 F.R.D.

es CE natceadiekidcuneddeseemeinnediie 20

PAGE

Rogers v. E.E.0.C., 454 F.2d 234 (Sth Cir. 1971), cert.

denied, 406 U.S. 957 (1972)........... 4,11, 13, 16, 22

Snell v. Suffolk County, 782 F.2d 1094 (2d Cir. 1986) 10, 16

Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554

Se Ga Sind cdccdgeeunssecssevesdsennsdes 17, 18, 24

Stender v. Lucky Stores, Inc., 803 F. Supp. 259 (N.D.

ls MEE Bbbendasidussedcncnnnveciantasedeenececeess 24

Swentek v. USAir, Inc., 830 F.2d 552 (4th Cir. 1987) .... 21

Turner v. Barr, 806 F. Supp. 1025 (D.D.C. 1992)........ 11

United States v. Burke, U.S. , 112 S. Ct. 1867

SU bittiiniientdnineiddaminuekieuneniinenmeies 12, 25

Valdez v. Church's Fried Chicken, 683 F. Supp. 596

UD TEs ED iin dicntdlinnddinkbadendhdbiiieneed 21

Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503

SY SEED ctiiineéoncnnagoemanssansanuadn 5,17, 23

Vaughn v. Pool Offshore Co., 683 F.2d 922 (Sth Cir.

Pe iinhddeennnadtisdddaduentsudibiaaiaudenihine oti 10, 16

Vinson v. Superior Court, 43 Cal. 3d 833, 740 P.2d 404

Diiedueeseetienenemmenneniasins 13, 18, 19, 20, 24

Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir.

Pe aiainncedegthecnddinvintai ie nibaanidaiibicsbdibimutiis 16, 18

Waltman v. International Paper Co., 875 F.2d 468 (Sth

Es EE iniddotditinissqnandindebnekinatneueeatnensien 16

Wyerick v. Bayou Steel Corp., 887 F.2d 1271 (Sth Cir.

Sui cickisddtcgnincnsanpeusonieversneorensssonsoooune 18

Yates v. Avco, 819 F.2d 630 (6th Cir. 1987) ........... 16, 19

vii

PAGE

Statutes

Se es OF SED wnccccncccccccdesccecosccecsacesecs 23

Oe Pe seseccccccsscesascesssessensess l

le Oe itcdcccvccccsccescssesucvsvecssecss 13

The Civil Rights Act of 1991, Pub. L. No. 102-166, 105

Stat. 1071 (codified as amended at 42 U.S.C.

SEEN RS ee vr ree eran Ea pee ae 24

Legislative History

The Civil Rights Act of 1990: Joint Hearings on H.R.

4000 Before the House Committee on Educ. and

Labor and the Subcommittee on Civil and

Constitutional Rights of the House Committee on

the Judiciary, 10\1st Cong., 2d Sess. 17 (1990)..... 14

Law Review Articles

Kathryn Abrams, Symposium: The State of the Union:

Civil Rights: Gender Discrimination and the

Transformation of Workplace Norms, 42 Vand. L.

St, ST idcidennmiddabedudcmeneiennaeses 6,7,9

Nancy S. Ehrenreich, Pluralist Myths and Powerless

Men: The Ideology of Reasonableness in Sexual

Harassment Law, 99 Yale L.J. 1177 (April

Pe ndiinccdsencnndernceccsesséssncssccsasscecsesees 18,21

Judith A. Winston, Mirror, Mirror on the Wall: Title V1/,

Section 1981, and the Intersection of Race and

Gender in the Civil Rights Act of 1990, 79 Cal. L.

Ph int dididcundnanuddeuimabedneddnaseesieds 24

Note, Sexual Harassment Claims of Abusive Environ-

ment Under Title Vi1, 97 Harv. L. Rev. 1449

Dl indhdietiniuidindinidaninedibineteesiniseeanen 17

vill

PAGE

Other Authorities

PS OF SP CID vc csnccnvcnecdnccntenucsses 3

Be Cees © PG OGRE COGS occ ccccccccccscscccesec: 15

Guido Calabresi, /deals, Beliefs, Attitudes and the Law:

Private Law Perspectives on a Public Law Problem

GOP occdeccccceccnseccccncsdccscedosuccécccsecccess 17

Peggy Crull, Ph.D., Stress Effects of Sexual Harassment

on the Job: Implications for Counseling, 52(3)

Amer. J. Orthopsychiatry 539 (July 1982).......... 24

Jean A. Hamilton, Sheryle N. Alagna, Linda S. King,

Camille Lloyd, The Emotional Consequences of

Gender-Based Abuse in the Workplace: New

Counseling Programs for Sex Discrimination, in

Women, Power and Therapy (1987)................. 13

Sally J. Kaplan, Consequences of Sexual Harassment in

the Workplace, 6 Affila 50 (Fall 1991).............. 12

Laurie W. LeBreton and Sara S. Loevy, Breaking New

Ground: Worksite 2000, A Report Prepared by

Chicago Women in Trades (1992).................. 6, 12

Catharine A. McKinnon, Feminism Unmodified

Di iddidsdecunenimndeennsseanesieneoncinania 14, 18, 19

Catharine A. McKinnon, Sexual Harassment of Working

SSE eee a en eee 14

E.E.0.C. Compliance Manual (CCH) § 615.7 Harassment

on the Bases of Race, Religion, and National Origin:

(b) Applicable Principles and Standards............ 1]

U.S. Merit Systems Protection Board, Sexual

Harassment In the Federal Workplace: Is lta

gE ES ee ee 6

U.S. Merit Systems Protection Board, Sexual

Harassment In the Federal Government: An

PE CUED ceddcnesodccsncsevcccccceceseses

PAGE

Mark Pazniokas, Capitol Confronts Sexual Coercion,

THE HARTFORD COURANT, Feb. 13, 1993...

Peg Meier, New Awareness Has More Men Charging

Harassment, STAR TRIBUNE, Sept. 14, 1992

INTEREST OF AMICI CURIAE

Amici Curiae file this brief in support of petitioner. The spe-

cific statements of Amici Curiae are set forth in the Appendix.'

SUMMARY OF ARGUMENT

In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), this

Court held that Title VII protects women from sexually harass-

ing conduct that creates a hostile work environment. To estab-

lish liability for hostile work environment sexual harassment

a plaintiff must prove that unwelcome sex-based conduct

altered the “terms, conditions, or privileges of employment.”

42 U.S.C. 2000e-2(a)(1). Meritor instructs that a plaintiff has

established actionable sexual harassment when the conduct: (1)

was SO severe or pervasive as to alter the conditions of employ-

ment, creating an abusive working environment, or (2) had the

purpose or effect of unreasonably interfering with her work

performance, or (3) had the purpose or effect of creating an

intimidating, hostile, or offensive working environment. Mer-

itor, 477 U.S. at 65-67.

In the instant case and in previous cases, the Sixth Circuit

has deviated from the standard which this Court set in Meritor

by imposing additional and more stringent requirements for

plaintiffs to establish hostile work environment sexual harass-

ment under Title VII. Following its holding in Rabidue v. Osce-

ola Refining Co., 805 F.2d 611 (6th Cir. 1986), cert. denied,

481 U.S. 1041 (1987), the Sixth Circuit requires that a plain-

tiff prove that she suffered serious psychological injury as a

result of the harassment and satisfy a reasonable person stan-

dard. The Sixth Circuit's extra requirements thwart the goals of

Title VII and violate the standards this Court set in Meritor.

The Sixth Circuit's analysis focuses on the plaintiff's percep-

l Amici Curiae file this brief with the consent of all parties. Let-

ters of consent have been filed with the Clerk of the Court pursuant to

Rule 36.2 of the Rules of this Court.

tion of and reaction to discrimination, not upon the defendant's

conduct. This Court should reaffirm its holding in Meritor,

Stating a test which focuses on the defendant's conduct to

assess liability in Title VII sexual harassment claims.

In enacting and implementing Title VII, Congress and this

Court have recognized that the harm of discrimination is the

discrimination itself. This Court should strike down any test

which ignores the inherent harm of discrimination and forces

plaintiffs to prove serious psychological injury and/or satisfy

a reasonableness standard to establish liability in a sexual

harassment case.

ARGUMENT

POINT I

A SEXUAL HARASSMENT TEST THAT FOCUSES ON

THE EMPLOYEE RATHER THAN ON THE HARASS-

ING CONDUCT THWARTS THE GOALS OF TITLE VII

A. This Court Correctly Defined The Standards For Hos-

tile Work Environment Liability In Meritor Savings

Bank v. Vinson

Congress's objective in enacting Title VII was to promote

equal employment opportunity by eliminating all “artificial,

arbitrary, and unnecessary barriers to employment when the

barriers operate invidiously to discriminate on the basis of

racial or other impermissible classification[{s]" in the work-

place. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).

Harassment by an employer based on race, sex, ethnicity, or

religion deprives workers of their right to participate in the

workforce on an equal footing with others. Meritor, 477 U.S.

at 64; see also Ford Motor Co. v. E.E.0.C., 458 U.S. 219, 230

n.13 (1982) (“ ‘Most people just want to work. That is all.

