UPDATE: SEX-STEREOTYPING AND TITLE VII

THE DEPARTMENT OF JUSTICE WEIGHS IN

Following our recent blog post describing the EEOC’s interpretation of Title VII in the context of sexual orientation discrimination, another Federal agency has issued a policy statement that would seem to expand upon the EEOC’s position. The Department of Justice issued a memo on December 15, 2014 stating that the DoJ now reads Title VII of the Civil Rights Act of 1964 to prohibit employment discrimination “based on gender identity, including transgender status.”

Attorney General Eric Holder writes in the memo (PDF):

After considering the text of Title VII, the relevant Supreme Court case law interpreting the statute, and the developing jurisprudence in this area, I have determined that the best reading of Title VII’ s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status. The most straightforward reading of Title VII is that discrimination “because of … sex” includes discrimination because an employee’s gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex. As the Court explained in Price Waterhouse, by using “the simple words ‘because of,’ … Congress meant to obligate” a Title VII plaintiff to prove only “that the employer relied upon sex-based considerations in coming to its decision.” 490 U.S. at 241-242. It follows that, as a matter of plain meaning, Title VII’ s prohibition against discrimination “because of … sex” encompasses discrimination founded on sex-based considerations, including discrimination based on an employee’s transitioning to, or identifying as, a different sex altogether. Although Congress may not have had such claims in mind when it enacted Title VII, the Supreme Court has made clear that Title VII must be interpreted according to its plain text, noting that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998).

The Attorney General’s statement, following the EEOC’s recent policy change, is another welcomed representation of the sea change taking place in the American political realm regarding the civil rights of the LGBT community.

The DoJ’s position has not yet been tested in any case appearing before the Supreme Court of the United States, so it remains to be determined if this policy will create a lasting, tangible change in employment discrimination cases. However, the fast-paced evolution of the Federal government’s position towards LGBT rights suggests that progress in this arena is not only attainable, but is occurring rapidly in a highly significant manner.

We’ll keep you updated as this situation further develops.

H/t: Workplace Prof Blog.

If you feel that you have been discriminated against by your employer for your gender identity or sexual orientation, you should seek the assistance of counsel immediately to discuss the legal remedies available to you.

GENDER STEREOTYPES AND SEXUAL ORIENTATION DISCRIMINATION

THE EEOC’S NEW THEORY TO COMBAT LGBT DISCRIMINATION

Currently no federal law exists that would prohibit employers from discriminating against employees on the basis of their sexual orientations. However, the EEOC has recently begun pursuing cases involving such discrimination under a theory that classifies these actions as gender discrimination. This theory revolves around the idea that some instances of sexual orientation discrimination are based upon an LGBT employee’s nonconformance to gender stereotypes.

In pursuing these claims, the EEOC has based its arguments on the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, a female accountant was passed over for a partnership with her firm because she did not wear makeup or dress in a feminine manner. The Court ultimately held that the firm unlawfully discriminated against the accountant because its decision to deny her partnership was based on the accountant’s refusal to conform to gender stereotypes.

The EEOC asserts that this decision should be applicable to situations involving discriminatory acts against LGBT employees, and has quite a bit of merit. Let’s say, for example, that a gay man is terminated for exhibiting certain behavior that does not conform to general ideas of masculinity. If the employer would not have terminated a female employee for exhibiting the same type of behavior, the EEOC argues that the employer’s decision to terminate the gay employee violates Title VII’s prohibition against gender discrimination.

NPR recently covered a case in Wyoming that features the exact scenario above:

Josh Kronberg-Rasner was the only openly gay person in his office while he worked for a food service company in Casper, Wyo. But his sexual orientation never held him back, he says. “I had filled every position from general manager to executive chef,” he says. “You name it, I’d done all of it.”

That changed in the summer of 2012 when Kronberg-Rasner got a new manager, whom Kronberg-Rasner says was uncomfortable working with a gay person. A few weeks after he arrived, the manager went through Kronberg-Rasner’s personal phone and found pictures of a male gymnast.

Soon after that, the company laid Kronberg-Rasner off.

Before Kronberg-Rasner was fired, his former manager discussed the photos he found on Kronberg-Rasner’s phone with a female employee who later told Kronberg-Rasner about it.

“The manager said to her, ‘You know, he has this picture of a guy on his phone, and if you, as a woman, had this picture on your phone, it would have been OK. But Josh is a guy, and we can’t have that,’ ” Kronberg-Rasner says.

