© Copyright Tucker Arensberg, P.C. All Rights Reserved.
Matthew M. Hoffman
Tucker Arensberg, P.C.
June 27, 2018
1500 One PPG Place, Pittsburgh, PA 15222
[email protected] 412-594-3910
Sexual Discrimination and Harassment Claims in the #MeToo
Landscape
Harvey Who?
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Introduction: Harvey Weinstein
• Does it surprise you to hear that the Harvey
Weinstein story is only nine months old.
• Although it is now clear that his inappropriate
behavior was a poorly kept secret in Hollywood for
years, the story really broke on October 5, 2017.
• That day, the New York Times published a story
that detailed allegations that spanned decades.
• Weinstein didn’t seem particularly concerned at first.
• He quickly apologized for “caus[ing] a lot of pain,”
but generally denied the allegations.
Introduction: Harvey Weinstein
• He vowed to sue the NYT and keep his job.
• He appeared to believe that things would blow
over. . . which did not exactly happen
• Fast forward to today…
• To date, at least 42 named women have made
allegations against Weinstein.
• He was fired from the company he founded, the
company went bankrupt and he now faces
criminal charges.
#MeToo
Alyssa Milano
@Alyssa_Milano
If you’ve been sexually harassed or assaulted
write ‘me too’ as a reply to this tweet.
4:21 PM - Oct 15, 2017
• Milano’s tweet received thirty thousand
responses within 12 hours
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Introduction
• This story has given prominence to the #MeToo
movement . . .
• Brought our society to an overdue reckoning . . .
• Almost daily, allegations are brought forward –
many of which involve behavior that took place
in the workplace. . .
The Weinstein Ripple Effect
The Weinstein Ripple Effect
Television host Charlie Rose
Morning news anchor Matt Lauer
Comedian Louis C.K.
Actor Kevin Spacey
News anchor / commentator Bill O’Reilly
Former President Bill Clinton
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Introduction
• So what do these developments of the last nine
months mean for school employers and
administrators?
• Likelihood of more claims;
• Greater scrutiny of employers’ actions and
responses; and
• Demands for harsher penalties.
• What doesn’t it mean? -- The underlying legal
framework hasn’t changed…
Today’s learning objectives
• Today, we will…
• Outline (and make sure we understand) the
legal framework under which sexual
harassment and discrimination issues are
analyzed;
• Discuss how recent developments have
changed or impacted this framework; and
• Provide guidance on what school districts
should do to minimize the likelihood of claims
Applicable Law
Title VII of the Civil Rights Act of 1964
Prohibits discrimination in employment based “on the
basis of sex”
Section 1983 (42 U.S.C. § 1983)
Persons, under color of any statute, who subject any
citizen to the deprivation of any rights secured by the
Constitution and laws shall be liable to the party
injured in an action at law.
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Applicable Law
Title IX (20 U.S.C. § 1681(a))
“No person . . . shall, on the basis of sex, be
excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any
education program or activity receiving Federal
financial assistance.”
Pennsylvania Human Relations Act
Prohibits discrimination on the basis of sex
Interpreted coextensively with Title VII
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What is sexual “harassment,” from a legal standpoint??
• One of the challenges in this area is that we
often deal with concepts, terms and phrases that
have very specific legal definitions and
meanings.
• Examples: “harassment,” “hostile work environment,”
“discrimination,” etc.
• What can be confusing, though, is that those
concepts, terms and phrases are also widely
referred to and used in real life where their
meanings are less rigorously defined.
What is “harassment,” from a legal standpoint??
• This is also the case with the word that is the
topic of today’s discussion:
• HARASSMENT
• If you ask dictionary.com, it is…
• noun,
“the act or an instance of disturbing, pestering,
or troubling repeatedly”
What is “harassment,” from a legal standpoint??
• But, legally, the definition is much more nuanced and complicated.
• It’s much more than “disturbing, pestering, or repeatedly troubling behavior.”
• Rather than read you a long, boring and dry legal definition of harassment, let’s break it down in layman’s terms.
• Then we will discuss when employers are legally liable for such harassment..