They want an opportunity to work. [Congress is trying to see

that all people], no matter of what race, sex, or religious or eth-

nic background, will have equal opportunity in employ-

ment.’ ") (quoting 118 Cong. Rec. 7569 (1972)). Specifically,

recognition of the right to work in an environment free of sex-

ual harassment is mandated by Title VII's goal of striking at

“ ‘the entire spectrum of disparate treatment of men and

women’ in employment.” See Meritor, 477 U.S. at 64 (quoting

Los Angeles Dep't of Water and Power v. Manhart, 435 U.S.

702, 707 n.13 (1978)).

Liability for sexual harassment under Title VII may be pred-

icated on either of two types of conduct: (1) harassment in

which the grant or denial of concrete employment benefits are

conditioned on sexual favors (“quid pro quo” sexual harass-

ment), or (2) harassment that, while not necessarily directly

affecting economic benefits, creates a hostile or offensive

working environment.’ Meritor, 477 U.S. at 65. In explaining

hostile work environment sexual harassment, this Court cited

with approval the E.E.0.C. Guidelines, Henson v. City of

Dundee, 682 F.2d 897 (11th Cir. 1982), and Rogers v. E.E.0.C.,

454 F.2d 234 (Sth Cir. 1971), cert. denied, 406 U.S. 957

(1972). Looking to these three sources, this Court gave the

guidance necessary for a trier of fact to determine whether a

hostile work environment sexual harassment claim had been

established. The Meritor Court discussed approvingly the def-

inition set forth in the E.E.0.C. Guidelines for hostile work

2 = The defendant's conduct may violate quid pro quo or hostile

environment sexual harassment or fal] somewhere in between on a con-

tinuum of conduct. The E.E.O.C. recognized this continuum when it

adopted its Guidelines, which state that hostile work environment sex -

ual harassment may be shown by any one of three results: “(1) submis-

sion to such conduct is made either explicitly or implicitly a term or

condition of an individual's employment; (2) submission to or rejection

of such conduct by an individual is used as the basis for employment

decisions affecting such individual, or (3) such conduct has the purpose

or effect of unreasonably interfering with an individual's work perfor-

mance or creating an intimidating, hostile, or offensive working envi-

ronment.” 29 C.F.R. § 1604.11(a) (1983).

environment sexual harassment that unwelcome sex-based

harassment is unlawful if “ ‘such conduct has the purpose or

effect of unreasonably interfering with an individual's work

performance or creating an intimidating, hostile or offensive

working environment.’ " Meritor, 477 U.S. at 65 (citation omit-

ted). The Meritor Court also cited Henson for the proposition

that “[fjor sexual harassment to be actionable, it must be suf-

ficiently severe or pervasive ‘to alter the conditions of {the

victim's] employment and create an abusive working envi-

ronment.’ " /d. at 67. This Court also noted that the Fifth Cir-

cuit in Rogers first recognized the hostile work environment

cause of action, holding that

a Hispanic complainant could establish a Title VII

violation by demonstrating that her employer created

an offensive work environment for employers by giv-

ing discriminatory service to its Hispanic clientele.

. . The phrase “terms, conditions, or privileges of

employment” in [Title VII] is an expansive concept

which sweeps within its protective ambit the practice

of creating a working environment heavily charged

with ethnic or racial discrimination.

Meritor, 477 U.S. at 66 (citation omitted). Elaborating on the

guidance provided by Rogers, this Court specifically concluded

that sexual harassment should be evaluated by the same stan-

dards as racial harassment.’

Sexual harassment which creates a hostile or offen-

sive environment for members of one sex is every bit

the arbitrary barrier to sexual equality at the work-

place that racial harassment is to racial equality.

Surely, a requirement that a man or woman run a

gauntlet of sexual abuse in retum for the privilege of

being allowed to work and make a living can be as

3 Recently, this Court reaffirmed the Meritor ruling that racial and

sexual harassment claims should be evaluated by the same standards.

Patterson v. McLean Credit Union, 491 U.S. 164, 180 (1989).

demeaning and disconcerting as the harshest of racial

epithets.

Id. at 66-67 (quoting Henson, 682 F.2d at 902) (emphasis in

original).

The Meritor Court directed the trier of fact to pursue a fact-

based inquiry to determine whether the alleged harassing con-

duct altered the terms, conditions, or privileges of the

plaintiff's employment in violation of Title VII. Courts should

consider the severity and pervasiveness of the acts, the mean-

ing of such acts in light of the history of discrimination impli-

cated in the charge, and the context in which these acts occur.

Ellison v. Brady, 924 F.2d 872, 878 (9th Cir, 1991) (“the

required showing of severity or seriousness of the harassing

conduct varies inversely with the pervasiveness or frequency

of the conduct”). In fact, courts applying Meritor have ana-

lyzed pervasiveness by examining the number and frequency of

specific alleged harassing acts, and have analyzed severity by

examining the egregiousness of the acts. Carrero v. New York

City Housing Auth., 890 F.2d 569, 577 (2d Cir. 1989) (perva-

siveness); Ellison, 924 F.2d at 878 (9th Cir. 1991) (perva-

siveness); Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d

1503, 1511 (11th Cir. 1989) (severity). While courts have

stated that a single racial or sexual epithet, without more, is

unlikely to give rise to liability, Ellison, 924 F.2d at 876 (quot-

ing Meritor, 477 U.S. at 67); Hicks v. Gates Rubber Co., 833

F.2d 1406, 1414 (10th Cir. 1987), courts also recognize that

where the alleged conduct was highly threatening to members

of the protected group, a one time or infrequent occurrence

would suffice. Vance, 863 F.2d at 1511. Finally, these consid-

erations must be evaluated under the totality of the circum-

stances. Meritor, 477 U.S. at 69.

By fashioning a test which recognizes that liability for sex-

ual harassment may be predicated upon a hostile work envi-

ronment, this Court defined the range of sexual harassment

claims actionable under Title VII and acknowledged that

harassing behavior based upon an employee's sex is a signifi-

cant impediment to the employee's ability to succeed in the

work environment. Meritor, 477 U.S. at 66-67 (citing Henson

v. City of Dundee, 682 F.2d 897, 902 (11th Cir. 1982)). Harass-

ment works to remove members of protected groups from the

workplace or to hinder their effective and equal participation,

thereby impeding them from having access to equal opportu-

nity in the workplace.‘ Meritor, 477 U.S. at 66-67. Sexual

harassment of women perpetuates the historical power imbal-

ance between women and men in the work setting.’ Sexual

harassment can communicate that women are objects of sexual

aggression, submissive to male desires, and valued for their

sexual attributes rather than for that which they can offer as

credible co-workers. Robinson v. Jacksonville Shipyards, Inc.,

760 F. Supp. 1486, 1526 (M.D. Fla. 1991) (citing Kathryn

Abrams, Symposium: The State of the Union: Civil Rights:

4 Different surveys have found that anywhere from 42 percent to

88 percent of women report experiencing sexual harassment in the work-

place. Mark Pazniokas, Capitol Confronts Sexual Coercion, THE HART-

FORD COURANT, Feb. 13, 1993 at Al. Most victims of sexual harassment

are women. Less than one percent of sexual harassment charges involve

women as alleged perpetrators. Peg Meier, New Awareness Has More

Men Charging Harassment, STAR TRIBUNE, Sept. 14, 1992 at 1E; see

also U.S. Merit Systems Protection Board, Sexual Harassment In the

Federal Workplace: Is lt a Problem? 33-40 (1981) (sexual harassment of

women in the federal government is widespread); U.S. Merit Systems

Protection Board, Sexual Harassment In the Federal Government: An

Update 11-22 (1988) (sexual harassment of women in the federal gov-

ernment is still widespread).

5 __ The effects of the historical power imbalance between men and

women are clear in the traditionally male workplace. In addition to per-

forming the tasks which their male peers must perform, women in non-

traditional jobs often have to successfully contend with sexual

harassment to achieve the same level of success. A recent survey by

Chicago Women in Trades of 182 women who worked in traditionally

male trade industries (including plumbers, electricians, carpenters, fire

fighters, and police officers) revealed that 88 percent of these women

were exposed to pictures of naked or partially dressed women in the

workplace, 83 percent received unwelcome sexual remarks, and 57 per-

cent were subjected to offensive touching or requests for sex. Laurie W.

LeBreton and Sara S. Loevy, Breaking New Ground: Worksite 2000, A

Report Prepared by Chicago Women in Trades |, 6-9 (1992).

Gender Jiscrimination and the Transformation of Workplace

Norms, 42 Vand. L. Rev. 1183, 1212 n.118 (1989)), appeal

pending, (11th Cir. argued Dec. 2, 1992). Further, harassment

can be “highly offensive to a woman who seeks to deal with

her fellow employees and clients with professional dignity and

without the barrier of sexual differentiation and abuse.” Ben-

nett v. Corroon & Black Corp., 845 F.2d 104, 106 (Sth Cir.

1988); see also Ellison, 924 F.2d 872, 879 n.9 (9th Cir. 1991).

It is precisely this perpetuation of inequality between men and

women in the workplace which Title VII was intended to

redress.

