Question

Case 1: Rita, a female employee at the Federal Land Management Office in Jackson, MS. She filed a complaint against her male supervisor for creating a hostile work environment. The charges against the supervisor were based upon four separate sexually offensive incidents that occurred over a three-year period. Three of these incidents directly involved the complaining party; the fourth involved a comment made about a female visitor who came to the office. Specifically, the charges involve another female employee overhearing the supervisor making a remark about the complaining party being the "Kate Upton of the office" in a conversation with two visitors to the facility.

On one occasion, the supervisor on one occasion had commented on how pretty and luxurious the complaining party's hair looked. On another occasion, the supervisor was overheard making a joke to a male employee about a female client who had entered the office wearing very tight shorts. Finally, during a private telephone conversation initiated by the complaining party, the supervisor once speculated on the frequency of her sexual relations after her recent divorce.

During this three-year period, the complaining party never gave any indication that her supervisor ever requested sexual favors of her or any other female employee.

Based on the supervisor's aforementioned comments and actions, the complaining party filed a formal complaint of sexual harassment with the EEOC.  Three days after making her complaint, it was discovered that Rita was an illegal alien.

a. Using the 7 -Step method, can the complaining party can establish a prima facie case under Title VII.  Why (you must justify your answer based on your knowledge of EEO laws)? (5 points)

b. If so, identify the type (i.e., racial harassment, mixed motive, sex-plus, quid pro quo sexual harassment, hostile environment sexual harassment etc.). (2 points)

c. Based only on the information provided, who will prevail--the respondent or the complaining party? Why? (4 points)

Answer 1

Answer to Question a

To define work place sexual harassment -

Workplace sexual harassment refers to harassment of a sexual nature, which is based on gender or physical attractiveness or un-attractiveness of a person, and consists of unwelcome sexual advances, propositions for sexual favors and any other verbal or physical conduct of a sexual nature.

There are two types of sexual harassment recognized under Federal law in the US: quid pro quo and hostile work environment (the equivalent terms “sexual coercion” or “sexual annoyance” are also used in Canada).

For legal reasons, if you plan to prove workplace sexual harassment, you should follow these seven steps to clearly show that you objected to the unwanted gestures, comments or physical contact. If these steps are not followed, then proving that you were not a willing recipient will be more difficult.

1. Use Your Company’s Internal Complaint System

If you feel you are working in a hostile work environment, make an official internal complaint first.

Understandably, you may worry about getting into trouble or being retaliated against by your company. However, you should bear in mind that you generally have legal protection in such situations.

Federal law and some state laws protect those who file such accusations. And it is unlawful for an employer to retaliate or take punitive actions against an individual who complains about discrimination and harassment.

Even if your claim is found to have no merit or validity, the law still protects you as an employee.

2. Obtain Evidence of Company Awareness

It’s important to be able to prove that management was aware of the harassment, or that they should have been aware of it. To do this, you need to begin by documenting dates, times, places and other details of any meetings or discussions at which you reported the situation to the appropriate people in your company. This is a crucial part of proving your case. Which goes back to why it is a good idea to alert your manager or supervisor immediately that you feel that you are working in a hostile work environment. Even if it is simply an informal meeting where you voice your concerns, you should definitely tell someone in a supervisory role above you. Regardless of their reaction, you may also make an appointment with the Human Resources Department. Document all of these meetings, as it can help prove that the harassment was pervasive, and that management was complicit in their conduct by doing nothing about it.

3. Take Note of Witnesses

If you experience harassment be aware of any witnesses that might have seen what took place. Your case becomes much stronger when it is supported by a third party. Document their names, contact details and exactly what they observed, so that you can let your lawyer know about this person later down the line. If possible, have them provide you with a written statement either physically or via email. Include the email or scanned statement within your Forensic Notes account to ensure it is properly archived and timestamped. Your lawyer may want to contact them to determine if they have a credible account of the events that took place, and if they are willing to testify.

4. Research the Laws Applicable to Your Situation

Conduct some of your own research to determine what laws might apply to your situation and your employer. If the Federal law cannot help you, research your local state or provincial laws on discrimination.

5. Seek Legal Advice

Search for a lawyer who specializes in discrimination, wrongful termination or even employment law. Try not to procrastinate with making that call, and do not worry about having money upfront for the legal fees. Typically, you can obtain a free and private consultation to go over your claim with many reputable lawyers.

6. Keep proof of negative impact on your health or job performance

Save any performance reviews that you have received from your job. This is a great way to prove that the offensive conduct has affected your performance at work. Keep any medical records that show you started seeking medical or mental health help around the time that you are claiming the harassment occurred. Gathering evidence is so important when it comes to establishing a credible timeline and a coherent case. You can start your claim by going directly to the EEOC or equivalent state administrative agency, but that does not preclude you from seeking legal advice first.

7. Document Everything

Document as much as you can, once you feel that your workplace has become hostile. Preserve all communication that will make for a detailed account of what happened. This includes recording dates and times, storing emails, notes, letters and voicemails and other evidence that can strengthen your case. Petty occurrences or a onetime example of unwelcome conduct will likely not qualify in court, but it is good practice to document it. Even if it is the first time it occurs. This is how you form a credible pattern. You never know what will be the only instance versus a recurring patter of instances. And when you document, make sure your documents can stand up to scrutiny later in court or before any arbitration forum your case ends up in.

Based on the above seven steps and accorsing to the EEO laws, one can file a case under Title VII. The law protects people against employment discrimination on the basis of their national origin. The following are some examples of employment discrimination based on national origin.

National origin discrimination because of a person's looks, customs, or language is against the law. A claim may be proven if a person is discriminated against for having the characteristics of a different group. For example, a person might mistakenly be thought to be Haitian, and may be discriminated against because of that mistaken belief, even though he is not actually Haitian. Similarly, a person may be perceived as foreign born or of foreign ancestry and may be discriminated against in violation of the law.

Answer to question b

As per the case it looks like a hostile environment sexual harrasement case because of the fact that during the 3 year period the supervisor never asked for any sexual favors directly or in directly.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Answer to question c

I think the complaining party will prevail if she has all the documents, evidence as per the law. however as per the law

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

• The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
• The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
• Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
• The harasser's conduct must be unwelcome.

It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.

When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.

Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by providing sexual harassment training to their employees and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.