Amicus Curiae Brief — Rothenbusch v. Ford Motor Co.

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No. 95-972

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SUPREME COURT OF THE UNITED STATES

October Term, 1995

ROSE ANN ROTHENBUSCH,

Petitioner,

Vv.

FORD MOTOR COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF AMICI CURIAE OF NATIONAL

EMPLOYMENT LAWYERS ASSOCIATION AND

NOW LEGAL DEFENSE AND EDUCATION FUND

IN SUPPORT OF PETITION FOR

A WRIT OF CERTIORARI

FREDERICK M. GITTES Louis A. JACOBS

Spater, Gittes, Schulte & Kolman 4905 Stonehaven Drive

723 Oak Street Upper Arlington, Ohio 43220

Columbus, Ohio 43205 (614) 459-5690

(614) 221-1160 Counsel of Record

QUESTION PRESENTED

WHETHER SPECIFIC INTENT TO DISCRIMINATE ON THE

BASIS OF SEX IS A NECESSARY ELEMENT IN PROVING AN

EMPLOYER HAS INFLICTED A HOSTILE ENVIRONMENT ON

AN EMPLOYEE IN VIOLATION OF TITLE VII OF THE CIVIL

RIGHTS ACT OF 1964?

LIST OF PARTIES

The parties to the proceedings and in this Court are

Petitioner Rose Ann Rothenbusch, the plaintiff-appellant

below, and Respondent Ford Motor Company, the

defendant-appellee below. Amici Curiae in this Court are

the National Employment Lawyers Association and the

NOW Legal Defense and Education Fund. The interests

and background of Amici Curiae are described in the

motion for leave to file this brief.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................ i

ge ii

TABLE OF CONTENTS ........0ccce000% ili

TABLE OF AUTHORITIES ............... iv

es re vi

eae as) p60 0 0 65 0 65 so 1

SE 2

DE vn wae ee cs aeesececseccas 2

STATUTORY PROVISIONS INVOLVED .... 2, 3

STATEMENT OF THE CASE ............. 3

REASONS FOR GRANTING THE WRIT ...... +

I Teas a aia gaNS w 60.6.0 6 ae 9 0 os +

0 C Defi ies Bosnia

Proof of Specific Intent. ............. 5

A. Nature of Hostile Environment ......... 5

B. Ippo wader Tile VE. ww ww wee 7

C. Reinforcing the Floodgates. ........... 8

D. Inferring General Intent to Discriminate. ... 9

CONCLUSION ................222-. 12

iV

TABLE OF AUTHORITIES

Page

Cases

Andrews v. City of Philadelphia,

895 F.2d 1469 (3d Cir. 1990) ........ 10

Ashkin v. Time Warner Cable Corp. , 52 F.3d 140

Pee SE oa ee ees Vaca Oo 5

Burns v. McGregor Electronic Industries, Inc. ,

989 F.2d 959 (8th Cir. 1993) ....... 9, 10

Cram v. Lamson & Sessions Co., 49 F.3d 466

Le | Ree ee ae 4,8,9

Goss v. Exxon Office Systems Co., 747 F.2d 885

en NG oa ss eos 5

Harris v. Forklift Systems, Inc..,

114 S. GC. 367 (1993) ........ 5, 6, 8, 11

Henson v. Dundee,

682 F.2d 897 (11th Cir. 1982) ........ 11

Hutchison v. Amateur Electronic Supply, Inc.,

42 F.3d 1037 (7th Cir. 1994) .......... 10

Local 189, United Papermakers & Paperworkers v.

United States, 416 F.2d 980 (Sth Cir.

1969), cert. denied, 397 U.S. 919 (1970) .. 7

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

Bet Ce i week oe eee ee ees 6, 11

Cases (continued)

Page

Rabidue v. Osceola Refining Co..,

805 F.2d 611 (6th Cir. 1986) ......... 10

Schaeffer v. San Diego Yellow Cabs, Inc..,

462 F.2d 1002 (9th Cir. 1972) ......... 7

Spain v. Gallegos, 26 F.3d 439 (3d Cir. 1994) .. 10

vi

No. 95-972

SUPREME COURT OF THE UNITED STATES

October Term, 1995

ROSE ANN ROTHENBUSCH,

Petitioner,

Vv.