These types of claims have had favorable outcomes in some Federal Circuits, but the Supreme Court has not weighed in on the subject to date. However, the EEOC presents a strong argument for Title VII’s applicability in the context of sexual orientation discrimination where the discrimination centers around stereotypical gender behavior.

If you believe that you have been discriminated against by your employer because of your sexual orientation, or because you do not conform to “typical” gender stereotypes, you should seek the advice of counsel immediately to learn what legal options are available to you.

Tales from the Workplace: Sexual Harassment Exposed, Pt. 3

THE CASE OF BIHUN V. AT&T INFORMATION SYSTEMS, INC.

Continuing on in our series discussing real-world scenarios of sexual harassment, today we’ll be examining a case involving what is known as “quid pro quo” sexual harassment. In our previous articles, the stories we’ve highlighted have involved hostile work environments, in which an employee is subjected to sexual comments and inappropriate touching or groping. Quid pro quo harassment differs from hostile work environment situations, in that it usually involves a proposed exchange of sexual favors or activity for an employment benefit, such as a promotion, or in more extreme situations, to avoid termination. This type of harassment tends to involve a manager or supervisor harassing a subordinate employee, with the manager abusing his or her authority in order to pressure the subordinate into submitting to sexual advances. This type of behavior is, unfortunately, fairly common in the workplace, and as you will see in the case of Bihun v. AT&T Information Systems, Inc., can have a devastating effect on persons subjected to such treatment.  The following narrative is based on the factual allegations presented in that case.

The woman in this case, Oksana Bihun, was an area personnel manager working for AT&T. Ms. Bihun was an excellent employee for the company, and her performance allowed her to quickly rise through its ranks. After receiving outstanding reviews, Ms. Bihun received a promotion to the next level of management within the company, in which she reported to Area Vice-president Peter Fellows.

Almost immediately after beginning her new position, Mr. Fellows began an intense campaign of harassment towards Ms. Bihun. During their first meeting, Mr. Fellows winked at Ms. Bihun and brushed his hand against her. Days later, while Ms. Bihun was working late, Mr. Fellows entered into her office with his shirt unbuttoned and pants undone. He then pressed his body against Ms. Bihun, causing her to jump up and exit the office, with Mr. Fellows calling after her. On another occasion, Mr. Fellows sat down next to Ms. Bihun and attempted to rub his foot against her leg. After she kicked his foot away, Mr. Fellows stood up and pushed his groin towards Ms. Bihun, telling her that he had a spot of food on his pants and instructing her to wipe it off. That evening, Mr. Fellows called Ms. Bihun into his office and asked her to have dinner with him. When Ms. Bihun declined, Mr. Fellows asked that she go to the beach with him that weekend. Ms. Bihun again declined, prompting Mr. Fellows to lean back in his chair to reveal that his fly was open.

A week after these requests, Mr. Fellows demanded that he and Ms. Bihun sit down for a “business-related” dinner. Ms. Bihun reluctantly agreed as Mr. Fellows assured that the dinner would be “strictly business.” After arriving at the restaurant, Ms. Bihun sat down at Mr. Fellows’ table, at which point he began complaining to Ms. Bihun about his unsatisfactory sex life, and his need for extramarital affairs. He then informed Ms. Bihun that the company would be undergoing a major reorganization, and that if she “played her cards right” she could have any job she wanted. Mr. Fellows then leaned across the dinner table and began playing with Ms. Bihun’s earring, telling her she looked like a gypsy and asking if she would have an affair with him. Following that request, he menacingly told Ms. Bihun that he did whatever he wanted to in the company, and that no one would question him.

Ms. Bihun reported the dinner to another supervisor at the company the next day. The supervisor confronted Mr. Fellows about Ms. Bihun’s complaint, and he responded that the dinner was none of the supervisor’s business. Soon after that, Mr. Fellows began retaliating against Ms. Bihun, completely gutting her job responsibilities, encouraging employees not to deal with Ms. Bihun, and falsely accusing her of forging documents. Mr. Fellows’ retaliatory acts soon took a physical and emotional toll on Ms. Bihun. She began experiencing headaches, dizziness, vomiting, diarrhea, weight loss, sleep disturbances, teeth grinding, a facial twitch, crying spells and depression. After being diagnosed by her doctor with an “adjustment disorder,” as well as depression and anxiety, Ms. Bihun took disability leave from work.

