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					THE TRUTH ABOUT THE FICTIONS
  IN EMPLOYMENT LAW TODAY

 Emerging Claims in Employment Law that
  May Be Different Than What You Think




            MONTE K. HURST
               214.658.6515
         monte.hurst@hsblaw.com

           HERMES SARGENT BATES, LLP
            1717 Main Street, Suite 3200
                Dallas, Texas 75201
              Telephone: 214.658.6500
             Telecopier: 214.658.6300
                 www.hsblaw.com
I.        INTRODUCTION

       In all likelihood, persons at companies who confront employment law issues on a
daily basis and lawyers who practice employment law are familiar with the conventional
claims stemming from statutory prohibitions against discrimination and retaliation in the
workplace. Yet, as illustrated by recent developments in employment law, courts are
expanding both the purview of the proscribed conduct under these statutes as well as the
group of persons who are afforded protection thereunder. For these reasons,
conscientious companies and their lawyers must not only maintain awareness of the
conventional scopes of anti-discrimination laws; but also, they must remain informed of
the unconventional claims under these laws that courts have already accepted and of
more bizarre claims under these laws that crafty attorneys would argue warrant
recognition.

II.       EXPANDING THE SCOPE OF PROTECTED GROUPS

          Courts have recently extended protected class status to some non-traditional
claims.

          A.    Discriminatory Animus Based on Associations

        The conventional claims stemming from Title VII of the Civil Rights Act of 1964
(“Title VII”) are claims asserted by individuals who allege to have been victims of
discriminatory animus in the workplace. However, federal courts have expanded the
purview of Title VII to include claims asserted by individuals who allege discriminatory
animus toward persons with whom they associate.

                1.     Familial Associations

        In Parr v. Woodmen of the World Life Insurance Company, 791 F.2d 888 (11th
Cir. 1986), the U.S. Court of Appeals for the Eleventh Circuit accepted a Title VII claim
asserted by a job applicant on the basis of discrimination toward the applicant’s
interracial marriage. In that case, Don Parr, a Caucasian man married to an African-
American woman, applied for a position as an insurance salesman with Woodmen of the
World Life Insurance Company (“Woodmen”). Parr was well-qualified for the position
and was told by the manager who interviewed him that he would probably be hired. The
manager also told Parr during the interview that Woodmen did not employ or sell
insurance to black people. After his interview, Parr told the employment service which
had set up the interview of the manager’s remarks, and informed the employment service
that he was married to a black woman. The employment service told Woodmen of Parr’s
interracial marriage, whereupon Woodmen’s manager informed the employment service
that he would advise against hiring Parr. Parr was not hired.

       Parr filed a lawsuit under Title VII, claiming that Woodmen refused to hire him
on the basis of his interracial marriage. Woodmen filed a motion to dismiss for failure to
state a claim upon which relief could be granted. The district court agreed with



THE TRUTH ABOUT THE FICTIONS IN EMPLOYMENT LAW TODAY                                Page 1
Woodmen that Title VII’s protection against race discrimination did not extend to the
interracial marriage of an individual who is not otherwise a member of a protected class,
and thus dismissed Parr’s lawsuit. Yet, in liberally construing Parr’s complaint, the court
of appeals reversed the district court’s ruling and remanded the case to the district court,
finding that Parr’s complaint of race discrimination based on his interracial marriage did
indeed state a claim upon which relief could be granted.

        In Chacon v. Ochs, 780 F.Supp. 680 (C.D. Cal. 1991), the district court followed
the Parr court’s recognition of association discrimination regarding interracial marriages.
In that case, a white woman married to a Hispanic man alleged racial discrimination
when persons at her workplace made derogatory comments about the Hispanic race,
knowing that her husband and children were Hispanic. The district court stated that
applying Title VII’s protections to discrimination based on an interracial marriage
comported with the spirit and purpose of Title VII, which is to eliminate racism in the
workplace.

         In Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick and GMC Trucks, Inc., 173
F.3d 988 (6th Cir. 1999), the U.S. Court of Appeals for the Sixth Circuit validated a Title
VII claim asserted by a former employee on the basis of discrimination toward the former
employee’s biracial child. In that case, Fred Tetro, a Caucasian male, was employed as
the finance manager for Elliott Popham Pontiac, Oldsmobile, Buick and GMC Trucks,
Inc. (the “dealership”). When Tetro’s family visited him at work, Elliott Popham
observed Tetro’s biracial daughter for the first time. A coworker of Tetro saw Popham
roll his eyes in a derogatory manner and immediately walk back into the dealership upon
seeing Tetro’s family. Approximately one month later, Popham made disparaging
comments about Tetro’s mixed-race child, said it would hurt the dealership’s image, and
said he could not believe the general sales manager did not tell him about Tetro’s mixed-
race child. Popham subsequently terminated Tetro’s employment after an argument
between them arose regarding Tetro’s choice of clothes that day.

