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

No. 92-1168 ') APR 29 1.

IN THE thea

Supreme Court of the Gnited States

OCTOBER TERM, 1992

TERESA HARRIS,

Petitioner,

Vv.

FORKLIFT SYSTEMS, INC.,

Respondent.

On Writ of Certiorari

To the United States Court of Appeals

For the Sixth Circuit

BRIEF AMICI CURIAE OF THE NAACP LEGAL

DEFENSE AND EDUCATIONAL FUND, INC. AND

THE NATIONAL COUNCIL OF JEWISH WOMEN

IN SUPPORT OF PETITIONER

ELAINE R. JONES

Eric SCHNAPPER*

NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC.

99 Hudson Street

16th Floor

New York, N.Y. 10013

(212) 219-1900

Counsel for Amici

*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

THE ACTIONS CHARACTERIZED BY THIS

COURT AND THE LOWER COURTS AS

"HARASSMENT" ENCOMPASS SEVERAL

A. The Types of Practices Involved in

(1) Discrimination in Employer

Mandated Terms of

(2) Facially Neutral Harassment on

Account of Race or Gender—

(3) Race or Gender Specific

(4) Sexual Harassment—........

(5) Quid Pro Quo Sexual

B. The Legal Principles Applicable to Each

Il. THE SIXTH CIRCUIT REQUIREMENT OF

PROOF OF SERIOUS PSYCHOLOGICAL

INJURY IS INCONSISTENT WITH TITLE VII

AND THIS COURT’S DECISION IN MERITOR

SAVINGS BANK V. VINSON .....+++++++0055 13

A. The Rationale of the Opinion in Rabidue

Flatly Repudiates The Principles of

Tile VIE. cccccccsccsseuseenuees 13

B. The Substance of the Rabidue Rule Is

Inconsistent With Title VII .......... 17

III. THE MAGISTRATE’S EVALUATION OF THE

CIRCUMSTANCES OF THIS CASE WAS

INCONSISTENT WITH TITLE VII ........... 20

COMCLESBOSN 2... ccccccccesenseeeee ee 24

APPENDICES

TABLE OF AUTHORITIES

CASES

Andrews v. City of Philadelphia,

895 F.2d 1469 (3d Cir. 1990) ............. 12

Barbetta v. Chemlawn Services Corp.,

669 F. Supp. 569 (W.D.N.Y. 1987) .......... 5

Bell v. Crackin Good Bakers, Inc.,

777 F.2d 1497 (11th Cir 1985) ............ 20

Bohen v. City of East Chicago, Ind.,

799 F.2d 1180 (7th Cir. 1986) ........... 3, 12

Brooms v. Regal Tube Co.,

881 F.2d 412 (7th Cir. 1989) .............. 4

Brown v. Board of Education,

techs ceeeecccescees 5

Bundy v. Jackson,

841 F.2d 934 (D.C.Cir. 1981) .............. 9

Burns ». McGregor Electronic Industries, Inc.,

Sas © ae soe (oem Cir 1992)... we ees 17

Carrero v, New York City Housing Authority,

890 F.2d 569 (2d Cir. 1989) ........... 11, 18

Carroll v. Talman Federal Savings & Loan Ass'n,

604 F.2d 1028 (7th Cir. 1979) ............. 8

Carter v. Duncan-Huggins, Ltd.,

727 F.2d 1225 (D.C.Cir. 1984) ............ 10

Daniels v. Essex Group, Inc.,

937 F.2d 1264 (7th Cir. 1991) ........... 4,12

DeGrace v. Rumsfeld,

614 F.2d 796 (ist Cir. 1980) .............. 16

EEOC Dec. No. 71-2042.

3 FEP Case 1102 (1971) ........ cc eeeees 8

Ellison v. Brady,

924 F.2d 872 (9th Cir. 1991) ............. 18

Ellison v. Brady,

924 F.2d 872 (9th Cir. 1991) ...... 4, 11, 12, 13

Erebia v. Chrysler Plastics Products Corp.,

772 F.2d 1250 (6th Cir. 1985) ............. 4

Goodman v. Lukens Steel Co.,

GB UD. GEG CRTRT) ccc ccc cccccccccccns 6

Hamilton v. Rodgers,

791 F.2d 439 (Sth Cir. 1986) ........-----: 7

Henson v. City of Dundee,

682 F.2d 897 (8th Cir. 1982) ...........-5-. 9

Hicks v. Gates Rubber Co..,

833 F.2d 1406 (10th Cir. 1987) ............ 10

Horn v. Duke Homes, Div. of Windsor Mobile Homes,

755 F.2d 599 (7th Cir. 1985) .........-.--.. 4

Horn v. Duke Homes, Division of

Windsor Mobile Homes, Inc.,

755 F.2d 599 (7th Cir. 1985) .............. i)

Lipsett v. University of Puerto Rico,

864 F.2d 881 (1st Cir. 1990) ............... 7

Lopez v. S.B. Thomas, Inc.,

831 F.2d 1184 (2d Cir. 1987) ............. 12

v

Meritor Savings Bank v. Vinson,

See 6 6 WoW eSécceceseesss passim

NAACP v. Button,

Se ED. nneedsccecedceceees 1

North v. Madison Area Ass’n for Retarded Citizens,

844 F.2d 401 (7th Cir. 1988) ............. 11

Patterson v. McLean Credit Union,

i a core kedesueceseuees 4,7,8

Phillips v. Smalley Maintenance Services, Inc.,

711 F.2d 1524 (11th Cir. 1983) ............ 17

Plessy v. Ferguson,

a 21

Priest v. Rotary,

98 F.R.D. 755 (N.D.Cal. 1983) ........... 23

Proline v. Unisys Corp.,

879 F.2d 100 (4th Cir. 1989) ......... 4, 11, 12

Rabidue v. Osceola Refining Co.,

805 F.2d 611 (6th Cir. 1986) ........... passim

Snell v. Suffolk County,

611 F. Supp. 521 (E.D.N.Y. 1985) .......... 7

Snell v. Suffolk County,

782 F.2d 1094 (2nd Cir. 1986) ............ 13

Sparks v. Pilot Freight Carrier, Inc.,

830 F.2d 1554 (11th Cir. 1987) ............. 9

Teamsters v. United States,

ne Wo tet censaaeteeaness 6

vi

Vance v. Southern Bell Tel. and Tel. Co.,

863 F.2d 1503 (11th Cir. 1989) ........... 4,12

Walker v. Ford Motor Co.,

684 F.2d 1355 (11th Cir 1982) ............ 14

Yates v. Avco Corporation,

819 F.2d 630 (6th Cir. 1987) ............ 4, 18

STATUTES

TD CIT. GRRBA RIED 2 cc ccccccccccccccesecccs 11

ol i \ errr rer rr rrrrrr ite 24

42 UBC. GISTTAMI) «0. cc ccccccccccccccces 19

Civil Rights Act of 1991, Section 102 ............ 19

Title VII of the Civil Rights Act of 1964 ....... passim

Title VII of the Civil Rights

Act of 1964, Section 703 (a).......-----555- 6

MISCELLANEOUS

Prosser On Torts, section 80 .. 1.2.2... 5s ee eeee 17

No. 92-1168

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

TERESA HARRIS,

Petitioner,

Vv.

FORKLIFT SYSTEMS, INC.,

Respondent.

On Writ of Certiorari To the United States Court of

Appeals For the Sixth Circuit

BRIEF AMICI CURIAE OF THE NAACP LEGAL

DEFENSE AND EDUCATIONAL FUND, INC., AND

THE NATIONAL COUNCIL OF JEWISH WOMEN

IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE'

The NAACP Legal Defense Fund, Inc., is a non-

profit corporation that was established for the purpose of

assisting black citizens in securing their constitutional and

civil rights. This Court has noted the Fund’s “reputation for

expertness in presenting and arguing difficult questions of

law that frequently arise in civil rights litigation." NAACP v.