FORD MOTOR COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

MOTION OF NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION AND NOW LEGAL

DEFENSE AND EDUCATION FUND FOR LEAVE

TO FILE A BRIEF AMICI CURIAE IN SUPPORT

OF PETITION FOR A WRIT OF CERTIORARI

The National Employment Lawyers Association

("NELA") and the Now Legal Defense and Education

Fund ("NOW LDEF") move the Court, pursuant to U.S.

Sup. Ct. R. 21.2(b), for leave to file a brief Amici

Curiae in support of the petition for writ of certiorari

because, in the words of U.S. Sup. Ct. R. 37.1, they can

"bring[] relevant matter to the attention of the Court that

vii

has not already been brought to its attention by the

nel Beginning with a reformulation of the primary

question presented by Petitioner and continuing through a

description of how the holding by the court below has

broad and untoward factual and legal consequences, their

brief contributes knowledge and insight in the area of

sexual harassment garnered through years of nationwide

litigation, education, and advocacy.

By identifying aspects of the question presented

that were omitted from the Petition and are unlikely to be

discussed in Respondent’s brief, Amici Curiae can supply

the Court with a better appreciation of the importance of

the question presented and its practical ramifications.

Amici Curiae add a perspective that private counsel

representing a single client is rarely able to provide.

NELA is a non-profit professional organization

comprised of over 2,000 lawyers in 48 States and the

District of Columbia who represent individual employees

and applicants in employment and labor matters. NELA

regularly sponsors continuing legal education programs;

publishes newsletters, including THE EMPLOYEE

ADVOCATE, which is an extensive supplement of

materials to members updating developments in

employment and labor law and sharing their experience

in this field; operates an electronic forum, NELANet;

testifies before legislatures; and submits amicus curiae

briefs in federal and State courts throughout the country.

See, e.g., Morales v. Barge-Wagener Construction Co.,

114 S. Ct. 579 (1993)(memorandum order granting

NELA leave to file a brief amicus curiae).

Sexual harassment has often been a topic of

NELA publications and presentations, and thousands of

sex discrimination claims have been pursued by NELA

members. NELA has filed amicus briefs in sexual

harassment cases. See, e.g., Clarke v. Kentucky Fried

Chicken of California, Inc., 57 F.3d 21, 22 (1st Cir.

1995); Popovich v. Irlando, 811 P.2d 379, 380 (Colo.

1991).

NOW LDEF is a leading national non-profit civil

rights organization that performs a broad range of legal

and educational services in support of women’s efforts to

eliminate sex-based discrimination and secure equal

rights. NOW LDEF was founded in 1970 by leaders of

the National Organization of Women. Since then, NOW

LDEF has often appeared as an amicus curiae in this

Court. See, e.g., Bowen v. Kendrick, 487 U.S. 589, 592

(1988) (referring to NOW LDEF brief amicus curiae);

New York State Club Association, Inc. v. City of New

York, 487 U.S. 1, 3 (1988)(same); United States Postal

Service Board of Governors v. Aikens, 460 U.S. 711,

712 (1983)(same).

A major goal of NOW LDEF is the elimination of

barriers that deny women economic opportunities, and

sexual harassment has been one of the most problematic

of those barriers. In furtherance of that goal, NOW

LDEF litigates cases to secure full enforcement of laws

prohibiting sexual harassment. See, e.g., Robinson v.

Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D.

Fla. 1991), cross appeals dismissed per stipulation (11th

Cir. 1995); Townsend v. Indiana University, 995 F.2d

691 (7th Cir. 1993). NOW LDEF has also filed amicus

briefs in sexual harassment cases. See, e.g., Harris v.