        Tetro filed a lawsuit under Title VII, claiming that the dealership terminated his
employment and discriminated against him because of his biracial child. The dealership
filed a motion for summary judgment, arguing, among other things, that Title VII did not
authorize a cause of action based on alleged discrimination due to the race of a third-
party. The federal district court denied the dealership’s motion for summary judgment on
Tetro’s racial discrimination claim.

        The court of appeals affirmed the district court’s decision in this regard. The
court of appeals held that Tetro had indeed stated a claim upon which relief could be
granted under Title VII, in that a white employee terminated because his child is biracial
is indeed discriminated against on the basis of his race, even though the “root animus” for
the discrimination is a prejudice against the biracial child and not the employee himself.
The “net effect,” the court of appeals reasoned, is that the employer discriminated against
the plaintiff because of his race.




THE TRUTH ABOUT THE FICTIONS IN EMPLOYMENT LAW TODAY                                  Page 2
               2.      General Associations

       In Reiter v. Center Consolidated School District, 618 F.Supp. 1458 (D. Colo.
1985), the district court held that Title VII prohibited discrimination based on an
individual’s general association with people of a particular race or national origin. In that
case, the district court recognized that Sister Barbara Reiter’s claim against Center
Consolidated School District refused to renew her employment contract because of her
association with the Hispanic community was indeed viable under Title VII.

       B.      Same-Group Discrimination Claims

       It is well-settled that a member of a protected group may assert a discrimination
claim under Title VII against another member of the same group. See Newport News
Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983). However, courts
have recently extended the purview of same-group discrimination claims.

               1.      Same-Sex Discrimination Not Motivated by Sexual Desire

         In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the Supreme
Court of the United States established three ways for a plaintiff to prove that same-sex
sexual behavior is harassment because of sex. First, the plaintiff may prove that the
alleged harasser made explicit or implicit proposals of sexual activity, coupled with
“credible evidence” that the harasser was homosexual. Second, the plaintiff may prove
that the harassment is framed in “such sex-specific and derogatory terms . . . as to make
it clear that the harasser is motivated by general hostility” toward members of the same
gender in the workplace . . .” Third, the plaintiff may prove through “direct comparative
evidence how the alleged harasser treated members of both sexes in a mixed-sex
workplace.” The second and third methods of proof evidence that the harassing conduct
need not be motivated by sexual desire to support an inference of discrimination on the
basis of sex.

               2.      Failure to Conform to Gender Stereotypes

        In Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001),
the U.S. Court of Appeals for the Ninth Circuit recognized the viability of a Title VII
claim in which the plaintiff claimed that he was subjected to a hostile work environment
based on his sex because he failed to conform to male stereotypes. In that case, Antonio
Sanchez was employed for Azteca Restaurant Enterprises, Inc. as a host at one of the
company’s restaurants and, later, as a food-server at another one the company’s
restaurants. Throughout his employment with Azteca, Sanchez was subjected to
constant insults, name-calling and vulgarities. Male co-workers and a supervisor
repeatedly referred to Sanchez in Spanish and English as “she” and “her.” Male co-
workers mocked Sanchez for walking and carrying his serving tray “like a woman,” and
taunted him in Spanish and English. On one day, Sanchez became involved in a heated
argument with an assistant manager, after which he walked off the job. Azteca fired
Sanchez for job abandonment.



THE TRUTH ABOUT THE FICTIONS IN EMPLOYMENT LAW TODAY                                  Page 3
         Sanchez filed a lawsuit against Azteca, claiming, among other things, that he was
subjected to a hostile work environment based on his sex. Following a bench trial, the
district court concluded that Sanchez had not been subjected to a hostile environment.
The court of appeals reversed the district court’s judgment, finding that Sanchez had
indeed been subjected to a hostile work environment. Indeed, the court of appeals held
that the discrimination to which Sanchez was subjected resulting from his failure to
conform to a gender stereotype was indeed actionable under Title VII, in that the verbal
abuse was closely linked to sex.