Button, 371 U.S. 415, 422 (1963). A significant portion of

the Fund’s litigation has concerned Title VII of the Civil

* Letters of consent to the filing of this Brief have been filed with

the Clerk of the Court.

2

Rights Act of 1964 and the proper scope of constitutional

and statutory rights to equal employment opportunity.

The National Council of Jewish Women (NCJW),

Inc., is a volunteer organization inspired by Jewish values,

that works through a program of research, education,

advocacy and community service to improve the quality of

life for women, children and families and strives to ensure

individual! rights and freedoms for all. Founded in 1893, the

National Council of Jewish Women has 100,000 members in

over 500 communities around the country. The National

Council of Jewish Women believes that individual liberties

and rights guaranteed by the Constitutional are keystones of

a free and pluralistic society. Based on the NCJW’s

National Resolutions stating our resolve to work for the

"enforcement of sexual harassment laws and more stringent

penalties for violators," we submit this brief.

SUMMARY OF ARGUMENT

Since this Court’s decision in Meritor Savings Bank v.

Vinson, 477 U.S. 57 (1986), the experience of the lower

courts has revealed there are five distinct types of practices

that are loosely described as “harassment.” These are (1)

discrimination in employer mandated terms of employment,

(2) facially neutral harassment on account of race or gender,

(3) race or gender specific harassment, (4) sexual

harassment, and (5) quid pro quo sexual demands.

The magistrate’s decision in the instant case was

based on the Sixth Circuit decision in Rabidue v. Osceola

Refining Co., 805 F. 2d 611, 619 (6th Cir. 1986), which held

that harassment is legal under Title VII unless it "affected

seriously the psychological well being” of the victim. The

rule in Rabidue improperly requires victims of harassment to

endure that abuse for possibly extended periods of time until

the requisite amount of injury has occurred. Until that point

is reached Rabidue treats the workplace as a "free fire zone.”

Department of Defense Inspector General, Tailhook 91, pt.

2, p. X-1 (1993).

3

The magistrate held that denigrating and demeaning

treatment of women was a recurrent condition of

employment at Forklift Systems, but insisted that no

violation of Title VII had occurred because that treatment

was not “abusive”. This Court’s decision in Meritor

recognizes no such distinction.

ARGUMENT

INTRODUCTION

Seven years ago, in Meritor Savings Bank v. Vinson,

477 U.S. 57 (1986), this Court held that the prohibitions of

Title VII are not limited to discriminatory conduct that

causes economic injury, but reach any form of mistreatment

on the basis of race, sex, national origin or religion.

The application of Title VII to non-economic injury

is important for two distinct reasons. First, minorities and

women are not afforded equal treatment if, in order to hold

the same job or receive the same wages as whites or men,

they must endure abuses or bear additional burdens not

imposed on others.’ Harassment on the basis of race or

gender aggravates longstanding injuries and sensitivities

rooted in the history of the very discrimination and

intolerance which led to the enactment of the 1964 Civil

Rights Act.

Second, mistreatment of a non-economic nature is

likely to lead, in ways difficult to detect, delineate or

remedy, to discrimination in promotion and dismissal, with

attendant economic harm. The experience of the lower

courts in harassment cases has confirmed what common

sense would have suggested; given a choice among otherwise

* "Forcing women and not men to work in an environment of

sexual harassment is no different than forcing women to work in a

dirtier or more hazardous environment than men simply because they

are women.” Bohen v. City of East Chicago, Ind., 799 F. 2d 1180, 1165

(7th Cir. 1986).

4

ES cuk a ¢ an @ Gm Gan Gan @ ae

forms of mistreatment are not a foreseeable condition of the

job. At least if they had any other real alternatives, many

women would not take a job at Forklift Systems if they knew

they would be treated the way petitioner was, or, in the case

of blacks, choose to work at McLean Credit Union under

McLean Credit Union, 491 US. 164 1989). In actual

harassment cases the victims frequently seek to transfer to

other jobs, even if less desirable’, or simply resign.’ A

pattern of harassment could purge minorities or women

from a position or employer as effectively is more direct

exclusion. For those who choose to stay, harassment

frequently potsons their relations with supervisors and fellow

employees.’ In the instant case, Hardy's overt harassment of

petitioner led other employees to treat her in a similar

’ See, eg., Ellison v. Brady, 924 F 2d 872, 88;-82 (9th Cir, 1991),

Vanee v. Souther Bell Tel. and Tel. Co., 863 F. 2d 1503, 1508 (Lith

Cir, 1989); Yates v. Aveo Corporation, #19 F. 2d 630, 632 (6th Cir,

* See, e.g., Daniels v. Exsex Group, Inc., 997 F. 2d 1264 (7th Cir.

1991); Brooms v. Regal Tube Co., 881 F. 2d 412 (7th Cir, 1989) Proline

v. Unisys Corp., 879 F. 24 100 (4th Cir, 1989),

Essex en 95 P08 1364, 1972 (ie Ce, 1991), See also

Erebia v. Plastics Products Corp., 772 F. 2d 1290, 1252 (6th

Cir, 1985)(victim “called an hourly employee a ‘ ’ after the

had called him a ‘wet back”); Horn v. Duke Div. of

Windsor Mobile Homes, 755 ¥. 2d 599,602 (7th Cir. 1985)(after

manner (tr. p. 25), and undermined her authority.’

Haresement of employees on the basie of rece or gender may

affect the ambitions and self-esteem of the victims "in a way

unlikely ever to be undone.” Brown v. Board of Education,

47 US. mahenhety

nding the importance of eradicating these

ion, an ae Sena See Meeeee S

cortous Velatien of Title by one court, but upheld as entirely

lawful by another. What is legal or not under Title VII

varies not only from circuit to circuit, but from judge to

judge. The particular result in this case was dictated by the

Sixth Circuit decision in Rabidue v. Osceola Refining Co. , 805

F. 2d 611, 619 (6th Cir, 1986), that harassment is permitted

by Tithe VII except where it “affected seriously the

psychological well being" of the victim.

We emphasize that all that is at issue in this case is

the standard for determining what is lawful under Title VIL

In order to obtain one of the various forms of relief

available for a violation of Title VII, such as injunctive

relief, compensatory damages, punitive damages, back pay,

or, in the case of an alleged constructive discharge,

reinstatement, a plaintiff may have to establish additional

elements. What those elements may be, and whether they

were established here, are not before the Court, because the

courts below held that the pattern of conduct in this case

was entirely lawful, and thus did not reach those remedial

questions.

1. THE ACTIONS CHARACTERIZED BY THIS COURT AND

Several Distinct Tyres OF PRacrices

Section 703(a) of Tithe VII forbids an employer “to

discriminate against any individual with respect to his

terms, conditions, or privileges of employment, because of

such individual's race, color, religion, sex, or national origin.”

Disparate treatment, which ls the grevamen of this action, is

the most obvious evil that Congress had in mind when it

enacted Title VII. Disparate treatment occurs when an

employer “treats some people less favorably than others

because of their race, color, religion, sex, or national origin.”

Teamsters v. United States, 431 US, 324, 335 n. 15 (1977).

There is no requirement that an employer have harbored

any “animus against" the group subjected to unfavorable

treatment; an employer which engages in disparate

treatment of a paenes oop Se under Title VII even

though it may have been “favorably disposed toward" its

victims. Goodman v. Lukens Steel Co., 482 US. 656, 668-69

(1987),

Merttor of course held that the disadvantage imposed

by the disparate treatment need not be economic, The

Court used a variety of terms to describe disadvantageous

cireummtances thet might causs injury of 8 non-economic

"abusive", or involving. "ridicule" or “insult”. These terms

were illustrative of the types of cireumstances that might

EEOC Guidelines use the phrase “hostile environment” to

employed in the broad sense of uhheaphatte

whether the perpetrator intended to harm the vietim or

merely thought discrimination and derogatory abuses were

amusing. Derogatory jokes which cast a protected group in

an unfavorable light are disparate treatment fully as much as

"477 US. at 62-73,

non-humorous slurs!