During this time, Ms. Bihun and the other supervisor who confronted Mr. Fellows placed a number of complaints with the company’s supervisory board, but neither received any follow up contact. When Ms. Bihun returned to work months later, she learned that Mr. Fellows had resigned from his position. She was also informed that she had been demoted two levels down from the position she previously held, and would be in a department in which she had never received training.

The treatment Ms. Bihun was subjected to by Mr. Fellows is a textbook case of quid pro quo sexual harassment – sexual advances, accompanied by a promise for an employment benefit in exchange for succumbing to those advances. And the subsequent actions taken against Ms. Bihun were also clear examples of retaliation, both by Mr. Fellows (for spurning his advances), and by AT&T itself, through its demotion of Ms. Bihun after reporting harassment.

Ms. Bihun filed suit against AT&T after her demotion, and the jury agreed – this was clearly quid pro quo harassment. Ms. Bihun was awarded a total judgment against AT&T of over $3,000,000.00, an award that was upheld by the appellate court on appeal.

If you’ve experienced anything similar to Ms. Bihun’s situation, you may well have been subjected to quid pro quo sexual harassment. While these situations can be difficult and frightening to deal with, you should not be afraid to stand up for your rights under the law. If you feel that these rights have been violated, you should contact counsel immediately to learn what options are available to you.

TALES FROM THE WORKPLACE: SEXUAL HARASSMENT EXPOSED, Pt. 1

Here at Abney & McCarty, we receive a large volume of calls from clients with questions about sexual harassment – what is sexual harassment? Is this situation a hostile work environment? What can I do about it?

We’ve written about these topics before, and have detailed the laws surrounding sexual harassment claims. But the best way to understand what sexual harassment is, and how to recognize when it is occurring at your job, is through the first-hand accounts of those who have experienced it in the past. So over the next few weeks, we will be posting articles that will recount situations that have occurred in workplaces here in the state, and around the country, so that you will be better able to recognize sexual harassment if it occurs at your job.

Today, we’ll be discussing the story of a woman named Amanda.  The facts presented in this story come from the allegations made in the case West v. Tyson Foods, Inc., which we discuss below. Amanda had just started her first week at a new job in a large food processing plant. In her position, Amanda worked on an enclosed assembly line with a big group of co-workers, mostly male. Shortly after beginning, Amanda started receiving comments from a few of her co-workers about various parts of her body. Some would whistle at her while she worked. Others asked her on dates, repeatedly. These incidents grew more and more frequent as time went on.

A few weeks after she had started, she was approached by the leader of her line while she was working. The leader grabbed Amanda and attempted to kiss her. Amanda tried to pull away from him, telling the man that she was married and that he needed to leave her alone. The man responded by asking Amanda if she would go to his house and have sex with him. When she again rebuffed his advances, the man smiled at her, grabbed his own crotch and shook it at her while making incredibly graphic statements. A number of other male co-workers who had been watching this situation take place began laughing. Amanda was humiliated.

She ran off the line and began crying. Her supervisor and her trainer met her as she was leaving the plant and asked what was wrong. She described the incident to the two men, as well as the other behavior she had been subjected to. Her supervisor initially attempted to brush the incident off as a joke, telling her not to take it personally, and that it was just the way the men on her line treated their female co-workers. When her supervisor realized that Amanda did not find the behavior funny, he promised that he would speak to her co-workers and get the situation resolved. He also requested that Amanda not report the harassment to Human Resources, so that he could handle the problem on his own before it was revealed to the plant’s management.

Unfortunately, the supervisor did nothing to stop the harassment. Amanda continued to receive comments and whistles while working, and was even groped by some of the men on the line. In her fifth week of work, Amanda was followed to her car one night after leaving the plant by a co-worker, which caused her to fear that she would be raped. After that night, Amanda decided to quit her position, and did not return to work again.

A few days later, the company officially terminated Amanda, citing “job abandonment” as the reason. When Amanda went to the plant to pick up her final paycheck, she conducted an exit interview with the company’s HR Manager. During the interview, Amanda gave the HR Manager a detailed account of the harassment she had experienced. The HR Manager promised Amanda that he would investigate the situation even though she was no longer an employee. However, that investigation was never performed.