               3.     Deeming the Discriminated Group Superior

        In Kang v. U. Lim America, Inc., 296 F.3d 810 (9th Cir. 2002), the U.S. Court of
Appeals for the Ninth Circuit recognized the viability of a same-group discrimination
claim in which the plaintiff alleged that the defendant discriminated against the plaintiff
based on his belonging to a particular group that the defendant, a member of the same
group, regarded as superior. In that case, Soo Cheol Kang, a United States citizen and of
Korean national origin, worked for U. Lim America, Inc. All of U. Lim America’s
employees shared Korean heritage. U. Lim America owned and operated U. Lim de
Mexico, an electronics manufacturing company located in Tijuana, Mexico. All of U.
Lim America’s employees worked at the Tijuana factory. U. Lim de Mexico employed
between 50-150 workers, all of whom were citizens of Mexico.

        Tae Jin Yoon was Kang’s supervisor. Yoon subjected Kang and other Korean
workers to verbal and physical abuse, and discriminatorily long work hours. According
to evidence Kang presented, Yoon abused Kang because of Yoon’s stereotypical notions
that Korean workers were better than the other workers and because of Kang’s failure to
live up to Yoon’s expectations. On numerous occasions, Yoon instructed Kang to work
harder because he was Korean; he contrasted Koreans with Mexicans and Americans,
who he said were not hard workers; and Yoon did not subject any of the 50-150 Mexican
workers to physical abuse. When Kang began to cut back on the required overtime in
order to spend time with his pregnant wife, Yoon fired him.

         Kang filed a lawsuit suit in California state court against Yoon and U. Lim
America for national origin discrimination and harassment in violation of Title VII.
After the case was removed to federal court, the federal district court granted summary
judgment in favor of Yoon and U. Lim America. The court of appeals reversed the
summary judgment and remanded the case to the district court. While acknowledging
the unusualness of the situation in which the plaintiff alleged same-group discrimination
based on the defendant’s view that the plaintiff’s group was superior to other groups, the
court of appeals articulated that such stereotyping is nevertheless an “evil at which the
statute is aimed.”




THE TRUTH ABOUT THE FICTIONS IN EMPLOYMENT LAW TODAY                                 Page 4
       C.      New Claims under the Pregnancy Discrimination Act of 1978

       Several recent cases consider the question whether the Pregnancy Discrimination
Act of 1978 (the “PDA”) is limited to protect only women who are actually pregnant.

        In Poucher v. Automatic Data Processing Inc., No. Civ. A. 3:98-CV2669P, 2000
WL 193619 (N.D. Tex. 2000), Julia Poucher filed a lawsuit against her former employer,
claiming that she was terminated after her supervisors learned of her intent to become
pregnant. Automatic Data Processing, Inc. sought to dispose of her case, arguing, among
other things, that the PDA covers only women who are pregnant, not women who intend
to become pregnant. While recognizing that the U.S. Court of Appeals for the Fifth
Circuit had not yet ruled on whether the PDA covers an individual’s intent to become
pregnant, the district court would not dispose of Poucher’s cause of action here.

       In Turic v. Holland Hospitality, Inc., 85 F.3d 1211 (6th Cir. 1996), the U.S. Court
of Appeals for the Sixth Circuit held that an individual’s consideration of having an
abortion is protected by the PDA. In that case, Kimberly Turic was considering having
an abortion. Because of their religious views, coworkers tried to convince Turic not to
have an abortion. Ultimately, the hotel forbade Turic from discussing her consideration
of abortion. The hotel ultimately found that Turic violated this prohibition and
terminated her employment.

        Turic filed a lawsuit against the hotel, claiming that she was terminated in
violation of the PDA. The district court entered a judgment in favor of Turic. The court
of appeals affirmed the district court’s finding that an individual’s consideration of
having an abortion is protected by the PDA. The court of appeals reasoned that “a
woman’s right to have an abortion encompasses more than simply the act of having an
abortion; it includes the contemplation of an abortion, as well.” Since an employer
cannot take adverse employment action against a female employee for her decision to
have an abortion, the court of appeals concluded, it also cannot take adverse employment
action against a female employee for merely thinking about what she has a right to do.

