Oral Argument Outline - DOC by oM4Qk3H


									                                               Oral Argument Outline

    May it please the Court. My name is Lisa Ellison-Cherny, and I represent Appellant Anita Jones, the Plaintiff
      in this case. Ms. Jones respectfully requests that this Court, on de novo review, reverse the trial court’s
      holdings as to Appellant Bakker & Thomas’s liability and remand to the trial court to assess damages. At this
      time I would like to reserve one minute for rebuttal.
    Sexual harassment. This is a case where a top corporate employee abused his role as mentor by tormenting
      his protégé to such an extent that she was forced to choose between her job and her dignity. She chose her
    Integrity. This is a case where the HR and SH Training Director failed to stand behind her statement that if
      she heard about sexual harassment, she would make sure it ceased.
    Corporate accountability. This is not only a case where a large corporation disseminated a sexual harassment
      policy containing inadequate avenues of redress, but this is also a case where a high ranking corporate official
      put his personal allegiances before his duty to eradicate workplace SH.
    In this case…

Notice Generally:
    Bakker will be liable to Jones under a negligence standard if Bakker (1) constructively knew about the SH, or
       (2) actually knew about the SH and failed to take ARMs. Even a cursory look at the facts of this case reveals
       that Bakker had both CN and AN and failed to take ARMs.
    Bakker had CN through its inadequate grievance procedure.
    Bakker had AN through Jones’ unsigned note to Tripp that named Kennedy as the harasser and named Jones
       as one of two women in Swaggart’s tax practice group.
    Bakker had AN through Jones’ in-person complaint to Williams.
    In both cases of AN, Bakker failed to take ARMs.

Constructive Notice:
   An employer has CN of SH when had it but exercised reasonable care it would have known of the SH.
   Because prevention via an ER’s adequate SH policy is the best tool for eliminating SH, Title VII is designed
      to encourage ERs to create antiharassment policies and effective grievance mechanisms. This also serves Title
      VII’s deterrent purpose: limiting ER liability could encourage EEs to report SH at an early stage.
   However, according to Meritor, an ER’s policy must be adequate and effective in order to insulate it from
      liability. Additionally, Meritor states that the mere existence of a grievance procedure and policy against
      discrimination, coupled with the EE’s failure to invoke that procedure, does not automatically insulate the ER
      from liability.
   In this case, Bakker had CN of the SH because it cannot rely Jones’ justified deviation from its inadequate and
      ineffective grievance procedure to shield it from liability.
   The grievance procedure’s shortcomings are that it is not vigorously enforced, is not well disseminated, has no
      women as point people, has no objective parties as point people, only processes precisely conforming
      complaints, and does not require management level employees to report SH.
   While all of these are substantial shortcomings, the fact that it does not require management level employees
      to report SH, according to Wilson, makes the policy insufficient as a matter of law.
          o A prudent company realizes that just because it has a policy does not mean that the policy will always
               be followed precisely.
          o A comprehensive policy anticipates this occasional deviation and plans accordingly.
          o Planning accordingly means spelling out in the policy exactly what a supervisory EE should do who
               receives, yet is unauthorized to receive, a sexual SH complaint.
          o Wilson states that not requiring supervisor to report knowledge of SH to the pertinent people makes the
               policy insufficient as a matter of law. Importantly, the supervisor does not have to be victim’s
      o Tripp, who has supervisory authority over non-accounting staff, plus supervises sexual harassment
         training sessions meant for all EEs, should have been required to report her knowledge of SH to the
         designated people. Failure to require her to do this makes Bakker’s policy insufficient as a matter of
      o Sexual harassment is a sensitive subject, especially for the victim, who may often be too scared or
         embarrassed to take the first step in reporting the harassment.
      o Bakker’s policy diminishes a victim’s pleas for help by refusing to acknowledge complaints that do not
         strictly comply with the prescribed protocol.
      o This includes unreasonably proscribing anonymous complaints.
      o McDonnell proves that anonymous complaints are not in and of themselves defective. Through two
         anonymous notes, the ER was able to launch a fruitful investigation that exonerated the accused.
      o Baskerville states that the amount of information in the complaint dictates how intensive an
         investigation will be. In the instant case, just like in McDonnell, there was enough information to
         successfully process the complaint and to investigate the complaint unobtrusively.
              Named Kennedy as the harasser.
