Sexual Harassment
& Gender Discrimination

Sex and gender discrimination is prohibited by Title VII of the Civil Rights Acts of 1964 and 1991. Title VII prohibits discrimination based upon sex or gender. Employers are required to make all employment decisions including the decision to hire, fire, promote, transfer and salary decisions based upon neutral business-related criteria and not upon someone’s sex or their gender. Title VII also prohibits sexual harassment. Some plaintiffs may file a lawsuit alleging both sex discrimination and sexual harassment. However, both claims do not have to be filed together and a plaintiff may also choose to file only one or the other. Title VII prohibits an employer from discriminating against an employee with respect to compensation, terms, conditions, or privileges of employment because of the employee’s sex. Wolf v. N.W. Ind. Symphony Society, 250 F.3d 1136, 1141 (7th Cir.2001) (quoting 42 U.S.C. § 2000e-2(a)(1)).

Title VII’s prohibition against sex discrimination also protects employees from sexual harassment. Simon v. City of Naperville, 88 F.Supp.2d 872, 874 (N.D.Ill.2000) (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Bryson v. Chicago State Univ., 96 F.3d 912, 915 (7th Cir.1996)). Crosson v. Caremark, Inc. 212 F.Supp.2d 875, 881 (N.D.Ill.,2002). These cases dealing with intentional discrimination are known as disparate treatment cases.

In addition to prohibiting disparate treatment cases, Title VII also prohibits acts that have a discriminatory impact upon people based on their sex and/or gender. Whether the discrimination is premised on sex or sex plus another characteristic, Title VII prohibits both discriminatory treatment of protected persons and the use of facially neutral policies that have a disparate impact on protected persons. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252, 253 n. 5, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Gee-Thomas v. Cingular Wireless, 2004 WL 1554458, *5 (M.D.Tenn.) (M.D.Tenn.,2004)

OVERVIEW OF DISPARATE TREATMENT SEX OR GENDER DISCRIMINATION

Title VII of the Civil Rights Acts of 1964 and 1991 prohibits discrimination based on sex and gender. State laws usually parallel Title VII and prohibit sex and gender discrimination as well. These laws prohibit intentional discrimination as well as acts that although not discriminatory in and of themselves, have a discriminatory impact based upon sex or gender. Thus, an employee may claim that a particular employment action such as termination, demotion, and/or failure to hire was discriminatory based on sex or gender. In addition, an employee may also claim that a policy or test an employee had to take had a discriminatory impact on him or her based on sex or gender. This chapter will provide an overview of the major elements that must be demonstrated in such cases and how courts have viewed various types of evidence presented by employees. In addition, this chapter will examine what you should do if you believe you have been a victim of sex or gender discrimination in the workplace as well as what to do if you have been accused of sex or gender discrimination.

INTENTIONAL DISCRIMINATION

Intentional discrimination consists of actions, which an employee claims were done to him or her based upon his or her sex or gender such as failure to hire, termination, or demotion. Courts have recognized that sex or gender discrimination actions may be hard to prove with direct evidence, for instance, statements by your boss that the real reason you were terminated is because you are a woman. Accordingly, the U.S. Supreme Court in a case called McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, (1973) held that a plaintiff may prove that the employer’s action was discriminatory by introducing indirect evidence of discrimination. To do this a plaintiff would have to establish a prima facie case of sex or gender discrimination. The employer could then defeat such a claim by demonstrating that the employer had a legitimate nondiscriminatory reason for the employment action. The burden of proof would then shift back to the plaintiff who would need to show that the articulated legitimate nondiscriminatory reason was, in fact, a pretext for discrimination. As set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, the basic allocation of burdens and order of presentation of proof in a Title VII case, is as follows. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. Id., at 802, 93 S.Ct., at 1824. third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine 450 U.S. 248, 248, 101 S.Ct. 1089, 1091 (U.S.,1981)

ELEMENTS OF DISPARATE TREATMENT SEX OR GENDER DISCRIMINATION ACTION

To prove by indirect evidence that an employee has been discriminated against based upon sex or gender the employee must demonstrate several elements that together make up a prima facie case of sex or gender discrimination. These elements may vary slightly depending on the jurisdiction in which the action is commenced as well as whether the action involves a failure to hire or termination. However, as a general rule, plaintiffs must establish that they are a member of a protected class; (2) that they are performing their job satisfactorily; (3) that they suffered an adverse employment action; and (4) that they were replaced by someone with the equivalent qualifications.