What Amanda experienced is a textbook example of what a hostile work environment looks like. Unfortunately, all the events described above actually happened, and were documented in the opinion of the Sixth Circuit case West v. Tyson Foods, Inc. (PDF). After Amanda left her job, she filed a complaint with the Equal Opportunity Employment Commission. She then filed a lawsuit against her employer in the Federal District Court in the Western District of Kentucky, and won, receiving $880,363.29 in compensatory damages and $300,000.00 in punitive damages.

Amanda’s story is similar to those that we hear from clients all the time – harassment in the workplace, reporting harassment, and then the employer taking no action or inadequate action to remedy the problem. These are violations of your rights under Title VII and the Kentucky Civil Rights Act. If you have experienced a situation like this, you likely have legal options available to you. You should seek the advice of counsel to determine what those options are, and to seek compensation for the treatment you have been subjected to.

Two Steps Forward, One Step Back: The Battle of the Paycheck Fairness Act

Despite studies from the Census Bureau showing that, nationally, women earn 77 cents for every dollar men make, Senate Republicans blocked crucial legislation that would help further combat the very real issue of gender inequality in the American workplace.  In a 53-44 vote, the Paycheck Fairness Act fell just 7 votes shy of passing.  This marks the third time this bill has been blocked from making it out of the Senate.

The bill contained provisions that would prevent employers from retaliating against employees who share salary information with co-workers, and also limited the factors employers could cite as reasons for paying its female employees less than its male employees.  These provisions would have provided a much needed boost to closing the income gap between male and female workers.

Republican lawmakers claimed that the bill was “redundant” in light of the protections of other statutes prohibiting discrimination.  However, this view is either willfully ignorant of the nature of American workplaces, or fails to fully grasp that limited legal protections that women have in the area of income equality.

In related news, President Obama issued two executive orders on Tuesday that apply the proposed provisions of Paycheck Fairness Act to both the federal government and federal contractors.  This comes in response to an EEOC study that we covered a few months back, detailing the obstacles still faced by female employees in the federal government.  While these executive orders are not nearly as extensive as the Paycheck Fairness Act, they still represent a giant leap forward in fair pay between genders.

Although the Paycheck Fairness Act failed to make it off the floor of the Senate, it is almost certain to return, as Majority Leader Harry Reid reserved the ability to bring the bill back up for consideration through procedural maneuvering.  We’ll keep you updated on the status of this bill, and the way it could affect your rights, as further information develops.

SEXUAL HARASSMENT IN THE WORKPLACE Part 5: Quid Pro Quo Harassment

This is the fifth and final entry in a 5-part series about workplace sexual harassment, the Federal and State laws against such conduct, and what you can do if you are or become a victim of harassment. Today’s entry will examine specific cases that have dealt with Quid Pro Quo sexual harassment and the facts that courts have held to be evidence of this type of harassment.

In our last article, we examined a few cases in which sexual harassment occurred through the creation of a hostile work environment. Today, we’ll be looking at a case in which harassment takes the form of a “quid pro quo” situation. As we discussed in Part 1 of our series, quid pro quo harassment occurs when an employee is offered job benefits, or is threatened with detrimental consequences, by a supervising employee in an effort to attain sexual favors. While the above situation characterizes a classic quid pro quo situation, this category of harassment is actually much broader, encompassing pretty much any situation in which an employee suffers what courts call a “tangible employment action” as a result of sexual harassment.

A tangible employment action is any action that marks a change in a person’s employment status. Common examples of tangible employment actions in sexual harassment cases include a supervisor firing, demoting, failing to promote, or even not hiring someone for refusing the sexual advances of that supervisor. These are all examples that are fairly easy for a court to recognize as tangible employment actions for the purposes of a sexual harassment claim (assuming that there is evidence to support that finding).

However, occasions do arise where determining whether a tangible employment action has been taken is not so clear cut. For example, if an employee is reassigned to another division that he or she finds unfavorable, does that reassignment constitute a tangible employment action? The answer, as always, is: it depends. Usually, the employment action has to be more than just displeasing to the employee — it has to be adverse to that employee in a way that actually causes some detriment. However, detrimental results can be measured in a lot of ways. Does the action only have to result in a loss of pay? Benefits? Or can the detriment result from a worsened working conditions? As you might imagine, the amount of grey area surrounding this issue can be the cause of a lot of contention in the courtroom.

The Case of Keeton v. Flying J: When is an Employment Action Considered “Adverse?”