Forklift Systems, Inc., 114 S. Ct. 367 (1993).

Although Petitioner has consented to the filing of

this brief amici curiae, Respondent has not given

consent. Consequently, leave to file is required.

Respectfully submitted,

FREDERICK M. GITTES Louis A. JACOBS

Spater, Gittes, Schulte & Kolman 4905 Stonehaven Drive

723 Oak Street Upper Arlington, Ohio 43220

Columbus, Ohio 43205 (614) 459-5690

(614) 221-1160 Counsel of Record

No. 95-972

SUPREME COURT OF THE UNITED STATES

October Term, 1995

ROSE ANN ROTHENBUSCH,

Petitioner,

v.

FORD MOTOR COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION

Amici Curiae National Employment Lawyers

Association and NOW Legal Defense and Education Fund

respectfully request that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Sixth Circuit entered in the above-entitled

case on July 20 1995.

2

OPINIONS BELOW

The opinion of the Court of Appeals for the Sixth

Circuit is not reported and has been reprinted in the

appendices to the Petition for Writ of Certiorari docketed

on December 21, 1995. The opinion of the United States

District Court for the Southern District of Ohio is also not

reported and has similarly been reprinted in the appendices

to the Petition.

JURISDICTION

This action arose under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §2000e, et seg.; Ohio Laws

Against Discrimination, Ohio Rev. Code §4112.02(A); and

Ohio common law, and jurisdiction was vested in the

United States District Court for the Southern District of

Ohio by 28 U.S.C. §§ 1331; 1367. The appeal was

predicated on 28 U.S.C. §1291. This Court’s jurisdiction

arises under 28 U.S.C. §1254.

STATUTORY PROVISIONS INVOLVED

§703(A) OF TITLE VII, 42 U.S.C. §2000e-2(a)

It shall be an unlawful employment practice for an

employer --

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to compensation, terms, conditions,

or privileges of employment, because of such individual’s

race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would deprive

or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as an

employee, because of such individual’s race, color,

religion, sex, or national origin.

§4112.02(A), OHIO REVISED CODE

It shall be an unlawful discriminatory practice:

(A) For any employer, because of race, color, religion,

sex, national origin, handicap, age, or ancestry of any

person, to discharge without just cause, to refuse to hire,

or otherwise to discriminate against that person with

respect to hire, tenure, terms, conditions, or privileges of

employment, or any matter directly or indirectly related to

employment.

STATEMENT OF THE CASE

Amici Curiae adopt the Statement of the Case

submitted in the Petition for Writ of Certiorari. The point

crucial to the question here presented is the appellate court

affirmance of jury instructions precluding a finding of a

sexually hostile environment when the harasser was

motivated by personal animosity. The courts below were

construing Title VII of the Civil Rights Act of 1964 to

supply the legal standards applicable under Ohio’s parallel

statute.

4

REASONS FOR GRANTING THE WRIT

I. Summary

Emerging in the lower federal courts is a broken-

romance defense to liability for a sexually hostile work

environment. The harasser and employer are being

excused when the target had initially welcomed a

relationship. Thus, the appellate court below could

predicate its opinion on the observation that "[t)his case

appears to be the classic story of workplace romance turned

sour." App. 1-2. See also, Cram v. Lamson & Sessions

Co., 49 F.3d 466, 468 (8th Cir. 1995)("This case concerns

a workplace romance gone awry.").

The legal issue reflected in the crucial jury

instructions given in this case focuses on the motivation for

the hostile environment. Under such instructions, the key

question mistakenly becomes whether the ex-lover, who

demonstrably had imposed a sexually hostile environment,

was merely venting personal animosity. That the

environment was the product of such a motivation then

creates immunity from liability.

These instructions effectively require proof of a

specific intent to discriminate. That requirement depends

on the notion that a sexually hostile work environment

imposed by the ex-lover and tolerated by the employer is

permissible if neither was motivated specifically by sex.