To establish a prima facie case of discrimination, the plaintiff must show that: (1) she is a member of a protected class; (2) she was performing her job at a level that rules out the possibility that she was fired for inadequate job performance; (3) she suffered an adverse job action by her employer; and (4) her employer sought a replacement for her with roughly the equivalent qualifications. Duncan-Young v. Pine Street Inn, 1997 WL 136337,*1, 1997 U.S. Dist. LEXIS 3435, *6 (D.Mass.1997). Flanagan-Uusitalo v. D.T. Industries, Inc. 190 F.Supp.2d 105, 112 (D.Mass.,2001).

Courts require the introduction of evidence that the employer’s action was discriminatory and not just mere conclusions by the plaintiff. A plaintiff’s own self-serving opinions, absent anything more, are insufficient to establish a prima facie case of discrimination. See Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir.1988). Mackey v. Shalala 360 F.3d 463, 470-470 (C.A.4 (Md.),2004).

Once the plaintiff proves a prima facie case of discrimination, the burden would shift to the defendant to show that it had a legitimate nondiscriminatory reason for its action. Many times employers will claim that the employee’s poor performance was in fact the cause of the adverse employment action or in the case of failure to hire that there were better more qualified candidates for the position.

Once an employer has proffered such a legitimate non-discriminatory reason the burden again shifts to the plaintiff to demonstrate that this legitimate non-discriminatory reason was in fact pretextual. This means that the reason the employer provided for the adverse employment action was only an excuse by the employer and the real underlying reason was really discrimination. In attempting to satisfy this burden, the plaintiff“once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision“must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Ibid.; see also St. Mary’s Honor Center, supra, at 507-508, 113 S.Ct. 2742. That is, the plaintiff may attempt to establish that he was the victim of intentional discrimination by showing that the employer’s proffered explanation is unworthy of credence. Burdine, supra, at 256, 101 S.Ct. 1089. Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 143, 120 S.Ct. 2097, 2106 (U.S.,2000).

OVERVIEW OF DISPARATE IMPACT SEX OR GENDER CASE

Rather than applying the three-prong analysis to disparate impact cases, courts usually use a statistical analysis based on the four-fifths rule. As a rule of thumb, courts have also considered the so-called four-fifths rule suggested by the Equal Employment Opportunity Commission. See Clady, 770 F.2d at 1428. Found in the Uniform Guidelines on Employee Selection Procedures, the four-fifths rule states that a selection practice is considered to have a disparate impact if it has a selection rate for any race, sex, or ethnic group that is less than four-fifths ( 4/5 ) (or eighty percent) of the rate of the group with the highest rate. 29 C.F.R. § 1607.4(D) (2001). Stout v. Potter, 276 F.3d 1118, 1124 (C.A.9 (Cal.),2002).

Disparate impact claims are not quite as common as disparate treatment claims and can be substantially more difficult to prove. Disparate impact is a doctrinal surrogate for eliminating unprovable acts of intentional discrimination hidden innocuously behind facially neutral policies or practices. Joe’s Stone Crab, Inc., 220 F.3d at 1274. Claims of disparate impact involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by a business necessity. Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (citations omitted). Bethel v. Porterfield, 293 F.Supp.2d 1307, 1328 (S.D.Ga.,2003)

ELEMENTS OF A DISPARATE IMPACT SEX OR GENDER ACTION

The elements of a disparate impact case are much different than a disparate treatment case. Usually, they require statistical proof of the disparate impact. To establish a prima facie case of disparate impact, a plaintiff must both identify the employment practice that has the allegedly disproportionate impact and establish causation by offering statistical evidence to show that the practice in question has resulted in prohibited discrimination. See Watson v. Ft. Worth Bank and Trust, 487 U.S. 977, 108 S.Ct. 2777, 2788, 101 L.Ed.2d 827 (1988).