       D.      New Claims Under the Americans with Disabilities Act

               1.     Retaliation

        In Foster v. Time Warner Entertainment Co., L.P., 250 F.3d 1189 (8th Cir. 2001),
the U.S. Court of Appeals for the Ninth Circuit validated a retaliation claim under the
Americans with Disabilities Act (the “ADA”) asserted by a terminated employee. In that
case, Jane Foster was employed by Time Warner as a supervisor of customer service
representatives. One of the employees she supervised was Kevin Terry, who suffered
from nocturnal seizures due to epilepsy. Terry told Foster that it was difficult for him to
arrive at work consistently on time in the morning because of his seizures. He also
indicated that he had more seizures on the weekend and might often miss some work on
Mondays.




THE TRUTH ABOUT THE FICTIONS IN EMPLOYMENT LAW TODAY                                 Page 5
        The Time Warner Human Resources Manual included epilepsy in its definition of
disability under the ADA and mentioned a flexible schedule as an example of a
reasonable accommodation. Cathy Hill, the previous manager of the office and
supervisor of Foster, had previously accommodated Terry by allowing him to arrive at
work after the regular starting time in the morning and to stay later in the evening to
make up the missed time. When Hill was replaced as the supervisor of the office, Foster
took over the responsibility of supervising the office.

        One day Terry told Foster that he was experiencing more frequent seizures
resulting from a change in his medication. He said this increase should last for about two
months and requested a temporary adjustment in the flexibility accommodation to his
work schedule. He came to work later more often after requesting the adjustment.

       Cindy Snyder, Foster’s new supervisor, issued a new sick leave policy prohibiting
employees from making up time missed because of illness. Foster repeatedly questioned
Snyder about the new policy’s effect on Terry’s accommodation. Snyder told Foster on
one occasion that she had checked with Human Resources and was told Terry “needs to
come to work” and “needs to take sick time.” Nevertheless, Foster allowed Terry to
continue to work a flexible schedule.

       Even though Time Warner managers receive some discrimination training, Snyder
told Foster to “let [her] worry about the ADA,” that it was “none of [Foster’s] business,”
that “we don’t have to follow the ADA,” and “I don’t care about the policy [in the
manual].”

        Without verifying reports on Terry by use of computer logs or alarm codes,
Snyder and her supervisor terminated Terry for falsifying his timesheets. Terry denied
making false reports and pointed out that his work had always been completed. After
Terry was fired, Snyder and her supervisor met with Foster and told her they were going
to terminate her for colluding with Terry in falsifying his timesheets. At that meeting
Foster asked Snyder and her supervisor to show her his timesheets, but they refused.
Foster also retrieved the Time Warner employment manual and showed the parts of the
company disability policy listing epilepsy as a protected condition and indicating that a
flexible schedule was an appropriate accommodation. Snyder and her supervisor
responded that they did not have to give Terry an accommodation.

        After her termination, Foster sued Time Warner under the ADA, alleging that she
was fired in retaliation for opposing the removal of Terry’s accommodation and for
opposing his termination in violation of the ADA. At trial, the jury returned a verdict
finding that Time Warner terminated Foster in retaliation for engaging in conduct
protected by the ADA. The jury awarded her $33,515.28 for lost wages and benefits,
$75,000 in compensatory damages, and $136,000 in punitive damages. The district court
entered a judgment on the verdict. The court of appeals affirmed the district court’s
judgment, finding sufficient evidence to support the judgment against Time Warner. The
court of appeals articulated that a manager “may be shown to have engaged in protected
conduct if she refused to implement a discriminatory policy or took some action against



THE TRUTH ABOUT THE FICTIONS IN EMPLOYMENT LAW TODAY                                Page 6
it.”

               2.      Hostile Work Environment

        An HIV-positive employee was awarded a substantial judgment by a jury after
evidence was presented that the employee’s formerly friendly supervisor stopped going
to lunch with her and refused to shake her hand, and she was subjected to frequent drug
tests and disciplinary actions, all of which occurred after her HIV-status became known
in the workplace. See Flowers v. Southern Regional Physician Services, Inc., 247 F.3d
229 (5th Cir. 2001).

        In its review, the U.S. Court of Appeals for the Fifth Circuit considered the
similarities between Title VII and the ADA. Finding the purposes and remedial
structures of the two statutes to be alike, the court of appeals concluded that a hostile
work environment claim could be asserted under the ADA since such a claim may be
asserted under Title VII.