This notion is flatly inconsistent with equal employment

opportunity laws, misconstruing them to require proof

beyond the general intent to discriminate readily inferred

from imposition of a sexually hostile work environment.

Lower courts have decided this important legal issue

under Title VII in a way that deviates from this Court’s

precedent on Title VII’s protection from sex discrimination.

The petition should, therefore, be granted.

Increasingly, employers are attempting to

distinguish discriminatory intent from personal animus.

They tend to borrow specific intent concepts from

precedent on retaliation, Ashkin v. Time Warner Cable

Corp., 52 F.3d 140, 144 (7th Cir. 1995)("her complaints

arose solely out of a non-sexual personality clash between

two aggressive individuals"), or constructive discharge,

Goss v. Exxon Office Systems Co., 747 F.2d 885, 887-88

(3d Cir. 1994)(surveying cases that "appear to have

required a finding that discrimination complained of

amounted to an intentional course of conduct calculated to

force the victim’s resignation" and rejecting them in favor

of "an objective standard, requiring no more than a finding

that the conduct complained of would have the foreseeable

result that working conditions would be so unpleasant”).

Of course, a specific intent to discriminate is

actionable whenever harassment in any form occurs. Even

absent specific intent, though, a general intent to discrim-

inate may be inferred under equal employment opportunity

laws when the harassment itself is of a sexual nature. The

error of the courts below is their confusion of proof

sufficient to state a claim for a sexually hostile work

environment -- specific intent -- with proof necessary for

that claim -- general intent. Whether the intent behind the

sexually hostile work environment is personal animosity or

perversity becomes irrelevant when the effect by any

objective analysis is a work atmosphere polluted by sex-

related harassment.

A. Nature of Hostile Environment

This Court has twice directly addressed sexual

harassment claims under Title VII. In Harris v. Forklift

Systems, Inc., 114 S. Ct. 367 (1993), this Court rejected

the approach in some federal appellate circuits that required

6

targets to present evidence of a severe psychological effect

from the hostile environment. This Court recognized that

interference with the terms and conditions of employment

will usually occur before the target’s injury reaches that

level and that the totality of circumstances, including

frequency, severity, physical or verbal nature, and the

effect on the victim, must be considered.

A key passage in Harris v. Forklift Systems, Inc.,

supra, 114 §. Ct. at 270, emphasized the proper focus on

the effect a sexually hostile work environment has on

women:

Conduct that is not severe or pervasive

enough to create an objectively hostile or

abusive work environment -- an environment

that a reasonable person would find hostile

or abusive -- is beyond Title VII’s purview.

Likewise, if the victim does not subjectively

perceive the environment to be abusive, the

conduct has not actually altered the

conditions of the victim’s employment, and

there is no Title VII violation.

In Meritor Savings Bank, FSB v. Vinson, 477 U.S.

557 (1986), this Court was similarly concerned with

pollution of the environment by sex-based hostility. The

intent element in typical sexual harassment claims was

nearly assumed: "Without question, when a supervisor

sexually harasses a subordinate because of the subordinate’s

sex, that supervisor ’discriminate[s]’ on the basis of sex."

477 U.S. at 64. The employer’s attempt to limit Title VII

to tangible economic loss was then rejected in Vinson

because the statute prohibits the "entire spectrum of dispa-

rate treatment." Jd. Finally, the Equal Employment

Opportunity Commission (EEOC) guidelines, 29 C.F.R.

§1604.11(a)(3), were approvingly cited for reaching

harassment that had the purpose or effect of creating a

hostile environment.

LT TTS RET eT TT

7

These decisions and their rationales strongly suggest

that specific intent is mot required to prove a hostile

environment. Personal motivations, ranging from

animosity to lust to a simple inability to control one’s

workplace conduct, are often used by plaintiffs to explain

why the harasser imposed a sexually hostile work

environment. The jury instruction approved by the

appellate panel below transformed these motivations into

exculpatory evidence.