B. The Sixth Circuit’s Additional And More Stringent

Requirements To Establish Hostile Work Environment

Liability Are Improper And Should Be Reversed

In the pending case, Harris v. Forklift Systems, Inc.,° the

courts below applied the Sixth Circuit requirements set forth in

Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986),

cert. denied, 481 U.S. 1041 (1987). Rabidue and its progeny

acknowledge that sexual harassment based on a hostile or abu-

sive work environment violates Title VII, but depart signifi-

cantly from the standards this Court set forth in Meritor.

Harris, at A-14-15 (citing Rabidue, 805 F.2d at 620).

The Rabidue court created a restrictive test for evaluating

whether the alleged harassing conduct altered the “terms, con-

ditions, and privileges of employment:” “the charged sexual

harassment had the effect of unreasonably interfering with the

plaintiff's work performance and creating an intimidating, hos-

tile, or offensive working environment that affected seriously

the psycho logical [sic] well-being of the plaintiff.” Rabidue

805 F.2d at 618-20 (emphasis added) (citation omitted). In

6 Harris v. Forklift Sys., Inc., No. 3-89-0557, 1990 U.S. Dist.

LEXIS 20115 (M.D. Tenn. Nov. 27, 1990), adopted by, No. 3-89-0557,

1991 U.S. Dist. LEXIS 20940 (M.D. Tenn. Feb. 4, 1991), aff'd, 976 F.2d

733 (6th Cir. 1992) (appended to the Petition for Writ of Certiorari to the

United States Court of Appeals For Sixth Circuit) (hereinafter cited to as

Harris, at A-__).

addition, the Rabidue court stated that a plaintiff may not pre-

vail in a hostile work environment sexual harassment claim “in

the absence of conduct which would interfere with th{e] hypo-

thetical reasonable individual's work performance and affect

seriously the psychological well-being of that reasonable per-

son under like circumstances.” /d. at 620.

The Sixth Circuit's deviation from the test promulgated in

Meritor reveals significant misunderstandings about the nature

of sexual harassment. In Meritor, this Court did not impose a

duty upon claimants to prove serious psychological injury or to

meet a reasonableness standard. Any test for sexual harassment

liability that requires plaintiffs to prove the extent of their

injury as a result of the consequences of discrimination

improperly requires courts to focus on the plaintiff instead of

on the defendant's conduct.*

7 A number of courts have explicitly or implicitly declined to

adopt some or al! of the restrictive standards set forth in Rabidue. See

Ellison, 924 F.2d at 877 (expressly declining to follow Rabidue stan-

dards); Carrero v. New York City Housing Auth., 890 F.2d 569, 577-78

(2d Cir. 1989) (no requirement of serious psychological injury or satis-

faction of a reasonable person standard); Andrews v. City of Philadelphia,

895 F.2d 1469, 1482, 1485 (3d Cir. 1990) (expressly rejecting Rabidue

by holding derogatory language and pornography in workplace can vio-

late Title VII, but applying “psychological! stability” and “reasonable per-

son of the same sex” language); Bennett v. Corroon & Black Co., 845

F.2d 104 (Sth Cir. 1988) (no requirement of serious psychological injury

or satisfaction of a reasonable person standard); Hicks v. Gates Rubber

Co., 833 F.2d 1406 (10th Cir. 1987) (same); Robinson, 760 F. Supp. at

1525-27 (rejecting Rabidue reasoning and result but applying court's own

subjective and objective test; finding serious psychological injury and

satisfaction of a reasonable woman standard). Bui see Brooms v. Regal

Tube Co., 881 F.2d 412, 418-19 (7th Cir. 1989) (citing Rabidue standard

with approval).

8 Testimony by the victim about the harassing conduct and how it

affected the victim's work environment is relevant evidence in a sexual!

harassment case. The court should, in fact, take into account the victim's

perspective and circumstances in analyzing the conduct. See Ellison v.

Brady, 924 F.2d 872, 878-79 (9th Cir. 1991). The evaluation is gender-

neutral in the sense that a man may prove discrimination under the same

In Davis v. Monsanto Chemical Co., 858 F.2d 345 (6th Cir.

1988), cert. denied, 490 U.S. 1110 (1989), the Sixth Circuit

implicitly recognized the impropriety of the Rabidue holding

and refused to apply the restrictive standard set forth in

Rabidue in a racial hostile work environment case. The court

thus revealed its discomfort in applying the restrictive Rabidue

test where the factual circumstance concerned a form of dis-

criminatory abuse of which the court disapproved. The Davis

court created a false distinction between the standards appli-

cable for race- and sex-based hostile work environment claims. -

In making such a distinction, Davis departed from the holding

in Meritor, which expressly equated the standards for proving

sexual harassment and racial harassment.’ Meritor, 477 U.S. at

67.

standard. But it is not gender-blind in the sense that the court should not

ignore the harmful effects of a long history of discrimination in assess-

ing the meaning and seriousness of alleged discriminatory conduct. As

one commentator observed,

A woman struggling to establish credibility in a setting in

which she may not be, or may not feel, welcome, can be

swept off balance by a reminder that she can be raped, fon-

died, or subjected to repeated sexual demands. . . . The feel-

ings of anxiety, fear, or vulnerability produced by the specter

of sexual coercion prevent women from feeling, or being

viewed as, the equals of their male counterparts in the work-

place.

Kathryn Abrams, Symposium: The State of the Union: Civil Rights: Gen-

der Discrimination and the Transformation of Workplace Norms, 42

Vand. L. Rev. 1183, 1208 (1989); see also Ellison, 924 F.2d at 879.

9 Another Sixth Circuit panel expressly rejected Davis’ distinction

between racial and sexual harassment, noting that Davis “was a departure

from the standard intended to be applicable to both racial and sexual

harassment causes of action predicated upon a pervading hostile climate

within the workplace generally. . . .” Risinger v. Ohio Bureau of Work-

ers’ Compensation, 883 F.2d 475, 485 (6th Cir. 1989).

1. Liability In Sexual Harassment Cases, Like Other

Discrimination Cases, Turns On The Harmful

Nature Of The Discriminatory Conduct

The appropriate standard in sexual harassment cases is one

which recognizes that sexual harassment is akin to other types

of discrimination. For example, plaintiffs in Title VII disparate

treatment Cases are not required to make any showing of the

consequences of invidious differential treatment, such as men-

tal anguish or psychological harm, to establish liability. Even

in Title VII disparate impact cases, in which proof of dis-

criminatory intent is not required, plaintiffs are not required to

show that they suffered any harm in addition to the harm of

subjection to a discriminatory employment practice. Griggs v.

Duke Power Co., 401 U.S. 424, 432 (1971).

In this respect, Title VII law converges with constitutional

discrimination law. For example, in Brown v. Board of Edu-

cation, 347 U.S. 483 (1954), the plaintiffs were not required to

prove the individual consequences of the injury they suffered

by being forced to attend segregated schools. Rather, this Court

recognized that segregation was itself injurious because

“(separate educational facilities are inherently unequal.” /d.

at 495. This Court held that the harm of segregation was itself

sufficient to entitle plaintiffs to equitable relief. /d. at 494. Seg-

regation, like all discrimination, generates inferiority and low-

4 the status of the group which is discriminated against. See

id.

This is no less true in the sexual harassment context.

Rabidue and its progeny depart from the standards for harass-

ment claims in race, religion, and national origin cases in

which there is no requirement that plaintiffs demonstrate the

consequences of the discrimination or satisfy a reasonableness

standard.'® Consistent with this Court's decision in Meritor,

10 = See, e.g., Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir.

1986) (race); E.E.0.C. v. Beverage Canners, Inc., 897 F.2d 1067, 1070,

1072 (11th Cir. 1990) (race); Nazaire v. Trans World Airlines, 807 F.2d

1372, 1380 (7th Cir. 1986) (race), cert. denied, 481 U.S. 1039 (1987);

Vaughn v. Pool Offshore Co., 683 F.2d 922, 924 (Sth Cir. 1982) (race);

many courts have rejected the notion that any distinction

should exist between the standards for sexual and racial harass-

ment claims.'' While proof of the extent of the injury is a pre-

requisite to a determination of damages in discrimination Cases,

it is not a prerequisite to finding liability. The Sixth Circuit

sexual harassment test effectively puts the cart before the horse

by making plaintiffs prove the extent of their damages before

the court liability. Plaintiffs who seek compensatory damages

must show the extent of their injuries only to establish the

amount of their damages.

2. Proof Of Serious Psychological Injury Is

Unworkable

In addition, the Sixth Circuit's hostile work environment test

requires plaintiffs to show that they have suffered serious psy-

chological injury.'? Proof of serious psychological injury in the

Rogers v. E.E.0.C., 454 F.2d 234, 238 (Sth Cir. 1971) (race), cert. denied,

406 U.S. 957 (1972); Bishena v. Marriott Corp., 959 F.2d 239 (9th Cir.

1992) (religion); Daemi v. Church's Fried Chicken, Inc., 931 F.2d 1379,

1384 n.5 (10th Cir. 1991) (national origin); Cariddi v. Kansas City Chiefs

Football, 568 F.2d 87, 88 (8th Cir. 1977) (national origin); but see Davis,

858 F.2d at 349 (race); Turner v. Barr, 806 F.Supp. 1025, 1027 (D.D.C.

1992) (religious harassment case citing Davis).