A. The Types of Practices Involved in “Harassment” Cases

The decisions of this Court and the lower courts have

characterized as “harassment” at least five different types of

practices, We set forth in an Appendix to this brief a list of

reported appellate decisions in which these were

found or alleged to have occurred, and summarize them

briefly below.

(1) Diserimination in Employer Mandated Terms of

Employment —

An inherent part of the employment relationship is

that the employer is entitied, subject to certain legal

constraints, to direct how en employes, and hie or her fellow

employees, will act during the period they are at work.

Employers routinely determine to a large degree what tasks

employees will perform and how they will do so, as well as

controlling, often in considerable detail, how employees will

act while at the plant or office.

A number of the so-called harassment cases involve

situations in which the employer utilized this authority to

mandate for women or minorities terms of employment that

were both different than and disadvantageous compared to

the treatment of other comparable workers. For ¢

in Patterson v. McLean Credit Union, 491 US. 164 (1989),

work than whites, and had been assigned to dust and sweep

when white bank employees in the same position were not.

"3a ata Ch. 1906); Saad Suffolk County,

528-0 (E.D.N.Y. 1985).

‘2042, 3 FEP Cas, 1102, 1103

required to address

supervisor as “ma'am"); Carroll v. Talman

Savings & Loan Assn, 04

2d 1028 (7th Cir.

1979)(female but not male bank employees required to wear

uniforms).

(2) Facially Newtral Harassment on Account of Race

or Gender |

Supervisors and fellow employees seeking to abuse

minorities or women have often chosen to use facially

neutral methods, resorting to abusive conduct or derogatory

remarks that could conceivably have been, but in fact were

not, inflicted on men or non-minorities, Thus in Patterson

the plaintiff alleged her supervisor glared at her, criticized

her more than whites, anc chastised only her, and never

whites, in public. 491 U.S. at 212, 214, In the instant case

Hardy times belittied pethioner with yl my: remarks,

not directed at male employees, such as t the hell do

you know." (Tr. 18).

(3) Race or Gender Specific Harassment—

In many of the reported lower court cases the

substance of the abuse was something that by its very nature

would harm only (or primarily) women or minorities. In

Paterson, for example, the plaintiff's supervisor allegedly

asserted to her that “viacks are known to work slower than

whites by nature”, and that whites could her job better than

she could, 491 U.S. at 213. In the instant case Hardy told

petitioner that a man was needed to do her job, and

remarked “what do you know, you're a woman."" At the

* The magistrate asserted that this occurred on only a single

occasion. (Pet. App. A-8) This was clear error; petitioner testified

——__

© Ty. 17, 18, 78, 91; Pet. App. A-®, Act&

1991 Tailhook convention several of the male officers wore

T-shirts readin "HE-MAN WOMEN HATER'S CLUB"

and "WOMEN ARE PROPERTY.“

(4) Sexual Harassment —

This Court's decision in Meritor, like many of the

lower court cases, dealt with disparate treatment in the form

of "[ujnwelcome sexual advances, requests for sexual favors,

and other verbal or ¢ conduct of a sexual nature.” 477

U.S. at 65, quoting 29 C.F.R. §1604.11(a). The touchstone

of any sexual harassment claim is that the alleged sexual

advances were “unwelcome.” 477 US, at 98. Such

advances, requests and conduct are by definition directed at

heir een. The record in this case is replete with incidents of

this type

(5) Quid Pro Quo Sexual Demands—

In a number of cases supervisors have demanded

sexual favors in return for a favorable employment action,

such as @ promotion, or on pain of an adverse employment

action, such as dismissal. Most of these cases are a subset

hy nay A tJ we

qosmunt of har Gunden 6 Gan ta te tame dhestion uuid

have been promoted or retained.

" Department of Defense Inspector General, Taithook 9/ , pt. 2,

p. X-3 (1993),

' See, eg., Henson v. City of Dundee, 682 F.2d 897 (Sth Cir

1982); Bundy v. Jackson, 841 F. 2d 934 (D.C.Cir, 1981).

B. “The Legal Principles Applicable to Each

The experience of the lower courts reveals that

several different types of harassment often arise in a single

case. That is true in the instant case, which involves

discrimination in employer-imposed terms of employment,

facially neutral harassment on account of gender, gender

wen a codaote and sexual harassment. The combined

impact of ape ok of harassment may be relevant to

determining liability”, and will ordinarily be important to

ascertaining the ne ah J remedy, such as the proper level

of compensatory damages. Nonetheless, the legal principles

applicable to each form of harassment differ to some degree,

and must be assessed separately.

Merttor held that in @ hostile environment case a

plaintiff was required to establish that the harassment at

issue was “sufficiently pervasive or severe” to alter the

conditions of [the victim's} employment.” 477 U.S at 67.

This requirement is appl to a claim of facially neutral

harassment on account of race or gender, race or gender

specific harassment, or sexual harassment. It does not apply,

however, to discrimination in ye imposed terms of

employment; where an employer, for examples, selects an

employee on the basis of race or sex for assignmen

ttoa

demeaning or dange

rous task, that assignment is a per se

violation of Tithe VII, whether it lasts for a day or a year.

The “pervasive or severe” requirement is also inapplicable to

a quid pro quo case,"’ if the victim refused the supervisor’s

demand, and as a consequence was fired or denied a

promotion. In that situation the dismissal or promotion

would constitute unlawful discrimination on account of sex,

since a similarly situated male would have been promoted or

* Hicks v. Gates Rubber Co., 8343 F, 2d 1406, 1416-17 (10th Cir.

1987); Carter v. Duncan-Huggina, Lid., 727 ¥, 24 1225, 1296 (D.C.Cir.

1984).

805 F. 2d at 620.

—. Bene. ee oe

11

ined

Practical experience since Meritor has demonstrated

the value of the two part “pervasive or severe” standard. In

most harassment cases, whether an abuse is an isolated

incident, or has become an ongoing condition of the job,

turns on pervasiveness, the frequency with which it recurs.

Where an employee can anticipate that an abuse is going to

occur again on the job, the perpetration of such abuses can

properly be described as a condition of the job.“ —_ This is

consistent with what would, as a practical matter, begin to

affect the employment decisions of current or prospective

employees. Both types of individuals would begin to avoid

a given employer once it was foreseeable that its employees

would be subject to harassment. If at that point the

harassment could not be declared illegal and enjoined, the

abuse would continue unchecked to steer minorities or

women away from the employer. The EEOC Guidelines

require an employer who has learned of harassing conduct

to take " i corrective action,” 29 C.F.R.

§1604.11(d), a requirement which imposes on the employer

an obligation to act where recurrences of the harassment are

foreseeable.” That obligation would make no sense unless

‘© Compare North v. Madison Area Ass'n for Retarded Citizens, 844

F. 2d 401 (7th Cir. 1988)(two or three incidents in ten years not

ee ee ne att Conn o

New York City Housing Authority, 890 F. 2d 569 (2d Cir.

1989)(condition of job altered where half a dozen of unwanted sexual

advances from the same supervisor created a situation in which victim

was “required to be constantly on guard against having her supervisor

fondle her knee, kiss her on the neck, or seek to kiss her on the

lips.”).