        The U.S. Court of Appeals for the Fourth Circuit has also recently concluded that
a hostile environment claim is actionable under the ADA. In Fox v. General Motors
Corp., 247 F.3d 169 (4th Cir. 2001), the court of appeals affirmed a jury verdict awarding
$200,000 in compensatory damages to the plaintiff. The plaintiff had suffered work-
related back injuries that required light-duty assignments. While on light-duty, the
plaintiff was subjected to a “barrage of harassment and his supervisors often ordered him
to perform jobs beyond his physical abilities.”

        After concluding that hostile environment claims may be brought under the ADA,
the court of appeals reviewed the sufficiency of the evidence presented and determined
that “Fox presented evidence of a workplace environment that a reasonable person could
easily find hostile.” Accordingly, there was no basis for overturning the jury’s verdict.

       E.      Protection of Moral or Ethical Beliefs

        In Grant v. Joe Myers Toyota, Inc., 11 S.W.3d 419 (Tex. App.—Houston [14th
Dist.] 2000, no pet.), the Houston Court of Appeals, in a two to one vote, held that moral
and ethical beliefs, despite their subjectivity, can be a religion within the meaning of Title
VII and the Texas Commission on Human Rights Act. In this case, Bobbie Grant applied
for a clerical position at Joe Myers Toyota, Inc. She was informed by the secretary that
no clerical positions were open, but there were openings in sales. Since Grant had no
training, the receptionist provided her with the name of the organization providing sales
training for Joe Myers, Automotive Sales Training (“AST”). Grant called AST from Joe
Myers and arranged to attend a two-week training class. The class was to be taught by
Dick Smouse, the owner and operator of AST.

       When Grant went to the class, she paid a registration fee and received the class
materials. Included in these materials was a copy of Og Mandino’s book, “The Greatest
Salesman in the World.” Smouse read two paragraphs to Grant and the others in the class



THE TRUTH ABOUT THE FICTIONS IN EMPLOYMENT LAW TODAY                                   Page 7
and asked them to memorize these paragraphs. He also asked them to recite the passage
morning, noon, and night. Grant, however, found some of the ideas in the two
paragraphs antithetical to her religious beliefs and refused to read more of the book
because she felt Smouse was asking her to replace her religious beliefs with the ideas
espoused in the book.

        On the second day of class, Grant expressed her problems with the book to
Smouse, telling Smouse that she could not read the book. When Smouse informed her
that she had to read the book to complete the class, she told Smouse that it was against
her beliefs as a Christian to read the book. Smouse then dismissed Grant from the class.
Grant went home and called Jerry Rocco, a sales manager at Joe Myers. She informed
Rocco of the problems she was experiencing in Smouse’s class. She also informed him
that she was a Christian and the required book “was against everything she believed as a
Christian.” Rocco informed her that she would have to read the book if she wanted to
take the class and must take the class to be hired.

        Grant did not return to the class and was not hired. She subsequently filed a claim
against Joe Myers, claiming, among other things, religious discrimination. The trial court
granted Joe Myers’ motion for summary judgment, finding no evidence of religious
discrimination. However, the court of appeals reversed the trial court’s judgment, finding
that Grant had produced more than a scintilla of evidence supporting her claim of
religious discrimination. Guided by the Equal Employment Opportunity Commission’s
definition of “religion” under Title VII, the court of appeals explained that the protections
from religious discrimination extend not only to traditional religious beliefs, but also to
moral and ethical beliefs.

       F.      A “Champion” or “Defender”

       In Johnson v. University of Cincinnati, No. 98-3016, 2000 WL 726528 (6th Cir.
June 1, 2000), the plaintiff was an African-American male who worked at the University
of Cincinnati as a vice president of human resources and human relations. This position
included responsibility for affirmative action programs. Differences arose, however,
between the plaintiff and school administration about how to run the program. He was
subsequently terminated.

       He later brought a claim under Section 1981, contending race discrimination.
However, he did not allege discrimination based upon his race as an African-American.
Rather, he alleged that it was a racial situation in which he became involved, namely his
advocacy on behalf of women and minorities in relation to the university’s alleged
discriminatory hiring practices that resulted in his discharge. The plaintiff was further
allowed to bring retaliation claims under both the opposition and participation clauses.