11 See, e.g., Andrews v. City of Philadelphia, 895 F.2d at 1486, (3d

Cir. 1990) (citing Ways v. City of Lincoln, 871 F.2d 750, 754-55 (8th Cir.

1989)); Risinger v. Ohio Bureau of Workers’ Compensation, 883 F.2d

475, 485 (6th Cir. 1989) (reflecting equal treatment of racial and sexual

harassment in § 1983 context); Katz v. Dole, 709 F.2d 251, 255 (4th Cir.

1983); Bundy v. Jackson, 641 F.2d 934, 944-45 (D.C. Cir. 1981); Robin-

son, 760 F. Supp. at 1532. In addition, the E.E.O.C. Compliance Manual,

quoted extensively by this Court in Patterson, provides that the princi-

ples involved with respect to harassment on the basis of race, color, reli-

gion or national origin apply with equal force to sexual harassment.

E.E.0.C. Compliance Manual (CCH) § 615.7 Harassment on the Bases

of Race, Religion, and National Origin: (b) Applicable Principles and

Standards.

12 See Harris, at A-19 (“[Sjome of [defendant's] inappropriate sex -

ual comments. . . offended plaintiff. . . . However, | do not believe

they were so severe as to be expected to seriously affect plaintiff's psy-

chological well-being.”); see also Highlander v. K F.C. Nat'l Manage-

context of sexual harassment claims under Title VII is

improper. See United States v. Burke, __ U.S. _., 112

S.Ct. 1867, 1876 (1992) (Scalia, J., concurring).

Not all women who are victims of sexual harassment suffer

serious psychological harm as a result of such harassment.

Nonetheless, the harassment may be so severe or pervasive that

it alters the conditions of their employment and creates an abu-

sive working environment. Those women who are able to cope

with harassment should not be forced to endure it simply

because they can maintain their mental health. Also, many

women are forced by their economic circumstances to endure

and continue working in an environment in which they are sub-

ject to sexual harassment.

Different women react differently to sexual harassment."

Women employ various mechanisms to cope with sexual

harassment ranging from tolerating harassing behavior and

remaining quiet, to adopting the attitudes of men in the work-

place in an attempt to fit in and avoid harassment, to chal-

lenging the harassment. Laurie W. LeBreton and Sara S. Loevy,

Breaking New Ground: Worksite 2000, A Report Prepared by

Chicago Women in Trades 1, 21 (1992). Because women react

differently, determining liability based on the responses of the

ment Co., 805 F.2d 644, 650 (6th Cir. 1986) (citing Rabidue, 805 F.2d at

620) (“[T]}his court must . . . consider whether the charged sexual

harassment had the effect of . . . creating an intimidating, hostile, or

offensive working environment that affected seriously the psychological

well-being of the plaintiff.”).

13° In Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486

(M.D. Fla. 1991), appeal pending, (11th Cir. argued Dec. 2, 1992) a case

involving sexual harassment in non-traditional employment, K.C. Wag-

ner, an expert witness, testified about the various coping methods of

women confronted with sexual harassment, including avoiding the

harassment, denying it, making some kind of joke about it, threatening

to make complaints, and—the riskiest and least-used strategy—actually

making complaints. Transcript of Non-Jury Trial Proceedings at 96,

Robinson v. Jacksonville Shipyards, Inc., Case No. 86-927-Civ.-J-12

(M.D. Fla. Jan. 26, 1989); see also Sally J. Kaplan, Consequences of Sex-

ual Harassment in the Workplace, 6 Affila 50, 53 (Fall 1991).

victims of sexual harassment likely will lead to inconsistent

and illogical results.

Further, Title VII protection attaches before victims of sex-

ual harassment “go crazy.” See Ellison v. Brady, 924 F.2d 872,

877-78 (9th Cir. 1991). Were this not the case, victims of sex-

ual harassment would have to endure harassment to the point of

serious mental debilitation, a proposition which lacks any sup-

port in Title VII jurisprudence.'* /d. at 878. It would be pre-

posterous to assert that the plaintiff in a sexual harassment case

must suffer serious psychological injury to prevail in a suit

seeking equitable relief, “[t)o hold otherwise would mean that

every person who brings such a suit implicitly asserts he or she

is mentally unstable, obviously an untenable proposition.” Vin-

son v. Superior Court, 43 Cal. 3d 833, 840, 740 P.2d 404, 409

(1987). While the mere utterance of a sexual epithet which

engenders offensive feelings in an employee may not in itself

constitute harassment, it is clear that an employee should not

be forced to endure harassment to the point of debilitation to

assert a Title VII claim. See Rogers, 454 F.2d at 238.

In addition, requiring sexual harassment plaintiffs to prove

serious psychological injury at trial is unfair because it subjects

plaintiffs who have already suffered as a result of the harass-

ing conduct to a second victimization. See Jean A. Hamilton,

Sheryle W. Alagna, Linda S. King, Camille Lloyd, The Emo-

tional Consequences of Gender-Based Abuse in the Workplace:

14. See Carrero v. New York City Housing Auth., 890 F.2d 569, 578

(2d Cir. 1989) (“A female employee need not subject herself to an

extended period of demeaning and degrading provocation before being

entitled to seek the remedies provided under Title VII."); Burns v.

McGregor Elec. Indus., Inc., No. 92-2059, 1993 U.S. App. LEXIS 6336

(8th Cir. Mar. 30, 1993) at *19 (“A woman does not have to endure a

hostile environment in order to keep her job until she can find one else-

where.”).

Requiring a woman to remain at work and endure harassment to the

point of mental breakdown is also contrary to the principle that plaintiffs

have a duty to mitigate their damages. See generally Ford Motor Co. v.

E.E.0.C., 458 U.S. 219, 231 (1982) (Title VII claimant has statutory duty

to minimize damages); 42 U.S.C. § 2000e-5S(g).

New Counseling Programs for Sex Discrimination, in Women,

Power, and Therapy 155 (1987). Victims of sexual harassment

describe their experience of sexual harassment in terms simi-

lar to those used by rape victims: they “feel humiliated,

degraded, ashamed, embarrassed, and cheap, as well as angry.”

Catharine A. MacKinnon, Sexual Harassment of Working

Women 47 (1979). For example, the plaintiff in Brooms testi-

fied that following her subjection to racial and sexual harass-

ment she suffered debilitating depression:

After working at Regal, I was afraid to leave my

home and was unable to socialize. I was terrified that

my former boss would find me and continue to

assault me. I cut off all my hair to disguise myself. |

began psychiatric treatment for the first time in my

life in August 1984, for over a year, and I was diag-

nosed as traumatized, phobic and unable to work.

The Civil Rights Act of 1990: Joint Hearings on H.R. 4000

Before the House Committee on Educ. and Labor and the Sub-

committee on Civil and Constitutional Rights of the House

Committee on the Judiciary, 10\1st Cong., 2d Sess. 17 (1990).

Like rape victims, most victims of sexual harassment never file

complaints. Many sexual harassment victims are either too

ashamed to make the harassment public and remain silent, thus

devastating their self-esteem and health, or they leave their

jobs without complaint, thus threatening the survival of them-

selves and their families. See Catharine A. MacKinnon, Sexual

Harassment: Its First Decade in Court, in Feminism Unmod-

ified 103, 114 (1987).

Proof of a plaintiff's psychological injury should only be

required if the plaintiff requests damages as compensation for

psychological injury; proof of psychological injury has no

place in proving liability under Title VII. See Cody v. Marriott

Corp., 103 F.R.D. 421, 422 (D. Mass. 1984). In addition, it is

not necessary that the plaintiff submit to a mental examination

or provide expert testimony to prove her entitlement to dam-

ages for psychological harm. Courts routinely allow awards for

mental anguish in civil rights cases without expert testimony."

Instead, damages are determined simply by demonstrating the

nature of the conduct and its effect on the plaintiff. Carey v.

Piphus, 435 U.S. 247, 263 & n.20 (1978).

3. The Reasonable Person Standard Is Inappropriate

The Rabidue trial court derived the reasonable person stan-

dard from the statement in the E.E.0.C. Guidelines that the

defendant's conduct must have “the purpose or effect of unrea-

sonably interfering with an individual's work performance.

_. ." 29 C.F.R. § 1604.11(a)(3) (emphasis added), mistakenly

concluding that the word “ ‘unreasonably’ opens the door” to

consideration of a host of factors about the plaintiff and the

work environment.'* Rabidue v. Osceola Refining Co., 584 F.

Supp. 419, 430 (E.D. Mich. 1984), aff'd, 805 F.2d 611 (6th Cir.