Ordinarily, a prima facie disparate impact case requires a showing of a substantial statistical disparity between protected and non-protected workers in regard to employment or promotion. Munoz v. Orr, 200 F.3d 291, 299-300 (5th Cir.2000). Stout v. Baxter Healthcare Corp., 282 F.3d 856, 860 (C.A.5 (Miss.),2002). See also, Stout v. Potter, 276 F.3d 1118, 1122 (C.A.9 (Cal.),2002)( A prima facie case of disparate impact is usually accomplished by statistical evidence showing ‘that an employment practice selects members of a protected class in a proportion smaller than their percentage in the pool of actual applicants.’ Robinson v. Adams, 847 F.2d 1315, 1318 (9th Cir.1988) (quoting Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 482 (9th Cir.1983)). Although statistical data alone, in a proper case, may be adequate to prove causation, Wards Cove, 490 U.S at 650, 109 S.Ct. at 2121, the statistical disparities must be sufficiently substantial that they raise such an inference of causation. Watson, 487 U.S. at 995, 108 S.Ct. at 2789; see also Clady v. County of Los Angeles, 770 F.2d 1421, 1428-29 (9th Cir.1985).

SEX OR GENDER DISCRIMINATION AS IT RELATES TO YOU IN THE WORKPLACE

What To Do If You Have Been Discriminated Against Based Upon Sex Or Gender
If you believe that you have been the subject of discrimination by your employer and/or a manager in the workplace, you should attempt to use your employer’s grievance complaint procedure to file a complaint. Once you have done this, any adverse employment action your employer takes against you will be suspect. If you are subjected to an adverse employment action after you have engaged in protected activity by complaining about discrimination, you will preserve your right to commence a separate action for retaliation.

Obviously, you should also document the filing of your complaint and ensure that you have followed your employer’s complaint procedure. If your employer does not provide a complaint procedure then go to the Director of Human Resources and advise them that you wish to file a complaint regarding discrimination. Follow up your verbal conversation with a written complaint of which you keep a copy. If you are not satisfied with the response you get after filing the complaint, you can always retain legal counsel. In addition, you may file a complaint yourself with the EEOC and/or the local fair employment practices agency in your jurisdiction.

What To Do If You Have Been Accused Of Discriminating Against Another Employee Based On Sex Or Gender
You should be aware that any conversations you have with management (both formal and informal) could lead to your termination. Accordingly, you should immediately obtain legal advice from an attorney in your area to learn what your legal rights are. You should be cooperative and respectful but make sure you are aware of your legal rights before you participate in an investigation regarding your alleged actions.

OVERVIEW OF SEXUAL HARASSMENT

In addition to being subject to adverse employment actions that may have been taken based on discrimination, there is a subset of Title VII that prohibits sexual harassment.

There are two types of sexual harassment; quid pro quo sexual harassment and hostile work environment sexual harassment. Each has its own definition and legal requirements for establishing that it has occurred. Quid Pro Quo sexual harassment is a situation in which a manager or someone with the power to affect an employee’s terms and conditions of employment attempts to extract sexual favors with the threat of an adverse employment action if the employee does not comply. Hostile work environment sexual harassment is a situation in which the workplace is so permeated with discriminatory actions that it unreasonably interferes with the plaintiff’s work performance or it creates a hostile or offensive working environment.

There are both federal and state laws that prohibit sexual harassment. Title VII of the Civil Rights Act of 1964 is the federal law that prohibits sexual harassment. There are also state laws that parallel the federal law.