In Keeton v. Flying J, the plaintiff was a young man employed by the defendant company to work as a restaurant manager at one of its interstate travel stops.1 The defendant company, Flying J assigned the plaintiff to a travel stop located in Walton, Kentucky, where the company informed him he would be employed for the next five years. Soon after starting, the plaintiff’s supervisor began making sexual advances towards him, which he refused. After a short spell, the supervisor fired the plaintiff, claiming the plaintiff was “not supporting” her.

Suspecting that his termination was the result of refusing his supervisor’s advances, the plaintiff voiced his concern to a district manager for Flying J. Shortly after this conversation, the district manager called the plaintiff and informed him that he would be reinstated to his former position, except that he would now be working at the travel stop located in Cannonsburg, Kentucky, rather than in Walton.

If you were to pull out a map, you would notice that Walton, Kentucky, located in the Northern Kentucky area, is around 136 miles from Cannonsburg, located on Kentucky’s eastern border with West Virginia. In other words, it’s a bit of a hike to Cannonsburg from the place the plaintiff called home.

The plaintiff took the position, but was forced to keep two residences — one in Walton, one in Cannonsburg — to accommodate his disabled wife, and split time between the two towns every week.

The Court’s Decision: Relocation can be a Tangible Employment Action

The U.S. Court of Appeals for the Sixth Circuit heard this case on an appeal by Flying J, after the jury at trial found that the plaintiff’s relocation amounted to a tangible employment action. The Court examined a number of case law precedents to determine whether the jury’s decision was proper. It noted first that an employee’s relocation without any other loss of hours or wages does not ordinarily constitute a tangible employment action, citing Kocsis v. Multi-Care Management, Inc., a case which Flying J argued should control the outcome of the plaintiff’s claim.2 However, the Court went on to recognize that the issue should be determined by the facts surrounding the transfer, and in doing so, found support for the jury’s verdict that the plaintiff’s relocation constituted a tangible employment action.

Although a number of the cases the Court looked at involved findings that a transfer did not qualify as sexual harassment, the Court found that of the cases it examined, the possibility was left open that a relocation involving a great distance from the victim’s original geographic area could amount to a tangible employment action.3 Distinct from these cases, which involved either shortened commutes or those extended only slightly, the Court noted that the plaintiff’s relocation was far greater in comparison, and held that the jury could have, and did, reasonably conclude that Flying J’s relocation of the plaintiff to Cannonsburg resulted in an adverse, tangible employment action.

As you can see, a tangible employment action does not have to be marked by the traditional notions of termination or demotion. However, as the Keeton court was quick to point out, whatever action is taken by an employer or supervisor must be more than just personally undesirable to the victim of sexual harassment — it must involve a detrimental change in position. In Keeton, that detrimental change was the unreasonable amount of distance the plaintiff was forced to travel as a condition of his relocation, which was in turn found to be the result of the harassing conduct of his supervisor. This outcome isn’t limited to these circumstances, however — any detrimental change in position could possibly be considered a tangible employment action in the eyes of the court.

If you’re faced with similar circumstances…

…then you should get help! Abney & McCarty are here to answer your questions about sexual harassment, and to help you determine if you’ve been the victim of a quid pro quo, or any other, harassment situation. Contact us today to learn more information.

Thanks for following our Sexual Harassment in the Workplace Series!

That wraps up our final entry tackling the ins and outs of sexual harassment. We hope you’ve enjoyed learning more about this area of law, and that you’ve come away with a deeper understanding of how sexual harassment claims are handled by our court system. We will continue to post updates about the latest developments in sexual discrimination law, and will soon be creating additional in-depth series focusing on other areas of employment law relevant to you. So please check in regularly to learn more!

1Keeton v. Flying J, Inc., 429 F.3d 259, 261 (6th Cir. 2005).
2Kocsis v. Multi-Care Management, Inc., 97 F.3d 876 (6th Cir. 1996). Kocsis involved a nurse who was reassigned to another position after complaining of sexual harassment. The new position featured a lesser title, but did not result in a reduction of salary, benefits, or hours. The facts of Kocsis are arguably different from those in Keeton.
3 See, Darnell v. Campbell County Fiscal Court, 731 F.Supp. 1309 (E.D.Ky 1990) (involving a transfer to another location adding approximately 20 minutes to the plaintiff’s commute).

SEXUAL HARASSMENT IN THE WORKPLACE Part 4: Hostile Work Environments — How Severe or Pervasive?