‘7 See EEOC Policy Guidance on Current Issues of Sexual

Harassment, p. 30 (March 19, 1990)("The employer should make

follow-up inquiries to ensure that harassment has not resumed .. . .”);

_ Ellison v. Brady, 924 F. 2d 872, 881 (9th Cir. 1991)(employer must

take action “reasonably calculated to ead the harassment”); Paroline

v. Unisys Corp., 879 F. 2d 100, 107 (4th Cir. 1989)(where employer

knew perpetrator had harassed other women, employer “should have

12

the pervasiveness requirement of Meritor could be satisfied

by proof the sufficient harassment had occurred that

additional future acts could be foreseen.

The second branch of the Meritor standard, providing

that severity may also be sufficient to render harassment a

condition of the plaintiffs employment, has also proved

important. The EEOC has concluded that a single but

severe incident may be sufficient to alter the conditions of

employment, such as “the unwelcome, intentional touching

of a charging party’s intimate body areas."" The lower

courts have found that a plaintiff's conditions of employment

are altered by circumstances creating a legitimate fear of

serious and irreparable injury, such as a threat of death or

rape, even though the threatened conduct has not

occurred."* Continuous fear of severe injury can in such

cases be as much a condition of the job as actual day to day

abuse of a less extreme variety. Such fear would obviously

shape employment decisions by current or prospective

employees. There are a significant number of lower court

cases involving threats or actual attacks of this severity.”

anticipated that the plaintiff too would become a victim of the male

employee's harassing conduct"); Lopez v. S.B. Thomas,Inc. 831 F. 2d

1184,1186 (2d Cir. 1987)(when an employer knows or reasonably

should know that co-workers are harassing an employee . . . the

employer may not stand idly by’).

“ EEOC, Policy Guidance on Current Issues of Sexual

Harassment, p. 17 (March 19, 1990).

'® Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503, 1510-11

(11th Cir. 1989)(death); Ellison v. Brady, 924 F. 2d 872, 883 (9th Cir.

1991)(rape).

* Daniels v. Essex Group, Inc., 937 F. 2d 1264, 1266-67 (7th Cir.

1991)(death threat, threat of assault, bullet fired into employee's

home); Andrews v. City of Philadelphia, 895 F. 2d 1469, 1474 (3d Cir.

1990)(plaintiff burned by lime poured on her clothes); Paroline v.

Unisys Corp., 879 F. 2d 100, 105-06 (4th Cir. 1989)(assault and

battery); Bohen v. City of East Chicago, Ind., 799 F. 2d 1180, 118

were sexual in nature. In practice the court have had no

difficulty in making these determinations; in the actual

reported cases the unfavorable or sexual nature of the

incidents in question has almost invariably been so biatant

that it was never contested.” There is no dispute here, for

example, that saying that only a man could do petitioner’s

job was a gender specific denigration of female employees,

or that suggestions that petitioner start “screwing around”

with Hardy referred to sexual activity. Should such disputes

actually arise, the finder of fact should experience little

difficult in determining whether, for example, a series of

remarks might fairly be understood as derogatory or sexual

in nature.

IL. THE SixTH CIRCUIT REQUIREMENT OF PROOF OF

SERIOUS PSYCHOLOGICAL INJURY IS INCONSISTENT

Wrirn TITLE VII AND THIS COURT’S DECISION IN

MERITOR SAVINGS BANK V. VINSON

A. The Rationale of the Opinion in Rabidue Flatly Repudiates

The Principles of Title VII

The rule adopted in Rabidue and applied by the

magistrate below, as we set out below, is clearly wrong. The

reasoning of Rabidue is equally significant, because the rule

(7th Cir. 1986)(rape threat); Snell v. Suffolk County, 782 F. 2d 1094,

1098 (2d Cir. 1986)(fear fellow police offices would not assist in an

emergency).

* One of the few such cases is Ellison v. Brady, 924 F. 2d 872,

875 a. 5 (9th Cit. 1991), im which the employer argued in vain that a

letter which contained “several references to sex” was “not of a sexual

nature.”

14

in question derives from a candid rejection of Congress’s

decision to eliminate harassment and abuse in the

workplace. The panel in Rabidue offered a spirited defense

of harassment of women, particularly on the job, as a

widespread, normal, and generally accepted practice,

insisting it was impossible to stop and that Congress surely

could not have meant to do so. This is, the panel

suggested, just the way women are normally treated. The

reasoning of this decision bears an uncanny resemblance to

the cavalier attitude of a official in Walker v. Ford

Motor Co., 684 F. 2d 1355 (11th Cir 1982), who told a black

employee that constant references to himself and other

blacks as “niggers” was "just something a black man would

have to deal with in the South.” 684 F. 2d at 1359.

Rabidue argued, first, that women are demeaned in

American society generally, and that comparable harassment

on the job surely cannot be actionable:

[The actions] had a de minimis effect on the

plaintiff's work environment when considered

in the context of a society that condones and

publicly features and commercially exploits

open displays of written and pictorial erotica

at the newsstands, at the cinema, and in other

public places.

805 F. 2d at 622. On this view, whatever is said or depicted

in, for example, Hustler magazine or hard core pornography

could be said to, or insistently displayed before, any woman

who chooses to work for a living.

This argument ignores the fact that a woman who

may refuse to enter a pornographic bookstore or movie

theater is required to be at her place of employment during

business hours. Employees are the quintessential captive

audience. Individuals are free to stay away from, or walk

out of, a store or political rally because of the slightest

difference in opinion or taste; but those same individuals are

required by their employers, on pain of dismissal, to remain

a

criminal

individual’s continued presence as fear of dismissal;

employees depend on their jobs to feed, clothe and

themselves and their families. So long as an employee is

q

assure that the conditions at that site are not tainted by

discriminatory harassment. By so doing Title VII merely

accords to petitioner and other women while on the job the

same ability to avoid unwelcome sexual remarks and displays

that they possess when not at work.

Rabidue argued, second, that verbal and other abuse

is widespread at the workplace, more or less normal there,

and reflects societal mores, and that Title VII was not

adopted to change such common and widespread workplace

bigotry:

As Judge Newblatt aptly stated . . . "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. It must never be forgotten that

Title VII is the federal mainstay in the

struggle for equal employment opportunity

for the female workers of America. But it is

quite different to claim that Title VII was

designed to bring about a magical

transformation in the social mores of

American workers.”

805 F. 2d at 620-21. We urge, on the contrary, that

Congress intended to bring about just such a transformation.

In 1964 racial bigotry also “abound{ed]" in some, indeed all

too many, “work environments"; Congress certainly

16

contemplated that the non-discriminatory terms and

conditions of employment guaranteed by Title VII would

bring to an end race-based abuse of minority workers by

their coworkers and supervisors. Nothing in the language or

legislative history of Title VII suggests that harassment of

women was to treated any differently. Title VII does not

require American workers to alter their social mores

regarding race, sex, or any other matter; they remain free, as

to employers, to adhere to whatever views they choose on

matters of race, religion, or gender. What Title VII

emphatically does require is that employees and supervisor

who may adhere to such intolerant beliefs not act on them

at the workplace in a manner harmful to their fellow

workers.”

Rabidue urged, third, that women who go to work

frequently know they are going to be sexually harassed, and

voluntarily choose to take the jobs anyway. Thus Rabidue

asserted that in deciding whether a given set of abuses is

legal, a court should consider “the lexicon of obscenity that

pervaded the environment of the workplace . . before the

plaintiff's introduction into its environs, coupled with the

reasonable expectation of the plaintiff upon voluntarily

entering that environment.” 805 F. 2d at 620 (Emphasis

added). On this view Title VII is subject to an unstated

loophole analogous to the tort doctrine of assumption of the

risk; employees who should have known when they took a

job that they might be discriminated cannot complain when

discrimination in fact occurs. If Title VII indeed contained

such an assumption, it would have been inapplicable to most

black employees in the nation when it became effective in

1965.