      Unlike the result in Johnson, the white, male plaintiffs in Childress v. City of
Richmond, Virginia, 134 F.3d 1205 (4th Cir. 1998), cert. denied, 524 U.S. 927 (1998),
were unsuccessful in asserting a hostile environment claim based upon discriminatory
conduct directed at blacks or females that adversely impacted the white male officers



THE TRUTH ABOUT THE FICTIONS IN EMPLOYMENT LAW TODAY                                  Page 8
ability to work as a “team.” A panel of the Fourth Circuit initially held that white men
have standing to assert hostile environment claims under Title VII when the
discriminatory conduct was directed at blacks or females. However, in an evenly divided
en banc decision, the initial panel decision was vacated, and the trial court’s dismissal of
the Title VII claims was affirmed.

       Assuming that the officers had been successful in establishing standing to sue as
“aggrieved persons,” it is questionable whether they suffered either “adverse employment
action” or whether the conduct was so “severe and pervasive” as to constitute actionable
harassment. A “loss of teamwork” alone may not be sufficient evidence of adverse
employment action.

       G.      Independent Contractors

        Prior to the adoption of the 1991 Civil Rights Act, Section 1981 of the Civil
Rights Act of 1866 guaranteed the right to, among other things, “make and enforce
contracts.” 42 U.S.C. § 1981 (1990). In Patterson v. McLean Credit Union, 491 U.S.
164, 176-77 (1989), the Supreme Court of the United States explained that § 1981
protected only the right to make contracts, which “extend[ed] only to the formation of a
contract, but not to problems that may arise later from the conditions of continuing
employment,” and the right to enforce contracts, which “embrace[d] protection of a legal
process, and of a right of access to legal process, that will address and resolve contract-
law claims without regard to race.” Consequently, Section 1981 had a very limited
scope that did not include claims for discriminatory termination or hostile work
environment.

        As part of the Civil Rights Act of 1991, Congress amended § 1981 to define
“make and enforce contracts” to include “the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.” 42 U.S.C. § 1981(b) (1991). Under this
language, aggrieved employees could pursue claims of discrimination based upon events
that occurred during the course of their employment.

        In Danco, Inc. and Benjamin Guiliani v. Wal-Mart Stores, Inc., 178 F.3d 8 (1st
Cir. 1999), the U.S. Court of Appeals for the First Circuit held that an independent
contractor could indeed assert a hostile work environment claim under 42 U.S.C. § 1981.
The court of appeals rejected Wal-Mart’s argument that liability would “run amok” if a
company could be held liable for racial harassment to independent contractors in
addition to the company’s employees, explaining that the “hostile work environment
theory is likely to be useful only to those independent contractors who work on site.”




THE TRUTH ABOUT THE FICTIONS IN EMPLOYMENT LAW TODAY                                  Page 9
II.    CLAIMS RELATED TO SEXUAL HARASSMENT INVESTIGATIONS

       A.      Unfettered Gossip

        An employer’s failure to stop continuing gossip about a sexual harassment claim
may spark a claim by the accused harasser. For example, in Russo v. Nike, Inc., 2000
WL 347777 (N.D. Illinois March 28, 2000), a male manager was accused of creating a
sexually hostile work environment. He allegedly asked a female employee if she was
losing weight, and told her, “well, your bottom looks like it.” While he denied making
the comments, the manager was counseled in writing, and was reminded of the company
policy against harassment.

       The male manager subsequently complained to human resources that employees
were continuing to discuss this allegation of sexual harassment about him. He further
said that he believed the employees were violating the company’s sexual harassment
policy by telling other employees and other third-party non-employees that he had been
accused of sexual harassment.

        Because the work environment allegedly became intolerable, he resigned, and
later brought a lawsuit for sex discrimination. He contended that he was subjected to
unwelcome verbal conduct of a sexual nature from the subordinate employees by their
false allegations of sexual harassment against him. He further alleged the discrimination
was based on his gender because a female employee’s complaints about a hostile work
environment were taken seriously but a complaint by a male employee was not. Because
nothing was done about his complaints, he arguably stated a claim and the defendants’
motion to dismiss the gender discrimination claim was denied.

       B.      The Intrusive Investigation

        Although an employer is compelled to conduct a prompt and thorough
investigation of sexual harassment complaints, investigations that become too intrusive
into the private affairs of the complainant can generate a cause of action. In Sarro v. City
of Sacramento, 78 F.Supp.2d 1057 (E.D. Cal. 1999), a female employee of the police
department believed that she was being sexually harassed by a co-worker. An
investigation was conducted, and the alleged harasser was reassigned to another job and
location, directed not to contact the female employee, suspended for 20 hours without
pay, and given a letter of reprimand.