ELEMENTS OF A SEXUAL HARASSMENT ACTION

Elements Of A Hostile Work Environment Action
Courts have set forth the requisite elements required to prove a cause of action for hostile work environment sexual harassment. To establish a prima facie case of hostile environment sexual harassment, a plaintiff must demonstrate that: (1) she was subjected to unwelcome sexual harassment in the form of sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (2) the harassment was based on [the individual’s] sex; (3) the sexual harassment had the effect of unreasonably interfering with the plaintiff’s work performance in creating an intimidating, hostile or offensive working environment that affected seriously the psychological well-being of the plaintiff; and (4) there is a basis for employer liability. Hall v. Bodine Elec. Co., 276 F.3d 345, 354-55 (7th Cir.2002). Durkin v. City of Chicago 199 F.Supp.2d 836, 847 (N.D.Ill.,2002). See also, Meriwether v. Caraustar Packaging Co. 326 F.3d 990, 993 (C.A.8 (Mo.)2003)(To establish a prima facie case of hostile work environment sexual harassment by non-supervisory co-workers, a plaintiff must establish all of the following: 1) membership in a protected group, 2) the occurrence of unwelcome harassment, 3) a causal nexus between the harassment and her membership in the protected group, 4) the harassment affected a term, condition, or privilege of employment, and 5) the employer knew or should have known of the harassment and failed to take prompt remedial action. Jacob-Mua, 289 F.3d at 522.).

Elements Of Quid Pro Quo Harassment
Quid pro quo sexual harassment is often thought of as this for that sexual harassment. For example, if you go to dinner with me I will promote you or if you do not kiss me I will terminate you. There are numerous elements that Courts require a plaintiff to prove in order to establish a prima facie case of quid pro quo sexual harassment.

To establish a prima facie case of quid pro quo harassment, the plaintiff must prove: (1) that she was subjected to unwelcome sexual advances; (2) that her reaction to those advances affected a tangible employment action; and (3) that some basis exists for imputing liability to the employer. See Spencer v. Gen. Elec. Co., 894 F.2d 651, 658 (4th Cir.1990), abrogated on other grounds by Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). If the plaintiff proves that her reaction to a supervisor’s sexual advances culminated in a tangible employment action, she need not prove the third element; vicarious liability automatically attaches to the employer. Faragher v. City of Boca Raton, 524 U.S. 775, 808, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Lewis v. Forest Pharmaceuticals, Inc., 217 F.Supp.2d 638, 646 (D.Md.,2002). See also, Rachel-Smith v. FTData, Inc., 247 F.Supp.2d 734, 745 (D.Md.,2003)(In order to establish a prima facie case of quid pro quo sexual harassment, Plaintiff must show that: (1) she belongs to a protected group; (2) she was subject to unwelcome sexual harassment; (3) the harassment complained of was based upon sex; (4) Plaintiff’s reaction to the harassment affected tangible aspects of compensation, terms, conditions, or privileges of employment; and (5) the employer knew or should have known of the harassment and took no effective remedial action. Spencer v. General Electric, 894 F.2d 651, 658 (4th Cir.1990), overruled on other grounds by Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)).

Quid Pro Quo Sexual Harassment
The EEOC states that quid pro quo sexual harassment exists when there are unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature and (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual. Sexual harassment encompasses a broad spectrum of behavior. Within the spectrum, two categories of conduct emerge with some (though imperfect) clarity: quid pro quo harassment and hostile work environment harassment. The former occurs when a superior tangibly punishes an employee for rebuffing his or her sexual advances or tangibly rewards an employee for submitting (unwillingly) to them. Lewis v. Forest Pharmaceuticals, Inc. 217 F.Supp.2d 638, 646 (D.Md.,2002).

Hostile Work Environment Sexual Harassment
The EEOC states that hostile work environment sexual harassment exists when there are unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment. Courts have held that [a] hostile work environment in violation of Title VII exists when a workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment. Torres v. Pisano, 116 F.3d 625, 630-31 (2d Cir.1997) (citation omitted). Gurry v. Merck & Co., Inc. 2003 WL 1878414, *3 (S.D.N.Y.) (S.D.N.Y.,2003). See also, Meriwether v. Caraustar Packaging Co. 326 F.3d 990, 993 (C.A.8 (Mo.)2003)(An employee is subject to hostile work environment sexual harassment when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotations and citation omitted).