2 “(Ajo employer . . . cannot change the personal beliefs of his

employees, he can let it be known, however, that racial harassment

will not be tolerated, and he can take all reasonable measures to

enforce this policy.” DeGrace v. Rumsfeld, 614 F. 2d 796, 805 (1st Cir.

1980).

= @ew

ee eee aes

17

Assumption of the risk has proved a useful doctrine

in allocating responsibility where individuals voluntarily

choose a course of action with known dangers, such as the

risk of being struck by a ball at a baseball game. But for

women, as for men, working is not a “voluntary” optional

pastime like going to baseball games. Women need to work

for exactly the reason that men do, to feed, house and clothe

themselves and their families. For women working is only

as voluntary as cating is voluntary; without jobs most could

not provide themselves and their families with a decent

standard of living, and many could hardly survive.”

Assumption of the risk as a defense for employers to injuries

sustained by employees was decisively rejected by virtually

every state in the union in the early twentieth century with

the adoption of workmen’s compensation laws. Prosser On

Torts, section 80.

B. The Substance of the Rabidue Rule Is Inconsistent With

Title VII

As Mervitor explained, disparate treatment on account

of race, sex, etc. is discrimination, and thus illegal under

Title VII, regardless of whether the harm it causes is

economic or non-economic. The plain language of the law

forbids “discrimination”, not “discrimination if it happens to

cause serious psychological injury”. Where economic injury

» In Bums v. McGregor Electronic Industries, Inc., 955 F.2d 559

(9th Cir 1992), the plaintiff was subject to constant hideous verbal

abuse, a rape threat, and warning of dismissal if she did not engage

in sex with her supervisor. One supervisor constantly touched the

women employees, and on at least one occasion dropped his pants in

front of several female workers. A female coworker described the

plant as the “last resort of anybody that needs a job”. 955 F. 2d at

562. The plaintiff quit on several occasions, reluctantly returning

because “she needed work to support herself, her father, and her

brother.” 955 F. 2d at 561.

See also Phillips v. Smalley Maintenance Services, Inc., 711 F.

2d 1524, 1527(11th Cir. 1983)(supervisor insisted that plaintiff “engage

in oral sex with him on penalty of losing her job, upon which he knew

she and her family were significantly, financially dependent.”)

’ 18

is concerned, there surely is no such “serious injury” rule; an

employee wrongfully denied $1 in wages on account of race,

sen, religion or national origin would be entitled to sue for

back pay under Title VIL, and could obtain an

against such denials in the future, modest in amount though

those denials might be. Meritor rejects any different rule

merely because the injury is non-economic.

Rabidue holds that Title VII authorizes an employer

to permit, condone or even enthusiastically sponsor sexual or

racial harassment up until the point where it “affect(s}

seriously the psychological well being of the ry ot 805

F. 2d at 619. The threshold of illegality un tabidu:

quite high; in the only Sixth Circuit decision holding this

requirement satisfied, the plaintiff was repeatedly forced to

seek medical help, and was twice hospitalized because of the

psychological harm she had suffered.“ Short of such

extraordinary injury, Rabidue creates what has elsewhere

been described as a “free fire zone" for abuse of female and

minority employees. Department of Defense Inspector

General, Tailhook 91, pt. 2, p. X-1 (1993), Surely Congress

never intended to require victims of discrimination to endure

such conditions until their injuries had reached some

egregious levels, “Title VII's protection of employees from

sex discrimination comes into play long before the point

where victims of sexual harassment require psychiatric

assistance." Ellison v. Brady, 924 F. 2d 872,878 (9th Cir.

1991)”.

Under Title VII as it existed prior to 1991, the

Rabidue rule would yield results that Congress could not

possibly have intended, Until 1991 a plaintiff sustaining only

non-economic injuries as a result of racial or sexual

* Yates v. Aveo Corporation, 819 F. 24 630, 632 (6th Cir, 1987).

ed wee aw ED LY SC

period of demeaning and de provocation being entitled

to seek the remedies provided » VIL" denpap ny Sey

Mousing Auer, OF. 2a oa 50h, $78 (04 Cr. 1989).

19

harassment could not obtain any form of monetary relief

under Tithe VII. Under that circumstance, Rabidue

I ee oe Oe ere ed eee

| harassment until it led to “serious

cal injury’, even though there was no hope that

that injury could ever be redressed. Even when the required

level of serious injury had been reached, the plaintiff was

authorized only to begin the process of invoking Title VII by

filing an administrative charge; in most instances years would

go by before the matter could reach court, a trial could be

held and injunctive relief obtained.

Rabidue is equally indefensible under Title VII as

amended by the 1991 Civil Rights Act, which now authorizes

awards of compensatory damages. Congress in 1991

SS ae compensation for all damages, not just

ages amounting to serious psychological injury.

aun 102 of the 1991 Civil Rights Act authorizes

compensatory damages for “emotional pain, suffering .

and} mental anguish". 42 U.S.C. §1 ACK?) All such

damages could be suffered even though a plaintiff's

phological well being had not been seriously injured.

Moreover, Congress in 1! 1 was clearly concerned about the

size of potential against employers, it was for this

reason that section 102 imposes a partial cap on the size of

certain ¢ awards. Rather than permit a plaintiff

to sue when her injuries and compensatory damage claim

may still be modest, however, Rabidue has the perverse

effect of requiring a plaintiff to postpone suing until both

her injuries and damages are quite considerable. By the

time harassment had “affected seriously the

well being" of a plaintiff, his or her injuries in

monetary terms are likely to be quite large. Congress

cannot have intended to require that a woman or minority

who has sustained a $1000 injury postpone suit until his or

her injuries have reached $100,000, and it is difficult to see

why employers, except the defendant in the particular

circumstances of this case, would want such a rule.

The Rabidue rule is also inconsistent with the

undone by a mor award. Emotional scars wreat eush

injuries are likely to last a lifetime; notwithstanding whatever

psychologists and psychiatrists can accomplish, a minority or

female employee whose well being has been

seriously harmed is unlikely to ever be the same again.

Absent truly desperate financial circumstances, which of

course are all too common, no woman or minority would

choose to remain on a job until she or he had suffered

irreparable psychological harm. Thus long before, under

Rabidue, a woman could sue for sexual harassment, she

would in all likelihood have resigned and brought a

successful constructive d suit, See Bell v. Crackin

Good Bakers, Inc, 777 F. 2d 1497, 1500 (llth Cir

1985)(sustaining constructive discharge claim where plaintiff

had resigned to avoid “permanent severe physical and mental

problems.")

itl, THe MAGISTRATE'S EVALUATION OF THE

CIRCUMSTANCES OF THIS CASE WAS INCONSISTENT

Wrrn Titte Vil

The magistrate’s assessment of the largely undisputed

facts in this case reflects a fundamental misunderstanding,

rooted in Rabidue, of the requirements of Title VII, The

magistrate correctly held that Hardy, the president and

owner of Forklift, “demeans the female employees at his

work place” (Pet. App. A-i4), @ constant practice that

indisputably was a condition of petitioner's job. The

magistrate insisted, however, that this was insufficient to

establish a violation of the law, reasoning that Title VII

actually permits demeaning and discriminatory terms and

conditions of employment so long as they are not so severe

as to amount to a “hostile” or “abusive” environment. In

order to implement this distinction, the magistrate fashioned

a system for rating derogatory remarks from “merely

annoying and insensitive” to “truly gross". (Pet. App. A-18,

21

A-19). ee eee

opt Pa pe thy bye =

the magistrate insisted that she was “more sensitive” than

other female employees.(Pet. App. A-18).

This Court would dismias out of hand such scholastic

distinctions if they were made in a race discrimination case.