        During the investigation, which was conducted by the police department’s
internal affairs department, the female employee’s ex-husband was interviewed about her
background, including her involvement in a criminal sexual assault complaint against her
dentist. Investigators also inquired about whether she was wearing any underwear at the
time of the alleged incident with her co-worker, whether she had a romantic relationship
with a co-employee, whether she had done modeling work, and whether she had ever
“danced on a tabletop or platform fully clothed or partially clothed or unclothed,” either
while intoxicated or for money.



THE TRUTH ABOUT THE FICTIONS IN EMPLOYMENT LAW TODAY                                Page 10
        In holding that the city was precluded from relying upon the investigation to
insulate it from liability, the court held:

       While the City was allegedly attempting to investigate [her] claim, it did
       so at the expense of delving into [her] past, forcing her to relive painful
       memories, reveal details about her private life and [relate] humiliating
       accusations which were wholly unrelated to her claim.

        The district court found that the city’s investigation was “not an adequate remedy
to coworker harassment because [it would deter reporting of harassment] and thus it was
not reasonably calculated to deter future harassment.”

       C.      Failure to Corroborate Accusations

Investigators who accept the allegations of the accuser without obtaining any independent
corroboration or otherwise explaining a rational basis for their action can create a cause
of action for the accused. In Curato v. Saluti, Civ. A. No. 98-2703, 2000 WL 1974 (E.D.
Pa. Dec. 30 1999), the plaintiff was a male employee and a corporate officer of the
defendant. A female employee had accused him of sexual harassment. Allegedly, the
company attempted to discipline him for his purported actions without investigating the
merits of the accuser’s claims or of his defenses. Ultimately, the company settled with
the female accuser for $135,000.

The accused male employee subsequently brought a gender-based employment
discrimination claim under Title VII, claiming that the employer had treated his
complaints differently than the female employee’s complaint. The company’s attempt to
dispose of the action through summary judgment was denied by the district court.

III.   SEX DISCRIMINATION CLAIMS BY MALE EMPLOYEES

        Sex discrimination claims asserted by males have become more common.
Conscientious employers cannot trivialize these claims, and must take adequate
investigative efforts.

       A.      Male Victims of Sexual Harassment

        In Lockley v. Turner, 779 A.2d 1092 (N.J. Super. Ct. App. Div. 2001), the court
of appeals affirmed the trial court’s judgment in favor of a male prison guard’s claim
under Title VII that his sexual harassment complaint had been ignored. Robert Lockley,
Jr. was employed as a corrections officer at Mid-State Correctional Facility; Ronda
Turner was a correction officer at the same facility. According to Lockley, Turner began
to express directly an interest in having a sexual relationship with him. Lockley told her
that he was happily married, with children, and was not interested in pursuing such a
liaison. Turner, however, persisted in her efforts to attract Lockley. Turner was not the
least hesitant to express her interest in Lockley both to him and to other corrections



THE TRUTH ABOUT THE FICTIONS IN EMPLOYMENT LAW TODAY                                 Page 11
officers, with the result that a large number of the staff at the facility knew that Turner
was actively pursuing him.

        When she was unsuccessful, Turner, evidently feeling publicly humiliated by the
rejection, eventually turned against Lockley. She began a campaign, in which she
enlisted her friends, to insult Lockley publicly about his sexuality. The campaign
consisted of the most obscene and vulgar terms, persistent opinions about his alleged
sexual preferences or lack thereof, alleged sexual abilities or lack thereof, and physical
endowments. Turner also subjected Lockley to continuing petty indignities. For
example, Turner constantly made Lockley wait before opening the gates for him and, on
one occasion, almost closed the gate on him as he was passing through.

        When Lockley eventually complained to his superiors about Turner’s conduct, he
received no assistance or aid. In fact, he could not understand why he simply did not
accede to Turner’s advances and sleep with her. He finally filed a formal complaint
alleging sexual harassment.

        Lockley filed a complaint asserting, among other things, a Title VII claim that his
sexual harassment claim had been ignored. At trial, Lockley argued that the dismissal of
the charges against Turner was merely one more indication of the failure to take his
complaints of sexual harassment seriously. The State of New Jersey argued in response
that it had attempted to fully discipline Turner for her actions, but its efforts had been
subverted by labor agreements. The jury found in favor of Lockley, and awarded him
$750,000 in compensatory damages and $3 million in punitive damages. The court of
appeals affirmed the trial court’s judgment of $750,000 in compensatory damages.