1986), cert. denied, 481 U.S. 1041 (1987). The ease with which

other courts uncritically adopted the language of “reason-

ableness”'’ likely was inspired by the familiar use of “rea-

15S See, e.g., Carrero v. New York City Housing Auth., 890 F.2d 569,

581 (2d Cir. 1989) (sexual harassment plaintifi's testimony about her

feelings, corroborated by testimony of co-workers who saw her crying,

supports pain and suffering award); Hunter v. Allis-Chalmers Corp., 797

F.2d 1417, 1425 (7th Cir. 1986) (award to racial harassment plaintiff sup-

ported by testimony of plaintiff and his wife that plaintiff was harmed);

Chalmers v. City of Los Angeles, 762 F.2d 753, 760-61 (9th Cir. 1985)

(plaintiff's testimony about her feelings supported damage award), aff'd,

834 F.2d 697 (8th Cir. 1987); Carter v. Duncan-Huggins, Lid., 727 F.2d

1225, 1238 (D.C. Cir. 1984) (racial harassment plaintiff entitled to dam-

ages based solely on her testimony).

16 In contrast, the unreasonable interference standard in the

E.E.O.C. Guidelines does not focus on the reasonableness of the plain-

tiff, but on whether the defendant's conduct created an unreasonable

degree of interference with the plaintiff's work.

17 A number of circuits use some form of reasonableness standard

in Title VII sexual harassment cases. See, ¢.g., Burns, No. 92-2059, 1993

U.S. App. LEXIS 6336 at *5 n.3 (“[T)he appropriate standard is that of

a reasonable woman under similar circumstances.”); Ellison, 924 F.2d at

879 (9th Cir. 1991) (“conduct which a reasonable woman would consider

sufficiently severe or pervasive to alter the conditions of employment and

sonableness” as a standard in tort law. However, the reasonable

person standard in tort law is not applied to the plaintiff's

behavior, but to the defendant's. Courts have inappropriately

injected the reasonable person standard into sexual harassment

cases by focusing on the reasonableness of the plaintiff's per-

ception of and response to the defendant's conduct, rather than-

on the conduct itself. The focus of the court's inquiry should be

directed to the defendant's conduct; the reasonableness of any

particular plaintiff's reaction to that conduct is irrelevant. “If

defendant's conduct was sufficiently extreme to violate Title

VII, then plaintiff's reaction to or interpretation of that conduct

is unimportant.”'* Jennings v. D.H.L. Airlines, 101 F.R.D. 549,

create an abusive work environment”); Andrews v. City of Philadelphia,

895 F.2d 1469, 1482 (3d Cir. 1990) (“the discrimination would detri-

mentally affect a reasonable person of the same sex in that position”);

Morgan v. Massachusetts Gen. Hosp., 901 F.2d 186, 192-93 (1st Cir.

1990) (“the conduct was not of the type that would interfere with a rea-

sonable person's work performance, nor would it seriously affect a rea-

sonable person's psychological well-being. . . .”); Yates v. Avco, 819

F.2d 630, 637 (6th Cir. 1987) (“person standing in the shoes of the

employee should be ‘the reasonable woman’ "); Brooms v. Regal Tube

Co., 881 F.2d 412, 419 (7th Cir. 1989) (consider “the likely effect of a

defendant's conduct upon a reasonable person's ability to perform his or

her work”); Waltman v. International Paper Co., 875 F.2d 468, 476 (Sth

Cir. 1989) (citing Bennett v. Corroon & Black Corp., 845 F.2d 104, 106

(Sth Cir. 1988)) (referencing Sth Circuit decision stating “any reasonable

person would have to regard these cartoons as highly offensive. . . .”).

18 Plaintiffs in hostile environment race harassment lawsuits gen-

erally are not required to show that their response to the harassment was

reasonable. See, e.g., Rogers v. E.E.0.C., 454 F.2d 234, 238 (Sth Cir.

1971) (Title VII violation established upon showing that employer cre-

ated work environment “heavily charged with ethnic or racial discrimi-

nation”), cert. denied, 406 U.S. 957 (1972); Accord Nazaire v. Trans

World Airlines, 807 F.2d 1372, 1380 (7th Cir. 1986), cert. denied, 481

U.S. 1039 (1987); Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir.

1986); Gilbert v. City of Little Rock, 722 F.2d 1390, 1394 (8th Cir. 1983);

Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Vaughn

v. Pool Offshore Co., 683 F.2d 922, 924 (Sth Cir. 1982). To the extent that

courts have employed a reasonable person standard in race cases, it is as

a result of their uncritical application of the Sixth Circuit's reasonable-

551 (N.D. Ill. 1984); see also Note, Sexual Harassment Claims

of Abusive Environment Under Title V/1, 97 Harv. L. Rev. 1449,

1463 (1984).

The Rabidue “reasonable person” standard in sexual harass-

ment cases forces plaintiffs to prove that discrimination at

work is worse than discrimination in society. For example,

because sexually explicit material is prevalent in society, the

Rabidue court concluded that the display of sexually explicit

posters in the workplace would not detrimentally affect a rea-

sonable individual. Rabidue v. Osceola Ref. Co., 805 F.2d 611,

622 (6th Cir. 1986), cert. denied, 481 U.S. 1041 (1987). In sup-

port of its finding that the plaintiff's response to the harassment

was unreasonable, the Rabidue court noted the “lexicon of

obscenity that pervaded the environment of the workplace” and

the “reasonable expectation of the plaintiff upon voluntarily

entering that environment” that she would encounter such

abuse. /d. at 620. Conduct that is prevalent in society may be

abusive in the workplace, denying employees their Title VII

right to be treated equally. Sparks v. Pilot Freight Carriers,

Inc., 830 F.2d 1554, 1561 n.3 (11th Cir. 1987) (the “whole

point” of a sexual harassment claim is often that conduct per-

missible in a social setting is inappropriate when carried out in

the workplace). Thus, by adverting to the prevalence of dis-

crimination in society, the Rabidue court accepted discrimi-

natory behavior in the workplace and penalized the plaintiff for

entering a workplace pervaded with discriminatory conduct.

The Rabidue court thereby vitiated Title VII's objective of

changing the workplace.'®

ness inquiry that was first enunciated in Rabidue. See, e.g., Vance v.

Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1510 (ilth Cir. 1989)

(adopting, without discussion, reasonable person standard in Davis).

19 ~~ As Judge Keith poignantly noted in his dissent in Rabidue, what

society condones is irrelevant, especially when one considers that soci-

ety at one point also condoned slavery. Rabidue, 805 F.2d at 627 (Keith,

J., dissenting on plaintiff's substantive claims and concurring on issue of

successor liability); see also Guido Calebresi, /deals, Beliefs, Altitudes,

and the Law: Private Law Perspectives on a Public Law Problem 28

(1985) (discussing danger that reasonableness standard might exclude

viewpoints of powerless groups).

While Congress did not expect Title VII to eliminate all pri-

vate prejudice overnight, it enacted Title VII to “alter the

dynamics of the workplace, . . . operat(ing} to prevent bigots

from harassing their co-workers.” Davis v. Monsanto Chem.

Co., 858 F.2d 345, 350 (6th Cir. 1988) (explaining Rabidue v.

Osceola Ref. Co., 805 F.2d 611 (6th Cir. 1986), cert. denied,

481 U.S. 1041 (1987)), cert. denied, 490 U.S. 1110 (1989); see

also DeGrace v. Rumsfeld, 614 F.2d 796, 805 (1st Cir. 1980)

(an employer cannot change employee's personal beliefs, but

can let it be known that racial harassment will not be tolerated

and take reasonable measures to enforce this policy).”° Thus,

although the appropriate Title VII inquiry is whether the con-

duct was discriminatory because it diminished the plaintiff's

Status in the workplace and hindered equal employment oppor-

tunity, Rabidue instead focused on whether the defendant's

conduct violated societal norms.*' See Nancy S. Ehrenreich,

Pluralist Myths and Powerless Men: The Ideology of Reason-

ableness in Sexual Harassment Law, 99 Yale L.J. 1177, 1205

(1990).

20 In other contexts, this Court has held that discrimination cannot be

justified by the prevalence of private prejudice. See, e.g., Palmore v. Sidoti,

466 U.S. 429, 433 (1984) (“[p]}rivate biases may be outside the reach of the

law, but the law cannot, directly or indirectly, give them effect”).

21 In other cases in which defendants sought to defend discrimi-

nation as simply a reflection of societal norms, courts rejected the

Rabidue analysis. See Robinson v. Jacksonville Shipyards, Inc., 760 F.

Supp. 1486, 1525-27 (M.D. Fla. 1991) (rejecting the social context argu-

ment espoused in Rabidue, and noting that this analysis “violates the

basic tenet of the hostile work environment cause of action, the necessity

of examining the totality of the circumstances”), appeal pending, (11th

Cir. argued Dec. 2, 1992). See also Walker, 684 F.2d at 1359 & n.2 (11th

Cir. 1982) (the social milieu does not diminish the impact of racial slurs);

Sparks, 830 F.2d at 1561 n.13 (“[behavior that] may be permissible in

some settings. . . can be abusive in the workplace. . . ."); Wyerick v.