The magistrate's analysis bears a substantial resemblance to

the reasoning of Plessy v. Ferguson, 163 U.S. 537 (1896),

which insisted that racial segregation of railroad cars did not

“stam(p] the colored race with a badge of inferiority’, and

that any such impression on the part of blacks existed only

because "the colored race chooses to put that construction

upon it.” 163 U.S, at 551, The day is long past when this

Court would entertain any suggestion that some forms of

racial abuse are legal because “reasonable” blacks would not

be offended. Undoubtedly there were many whites a

generation ago who thought Rosa Parks “oversensitive” when

she objected to sitting in the back of a Montgomery bus, or

who believed Oliver Brown was “unreasonable” in asking

that his daughter attend the white schools in Topeka. But

the right to equal treatment accorded blacks by the

Constitution and laws of the United States does not ebb and

flow with popular or judicial notions of what forms of

discrimination a “reasonable” black would find tolerable or

“merely annoying”.

Faced with a pattern of undisputed “denigrating”

remarks (Pet. App. A-18), the magistrate classified most as

able * (Pet. App. A-i8), none of which, he held,

were sufficient, although pervading the workplace, to violate

Title VII. It is inconceivable that the magistrate would have

used, or that any court would have upheld, such a rating

system had the remarks been racial in nature. Title VII

surely does not authorize federal judges to draw such

distinctions among epithets such as "nigger", "nigra", "spook",

“coon”, Sjungle bunny” and *gorilles inthe mist". A lower

court decision dismissing some of these epithets as "merely

and insensitive’ would be reversed out of hand.

Title does not permit federal judges to make similar

distinctions regarding unweleome sexual comments or

The lower court in this and other cases attempted to

determine how much a "reasonable" woman would be

offended by certain derogatory or unwelcome sexual remarks

orpeenet AA ht Those courts,

urprisingly, have arrived at complex and conflicting

oh We ‘maintain that these decisions are asking the

wrong question, The relevant inquiry is what forms of

derogatory and unwelcome sexual remarks or conduct Title

VII requires any woman to endure as a condition of her job.

The answer is simple--none.

Neither this case, nor the numerous reported cases

which we have reviewed, involve any genuine

misunderstanding even by the perpetrator regarding what

actions or derogatory remarks are likely to give offense”.

The distinctions drawn by perpetrators concern not the

substance of their actions, but the status and powerlessness

of their victims, In dealing with women who exercise

authority or control over their lives, men otherwise given to

making abusive remarks act quite differently. In a context in

which he was unprotected by his status as employer, Hardy

would have had no difficulty recognizing that his comments

were more than “merely annoying.” It is unimaginable that

Hardy, in applying for a business loan, would ever ask a

female bank officer to take coins out of his pocket (Pet.

App. A-9, A-18) or comment that her nipples were visible

when the air conditioning was on. (Tr. 76) The churlish

louts who shout obscenities at women on city streets often

understand full well the offensiveness of their conduct; they

assuredly do not use similar language when speaking with

female personne! officials in the course of job interviews.

” Hardy acknowledged that he would not stand for it if someone

talked to his wife or daughter the way he had spoken to petitioner.

Tr. 7% see tr. 47, 117,

vo apprensh 0 female patron ata

, as he asked his employees, to

24), that "merely insensitive” remark might well place Hardy

in need of immediate medical attention.

The use of this sort of “reasonable woman" standard

has led defense lawyers to argue that any woman

complaining about their client's conduct must be

sought to challenge plaintiffs’ objections to sexual or gender-

based harassment by secking to discover information about

their or sexual histories”. The notion that

to certain forms of discriminator

abuses may be “unreasonable” leads inevitably to arguments,

reminiscent of the old Soviet system of remanding dissidents

to mental hospitals, that women who object to unweleome

sexual acts or remarks must be unstable.

The magistrate expressed bafflement that petitioner

had not chosen to rebuke her employer about his obnoxious

actions, (Pet. App. A-15). That observation reflects the

happy innocence of a federal official who serves for an eight

year term under judges who serve for life. Ordinary

American workers, who hold their jobs at the pleasure of

their supervisors, do not ordinarily make a practice of

rebuking their superiors for engaging in illegal and offensive

” Prien v. Rotary, 98 F.R.D. 755 (N.D.Cal, 1983),

24

conduct. Women ond entnertiee efen use the time word to

a federal

duarien cou helen, tad teaee dhreah coer fetians could of

have reviewed the facts in this case and have concluded that

bb Ryd Spt dy That result

nist ling of the commands of

equal to satisfy a reasc nable woman." The actual terms of

joyment Opportunity]", period.

42 U.S.C. ch.21, subch vi We urge this Court to so hold.

CONCLUSION

For the above reasons the decision of the court of

appeals should be reversed.

Respectfully submitted,

BLAINE R. JONES

* Eric SCHNAPPER

NAACP L&GAL DEFENSE AND

EDUCATIONAL FUND, INC.

99 Hudson Street

New York, New York 10013

(212) 219-1900

Counsel for Amici

*Counsel of Record

APPENDICES

Appendix A —

Discrimination in Employer Mandated Terms of

Employment

Appendix B —

Facially Neutral Harassment On Account of Race or

Gender

Appendix C —

Race or Gender Specific Harassment

Appendix D —

Sexual Harassment

Appendix E —

Quid Pro Quo Sexual Demands

Carrero v. New York City ,

(2d Cir. 1989) (plaintiff denied desired assignment)

Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir. 1989)

(plaintiff given excessive work)

Risinger v. Ohio Bureau of Workers’ Compensation, 883

F.2d 475 (6th Cir. 1989) (unequal treatment

regarding visitors, phone usage, and assignments)

EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989)

(discrimination regarding days off)

Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir.

1988) (unequal rest and dwelling areas for male and

female residents; female residents expected to cook

for other doctors; female residents denied

assignments given to male residents)

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

(11th Cir. 1989) (plaintiff denied needed training)

Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900

(11th Cir. 1988) (discrimination in job assignments,

hours, and vacation times)

Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987)

(plaintiff directed to jump off five foot loading dock;

not permitted to sit down; denied lunch break)

2a

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

Cir. 1986) (plaintiff assigned to do the work of two

men; denied adequate training)

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

1988) (plaintiff denied entertainment privileges;

barred from firm golf matches; not permitted, as

were her predecessors, to take customers to lunch;

required, despite management position, to sit with

clerical workers at meeting)

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

(plaintiffs barred from more desirable positions;

barred from use of white bathroom)

Carroll v. Talman Federal Savings and Loan Ass’n, 604 F.2d

1028 (7th Cir. 1979) (female but not male bank

employees required to wear uniforms)

Harrington v. Vandalia-Butler Board of Education, 585 F.2d

192 (6th Cir. 1978) (male but not female physical

education instructors provided with offices and with

showers and lockers not shared with students)

Gray v. Greyhound Lines, East, 545 F.2d 169 (D.C.Cir.

1976) (assignment of bus routes)

Rodgers v. EEOC, 454 F.2d 234 (Sth Cir. 1971) (hispanic

employee required to attend patients segregated on

the basis of national origin)

3a

Appendix B

Facially Neutral Harassment On

_Account of Race or Gender _

Burns v. McGregor Electronic Industries, Inc., 955 F.2d 559

(8th Cir. 1992) (co-worker called plaintiff vulgar

names, deliberately placed need materials where she

could not reach them)

Daniels v. Essex Group, Inc., 937 F.2d 1264 (7th Cir. 1991)

(co-worker threatened to “whip” or “beat” plaintiff

and injure his four-year-old son; bullet fired into

plaintiff's home)

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

1990) (plaintiff's case files stolen and destroyed;

fellow workers refused to provide plaintiff routine

assistance; plaintiffs car repeatedly vandalized;

anonymous harassing phone calls; plaintiff burned by

lime placed on her clothes)

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

(2d Cir. 1989) (spurned supervisor referred to

plaintiff as a "scarecrow"; threatened to fail plaintiff

on her probationary report; criticized plaintiff

publicly)

Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir. 1989)

(threat by supervisor to kill plaintiff)

Wheeler v. Southland Corp., 875 F.2d 1246 (6th Cir. 1989)

(supervisor critical of plaintiff's job performance)

Lipsett v. University of Puerto Rico, 864 F.2d 881 (ist Cir.