              Named the victim as one of two women in Kennedy’s tax practice group.
      o Armed with this information, Williams and Swaggart could have observed Kennedy and the two
         women, and Bakker could have monitored Kennedy’s and the two women’s email. Doing these two
         unobtrusive things would have immediately lead to Bakker’s discovering the pornographic emails.
      o Because some non-conforming complaints do contain sufficient facts to be able to launch a meaningful
         investigation, Bakker’s policy to disregard all non-conforming complaints is unreasonable and should
         therefore impute to Bakker CN.
      o Meritor states that in order for an ER’s policy to insulate it from liability, it must be calculated to
         encourage victims of SH to come forward. Meritor continues that a point person has the best chance
         of receiving a complaint if the victim feels the point person is objective.
      o In Salazar, the EE was justified in believing complaining to the point person would have been useless
         when the point person and the harasser were roommates. Similarly, Jones was justified in believing
         complaining to Williams (Kennedy’s close friend) and Swaggart (Kennedy’s brother-in-law) would
         have been useless.
      o Bakker should have foreseen that because people who are working together develop close ties and
         allegiances, failing to have an objective point person in a separate department would eventually lead to
         problems such as these.
      o Jones even made it clear in her note to Tripp that she did not have confidence in the point people.
      o Additionally, an unbiased third party investigator does not nullify the need for objective point people
         because the complaint must first go to the point person before it goes to the investigator.
      o According to Young, when victim does not feel point people are objective, the victim will turn to
         person in company who victim reasonably believes has the capacity to deal with or to pass on
         information to someone who can deal with the complaint. Because Jones justifiably believed Williams
         and Swaggart were not objective and because Bakker should have foreseen this complication, Jones
         was reasonable in deviating from the policy and Bakker should be held to have CN.
      o According to McDonnell, most SH victims are women and most SH perpetrators are men.
      o According to Meritor, a victim should feel comfortable talking to the point people.
      o It logically follows that women would feel more comfortable talking to women about SH.
      o Here, Jones felt more comfortable talking to a woman: she turned to Tripp, a woman, as her first line
         of defense. Here, it would have been effortless to make Tripp, a woman already in charge of telling
         EEs what to do with SH complaints, a point person in charge of dealing with complaints.
      o Faragher states that an effective policy is well-disseminated.
      o Bakker keeps no attendance records for sexual harassment training sessions: What kind of message
         does this send to employees? How can Bakker be sure it has effectively disseminated its policy with
         more than just a modicum of pages buried in a four-inch-thick employee manual?
         o How vigorously enforced a policy is goes to the heart of the policy’s legitimacy both in practice and in
            the eyes of employees. This includes both the measures an ER takes and the professionalism of those
            in charge of enforcing the policy.
         o Because Bakker does not keep attendance records at SH training sessions, Bakker had no way of
            enforcing part of its disciplinary measures against Kennedy.
         o In McDonnell, the ER was held liable, not for investigating an anonymous complaint, but for
            conducting an unprofessional investigation. Williams did not exhibit professionalism when enforcing
            the policy, thereby undercutting the purpose of the entire policy.
         o Williams took a serious matter that should have been addressed formally behind closed doors and
            made it a joke, diminishing both the severity of SH and the integrity of the victim. This unprofessional
            behavior does not inspire confidence in EEs who are victims of SH, nor does it instill fear in EEs who
            are perpetrators of SH.
         o Because the measures Bakker takes are inadequate and because the EEs in charge of enforcing the
            policy conduct themselves unprofessionally, Bakker should be imputed CN of the SH.
         o Bakker’s failure to vigorously its SH policy by not keeping attendance records of sexual harassment
            training sessions and by allowing those charged with enforcing the policy to proceed unprofessionally,
            Bakker’s failure to implement female point people, and Bakker’s failure to provide Jones with point
            people she felt would be responsive to her grievance all indicate gaping holes in Bakker’s SH policy.
            However, because Jones’ failure to follow the grievance procedure is not fatal to her claim, and
            because Bakker’s policy’s failure to address what supervisors in general, such as Tripp, should do
            when they receive, yet are unauthorized to receive, SH complaints makes the policy de jure
            insufficient, this Court could find on these two facts alone that Bakker had CN of the SH and is
            therefore liable.

Actual Notice: Williams and Tripp:
    According to Young, an employer has AN when the information comes to the attention of (1) someone who
       has the power to deal with SH complaints or (2) comes to the attention of someone who is reasonably
       believed, because of his duties in the company or because of the general norms of management, to have a duty
       to pass on the information to someone with the power to deal with SH complaints.
