It seems like common sense: a boss who incessantly stares at an employee’s chest to the point that she must hold objects in front of her to deter his wandering eyes constitutes sexual harassment. The First Circuit in Billings v. Town of Grafton et al. agreed, holding that a secretary who alleges that a supervisor repeatedly stared at her chest could sue her employer for sexual harassment.
Nancy M. Billings began working as a secretary for Grafton Town Administrator, Russell J. Connor, Jr. in 1999. A few months into the job, Billings noticed that Connor would repeatedly stare at her chest during their conversations. In one particular instance, Connor stared at Billings’ chest so many times in the first half-hour of her workday that she felt compelled to drive home and change her sweater.
Not surprisingly, other women who worked for the Town of Grafton also reported Connor’s wandering eyes and objectionable conduct. Billings filed numerous complaints about her boss’ misconduct to no avail. Rather than take remedial action against Billings’ boss, the Town placed the blame on Billings, and ultimately transferred her to a different department under less desirable working conditions. In attempting to defuse Connor’s actions, the Town of Grafton claimed that an ailment, called “alternating intermittent exotropia,” caused Connor to essentially stare at Billings’ chest.
Writing on behalf of the First Circuit, Judge Jeffrey R. Howard opined that Billings states a legal claim for sexual harassment:
We cannot reasonably accept, however, that a man’s repeated staring at a woman’s breasts is to be ordinarily understood as anything other than sexual. In arguing to the contrary in this case, the defendants rely on Connor’s eye condition, coupled with the fact that others who worked with him “did not sense any sexual intent underlying” his “failure to maintain eye contact.” While this might have some bearing on whether Connor’s staring created an objectively hostile work environment, it does not mean that the staring cannot support such a claim as a matter of law, because “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.”
This case will be closely monitored as it progresses to trial.
Employers have found a new way to minimize the bad publicity that results from their discriminatory practices. Sexual harassment is no exception. Mandatory arbitration agreements are on the rise. Increasingly, employers require workers to sign arbitration agreements as a condition of employment. In doing so, employees give up the right to a trial by jury. As one woman’s plight against Halliburton reveals, mandatory arbitration clauses are unconscionable.
Ms. Barker is a mother of five. To support her family, she took a job in Iraq working for Halliburton. She recounts her experience in an ABC News article entitled, Sex Assault Suit Vs. Halliburton Killed:
The manager of the camp kept making gestures of how if I wanted my safety to exist on the camp, that I needed to sleep with him, and that’s all he kept saying to me. … On my way into the office, there was pictures of prostitutes and animals having sex pasted in the hallway. Our office was just wallpapered with pornography. There was not one space of wall at all.
Not surprisingly, Ms. Barker filed claims against Halliburton for, among other things, sexual harassment. Halliburton, however, had an ace up its sleeve. In order to be hired, Halliburton required Ms. Barker to sign a mandatory arbitration agreement. On February 6, 2008, a judge in Texas ruled that, per the terms of the agreement, Ms. Barker’s case must be heard in arbitration.
The United States Constitution recognizes the right to a jury trial as a fundamental civil liberty. Hopefully someday, the courts will do the same.
The Supreme Court has granted certiorari in two promising cases. In both cases, the Court of Appeals ruled against the plaintiff-employee. One case involves the protection of employees from retaliation. We wrote about this case in a post on January 14, 2007 entitled, Title VII Sexual Harassment Case May Find Itself on the Supreme Court Docket. The other case involves evidentiary burdens in age discrimination suits where the employer alleges legitimate, nondiscriminatory reasons for a layoff.
In the first case, the employer asked an employee to cooperate in an investigation regarding sexual harassment in the workplace, who was fired after telling investigators that she had seen her co-worker engage in a series of inappropriate acts. In what has been criticized as a cramped interpretation of Title VII, the Sixth Circuit Court of Appeals held that cooperating with the investigation did not constitute “opposition” to sexual harassment. Click here for the Sixth Circuit’s decision.
The second case deals with age discrimination under the Age Discrimination in Employment Act. There, the employer conducted a reduction in force in which 31 employees were let go. All RIF’d employees, save for one, were 40 years old or older. The Second Circuit Court of Appeals ultimately overturned the jury verdict in favor of the employees on the basis that they failed to disprove the employer’s business necessity defense. Click here for the Second Circuit’s decision.
The New York Times reported on both cases in an article entitled, Justices Add More Cases on Job Discrimination.
The Supreme Court’s docket in 2008 may include a case out of Nashville, TN involving sexual harassment. An article out of the Tennessean gives a synopsis of the facts:
The case began in 2002, when Vicky Crawford, then a payroll supervisor who had worked for the school system for 30 years, was contacted by school officials looking into allegations of sexual misconduct against Gene Hughes, then the schools’ employee relations director.Crawford told investigators that she had seen Hughes grab his crotch in her presence, that he had asked to see her breasts, and on one occasion, he grabbed her head and tried to force it into his groin. At the time, Hughes was responsible for investigating all claims of sexual harassment in the school district. The lawsuit alleges that the internal investigation ended with no disciplinary action against Hughes. But Crawford, and two other female employees who cooperated with the probe, were fired, the suit says.
Title VII prohibits employers from taking adverse employment actions against employees who oppose unlawful employment practices such as sexual harassment. At issue in Crawford’s retaliation claim under Title VII is the definition of oppose.
Crawford argued that she opposed Hughes’ inappropriate conduct by cooperating with the school’s internal investigation. In response, the school argued that Title VII’s whistleblower provision was not intended to protect employees participating in an internal investigation initiated by an employer. Disregarding Title VII’s broad remedial purpose, the district court and the Sixth Court agreed with the school’s argument and dismissed Crawford’s retaliation claim. Click here for the Sixth Circuit’s decision.
If the Supreme Court grants certiorari, the issue will focus on whether an employee who is terminated after cooperating with an internal investigation in which she alleges unlawful employment practices states a claim for retaliation under Title VII.
The Knicks are having a bad year. Isiah Thomas’s bad karma isn’t helping. In October 2007, a New York jury returned a verdict against Thomas and Madison Square Garden (MSG) for sexual harassment. In a rare move only reserved for the most egregious of cases, the jury levied a punitive damages award of $11.6 million. In doing so, MSG received a clear message to clean up their act.
In 2000, the plaintiff, Anucha Browne Sanders, was hired by the New York Knicks as a marketing executive. In 2002, she received a promotion to Senior Vice President of Marketing. Thomas’ tenure commenced in December 2003. Shortly thereafter, the sexual harassment began. In January, MSG fired Sanders after she repeatedly reported Thomas’ inappropriate conduct.
Declaring the verdict a “travesty of justice,” MSG vowed to appeal. The case was slated to resume in early-December before U.S. District Judge Gerard E. Lynch. Among the issues to be decided were Sanders’ compensatory damages, which would involve a combination of lost back wages and future loss of income. Looming overhead was also the millions of dollars in legal fees that the Knicks would have to pay to Sanders’ attorney.
Realizing that their defense didn’t have a leg to stand on, the Knicks wisely chose to settle the matter instead. In settling, MSG avoided paying Sanders’ legal fees and amassing more legal fees of their own. Reports indicate that MSG didn’t catch much of a break on the punitive damages award. The final figure is rumored at $11.5 million — only about $100,000 less than the jury’s verdict.