1988) (female residents told they were to "lick the

floor” if ordered to do so)

4a

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

(1ith Cir, 1989) (plaintiff's work sabotaged; noose

repeatedly tied over her desk)

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

1988) (plaintiff's time card altered)

Huddleston v, Roger Dean Chevrolet, Inc, 845 F.2d 900

(11th Cir, 1988) (ridicule of plaintiff's appearance;

interference with plaintiff's sales efforts)

Hall v, Gus Construction Co., Ine., 842 F.2d 1010 (8th Cir.

1988) (co-workers urinated in plaintiff's water bottle

and gas tank; refused to fix carbon monoxide leak in

her company truck)

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

(disparaging remarks about plaintiff's age and weight;

non-sexual prank in presence of federal officials)

Dormhecker v. Malibu Grand Prix Corp., 828 F.2d 307 (Sth

Cir. 1987) (co-worker choked plaintiff)

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

Cir. 1986) (plaintiff slapped by co-worker)

Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417

(7th Cir, 1986) (co-workers sabotaged and hid

plaintiff's tools; sabotaged his work; hang-man’s

noose)

Hamilton v. Rodgers, 791 F.2d 439 (Sth Cir. 1986) (nasty

pranks)

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

(plaintiff's car vandalized; harassing phone calls)

Bell v. Crackin Good Bakers, Inc., 777 F.2d 1497 (11th Cir.

1 supervisor at plaintiff; talked to her as

hp fae apteyd ages bed pay tomo ot

v. Dole, 765 F.2d 1129 (D.C, Cir, 1985)

supervisor grabbed and twisted plaintiff's arm,

eum serious physical injury)

Taylor v. Jones, 653 F.2d 1193 (8th Cir. 1981) (physical

threats)

DeGrace v. Rumsfield, 614 F.2d 796 (ist Cir. 1979)

fi ipment sabotaged, threatening notes,

Ge wocknentt by co-workers)

Daniels v. Essex Group, Inc., 937 F.2d 1264 Meh ps 1991)

(co-workers: tore “nigger jokes’; nickné

white women; hung black dummy from noose; wrote

"KKK" and “All niggers must die" on bathroom walls;

wrote "hi Bob KKK" on building; called plaintiff

“nigger” and “dumb nigger")

Andrews v. City of Philadelphia, 895 F.2d 1475 (3d Cir.

1990) (supervisor objected, "Why don't in

one [office] like a man") cing sees

EEOC v. Beverage Canners, Inc., 897 F.2d 1067 (11th Cir.

1990) (supervisors made racially derogatory remarks

and used epithets such as “niggers” and “swahilis";

asserted “blacks were meant to be slaves" and were of

lower intelligence)

Wyerick v. Bayou Steel Corp., 887 F.2d 1271 (Sth Cir. 1989)

(plaintiff repeatedly referred to as a “Fucking bitch’

on company radio)

Risinger v. Ohio Bureau of Workers’ Compensation, 883

F.2d 475 (6th Cir, 1989) (racial slurs by eight

supervisors or co-workers, such as “chink", “tight eye"

and “damned foreigner’)

EEOC vy. Hacienda Hotel, ‘681 F.2d (1504 (9th Cir. 1988)

remarks about cg ancy; stated he did not like

“stupid women who have kids"; referred to plaintiffs

as “dog” “whore” and “slut")

Ja

Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir. 1989)

Lipsett v. University of Puerto Rico, 864 F.2d 881 (ist Cir.

1988) (repeated remarks to female surgery residents

that women were not competent to be surgeons)

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

1988) (racial slurs)

Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900

(Lith Cir, 1988) (plaintiff called "bitch" and “whore")

North v. Madison Area Ass'n for Retarded Citizens, 544

F.2d 401 (7th Cir, 1988) (racial slurs)

Hall v. Gus Construction Co., Ine., 842 F.2d 1010 (8th Cir.

1988) (“blond bitch" written on outside of plaintiff's

car; plaintiffs referred to repeatedly as "Fucking Flag

girls")

Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987)

(“niggers", “coons"; “lazy niggers and Mexicans”)

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

Cir. 1986) ("monkey")

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

1986) (supervisor stated regarding plaintiff's position,

‘we really need a man in that job"; co-worker

routinely used anti-female obscenities)

Hunter v. Alls-Chalmers Corp., Engine Div., 797 F.2d 1417

(7th Cir, 1988) (bulletin board graffiti such as “the

KKK is not dead, nigger’; and “open season on

coons"; racially derogatory notes such as “save this

mess for the nigger")

Hamilton v. Rodgers, 791 F.2d 439 (Sth Cir, 1986) (racial

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

cially derogatory literature and cartoons)

Erebia v. Chrysler Plastic Products Corp., 772 F.2d 1250 (6th

Cir. 1985) (‘wetback"; “tomato picker"; plaintiff told

to go back to Mexico so that a white person could

have his job, “hot headed Mexican")

Craik v. Minnesota State University Board, 731 F.2d 465

(8th Cir, 1984) (male faculty members objected to

woman teaching statistics, student told women should

just be para-professionals, and did not need graduate

degrees; “we'll be stuck with a woman")

Gilbert v. City of Litthe Rock, 722 F.2d 1390 (8th Cir. 1983)

(racial remarks and derogatory epithets; racial

oriented graffiti; racial cartoon on police

headquarters bulletin board)

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

(“nigger"; “coon”, “Dlackboy"; “That's just like a

nigger"; "KKK Headquarters” written on facade of

tool shed)

Taylor v. Jones, 653 F.2d 1193 (8th Cir. 1980) {remeron

racial slurs, epithets and jokes; | Vigge ‘

joke ending with the punch line, "Oh, don’t worry

about it, we're just barbecuing a few niggers")

DeGrace v. Rumsfield, 614 F.2d 796 (ist Cir. 1980) (series

of threatening notes, such as “hey boy get your Black

ass out Before you don't have one")

inertia

;

ns at datina iia tan wo. tava

87 (8th Cir. 1977) (“dago")

10a

Appendix D

Burns v. McGregor Electronic Industries, Inc., 955 F.2d 559

(8th Cir. 1992) (supervisor remarked “have you been

playing with yournsif discussed sex; asked plaintiff

to ween § ah y

least nan proposed ore! tex 80 plaintiff would "be

able to perform [her] work better"; proposed plaintiff

pose nude for him ) return for overtime pay; co-

worker called piaintiff obscene names)

Ellison v. Brady, 924 F.2d 872 (9h Cir. 1991) (bizarre

messages from co-worker referring to non-existent

romantic relationship)

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

1990) (plaintiffs called obscene names; display of

pomographic pictures in locker room shared by male

and female officers, supervisor breathed heavily down

plaintiff's neck; ie pictures placed on

office walls and in 5 desk; sexual devices

placed in plaintiff's desk; anonymous obscene phone

calls)

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

(2d Cir. 1989) (co-worker dropped pants in front of

plaintiff, supervisor repeatedly kissed plaintiff's neck,

stroked her arm and knee)

Wyerick v. Bayou Steel Corp., 887 F.2d 1271 (Sth Cir. 1989)

(repeated references to plaintiff's breasts; supervisor

stated he “had gotten a ‘hard-on’ watching her;

obscene jokes on company radio)

lla

EEOC v. Hacienda Hotel, 881 F.2d 1504 (8th Cir. 1989)