Bayou Steel Corp., 887 F.2d 1271, 1275 n.11 (Sth Cir. 1989) (the “heavy

pollution defense” is inconsistent with Vinson and Henson). See gener-

ally Catharine A. MacKinnon, Sexual Harassment: Its First Decade In

Court, in Feminism Unmodified 115 (1987) (“If the pervasiveness of an

abuse makes it nonactionable, no inequality sufficiently institutionalized

to merit a law against it would be actionable.”).

Since Rabidue, the Sixth Circuit has altered its restrictive

reasonableness standard by comparing the plaintiff to a rea-

sonable woman rather than to a reasonable person. Yates v.

Avco, 819 F.2d 630, 637 (6th Cir. 1987) (“person standing in

the shoes of the employee should be ‘the reasonable

woman’ "). However, modifying the reasonable person test to

a reasonable woman test does not adequately rehabilitate it.

The reasonable woman standard still focuses the inquiry on the

plaintiff's reactions rather than on the defendant's conduct and

engages the court in making value judgments as to which

responses by women are reasonable and which are not.” See

Rabidue, 805 F.2d at 627 (Keith, J., dissenting on plaintiffs

substantive claim and concurring on issue of successor liabil-

ity).

Requiring a sexual harassment plaintiff to satisfy a reason-

able woman standard lays the foundation for improper and abu-

sive inquiries about the plaintiff, such as looking to her past

sexual history, including sexual abuse or rape, on the grounds

that such an examination could uncover whether she is hys-

terical or oversensitive, and thus not reasonable. See Carter v.

Social Sec. Admin., 856 F.2d 202 (Fed. Cir. 1988) (available in

No. 88-3088 (Fed. Cir. Aug. 29, 1988) (WESTLAW, Allfeds

File)) at *2 (Nies, J., dissenting) (evidence that sexual harass-

ment claimant had “a vindictive personality” relevant to

whether she “unreasonably ma[dje more of the [petitioner's

stroking her buttocks with his hand] than a reasonable person

would attribute to it”). Some courts have recognized that in

sexual harassment cases, as in rape cases, inquiry into past sex-

ual history is impermissible because it subjects victims of sex-

ual harassment to a second victimization on the witness stand.”

22 _In tort law “perpetrators are required to take victims as they find

them, so long as they are not supposed to be doing what they are doing.”

Catharine A. MacKinnon, Sexual Harassment: lis First Decade In Court,

in Feminism Unmodified 108 (1987).

23 See, e.g., Priest v. Rotary, 98 F.R.D. 755, 762 (N.D. Cal. 1983)

(deposition inquiry into past sexual history of sexual harassment plain-

tiff, like rape victim, is more “harassing and intimidating” than proba-

tive); Vinson v. Superior Court, 43 Cal. 3d 833, 843, 740 P.2d 404, 411

The possibility that tactics such as [inquiry into

plaintiff's sexual history] might intimidate, inhibit,

or discourage Title VII plaintiffs. . . would clearly

contravene the remedial effect intended by Congress

in enacting Title VII, and should not be tolerated by

the federal courts. . . . Sexual harassment plaintiffs

would appear to require particular protection from

this sort of intimidation and discouragement if the

Statutory cause of action for such claims is to have

meaning. Without such protection from the courts,

employees whose intimate lives are unjustifiably and

offensively intruded upon in the workplace might

face the “Catch-22” of invoking their statutory rem-

edy only at the risk of enduring further intrusions

into irrelevant details of their personal lives in dis-

covery, and, presumably, in open court.

Priest, 98 F.R.D. at 761. Plaintiffs with valid sexual harassment

claims most certainly would be discouraged from pursuing

those claims because they justifiably fear that filing a sexual

harassment lawsuit would occasion highly intrusive exploration

into the details of their private lives. /d.; Robinson v. Jack-

sonville Shipyards, Inc., 118 F.R.D. 525, 531 (M.D. Fla. 1988).

The decisions in Rabidue and Harris demonstrate the man-

ner in which the reasonableness inquiry can be used to penal-

ize sexual harassment victims. In Rabidue, the description of

Vivienne Rabidue as “independent, ambitious, aggressive,

intractable and opinionated” and as having “an abrasive, rude,

(1987) (plaintiff's sexual history and practices not relevant to claim for

emotional distress). The concept of double-victimization has often been

recognized in the context of rape prosecutions. See, e.g., Mary M. v. City

of Los Angeles, 54 Cal. 3d 202, 222, 814 P.2d 1341, 1353 (1991) (rec-

ognizing that “victims of rape were often victimized a second time” dur-

ing trial, California enacted a “rape shield law” which limits the

admissibility of evidence of a complainant's sexual history); People v.

Griffen, 138 Misc. 2d 279, 282, 524 N.Y.S.2d 153, 155 (Sup. Ct. Kings

County 1988) (New York enacted a “rape shield law” which limits the

admissibility of evidence of the victim's sexual conduct to “bar harass-

ment of victims with respect to irrelevant issues”).

antagonistic, extremely willful, uncooperative, and irascible

personality,” Rabidue, 805 F.2d at 615, effectively removed her

from the class of reasonable women and permitted the court to

ignore the conduct to which she was subject—including being

referred to as “ ‘fat ass,’ " and being one of a group of women

employees who was referred to as “ ‘whores,’ ” “ ‘cunt,’ ”

“ ‘pussy,’ ” and “ ‘tits.” "* Rabidue, 805 F.2d at 624 (Keith, J.,

dissenting on plaintiffs substantive claim and concurring on

issue of successor liability) (citing Rabidue v. Osceola Ref.

Corp., 584 F. Supp. 419, 423 (E.D. Mich. 1984)). Likewise, in

Harris v. Forklift Systems, Inc., the magistrate judge evaluated

plaintiff's hostile environment claim in light of the fact that she

was a “managerial employee” who “cursed and joked and

appeared to her co-workers to fit in quite well.”** Harris, at A-

18-19. Reasonableness, whether couched in the language of a

24 Professor Nancy Ehrenreich comments that the dissenting judge

in Rabidue viewed the reasonable woman test as distinguishing between

unprotected “neurotic” women and protected “reasonable” women. Plu-

ralist Myths, 99 Yale L.J. at 1217. If discrimination occurred, the fact

that an individual plaintiff is “neurotic,” or not “possessed of a pleasing

personality,” Kyriazi v. Western Elec. Co., 461 F. Supp. 894, 941-42

(D.N.J. 1978), vacated in part on other grounds, 473 F. Supp. 786

(D.N.J. 1981), should not prevent that individual from making out a

claim of discrimination. Moreover, if discrimination occurred and harmed

an individual who was uniquely vulnerable to harm, that individual is

entitled to obtain whatever recompense for the resulting harm that is

available under prevailing law. See Valdez v. Church's Fried Chicken, 683

F. Supp. 596, 611-17 (W.D. Tex. 1988).

25 _— Inquiry into the plaintiff's character should not be used to waive

her legal protection against harassment. See Swentek v. USAir, Inc., 830

F.2d 552, 557 (4th Cir. 1987) (“Plaintiff's use of foul language or sexual

innuendo in a consensual setting does not waive ‘her legal protections

against unwelcome harassment.’ ); Katz v. Dole, 708 F.2d 251, 254.3

(4th Cir. 1983) (“A person's private and consensual! sexual activities do

not constitute a waiver of his or her legal protections against unwelcome

and unsolicited sexual harassment.”); Burns v. McGregor Elec. Indus.,

Inc., No. 92-2059, 1993 U.S. App. LEXIS 6336 at *9 (8th Cir. Mar. 30,

1993) (the plaintiff's “private life, regardless how reprehensible the trier

of fact mighi find it to be, did noi provide lawful acquiescence to

unwanted sexual advances at her work place by her employer”).

reasonable person or a reasonable woman, operates as a vehi-

cle for the introduction of sex stereotyping, diverts the other-

wise straightforward Title VII inquiry into the defendant's

conduct, and devolves into an inquiry about the character of the

victim in light of societal norms.

POINT Il

THIS COURT SHOULD REAFFIRM MERITOR BY

USING A CONDUCT-BASED TEST FOR ASSESSING

LIABILITY FOR SEXUAL HARASSMENT

UNDER TITLE VII

A. The Conduct-Based Test

This Court should reaffirm the Meritor test for assessing lia-

bility for hostile work environment sexual harassment under

Title VII which focuses on the defendant's conduct rather than

on the plaintiff. This Court should reject any requirement that

the plaintiff prove serious psychological injury to establish

hostile work environment liability.”* As stated by this Court in

Meritor, the test for hostile work environment liability is broad

and flexible. Unwelcome sex-based conduct is unlawful dis-

26 Harassing conduct need not be directed solely at the plaintiff for

Title VII liability to attach. Courts have held that Title VII liability

applies when the work environment as a whole is hostile to people in the

same protected class as the plaintiff. See, e.g., Hicks v. Gates Rubber Co.,

833 F.2d 1406, 1416 (10th Cir. 1987) (woman who has never herself been

the object of sexual harassment might have Title VII claim if she were

forced to work in atmosphere where such harassment was pervasive);

Rogers v. E.E.0.C., 454 F.2d 234, 239 (Sth Cir. 1971) (unlawful employ-

ment practice could be based on discriminatory behavior toward clients

of employer, and not employee, since employee could suffer “the con-

sequences of such a practice”), cert. denied, 406 U.S. 957 (1972); see

also Daemi v. Church's Fried Chicken, Inc., 93) F.2d 1379, 1385 (10th

Cir. 1991) (Title VII liability attaches on claim of harassment based on

race and national origin where work environment was hostile to al! Ira-

nians and blacks).

crimination when the plaintiff establishes proof which satisfies

any one of the following formulations of the test: (1) The con-

duct is sufficiently severe or pervasive as to alter the conditions

of the victim’s employment, or (2) the conduct has the purpose

or effect of (a) creating a hostile, offensive or abusive working

environment, or (b) unreasonably interfering with the victim's

work performance. Satisfaction of any one of these three stan-

dards would satisfy the requisite standard of proof. Each one of

these standards vindicates Title VII's goal of affording employ-

ees the right to work in an environment free from discrimina-

tory intimidation, ridicule and insult. See Meritor, 477 U.S. at

65-67 (1986) (citing the various hostile work environment stan-

dards with approval). See also Ellison v. Brady, 924 F.2d 872,

877 (9th Cir. 1991) (the various standards cited in Meritor are

not inconsistent). This analysis is to be determined under a

totality of the circumstances. /d. at 69.