This is the fourth entry in a 5-part series about workplace sexual harassment, the Federal and State laws against such conduct, and what you can do if you are or become a victim of harassment. Today’s entry will examine specific cases that have dealt with the form of sexual harassment known as the Hostile Work Environment and the facts that courts have held to be evidence of harassment in this form.

 After our overview of the legal concepts of sexual harassment in Parts 1 through 3 of this series, you should have an understanding of what goes into a sexual harassment claim, and what issues courts look to when resolving such claims. Today, we’re going to see how the sexual harassment claim functions in practice, not just theory. The best way to get this sort of insight is through an examination of actual cases that have been heard by courts.

The cases that we’ll feature today deal with “hostile work environments.” The hostile work environment, as you’ll recall from Part 1, is one of two types of sexual harassment actionable under Title VII of the Civil Rights Act and KRS 344.040 of the Kentucky Civil Rights Act. This type of harassment occurs when co-workers or supervisors engage in unwelcome, inappropriate sexually-charged behavior that makes the atmosphere of your workplace intimidating, hostile, or offensive.

Severe or Pervasive?

As we discussed in Part 2, one of the elements of a hostile work environment claim is whether the harassing conduct was “sufficiently severe or pervasive to affect the terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.” Courts have interpreted this element to usually require continuous harassment, to such an extent that it actually interferes with a victim’s job. This is often one of, if not the most, contested issues in a sexual harassment suit. 

How many instances of harassment must there be for conduct to qualify as a hostile work environment? The answer is: it depends. More often than not, a court will want to see a examples of harassment occurring frequently over the course of employment. 

The Hostile Work Environment of Temple v. Pflugner 

The case of Temple v. Pflugner, serves as a good example of the type of conduct courts view as severe or pervasive.1 In Temple, the plaintiff, a Lexington woman, was hired as a sales associate for a company selling medical devices. Although only employed at the company for four months, the female sales associate alleged that she suffered from constant harassment at the hands of her supervising sales representative.

According to the plaintiff’s testimony, her supervisor’s harassing conduct manifested itself in a number of ways. Often times, he would make sexually-charged comments about the plaintiff’s body. He “advised” her that sex sells, instructed her to wear tighter clothing, and even went so far as to suggest she sleep with a client to expand an account. At one point he stated that he would fire the plaintiff if she ever gained weight or cut her hair. And to top off all of the above behavior, the supervisor would daily ask why the plaintiff would not have sex with him. 

After the plaintiff reported these issues to her supervisor’s manager and requested a transfer, the harassment became even more oppressive. Upon hearing of the plaintiff’s complaint, her supervisor threatened her physically, and even damaged her car with a medical instrument. 

The Court’s Decision 

The Eastern District of Kentucky, the court in which this claim was brought, heard this case on a summary judgment motion. A summary judgment motion is a preliminary motion in which one of the parties to the suit asks the court to rule on the case without it going to trial. In Temple, the Court needed to determine whether the plaintiff’s allegations contained the information necessary for a sexual harassment claim to be made, and whether a jury could find for the plaintiff based on her allegations alone. 

After reviewing the pleadings, the Court found that the plaintiff’s allegations were more than enough to make out a hostile work environment claim. It cited the frequency of the supervisor’s conduct (“constantly,” “daily,” and “weekly”) as evidence that a jury could find the harassment pervasive, and found that supervisor’s violent behavior, as well as the sexual content of his statements, could be considered severe.

The Court further supported its decision by providing examples of when harassment isn’t severe or pervasive. It pointed to Bowman v. Shawnee State University 2 and Black v. Zaring Homes3 as cases with facts distinct from those found in Temple. In Bowman, five instances of harassment were recorded over a five year period. Spread out over such a long period of time, the Bowman court found that these five events were not enough to qualify as “severe or pervasive” for the purposes of a hostile work environment claim. 

Similarly, the court in Black found that harassing comments made at bi-monthly meetings were also not “severe or pervasive.” The Temple court found these facts to be at odds with those the plaintiff had alleged, stating that her supervisor’s conduct occurred much more regularly than the instances of harassment found in those cases.4 

So as you can see, the frequency of harassment can play a big role in a court’s analysis of a hostile work environment claim. However, frequency is not always the deciding factor. In some cases, even if harassment occurs in isolated episodes, single events may be so severe and pervasive that it tips the scales, leading courts to find that a hostile work environment has been created. 

