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The EEOC and Sexual Harassment Jennifer Goldstein Senior Appellate Attorney EEOC Office of General Counsel July 19, 2011.

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Presentation on theme: "The EEOC and Sexual Harassment Jennifer Goldstein Senior Appellate Attorney EEOC Office of General Counsel July 19, 2011."— Presentation transcript:

1 The EEOC and Sexual Harassment Jennifer Goldstein Senior Appellate Attorney EEOC Office of General Counsel July 19, 2011

2 EEOC – Appellate Division EEOC cases Amicus Briefs

3 Topics 1. “Because of sex” Directed at women but not sexual or gender- specific Directed at women but not sexual or gender- specific Sexual or gender-specific, but not directed at women Sexual or gender-specific, but not directed at women 2. Remote Locations The Teenager problem The Truck Driver problem The Truck Driver problem

4 Oncale v. Sundowner Offshore Services, 532 U.S. 75 (1998) SCT –Rejects categorical rule excluding same sex harassment –“The critical issue … is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” –Harassment need not be motivated by sexual desire –Can prove “because of sex” by using comparative evidence about harasser treats men and women in workplace

5 Post-Oncale confusion 1. What if conduct is directed at women but not sexual or gender-related? --or-- 2. What if conduct is sexual or gender- related but not directed at women?

6 EEOC v. NEA-Alaska, 422 F.3d 840 (9th Cir. 2005)

7 District Court: EEOC failed to prove either that the harasser was “motivated by lust” or that he was trying to drive women out of the workplace

8 EEOC v. NEA-Alaska, 422 F.3d 840 (9th Cir. 2005) Ninth Circuit “abuse …directed at women, whether or not it is motivated by ‘lust’ or by a desire to drive women out of the organization, can violate Title VII.” this case: “an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men.” “There is no logical reason why such a motive is any less because of sex.”

9 Reeves v. C.H. Robinson Worldwide, 594 F.3d 798 (11th Cir. 2010) (en banc) Co-workers: “bitch,” “fucking bitch,” “stupid bitch,” “fucking whore,” “crack whore,” “cunt” Branch manager: “talk to stupid bitch on line 4,” “what are Asian bitches good for,” “lazy good-for-nothing bitch,” “she may be a bitch but she can read”

10 Reeves v. C.H. Robinson Worldwide, 594 F.3d 798 District Court: offensive conduct “was not motivated by Reeves’s sex, because the derogatory language in the office was not directed at her in particular” “because the language was used …in the presence of all employees,… both men and women were afforded like treatment”

11 Reeves v. C.H. Robinson Worldwide, 594 F.3d 798 A woman “cannot be forced to endure pervasive, derogatory conduct and references that are gender-specific in the workplace, just because the workplace may be otherwise rife with generally indiscriminate vulgar conduct”

12 Reeves v. C.H. Robinson Worldwide “even if the words were not directed specifically at the plaintiff, … [i]t is enough to hear co-workers on a daily basis refer to female colleagues as ‘bitches,’ ‘whores,’ and ‘cunts,’ to understand that they view women negatively, and in a humiliating or degrading way.”

13 Reeves v. C.H. Robinson Worldwide “the terms ‘bitch’ and ‘whore’ have gender- specific meanings. Calling a man a ‘bitch’ belittles him precisely because it belittles women. It implies that the male object of ridicule is a lesser man and feminine…. [I]t insults the man by comparing him to a woman, and, thereby, could be taken as humiliating to women as a group as well.”

14 Remote Locations The teenager problem

15 EEOC v. V & J Foods, Inc., 507 F.3d 575 (7th Cir. 2007)

16 District Court: what “matters most” was that “the complaint did not reach V & J”

17 EEOC v. V & J Foods, Inc., 507 F.3d 575 (7th Cir. 2007) complaint mechanism must be reasonable, “and what is reasonable depends on ‘the employment circumstances.’” “the company was obligated to suit its procedures to the understanding of the average teenager.” Age and education relevant to adequacy of complaint mechanism

18 Remote Locations The notice problem Who is a supervisor anyway? a/k/a the truck driver problem

19 EEOC v. CRST Van Expedited, No (8 th Cir.)

20 EEOC v. CRST Van Expedited District Court: Trainers not “supervisors” Anti-harassment training would be difficult CRST had no notice (or notice after the fact) Every complaint “he said/she said” Verbal warnings/“no females” sufficient

21 EEOC v. CRST Van Expedited EEOC arguing 1. Trainers control truck/work environment – makes them “supervisors” 2. Constructive notice – aware of a serious problem

22 EEOC v. CRST Van Expedited 3. No effective remedial action “no females” is not discipline Women in trucks isolated and vulnerable – employer needs to be more vigilant Not a remedy to do nothing just because alleged harasser denies it


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