A conduct-based test will not significantly alter the number

of viable claims for sexual harassment under Title VII. The

plaintiff must, of course, also prove that she is a member of the

protected group, that the alleged discriminatory conduct was

unwelcome and sex-based, and that the defendant was legally

responsible. A solitary incident of harassment will not be

actionable unless it is sufficiently severe See Vance v. South-

ern Bell Tel. & Tel. Co., 863 F.2d 1503 (11th Cir. 1989). The

determination of whether the defendant's conduct is actionable

is a question of fact to be decided by a trier of fact.”’ The goals

27. ~_—s The trier of fact may be a judge (where equitable relief only is

sought or jury demand waived) or jury. 42 U.S.C. § 1981a(c) (amending

Title VII to provide right to jury trial). Whether certain conduct consti-

tutes sexual harassment is precisely the type of factual determination

which judges and juries make every day. In fact, our legal system is

based on the premise that juries are not only capable of making these

types of factual determinations, but that they are the preferred body to

make such determinations. Even if the case is tried to a judge, there

should be no prejudice to defendants. A factfinder “[wJith access to all

the evidence, and with the common sense to make credibility determ -

nations. . . should not find it difficult to distinguish between harassing

actions that constitute a violation of Title VII and those ‘ambiguous’

of Title VII, as stated by Congress and interpreted by courts,

should guide factfinders in determining when sexual harass-

ment has occurred.**

A conduct-based test recognizes that Title VII is meant to

combat discrimination by identifying and enjoining it and by

compensating for the injury caused by it.?? The conduct-based

test preserves both of these important functions—a liability

analysis that focuses on whether defendant's conduct consti-

tuted unlawful discrimination, and a damages analysis that

focuses on the impact of that conduct on the plaintiff. Unlike

the psychological injury test, the conduct-based test does not

penalize plaintiffs by forcing them to prove both actionable

harassment and the extent of their injury as a consequence of

actions which simply may not ‘create an abusive working environ-

ment.’ " Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1561 n.13

(11th Cir. 1987) (citation omitted).

28 See Andrews v. City of Philadelphia, 895 F.2d 1469, 1483 (3d

Cir. 1990) (Title VII prevents “the perpetuation of stereotypes and a

sense of degradation which serve to close or discourage employment

opportunities for women”); Henson v. City of Dundee, 682 F.2d 897, 901

(11th Cir. 1982) (“Title VII prohibits employment discrimination on the

basis of gender, and seeks to remove arbitrary barriers to sexual equal -

ity at the workplace”) (citations omitted); Stender v. Lucky Stores, Inc.,

803 F. Supp. 259, 326 (N.D. Cal. 1992) (Title VII's purpose is to “pro-

mote gender-equal opportunity in the work force”).

29 ~=In 1991, Congress specifically recognized that Title VII should

also address the harms suffered by individual! victims of sexual harass-

ment by expanding the remedies available to individual sexual harass-

ment victims. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat.

1071 (codified as amended at 42 U.S.C. § 2000e-2). Harms to individual

victims of sexual harassment include depression, headaches, sleepless-

ness, anxiety, nausea, mental anguish, humiliation, and reduced self-

esteem. See, ¢.g., Vinson v. Superior Court, 43 Cal. 3d 833, 837, 740 P.2d

404, 409 (1987); Brooms v. Regal Tube Co., 881 F.2d 412, 417 (7th Cir.

1989). See also Judith A. Winston, Mirror, Mirror on the Wall: Title VII,

Section 1981, and the Intersection of Race and Gender in the Civil Rights

Act of 1990, 79 Cal. L. Rev. 775, 783 (1991); Peggy Crull, Ph.D., Stress

Effects of Sexual Harassment on the Job. Implications for Counseling,

52 Amer. J. Orthopsychiatry 539, 541 (1982).

the harassment in order to establish liability. Liability is estab-

lished upon a court's determination that the defendant's con-

duct constituted sexual harassment. The determination of

whether a defendant's conduct rises to the level of actionable

harassment should be made with reference to the defendant's

conduct, the hostile nature of such conduct in the workplace,

and the goals of Title VII. This is consonant with the Title VII

principle that discrimination is a harm in itself.

In addition, plaintiffs may seek equitable relief, recover com-

pensatory damages based on a showing of the nature and extent

of the injury, and punitive damages upon a showing of egre-

giousness on the part of the defendant. While demonstrating

the extent of injuries may be appropriate to prove damages, the

Meritor Court correctly omitted any requirement that plaintiffs

show the extent of their injury as a consequence of the harass-

ment to establish liability for sexual harassment under Title

VII. “Though it is quite possible for a victim of race- or sex-

based employment discrimination to suffer psychological harm,

her entitlement to [backpay] under Title VII does not depend

on such a showing.” United States v. Burke, __. U.S. __, 112 S.

Ct. 1867, 1876 (1992) (Scalia, J., concurring).

B. How Harris Would Have Been Analyzed Using A Con-

duct-Based Test

Were the Harris case to have been analyzed using the con-

duct-based test, instead of the more stringent Rabidue test,

Teresa Harris would have prevailed in the lower courts. The

fact that she did not prevail illustrates the danger of a test

which requires a plaintiff to prove serious psychological injury

and satisfy a reasonableness standard.

Specifically, the magistrate judge's finding that the defen-

dant’s conduct was not sufficiently severe or pervasive so as to

create a hostile, abusive or offensive working environment

under the totality of the circumstances is indefensible in light

of the court’s simultaneous finding that “[pjlaintiff was the

object of a continuing pattern of sex-based derogatory conduct

from [the defendant].”* Harris, at A-8. In fact, it is unmis-

takeable that defendant's conduct was both derogatory and con-

tinuous and sufficently severe and pervasive to create a hostile,

abusvie or offensive working environment. As the magistrate

judge noted: (1) defendant would ask female employees to

retrieve coins from his front pants pocket; (2) defendant stated

to the plaintiff in the presence of other employees “ ‘You're a

woman, what do you know,’ ” “ ‘You're a dumb ass woman,’ ”

and “ ‘Let’s go to the Holiday Inn to negotiate your raise,’ " id.

at A-9 (citations omitted); and (3) defendant continued to

harass plaintiff even after she complained to him about his

behavior towards her, id. at A-10.

Further, the magistrate judge found that “some of [defen-

dant’s] inappropriate sexual comments,. . . offended plaintiff,

and would offend the reasonable woman. However,. . . they

were not so severe as to be expected to seriously affect plain-

tiff’s psychological well-being.” /d. at A-19. This court's

unwarranted use of the standards of reasonableness and serious

psychological injury allowed it to dismiss plaintiff's Title VII

claims even when the factual circumstances clearly indicate

that she was subject to sexual harassment.

This Court has never held that harassing conduct must be so

severe as to seriously affect the mental health of plaintiffs or

that plaintiffs must withstand a reasonableness inquiry to estab-

lish liability under Title VII. Tithe VII would be crippled by

such requirements. Title VII’s mandate of providing women

equality in the workplace is manifestly disserved when a court

dismisses a case in which the plaintiff proves that she was sub-

30 The magistrate judge found that Harris satisfied the other four

elements of its test: “Teresa Harris is a woman, and thus a member of a

protected class; there is no proof that male employees of Forklift were

subjected to the conduct complained of by plaintiff; and Charles Hardy,

the party allegedly responsible for committing the sexual harassment, is

President of the company. . . .” Harris, at A-17. Teresa Harris also

established that the conduct was unwelcome because she complained to

the defendant about his sexually crude comments. /d. at A-10.

ject to unwelcome and continuous derogatory conduct based on

her sex, and that a reasonable woman would have been

offended by such conduct. Accordingly, this Court should over-

turn the Sixth Circuit's test and return sexual harassment law

to its proper place in Title VII jurisprudence.

CONCLUSION

For these reasons, Amici Curiae respectfully request this

Court to reverse the Sixth Circuit's decision in Harris and

reestablish the standards for proof of hostile work environment

set out in Meritor.