       B.      The Overprotective Employer

        Title VII affords women a right to choose for themselves whether the risks of a
particular job would be too dangerous. In very limited circumstances, employers may
legitimately find that a particular job is too dangerous for women. For example, in
Dothard v. Rawlinson, 433 U.S. 321, 335 (1977), the Supreme Court of the United States
justified the departure from Title VII’s general maxim of permitting women to decide for
themselves whether a particular job is too dangerous in light of the particular job being a
“contact” position in a maximum security male prison. In light of the uncommonness of
a circumstance in which the employer may justifiable find that a particular job would be
too dangerous for a woman, employers must be extremely careful in authorizing a shift
assignment in favor of a female employee simply because of her gender.

        In Crane v. Vision Quest National, No. Civ. A. 98-4797, 2000 WL 1230456 (E.D.
Pa. Aug. 23, 2000), the court addressed whether a particular job was too dangerous for
women to justify the employer’s policy. In that case, Vision Question National, an
aftercare program that provides support and counseling services to youths and families,
assigned its Administrator-on-Duty, an evening work assignment which rotated among
senior staff members, exclusively to male administrators while exempting all female
administrators. Albert Crane filed a lawsuit against the company, asserting, among other



THE TRUTH ABOUT THE FICTIONS IN EMPLOYMENT LAW TODAY                                Page 12
things, a Title VII claim based on gender discrimination. Vision Quest National argued
that it exempted female staff members for “safety” reasons after several female staff
members threatened to quit if they were not excused from Administrator-on-Duty.
Vision Quest National also argued that it decided to exclude women from the assignment
because of the significant crime problems in the area. In addressing motions for
summary judgment filed by both parties, the district court found that the company’s
explicit and systematic use of gender to determine which employees would be assigned
Administrator-on-Duty is facially discriminatory. Thus, the district court granted Crane’s
motion for summary judgment in this regard, validating his Title VII claim for gender
discrimination.

       C.      Gender-Biased Comments

        Derogatory comments indicating bias against males as a class may expose
companies to litigation initiated by male employees. In Carey v. Mt. Desert Island
Hospital, 156 F.3d 31 (1st Cir. 1998), the U.S. Court of Appeals affirmed the district
court’s judgment in favor of terminated employee. In that case, Michael Carey was
employed as the comptroller, then as the vice president of finance, for Mt. Desert Island
Hospital. The hospital management was primarily composed of women, and evidence
was presented of biased, discriminatory statements by board members regarding men in
general.

         In a discussion with a director and member of the hospital’s management
committee, Carey was told, “we live in a patriarchal society, and men shirk their duties
toward child raising. And because men have money, power and position, because they
have penises, then this is the type of thing that happens as a result.” Carey filed a sexual
harassment complaint with the personnel director, who later expressed regret to Carey
that he had taken the remarks the wrong way and that he had filed a complaint. In a
mission statement for the hospital’s new women’s health center, the steering committee,
which was comprised of only one male, prepared a mission statement for the center. As
first drafted, the statement barred the employment of men, including male physicians. In
one instance, a male member of the management committee complained to the personnel
director that another employee three water in his face. The personnel director was not
receptive to his complaint. When she was asked what she would do in the event water
was thrown at a female employee, the personnel director said the person would probably
be fired. She explained that the hospital had “different standards for men and women.”

        After he was terminated, Carey filed a claim under Title VII for gender
discrimination. After a seven day trial, a jury returned a verdict in Carey’s favor,
awarding compensatory and punitive damages of $210,000 and $400,000, respectively.
The district court reduced the $610,000 total to $200,000 to conform with the statutory
cap for awards of compensatory and punitive damages under Title VII. The district court
also awarded back pay in the amount of $110,070, making the total amount of recovery
$310,070. The court of appeals affirmed the district court’s judgment, finding ample
evidence to support the finding that the hospital’s proffered justification for terminating




THE TRUTH ABOUT THE FICTIONS IN EMPLOYMENT LAW TODAY                                Page 13
Carey was false, and that the real reason for discharge was his gender.1




1
  Portions of this paper are reprinted with permission from “Conventional Wisdom:
Unconventional Law” by Michael P. Maslanka, Godwin Gruber LLP, and “Common
Claims, Uncommon Discrimination” by Jane A. Matherson, Munsch Hardt Kopf & Harr,
P.C.


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