    Here, Bakker concedes that it received actual notice of the SH when Jones complained to Williams, a person
       who has the power to deal with SH complaints.
    Jones contends that Tripp, because of her duties as HR and SH Training Director, and because of her
       statements at SH training sessions that if she heard about SH she would make sure it ceased, had a duty to pass
       on the complaint to someone within the company who had the power to deal with SH complaints. Therefore,
       Bakker had actual notice of the SH when Jones gave her note to Tripp.
    Jones was reasonable in believing that Tripp had a duty to act on or forward the complaint, both because of the
       specifications of her duties and because of general norms of management.
           o Young acknowledges that most companies’ point people are in HR Department. Therefore, Jones was
               reasonable the HR Department to be an appropriate channel for complaints.
           o Tripp is in charge of SH training sessions that are for the benefit of all of Bakker’s EEs.
           o Because Tripp is in charge of telling employees how to make SH complaints, Jones was reasonable in
               believing that Tripp would know what to do with her SH complaint.
           o Tripp’s duties are distinct from the complaint recipient’s duties in Parkins:
                    In Parkins, the complaint recipient coordinated trucks. His bragging about influence in getting
                       EEs fired did not make him reasonable channel for complaints because that had nothing to do
                       with his duties.
                    Conversely, Tripp is the HR and SH Director. Stating that she would put a stop to SH is not
                       bragging. This actually made her an even more reasonable channel for complaints because SH
                       had everything to do with her duties. Tripp’s entreaties were basically invitations for SH
                       victims like Jones to submit their grievances to Tripp and to rely on Tripp to effectively deal
                       with their complaints.
      CONCLUSION: Because of Tripp’s duties as HR and SH Director and because of her entreaties to rely on her
       to deal with SH, Jones was reasonable in believing Tripp had a duty to deal with or pass on her complaint to
       the appropriate people. Therefore, Bakker received AN when Jones complained to Tripp.
Adequate Remedial Measures:
    Once an ER receives AN, an ER must take ARMs.
    According to Guess, taking ARMs means the ER must act in a way reasonably calculated to eviscerate the SH.
       The ER acts unreasonably either if it delays unduly or if the action it does take, however promptly, is not
       reasonably likely to prevent the misconduct from recurring.
    Here, neither Tripp nor Williams took ARMs.
    Upon receiving Jones’ complaint, Tripp should have given the note to Williams or Swaggart, both easily
       identifiable from Jones’ note as the pertinent point people. By not doing this, Tripp took it upon herself to
       effectively deal with Jones’ complaint. However, what Tripp did was anything but effective.
    The Wilson court held that an eight hour delay in initiating a SH investigation was too long. Tripp waited five
    The Wilson court held that an ER’s failure to fully investigate a complaint supports a finding that its response
       was inadequate, and that an ER’s decision to do nothing on the basis of an inadequate investigation likewise
       supports a finding that the ER did not take prompt and effective remedial action. The note contained enough
       information to be able to launch a successful investigation. However, Tripp did not investigate; she merely
       posted a general reminder of Bakker’s SH grievance policy in the EE lounge.
    Tripp’s general reminder constituted inaction on the basis of no investigation and effectively rendered Jones’
       investigable complaint void, leaving Jones right back where she started: with two unsuitable avenues of
       redress. Because Tripp failed to take ARMs after she received actual notice, Bakker should be held liable for
       the SH.
           o Saxton and Rouse state that separating the victim and the harasser is a legally ARM because it is
               reasonably likely to prevent the SH from recurring and it also puts the harasser on notice that the ER
               does not condone his behavior.
           o Upon receiving Jones complaint and learning that Jones and Kennedy were working one-on-one on a
               project, Williams’ failure to immediately separate Jones from Kennedy constituted an inadequate
               remedial measure that practically ensured Kennedy would be in a perfect situation to continue
               harassing Jones.
           o Williams could have transferred Kennedy to another group, could have transferred Jones to another
               group, or could have given Jones the option to work at home until the investigation was completed.