B. Intent under Title VII.

As a general matter specific intent is not required to

prove a violation of Title VII. No greater burden should

be imposed in sex discrimination cases. Early precedent

focused on the remedial provision, 42 U.S.C. §2000e-5(g),

which refers to an employer found to have "intentionally

engaged in. . . an unlawful employment practice." This

element of intent was construed to require “only that the

defendant meant to do what he did, that is, his employment

practice was not accidental." Local 189, United

Papermakers & Paperworkers v. United States, 416 F.2d

980, 996 (Sth Cir. 1969), cert. denied, 397 U.S. 919

(1970). This approach to intent was also used when

employers invoked protective laws to demonstrate their

good faith. Schaeffer v. San Diego Yellow Cabs, Inc. , 462

F.2d 1002, 1006 (9th Cir. 1972).

Imposition of a specific intent requirement for proof

of a sexually hostile work environment claim has, however,

been erroneously justified by the language in Title VII’s

prohibition of disparate treatment: "because of sex".

Importantly, a general intent satisfies that standard.

Indeed, there is a contradiction in terms when a court finds

insufficient proof of differential treatment because of sex

on a record that, based on any objective analysis, is replete

with extensive harassment of a sexual nature.

8

This Court has not addressed the legal issue of

whether the requisite intent to discriminate can be inferred

from harassment of a sexual nature. Cf. Harris v. Forklift

Systems, Inc., supra, 114 §. Ct. at 372 (1993)(Ginsburg,

J., concurring)("The critical issue, Title VII’s text

indicates, is whether members of one sex are exposed to

disadvantageous terms or conditions of employment to

which members of the other sex are not exposed.").

Usually a hostile environment is inflicted through

sex-related behavior. That the subjective motivation of the

harasser is personal animosity should make no difference

in that situation. Only by converting Title VII into a

specific intent statute would motivation in such

circumstances matter. The fundamental argument against

a specific intent requirement where harassment of a sexual

nature is involved is that, whatever motivated that

harassment, the employer violates Title VII by forcing the

employee to suffer it as a term or condition of

employment.

C. Reinforcing the Floodgates.

Lower courts seem concerned that a flood of Title

VII actions will overwhelm dockets in light of the

persistence of workplace romance and the multifarious

motivations underpinning sexual harassment. This concern

that every workplace romance will sour into a federal claim

is unwarranted. The facts in Cram v. Lamson & Sessions

Co., supra, a case where no sexual harassment was found,

illustrate that clean breaks can be made without imposing

a hostile environment.

The case involved an ex-lover who "made no sexual

comments, threats, or references to her job status" and

supervisors’ decisions that, while "implying a personal

dislike or distrust of Cram herself," were "not the same as

statements found to imply discriminatory attitudes toward

women as a group” or those "based on discriminatory

acai nail. |

9

attitude toward women.” 49 F.3d at 469, 472. The

critical aspect of the facts was that the ex-lover "did not

make any sexual comments, advances or requests after their

consensual relationship ended;" indeed, his efforts to woo

back his lover were not entirely fruitless. 49 F.3d at 472

(plaintiff had accepted an expensive Valentine’s Day gift).

Their supervisor/subordinate relationship at work

was totally asexual and professional: the supervisor never

"brought any personal issues into their discussion" of a

leave request, and his "workplace interactions with Cram

the period following the breakup of their

relationship were brief, sporadic, nonsexual,

nonthreatening, and polite." 49 F.3d at 473-74. Absent

"inappropriate language or . . . sexual or intimidating

comments either in person or in the notes," a hostile

environment could not be established. 49 F.3d at 475.

In contrast, Amici respectfully suggest that, as in the

instant case, an actionable hostile environment would arise

when personal animosity stemming from a broken romance

is implemented by sexual means at the workplace. Burns

v. McGregor Electronic Industries, Inc. , 989 F.2d 959, 965

(8th Cir. 1993), involved a spurned would-be lover, but the

court’s rejection of a personal animosity defense, which it

described as a "callous explanation,” is illustrative: "There

is no excuse in any work environment for subjecting a

female worker to such verbal abuse even if the harasser

and the plaintiff did not like each other." There is even

less excuse for the sort of harassment Petitioner suffered,

which included dissemination through the workplace of

pornographic drawings identifying her by name.