To state a prima facie case of hostile work environment harassment, Plaintiff must show: (1) she belongs to a protected group; (2) she was subjected to unwelcome harassment; (3) that the harassment was based on sex; (4) that the harassment affected a term, condition, or privilege of her employment; and (5) Defendant knew or should have known of the harassment and failed to take prompt action. See Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1222 (8th Cir.1997); Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir.1993). Erenberg v. Methodist Hosp. 240 F.Supp.2d 1022, 1029 (D.Minn.,2003).

The EEOC has set forth a list of examples of conduct that might be considered to be sexual harassment. They are:

• Touching of hands, hair
• Sexual jokes
• Innuendoes
• Sexually Suggestive Looks or gestures
• Grabbing
• The Display of Off-color pictures
• Computer Graphics

In order to establish a hostile work environment action, courts require that a plaintiff prove that the conduct that is causing the hostile work environment is severe and pervasive. Courts will therefore examine very closely various factors such as the context in which these activities take place, how frequently they occur, and also the seriousness of the offenses. The United States Supreme Court has established a non-exclusive list of factors to be considered in this analysis: 1) the frequency of the conduct; 2) its severity; 3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and 4) whether the conduct unreasonably interferes with an employee’s work performance. Farragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Gurry v. Merck & Co., Inc. 2003 WL 1878414, *3 (S.D.N.Y.,2003). See also, R.R. Donnelley & Sons, 42 F.3d at 443 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)) (For McCain-Sidney’s claim of a hostile work environment to be actionable under Title VII, the conduct of which she complains must be sufficiently severe or pervasive as to alter the conditions of [her] employment and create an abusive working atmosphere. McCain-Sidney v. Evanston Tp. High School Dist. 202 2001 WL 1117274, *6 (N.D.Ill.) (N.D.Ill.,2001).

By analyzing the facts of each case on a case-by-case basis, Courts develop a sense of what particular conduct satisfies the severe and pervasive threshold. See, e.g., Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 439 (2d Cir.1999) (holding that isolated, minor episodes of harassment do not merit relief under Title VII) (citation omitted); Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 716 (3d Cir.1997); Weston v. Pennsylvania, 2001 WL 1491132, at *12 (E.D.Pa. Nov.29, 2001) (three offensive comments within a month, coupled with another offensive comment three years later insufficiently pervasive); SaiduKamara v. Parkway Corp., 155 F.Supp.2d 436, 439-40 (E.D.Pa.2001) (four specific incidents over nearly one and one-half years not frequent enough to create hostile work environment); Bonora v. UGI Utilities, 2000 WL 1539077, at 3-4 (E.D.Pa.Oct.18, 2000) (supervisor’s ten incidents of harassing conduct over two years not frequent enough to create hostile work environment); Arasteh v. MBNA America Bank, N.A., 146 F.Supp.2d 476, 495 (D.Del.2001) (holding that where the defendant’s employee rubbed the plaintiff’s legs and stared at her breasts, but did not do so often, the plaintiff’s Title VII hostile work environment claim was not actionable). Cf. Roberts v. University of Pennsylvania, 2001 WL 1580304, at *6 (E.D.Pa. Dec.11, 2001) (holding actionable under Title VII a pattern of 20 incidents of sexual harassment over a two-year period that included glares, laughter, cursing at the plaintiff, making vulgar comments to her, two incidents wherein physical force was used against her, and additional threats of physical force). Evans v. Nine West Group, Inc., 2002 WL 550477, *7 (E.D.Pa.,2002).

In order to be actionable, courts also require that the conduct causing the hostile work environment to be objectively and subjectively offensive. Accordingly, courts measure whether the conduct is offensive against the standards of what a reasonable person would think. The conduct must be offensive to a reasonable person, objectively offensive. The plaintiff’s subjective view that she experienced a hostile work environment is insufficient. The work environment must be objectively hostile“that is, one that a reasonable person would find hostile or abusive. Farragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Costanzo v. U.S. Postal Service 2003 WL 1701998, *8 (S.D.N.Y.,2003). See also, Caratachea v. Homewood Industries 2002 WL 31844997, *2 (N.D.Ill.) (N.D.Ill.,2002) Upon an examination of those circumstances, the Court must determine that the workplace is both objectively and subjectively hostile. The work environment cannot be described as ‘hostile’ for purposes of Title VII unless a reasonable person would find it offensive and the plaintiff actually perceived it as such. Hostetler v. Quality Dining, Inc., 218 F.3d 798, 807 (7th Cir.2000) (citing Farragher v. City of Boca Raton, 524 U.S. at 787).
In evaluating what conduct is offensive courts have held that the conduct must be significantly offensive to constitute harassment.