Physical Assault, Offensive Touching, and the Case of Custom Tool and Mfg. Co. v. Fuller. 

Many courts have found that single instances of physical assault or touching have created hostile work environments.5 The Court in Custom Tool and Mfg. Co. v. Fuller recognized this proposition explicitly when they upheld the jury’s finding that a hostile work environment had been created by the actions of the owner of the defendant company. 

In Fuller, the plaintiff worked as the plant manager of the defendant company, directly under the owner. The plaintiff recounted at trial a number of instances spread out over the course of her employment in which the owner made sexual, inappropriate comments to her, but testified she was most affected by one particular event. One evening after closing the plant, the owner requested that the plaintiff come to his office. In his office, the owner showed the plaintiff a pornographic video, made sexually suggestive comments and gestures to the plaintiff, and physically restrained her when she attempted to leave. 

After acknowledging that other instances of harassment had indeed occurred in the past, the Court emphasized this last event over the others, stating that it could only be characterized as a “serious” or “severe” episode. Maintaining the focus on this last incident, the Court affirmed the finding of the jury that the owner’s conduct created a hostile work environment for the plaintiff, and upheld the award for damages the jury had provided for her in its verdict. 

Coming up next week… 

In our next article, we’ll continue to examine case law that features sexual harassment claims, focusing on the other type of sexual harassment: quid pro quo harassment claims. As always, if you feel that you’ve been a victim of sexual harassment, the attorneys at Abney & McCarty are here to assist you. Whether you’ve experienced one incident or have endured many, we can examine your options and figure out a path forward. Contact us today for more information.

1Temple v. Pflugner, 866 F.Supp.2d 735 (E.D.Ky 2011).

2Bowman v. Shawnee State University, 220 F.3d 456 (6th Cir. 2000).

3Black v. Zaring Homes,104 F.3d 822 (6th Cir. 1998).

4 Some of you may be wondering if harassment occurring every two weeks (as in Black) is really all that different than the frequently occurring conduct in Temple. It’s worth noting that the Temple court’s emphasis on the frequency of the harassment in Black might be misplaced. The Black court’s decision rested more on the nature of the alleged harassment, rather than how often it occurred. The conduct in Black was characterized as “merely offensive” jokes that were not directed toward the plaintiff. This differs greatly from the type of harassment inflicted upon the victim in Temple.

5 See e.g., Todd v. Ortho Biotech, 138 F.3d 733, 736 (8th Cir. 1998) (attempted rape held sufficiently severe); Fall v. Indiana University Bd. of Trustees, 12 F.Supp.2d 870, 879 (N.D.Ind. 1998) (a single instance of groping may constitute a hostile work environment).

The Working Mom

For many women, the decision to return to work after giving birth to a child can be a difficult one to make. Employers can make the decision even harder by unlawfully discriminating against women who may still be lactating or expressing breast milk. In a recent case, the Fifth Circuit Court of Appeals held that the termination of a female employee “because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII.”

In EEOC v. Houston Funding II, the new mother expressed her desire to return to work after her doctor had given her permission to do so. Since she was breastfeeding, she asked her employer if she could use her breast pump in a back room while at work. Unfortunately her employer was not open to the idea and terminated her for supposedly abandoning her job. The trial court granted summary judgment to her employer, finding that “firing someone because of lactation oe breast-pumping is not sex discrimination and that lactation is not a related medical condition of pregnancy.” However, the Court of Appeals vacated the summary judgment of the trial court, finding that the new mother had sufficiently stated a sex discrimination claim under Title VII and the Pregnancy Discrimination Act.

What protection does Title VII and the Pregnancy Discrimination Act Provide?

Title VII and the Kentucky Civil Rights Act prohibit employment discrimination on the basis of sex. The Pregnancy Discrimination Act provides that “the terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.”

Taken collectively, these statutes protect women from discriminatory decisions related to their employment because of their “female physiology,” which includes pregnancy, childbirth, lactation or the expression of milk.

What are possible remedies?

As with other forms of employment discrimination, various remedies can be recovered against your employer if you are the victim of sex discrimination under Title VII or the Pregnancy Discrimination Act. The attorneys at Abney & McCarty will aggressively pursue your claim based on the type of injury suffered. For example, if you were demoted because of a pregnancy-related medical condition, we can fight for reinstatement to your former job and wages. If you were unlawfully terminated, we can seek reinstatement or other equitable relief, including any out-of-pocket expenses you incur because of your employer’s unlawful discrimination against you.