(supervisor comments about plaintiffs “ass”;

reference to oral sex; suggestion of sodomy; offer of

money if plaintiff would "give him [her] body”)

Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir. 1989)

(numerous explicit sexual remarks by supervisor,

supervisor showed plaintiff pornographic photograph

of interracial sodomy, commenting plaintiff was hired

for that purpose; supervisor showed plaintiff racist

pornographic picture involving bestiality, threatening

that was how plaintiff “was going to end up")

Paroline v. Unysis Corp., 879 F.2d 100 (4th Cir. 1989)

(numerous sexual comments and unwanted touching

of female employees by supervisor and other men;

supervisor repeatedly kissed plaintiff over her

objections)

Wheeler v. Southland Corp., 875 F.2d 1246 (6th Cir. 1946)

(supervisor repeatedly leaned against plaintiff,

touched her hips, called her “honey” or "baby"; asked

why she did not hire women with big breasts)

Staton v. Maries County, 868 F.2d 996 (8th Cir. 1989)

(numerous sexual advances; rape)

Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th

Cir. 1989) (numerous sexual jokes; requests for

sexual favors; proposal that plaintiffs visit supervisor

on his couch; "suggestive" comments on plaintiffs’

attire)

Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir.

1988) (explicit discussion of desire to have sex;

Playboy centerfolds and sexually explicit drawing of

plaintiff posted in meeting room; sexual nicknames

for women residents; explicit remarks about bodies of

12a

plaintiff and other women; bragging about sexual

exploits)

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

1988) (cartoons posted in public men’s room

depicting plaintiff, and bearing her name, engaged in

crude and deviant sexual activity)

Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900

(11th Cir. 1988) (“we're going to take your clothes off

to see if you are real")

Hall v. Gus Construction Co., Inc., 842 F.2d 1010 (8th Cir.

1986) (plaintiffs repeatedly asked by co-workers if

they “wanted to fuck” or engage in oral sex; co-

workers grabbed breasts or rubbed thighs of

plaintiffs; co-workers mooned or exposed themselves

to plaintiffs; flashed at plaintiffs obscene

photographs)

Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987)

(supervisor grabbed plaintiffs thigh; supervisor

touched plaintiff's buttocks, stating "I’m going to get

you yet"; supervisor grabbed plaintiff's breasts, stating

"I got you")

Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th

Cir. 1987) (facility manager repeatedly touched

plaintiffs shoulders and hair; inquired if she could

become pregnant; made remark described by district

court as "too sexually explicit” to repeat)

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

worker allegedly grabbed plaintiff's genitals;

repeatedly made sexually explicit and other obscene

remarks to her; exposed himself to her; responded to

plaintiffs objections by warning “I haven't even

Started on you yet")

13a

Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307 (Sth

Cir. 1987) (co-worker touched plaintiff's hips and

breasts; dropped his pants; stated "Let’s get naked

and go to my room”)

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

(supervisor repeatedly proposed sexual relations,

made sexually suggestive comments, lewd references

to plaintiff's body, and lewd jokes; asserted he was

putting plaintiff “on his mistress list"; asked plaintiff

into his office so he could watch her walk out and

"make groaning sounds")

Highlander v. K.F.C. National Management Co., 805 F.2d

644 (6th Cir. 1988) (supervisor touched plaintiff's legs

and buttocks)

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

1985) (fellow employee remarked of plaintiff, "All

that bitch needs is a good lay”)

Bohen v. City of East Chicago, Ind., 799 F.2d 1150 (7th Cir.

1986) (supervisor grabbed plaintiffs crotch;

repeatedly discussed his sexual tastes and

expectations of her; rubbed his pelvis against her

buttocks; co-workers directed obscene comments at

plaintiff; another supervisor informed plaintiff that

she should be forcibly raped)

Scott v. Sears, Roebuck & Co., 798 F.2d 210 (7th Cir. 1986)

(co-workers slapped plaintiff's buttocks; commented

she must “moan and groan” while having sex;

supervisor repeatedly suggested he give plaintiff

rubdown; responded to requests for assistance, "What

will I get for it?”)

l4a

v. Flagship International, 793 F.2d 714 (Sth Cir. 1988)

"(supervisor proposed to take plaintiff to a hotel

because she needed the “comfort of a man”;

numerous other advances; corporate vice-president

rebuked plaintiff when she expressed distaste of

female employees at use of figures of bare-breasted

mermaids as table decorations)

McKinney v. Dole, 765 F.2d 1129 (D.C.Cir. 1985)

(supervisor asked for sexual favors, rubbed himself

against her, exposed himself)

Horn v. Duke Homes, Div. of Windsor Mobile Homes, 755

F.2d 599 (7th Cir. 1985) (supervisor made repeated

sexual advances, made lewd comments and obscene

gestures, brushed against breasts of female workers)

Barrett v. Omaha National Bank, 726 F.2d 424 (8th Cir.

1984) (supervisor talked about sexual activity;

touched plaintiff in an offensive manner)

Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524

(llth Cir. 1983) (supervisor repeatedly demanded

sexual relations, discussed particular types of sexual

activities)

Katz v. Dove, 709 F.2d 251 (4th Cir. 1983) (“extremely

vulgar and offensive sexually explicit epithets"

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

(chief of police subjected female subordinates to

repeated requests for sexual relations, vulgar

comments, and sexual inquiries)

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

repeatedly sought sexual relationships; asked about

sexual proclivities; "any man in his right mind would

want to rape you")

15a

Appendix E

Quid Pro Quo Sexual Demands

Burns v. McGregor Electronic Industries, Inc., 955 F.2d 559

(8th Cir. 1992) (supervisor whose advances had been

rejected warned plaintiff, "You must not need your

job very bad"; supervisor warned plaintiff he would

let other employees force her dismissal "If you don’t

go out with me”)

EEOC v. Hacienda Hotel, 881 F.2d 1504 (8th Cir. 1989)

(threat of dismissal if sexual advances rejected;

promise of immunity from dismissal if plaintiff would

have sex with him)

Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir.

1988) (female residents warned to obtain protection

of senior residents by providing sexual favors)

Jordan v. Clark, 847 F.2d 1368 (8th Cir. 1988) (supervisor

suggested plaintiff sleep with him in order to keep

her job and get a promotion)

Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900

(11th Cir. 1988) (plaintiff warned co-workers would

obstruct her sales efforts if she did not go out with

them)

Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th

Cir. 1987) (facility manager whose sexual advances

were not accepted threatened "your fate is in my

hands” and "revenge is the name of the game”)

Highlander v. K.F.C. National Management Co., 805 F.2d

644 (6th Cir. 1986) (supervisor told plaintiff if she

was interested in becoming a manager "there is a

motel across the street”)

16a

Horn v. Duke Homes, Div. of Windsor Mobile Homes, 755

F.2d 599 (7th Cir. 1985) (supervisor told plaintiff it

would be "easy" for her at office if she went out with

him; supervisor promised raise if female employee

would "cooperate" with him)

Lucas v. Brown & Root, Inc., 736 F.2d 1202 (8th Cir. 1984)

(plaintiff fired for refusing to have sexual relations

with her foreman)

Craig v. Y & Y Snacks, Inc., 721 F.2d 77 (3d Cir. 1983)

(plaintiff fired for refusing to have sexual relations

with supervisor)

Phillips v. Smalley Maintenance Services, 711 F.2d 1524

(11th Cir. 1983) (plaintiff fired for refusing to have

sexual relations with supervisor)

Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979)

(plaintiff fired for refusing to have sexual relations

with supervisor)

Tomkins v. Public Serv. Elec. & Gas Co., 568 F.2d 1044 (3rd

Cir. 1977)(plaintiff warned by male supervisor that

she would be fired unless she engaged in sexual

relations)

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