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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 17

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0376%3A14. Public record. Not legal advice.