When evaluating a sexual harassment claim, the Seventh Circuit has described a line between mildly offensive boorish conduct and deeply offensive harassing conduct. See Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430-31 (7th Cir.1995); see also Carr v. Allison Gas Turbine Div., General Motors Corp., 32 F.3d 1007, 1010 (7th Cir.1994) (the line that separates the merely vulgar and mildly offensive from the deeply offensive and sexually harassing). It is only the latter that qualifies as actionable sexual harassment. Caratachea v. Homewood Industries, 2002 WL 31844997, *2 (N.D.Ill.) (N.D.Ill.,2002). That the conduct must be subjectively offensive is also important. Courts require that the conduct be unwelcome to the person claiming the harassment. A plaintiff must indicate by her conduct that the harassment was unwelcome, and evidence that she engaged in behavior similar to that which she claimed was unwelcome or offensive is evidence that the behavior is not unwelcome. Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 966 (8th Cir.1999). Beard v. Flying J, Inc. 266 F.3d 792, 798 (C.A.8 (Iowa),2001). Often employers attempt to defeat sexual harassment claims by demonstrating that the person claiming the harassment enjoyed the conduct complained of.

SEXUAL HARASSMENT AS IT RELATES TO YOU IN THE WORKPLACE

1. What to Do If You Believe You Have Been Sexually Harassed
If you believe you have been sexually harassed or even if you are not sure that another employee’s actions constitute sexual harassment but simply feel that they make you uncomfortable you must inform your supervisor, manager, and/or the Human Resources Department. Examine your employer’s sexual harassment policy and it will often direct you to the appropriate person. You should probably put your complaint in writing because this will create a paper trail. The Supreme Court of the United States has held that a plaintiff’s sexual harassment case may fail if the employer can successfully show that the plaintiff unreasonably failed to take advantage of the employer’s complaint procedures. In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), the Supreme Court held that where a supervisor harasses an employee but takes no tangible employment action against him, the employer is still liable unless the employer affirmatively shows that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Burlington Indus., Inc., 524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275. E.E.O.C. v. Harbert-Yeargin, Inc. 266 F.3d 498, 510 (C.A.6 (Tenn.),2001)

To satisfy the second prong of the Ellerth/Faragher affirmative defense, the defendant must demonstrate that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Ellerth, 524 U.S. at 742, 118 S.Ct. 2257. As the Supreme Court noted in Ellerth, proof that an employee failed to use any complaint procedure provided by the employer will normally suffice to satisfy the employer’s burden under the second element of the defense. Id. Conatzer v. Medical Professional Bldg. Services, Inc., 255 F.Supp.2d 1259, 1270 (N.D.Okla.,2003). In this case, proof that the plaintiff failed to complain about the incident for 17 days was enough to establish that she unreasonably failed to take advantage of the employer’s complaint procedure.

RETALIATION

Once you have complained about discrimination you have engaged in what is referred to as protected activity. Any adverse action that your employer takes against you after this point could be used to demonstrate that it was taken in retaliation for your engaging in this protected activity. So, for example, if you file a complaint with the EEOC claiming you were discriminated against and one week later you were terminated, you could file a separate claim alleging that your discharge was in retaliation for having filed a complaint. Employers are not allowed to retaliate against employees for engaging in protected activity.

OVERVIEW OF RETALIATION ACTION

Title VII prohibits an employer from retaliating against an employee who complains about discrimination and/or harassment. Under 42 U.S.C. § 2000e-3(a), an employer may not retaliate against an employee who has either opposed any practice made unlawful under Title VII or has made a charge or participated in any matter in an investigation of sexual harassment. Velez Cortes v. Nieves Valle 253 F.Supp.2d 206, 214 (D.Puerto Rico,2003).