A general discriminatory intent is intrinsic to a

sexually hostile work environment. "The intent to

discriminate on the basis of sex in cases involving sexual

propositions, innuendo, pornographic materials, or sexual

10

derogatory language is implicit, and thus should be

recognized as a matter of course." Andrews v. City of

Philadelphia, 895 F.2d 1469, 1482 n. 3 (3d Cir. 1990).

A general intent to discriminate may be inferred

even when the harassment does not amount to a sexual

assault. "[A]n employee can demonstrate that there is a

sexually hostile work environment without proving blatant

sexual misconduct." Spain v. Gallegos, 26 F.3d 439, 447

(3d Cir. 1994). Accord Burns v. McGregor Electronic

Industries, Inc., supra, 989 F.2d at 964 ("Sexual

harassment can take place in many different ways. A

female worker need not be propositioned, touched

offensively, or harassed by sexual innuendo... .").

Sexual harassment is predominantly suffered by

female employees. Their presence in the workplace is

conditioned on a burden that male employees do not bear.

Hutchison v. Amateur Electronic Supply, Inc., 42 F.3d

1037, 1043 (7th Cir. 1994), discussed this situation in

rejecting the employer’s argument that both male and

female employees were or would have been offended by

the immature antics of a supervisor:

It blinks reality to claim that sexual conduct

which demeans women by a man in a

position of power, even if not directed at a

specific woman victim, equally impacts male

and female subordinates. This disparate

effect is the discriminatory element in a

hostile environment.

Ignoring this reality of the workplace encourages

assertion of an equal opportunity offender defense. Only

in an artificial sense would a female employee’s terms and

conditions of employment not be different but for her sex

if male employees are exposed to the same terms and

conditions. Just such a distorted view of reality led the

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

620 (6th Cir. 1986), to make the unacceptable suggestion

ee

11

of an equal opportunity offender defense: "It is of

significance that instances of complained of sexual conduct

that prove equally offensive to male and female workers

would not support a Title VII charge because both men and

women were accorded like treatment." The supervisor who

acts out his personal animosity towards all employees

should, however, be liable if the acts toward female

employees were sex-related or the animosity traced to a

sex-based reason for harassing a female employee and the

conduct, by any objective standard, created a sexually

hostile environment.

The Vinson decision approved the EEOC recognition

of a hostile environment because "the EEOC drew upon a

substantial body of judicial decision and EEOC precedent

holding that Title VII affords employees the right to work

in an environment free from discriminatory intimidation,

ridicule, and insult." 477 U.S. at 65. Although this Court

later referred to "discrimination based on sex," its

extensive quotation from Henson v. Dundee, 682 F.2d 897,

902 (11th Cir. 1982), included the passage that women

could not be made to "run a gauntlet of sexual abuse in

return for the privilege of being allowed to work and make

a living." 477 U.S. at 67.

In Harris v. Forklift Systems, Inc., supra, the

combination of an objective and subjective perspective

demonstrates that harassment of a sexual nature inherently

discriminates regardless of the harasser’s motivation. The

employer’s specific intent was not then before the Court;

however, inferring the requisite intent from harassment of

a sexual nature does not depend on proof of such specific

intent. Proof of a general intent to discriminate must

suffice when a sexually hostile work environment has been

imposed or tolerated by the employer.

12

CONCLUSION

peat es. le ppees the petition for a writ of

FREDERICK M. GITTES Louls A. JACOBS

ites, Schulte & Kolman 4905 Stonehaven Drive

723 Oak Street Upper Arlington, Ohio 43220

Columbus, Ohio 43205 (614) 459-5690

(614) 221-1160 Counsel of Record

January 20, 1995