If you have recently had a child and feel as though you are the victim of sex discrimination, the attorneys at Abney & McCarty can help! This is a joyous time in your life. You should be celebrating the birth of your child, not suffering from adverse employment actions because of your decision to become a parent.

The Golden Rule and Employment Discrimination

If you ask any first-grader about the “golden rule,” he or she will likely tell you that it is important to “treat others the way you want to be treated.”  Although the golden rule seems like a relatively simple concept, workplace discrimination and unfair treatment is all too common.  But that doesn’t mean you have to put up with it.

The Kentucky Civil Rights Act protects individuals from discrimination in a multitude of workplace situations, such as hiring, firing, wage discrepancies, job assignments, promotions, and layoffs.  Discrimination can take a variety of forms, and being able to recognize unlawful treatment is the first step to protecting your rights as an individual and employee in the state of Kentucky.

What employment protections are provided under the Kentucky Civil Rights Act?

The Kentucky Civil Rights Act prohibits an employer from failing or refusing to hire, discharge, or otherwise discriminate against an individual with respect to compensation, conditions, or benefits of employment on the basis one’s race, color, religion, national origin, sex, age (over 40), disability, or smoking habits.

If I feel like I am a victim of employment discrimination, what should I do?

Under the Kentucky Civil Rights Act, you may proceed directly to civil court without filing a complaint with an administrative agency beforehand.  An attorney at Abney & McCarty can help you build your case and gather evidence to support your recovery of damages.

Are there remedies for employment discrimination?

Yes!  The goal of the law is to put you in the same position you would have been in had the unlawful discrimination never occurred.  The type of relief available to you will depend on the type of discrimination experienced and its effect on your life.  If employment discrimination is found, your employer will be required to stop the unlawful practice.

Monetary damages may also be available.  Compensatory damages are designed to reimburse you for any out-of-pocket expenses incurred or emotional harm suffered because of your employer’s discrimination against you.   The Kentucky Civil Rights Act does not place a cap on your potential recovery, so the attorneys at Abney & McCarty will fight for your full compensation.

The Kentucky Civil Rights Act is a powerful tool to combat employment discrimination. If you or someone you know is experiencing workplace discrimination, the attorneys at Abney & McCarty will advocate for your right to be treated fairly in the workplace.

The Gender Wage Gap

In 2013, one would think wage discrepancies based on gender would be a thing of the past. Unfortunately the gender wage gap is still alive and well in many American workplaces. Although equal pay should be provided for equal work, women still frequently earn less than their male co-workers despite having the same employment responsibilities! For example, full-time working females of all ages earned 82.2 cents on the dollar compared to the wages of their male counterparts as recently as 2012. A study by the Institute for Women’s Policy Research concluded that females earned less in every occupation except when employed as bookkeepers, accountants, or auditing clerks. The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal law prohibiting employment discrimination based on one’s gender under the Equal Pay Act and Title XII. If you are making less than a fellow co-worker of the opposite sex, you may be asking yourself some common questions that are addressed below.

What is the Equal Pay Act?

The Equal Pay Act requires male and female employees to be compensated on equal terms when performing equal work. The jobs of male and female employees do not necessarily have to be identical, but they must be substantially similar in order to qualify for protection under the Equal Pay Act.

The content of your job, not your title, determines whether it is considered substantially similar to that of a co-worker of the opposite sex. If male and female employees are not equally compensated for substantially similar work, an employer cannot reduce anyone’s wages in order to equalize pay. Rather, your employer must provide compensation equal to the higher wages paid to other employee performing substantially similar work.

What type of compensation does the Equal Pay Act cover?

The Equal Pay Act covers all forms of compensation. For example, salary, overtime pay, bonuses, stock options, profit sharing, bonus plans, life insurance policies, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, and reimbursement for expenses must be provided to employees with substantially similar jobs on equally, regardless of sex

I believe I am a victim of wage discrimination, so what should I do now?

If you have a wage discrimination claim against your employer, you may proceed directly to court without previously filing a “Charge of Discrimination.” The deadline for bringing a lawsuit against your employer for an unlawful compensation practice based on sex discrimination is two years.

Remember, you are entitled to a fair day’s pay for a fair day’s work! If you are not being compensated on equal terms because of your sex, the attorneys at Abney & McCarty will aggressively pursue your claim.