CLEARY, GOTTLIEB, STEEN

AND HAMILTON

1 Liberty Plaza

New York, New York 10006

Richard F. Ziegler

Shari Siegel

Amy W. Schulman

James Q. Walker

Denise C. Morgan

Deborah A. Hymowitz

Respectfully Submitted,

Deborah A. Ellis

Counsel of Record

Anne L. Clark

NOW LEGAL DEFENSE AND

EDUCATION FUND

(212) 225-2000

99 Hudson Street

New York, New York 10013

(212) 925-6635

Sarah E. Burns

NEW YORK UNIVERSITY

SCHOOL OF LAW

249 Sullivan Street

New York, New York 10012

(212) 998-6430

APPENDIX

STATEMENTS OF INTEREST

Interest Of Amicus Curiae

NOW Legal Defense And Education Fund

NOW Legal Defense and Education Fund (“NOW LDEF’”) is

a leading national non-profit civil rights organization that per-

forms a broad range of legal and educational services in sup-

port of women’s efforts to eliminate sex-based discrimination

and secure equal rights. NOW LDEF was founded in 1970 by

leaders of the National Organization for Women. A major goal

of NOW LDEF is the elimination of barriers that deny women

economic opportunities, such as sexual harassment. In fur-

therance of that goal, NOW LDEF litigates cases to secure full

enforcement of laws prohibiting sexual harassment, including

Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486

(M.D. Fla. 1991), appeal pending, (11th Cir. argued Dec. 2,

1992), and Townsend v. Indiana University, No. 92-2869 (7th

Cir. argued April 6, 1993).

Interest Of Amicus Curiae Catharine A. MacKinnon

Catharine A. MacKinnon, Professor of Law at the University

of Michigan, is an authority on sex equality who pioneered the

legal claim for sexual harassment as sex discrimination, as

reflected in her Sexual Harassment of Working Women (1979).

She was co-counsel to Mechelle Vinson in the Supreme Court

in Meritor Savings Bank v. Vinson and consults extensively on

legislation, litigation (including Robinson v. Jacksonville

Shipyards), administration, policy, and counseling issues in the

sexual harassment area.

Interest Of Amicus Curiae The American Jewish Committee

The American Jewish Committee (“AJC”) is a national civic

organization of approximately 50,000 members which was

founded in 1906 for the purpose of protecting the civil and reli-

gious rights of Jews. AJC has always believed that this goal

can best be accomplished by helping to preserve and promote

the constitutional rights of all Americans. Specifically, AJC

strongly supports full and equal rights for women and is com-

mitted to the elimination of all gender-based discrimination,

regardless of the form in which it may appear. Sexual harass-

ment of women is a flagrant and intolerable form of such dis-

crimination.

Interest Of Amicus Curiae

American Medical Women's Association, Inc.

Amicus American Medical Women’s Association, Inc.

(“AMWA”) is a nonprofit organization of 13,000 women physi-

cians and medical students, founded in 1915 and representing

women in all specialties of medicine and diverse career roles.

One of AMWA's primary missions is to promote career devel-

opment for women in medicine. AMWA strongly opposes sex-

ual harassment and other forms of gender discrimination which

interfere with an individual's ability to work effectively within

her/his profession.

Interest Of Amicus Curiae

Asian American Legal Defense And Education Fund

Founded in 1974, the Asian American Legal Defense and

Education Fund (“AALDEF”) is a civil rights organization that

addresses critical problems in the Asian American community

through litigation, advocacy, and community education. Its cur-

rent program priorities include voting rights, immigrant rights,

labor and employment rights. AALDEF represents victims of

anti-Asian violence and seeks redress for Japanese Americans

who were interred in U.S. camps during World War II. Asian

Americans, as victims of sexual harassment, endure the harm-

ful consequences of abusive conduct.

Interest Of Amicus Curiae

Association For Union Democracy

The Association For Union Democracy (“AUD”) is a non-

profit corporation founded in 1969 which seeks to further

democratic principles and practices in American labor orga-

nizations, both by encouraging union members to participate

actively in the internal life of their unions, and by protecting

the exercise of their democratic rights within their unions. No

other organization devotes itself primarily to this objective.

The AUD Women's Project, created in 1985, helps women

union members working for sexual equality on the job and in

their unions. Since 1985, the Project has advised hundreds of

women subjected to sexual discrimination and harassment at

work. The Association's experience leads it to conclude that

hostile working environments in the form of verbal abuse,

physical abuse and displays of pornographic material con-

tribute to discrimination against women in the workplace.

Interest Of Amicus Curiae

The Center For Women Policy Studies

The Center for Women Policy Studies was founded in 1972

as the first national policy research and advocacy institute

focused exclusively on issues of social and econom.

for women. The Center conducts research and advocacy

grams on sexual harassment and violence agains! » ge

work/family and “diversity” policies of employers. edu tidh,

and other relevant issues.

Interest Of Amicus Curiae Chicago Women /n Trad

Chicago Women in Trades (“CWIT”) is an organization that

assists and advocates for tradeswomen and women secking

entry into blue-collar nontraditional employment. CWIT hosts

monthly support meetings, provides training to women inter-

ested in the trades, works to increase the number of women in

the trades, and advocates for equal employment opportunities.

CWIT is concerned with the legal standards for proving sexual

harassment because sexual harassment is a pervasive problem

for many tradeswomen.

Interest Of Amicus Curiae

The Illinois Coalition Against Sexual Assault

The Illinois Coalition Against Sexual Assault is a private,

non-profit, tax-exempt coalition of member centers which pro-

vide services to adult survivors of rape, incest and childhood

sexual abuse, assault victims and sexual harassment victims

throughout Illinois. Member centers see sexual harassment vic-

tims who are suffering from many of the same traumas that

rape victims suffer. The injury will be compounded if, before

establishing an actionable case, the victim must suffer severe

psychological injury. By eliminating review of the character

and coping mechanisms of individual plaintiffs, the court can

focus on the nature of the act as harmful to all employees. The

burden will then be rightfully placed on those who act dis-

criminatorily rather than on those who struggle to deal with a

discriminatory workplace.

Interest of Amicus Curia.

National Organization for Women, Inc.

The National Organization for Women (“NOW”) is the

nation's largest feminist organization devoted to the advance-

ment of women’s rights, with over 280,000 members and more

than 700 chapters in all 50 states and the District of Columbia.

NOW has, since its inception, supported and worked toward

full equal employment opportunity for women, including the

elimination of sexual harassment and other sex discrimination

in the workplace.

Interest Of Amicus Curiae National Tradeswomen’'s Network

The National Tradeswomen’s Network (“NTN”), founded in

1989, is a network of organizations committed to significantly

increasing the numbers and diversity of women entering and

working in non-traditional blue collar occupations. NTN rep-

resents tens of thousands of women across the United States.

Sexual harassment is a major barrier facing tradeswomen.

According to a recent survey by Chicago Women in Trades,

tradeswomen report that on the job site: 88 percent have

encountered pictures of naked or partially dressed women; 83

percent have received unwelcome sexual remarks; and 57 per-

cent reported being touched or asked for sex. Women entering

traditionally male workplaces should not have to tolerate sex-

ual harassment in any form. As working women, we demand

respect and dignity in our lives as workers.

Interest Of Amicus Curiae

Northern New England Tradeswomen Inc.

Northern New England Tradeswomen (“NNETW”) is a non-

profit membership organization founded in 1987, for

tradeswomen and friends in Vermont, New Hampshire, New

York, Massachusetts, Maine and Quebec. NNETW serves over

1000 people and its goal is to increase the opportunities for

women to enter and remain in the trades through networking,

advocacy, training and sharing resources. Women in the trades

encounter intense sexual harassment, often in the form of a

hostile work environment. NNETW believes that it is time to

stop expecting women to “deal with” harassment or get out of

the trades; it is time to make the workplace less hostile.

Interest Of Amicus Curiae

Puerto Rican Legal Defense and Education Fund

The Puerto Rican Legal Defense and Education Fund

(“PRLDEF”) is a national civil rights organization founded in

1972 to protect the civil rights of Puerto Ricans and other

Latinos, and to ensure their equal protection under the law.

PRLDEF opposes all forms of discrimination based on race,

religion, sex, sexual orientation, national origin and disability.

Sexual harassment is an all too prevalent problem facing Latina

workers. PRLDEF believes that sexual harassment should not

be subject to a higher standard of proof than other forms of dis-

crimination.

Interest Of Amicus Curiae Women's Law Project

The Women's Law Project (“WLP”) is a non-profit, feminist

legal advocacy organization, located in Philadelphia. Founded

in 1974, WLP works to abolish discrimination and injustice and

to advance the legal and economic status of women and their

families through litigation, public education, and individual

counseling. During the nineteen years of its existence, WLP's

activities have included extensive work in the area of sex dis-

crimination in employment. WLP has a strong interest in the

eradication of sexual harassment and other forms of discrimi-

nation against women in the workplace and the availability of

strong and effective remedies under Title VII of the Civil

Rights Act of 1964, as amended.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.