ELEMENTS OF A RETALIATION ACTION

Courts use the same three-prong analysis they used for Title VII cases for retaliation cases. Thus, the plaintiff must first prove a prima facie case of retaliation. The burden then shifts to the defendant to show a legitimate non-discriminatory reason for the action taken and the plaintiff would then have to demonstrate that the reason the employer proffered was in fact pretextual. In order to set forth a claim for retaliation the plaintiff must demonstrate a prima facie case of retaliation. Then the defendant must point to evidence of a legitimate non-retaliatory reason for the complained of action. If the defendant meets its burden, the plaintiff must demonstrate that there is sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation. Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir.1998).
Gilford v. City of New York 2004 WL 1574695, *5 (S.D.N.Y.,2004)
Accordingly, the first hurdle that plaintiffs must meet is to establish a prima facie case of retaliation. Courts have set forth the essential elements a plaintiff would have to prove to establish a retaliation cause of action To establish a prima facie case of retaliatory discrimination, Soto must establish the following four elements: (1) [she] engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal connection between participation in the protected activity and the adverse employment action. Id. at 713- 14. (citations omitted). Gagnon v. Sprint Corp., 284 F.3d 839, 850 (8th Cir.), cert. denied, 537 U.S. 1001, 123 S.Ct. 485, 154 L.Ed.2d 396 (2002); see Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 685 (8th Cir.2001); Buettner, 216 F.3d at 713-714. In addition to these requirements, the plaintiff must show that a reasonable person could believe that the alleged incidents would violate Title VII’s standard. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). Soto v. John Morrell & Co. 285 F.Supp.2d 1146, 1176 (N.D.Iowa,2003). See also, Fortner v. Ameritech Corp. 50 Fed.Appx. 187, 188-189, 2002 WL 31379880,*2 (6th Cir. Mich. 2002)(In order to establish a prima facie case of retaliation, the plaintiff must prove that: (1) he engaged in activity protected by Title VII; (2) the exercise of his civil rights was known to the defendant; (3) thereafter, the defendant took an employment action adverse to the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000). Once the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to produce some legitimate, nondiscriminatory reason for the adverse employment action. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). If the defendant is able to proffer a nondiscriminatory reason for the adverse action, the burden shifts back to the plaintiff to produce credible evidence that the reason offered by the defendant is a mere pretext for unlawful retaliation. Burdine, 450 U.S. at 253; McDonnell Douglas, 411 U.S. at 804.)

RETALIATION AS IT RELATES TO YOU IN THE WORKPLACE

What To Do If You Believe You Have Been The Victim Of Retaliation
The first thing for you to do in determining if you have a valid retaliation claim is to decide whether you have engaged in protected activity. Engaging in protected activity means that you have complained in some form or another about discriminatory action you believe the employer has taken against you. Therefore, if you have utilized the employer’s complaint procedure or even if you have spoken informally to someone in the Human Resources department regarding possible discrimination, you have engaged in protected activity. If you believe that you have in fact done this and your employer then takes an adverse employment action against you, you may have a retaliation action.

What To Do If You Have Been Accused Of Retaliation
Retaliation is always a potential cause of action if someone has complained about discrimination in the workplace. Accordingly, if an employee or co-worker of yours ever complains to you either formally or informally regarding discrimination they believe they have suffered in the workplace, you should forward this information to the appropriate person under your company’s anti-discrimination policy or if there is no such person mentioned to an appropriate person in your company’s human resource department. If the employee who has complained to you about discrimination work for you or if you have any control over hiring and/or firing that employee, you should ensure that you take no adverse employment action against that employee until you have confirmed such action with in-house counsel and/or human resources. Otherwise, you could be accused of retaliating against that employee. Although Courts have held there can be no personal liability under Title VII, some courts have held that managers can be individually liable under their state’s fair employment laws for both discrimination and/or retaliation.

Your best course of action would be to contact Mark Carey at 203-255-4150 or info@capclaw.com. You may of course proceed directly to the EEOC or your local fair employment agency and file a complaint.