               None of these, especially the last two options, constitutes punishment before investigating.
           o Even though Saxton and Rouse have shown that separation usually ends the SH, Williams
               unreasonably failed to do this, and Jones unfortunately was left to implement this remedial measure the
               only way she could: by resigning. This self-implemented separation worked: nowhere in the Record
               does it indicate that Kennedy sent Jones even one pornographic email after Jones extricated herself
               from the situation.
           o Williams also should have confronted Kennedy with the seriousness that should accompany an
               accusation of SH. According to Wilson and Baskerville, the ER’s response is supposed to be
               proportional to the gravity of the SH, but no sort of SH, whether composed of occasional mere words
               or whether composed of pervasive aggressive fronts, is a matter to be taken lightly.
           o In Carr, the court held harassers using aggressive fronts deserve more stringent sanctions than
               harassers using only words.
           o Because Kennedy’s actions had crossed the boundary from mere words to aggressive fronts (such as
               publicly grabbing Jones’ buttocks and forcibly kissing Jones), Williams should have had a heightened
               response, not a diminished response.
          o By initiating a SH investigation in a public hallway in a jocular manner, Williams not only
              subtextually communicated to Kennedy that his actions were overlookable, but also subtextually
              communicated to Jones that Bakker did not take SH seriously.
          o A SH investigation initiated by violating Bakker’s confidentiality policy and premised on jokes about
              having a hard time getting dates and references to weekend golf plans is not reasonably calculated to
              stop SH. It is calculated to minimize SH.
          o After hearing this pathetic confrontation, Jones had no incentive to remain at Bakker to be further
              humiliated by Kennedy and his close friend Williams who, despite believing Jones’ accusations,
              remained aligned with Kennedy. Believing that this flippant attitude of indifference would continue to
              pervade the investigation, and seeing as how the SH continued the next day despite Williams’ warning,
              Jones could either choose her job or her dignity. As a reasonable person would, she chose her dignity.
          o An ER’s measures are reasonable only when the victim knows about the measures. In Baskerville,
              where the measures were equivalent to the instant case, the measures were reasonable only because the
              victim knew about them.
          o After demoting Kennedy and requiring him to take a SH training class, Bakker made no attempt to
              inform Jones of these remedial measures, made no attempt to reach an amenable agreement with Jones
              regarding returning to work, and made no attempt even to apologize for Kennedy’s abhorrent conduct.
          o When the victim knows about the measures, the victim feels comfortable returning to work because
              she has been vindicated not only in her eyes, but in the ER’s eyes. Because Jones did not know about
              the measures, Jones had no incentive to return to Bakker because she believed Kennedy had not been
              reprimanded or disciplined and that she had been swept under the rug.
          o It was not unreasonable for Jones to refuse to return to work. In Saxton, the EE’s refusing to return to
              work was unreasonable only because the ER had kept her apprised of the remedial measures and
              attempted numerous times to re-integrate her into the company.
          o In this light, Bakker’s actions seem disingenuous. Nowhere in the Record does it indicate that Jones
              was a bad worker or that Bakker did not want her to continue her employment. No reasonable
              explanation exists as to why Bakker did not call Jones to inform her of the measures and to try to work
              out her continued employment or even to apologize on behalf of the company for the harassment.
          o Bakker seems to have been glad that the situation disposed of itself.
   Ralph Waldo Emerson has said, “What you do speaks so loudly that I cannot hear what you say.” This
      hypocrisy between words and actions is exactly what happened here.
   Bakker’s SH policy became mere perfunctory words on a modicum of pages buried in a four-inch thick EE
      manual because it fails to offer adequate avenues of redress and it is not vigorously enforced. Because a
      company cannot rely on an ineffective grievance procedure to escape liability, Bakker had CN of Jones’ SH.
   Tripp’s duties as HR and SH Training Director, combined with her entreaties to SH victims that she would
      make sure SH ceased, were rendered null and void because Tripp knew about Jones’ SH and failed to take
   By sending Jones back to work one-on-one with Kennedy and by initiating a sexual harassment investigation
      in a public hallway in a jocular manner, Williams not only subtextually communicated to Kennedy that his
      actions were overlookable, but also subtextually communicated to Jones that Bakker did not take sexual
      harassment seriously. Because what Williams did was calculated not to stop SH, but to minimize SH,
      Williams did not take ARMs after he received AN through Jones’ in-person complaint.
   This case comes down to corporate accountability for SH. Bakker at every stage of the game had the
      opportunity to rectify the SH, yet it chose to close its corporate eyes.
   For the aforementioned reasons, Jones respectfully asks this Court to hold Bakker liable under a negligence
      standard for Kennedy’s hostile environment SH of Jones and to remand to the trial court for damages.

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