• And how that liability is calculated.
What is “harassment,” from a legal standpoint??
• Sexual harassment is a subset (or kind) of unlawful discrimination.
• It occurs when 5 elements are present:
1. An employee…
2. Is subject to conditions (such as conduct, comments, jokes, slurs, etc.)...
3. That relate to a protected characteristic (i.e., gender) . . .
4. And is unwelcome…
5. And is severe or pervasive.
When is an employer legally liable for “harassment”??
• But understanding the legal definition of harassment is just the first step.
• Next, we have to understand when/how an employer becomes legally liable for that harassment.
• There are two distinct (and very different) legal standards, depending upon whether…
1. The harassment has resulted in a tangible job action (such as a termination, constructive discharge, demotion, denied promotion, pay cut, etc.)…
2. And when it hasn’t.
When is an employer legally liable for “harassment”??
• To tie in phrases you’ve certainly heard before…
• The first type - when the harassment has
resulted in a tangible job action – is what the
U.S. Supreme Court has defined as quid pro
quo harassment.
• And when it hasn’t – it is what the Supreme
Court has defined as hostile work environment
harassment.
• This distinction is VERY important because…
When is an employer legally liable for “harassment”??
• It is much easier for a plaintiff to win a quid pro
quo case than a hostile work environment case.
• To win a quid pro quo case, a plaintiff simply
has to show that the harassment occurred, i.e.,
establish all five elements.
• That’s it.
• But, in a hostile work environment case, in
addition to establishing harassment…
• The plaintiff must also show that…
When is an employer legally liable for “harassment”??
• The employer knew (or should have known) of
the harassment but didn’t take effective action.
• Why such different standards?
From an evidentiary standpoint, quid pro quo
harassment is straightforward
Hostile work environment more circumstantial and
potentially ambiguous
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What is an employer’s liability if it is found liable??
• Which brings us to our last legal concept…
• Damages.
• In other words, what does a plaintiff win if
he/she establishes both harassment and the
employer’s liability for that harassment?
• The specifics vary from statute to statute…
What is an employer’s liability if it is found liable??
• But some key common damages are:
• Back pay;
• Front pay;
• Compensatory damages (for example, for emotional
harm);
• Punitive damages;
• Equitable relief; and
• Attorney’s fees and expenses.
The Five Dos
1. Educate and reinforce to all employees on what is proper workplace behavior and what isn’t;
2. Encourage employees to raise concerns through formal complaint process;
3. Train administrators on proper response to issues raised or witnessed;
4. Understand proper investigation techniques; and
5. Draw conclusions and act on them.
No. 1
Educate all employees on what is proper
workplace behavior and what isn’t
Make clear that behavior includes physical touching,
gestures, comments, pictures, cartoons, jokes, slurs,
e-mails, advances, etc.
Periodic staff training on the subject
Publication in employee handbooks
Distribution of unlawful harassment policies
Establish a culture of expected behavior
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No. 2
Encourage employees to raise concerns - and
provide a clear mechanism for doing so;
Do this via policies/training that:
Explicitly identify the ways to raise concerns;
State that all concerns will be investigated;
Provide assurances that retaliation will not be
tolerated.
Do not promise absolute confidentiality.
No. 3
Train administrators on proper response to issues
raised or witnessed:
To report all such issues of which they become
aware;
Thank those who raise issues;
To not take or recommend any tangible job actions
in concert with or related to prohibited behavior; and
To not retaliate against anyone who raises an issue
or participates in an investigation.
No. 4
Understand proper investigation techniques Encourage employees to raise concerns - and provide a clear mechanism for doing so;
Investigate quickly;
Get all “WH” questions answered so that we fully understand complaints;
Don’t draw conclusions or voice opinions before investigation is complete;
Follow the facts; and
Document everything.
No. 5
Draw conclusions and act on them.
Advise the person who raised the complaint
when the investigation is complete;
Draw, document and share conclusions;
Act on conclusions and make sure actions are
consistent with past actions in comparable
situations;
Maintain privacy of all involved.
Equal Pay Claims
Equal Pay Act (29 U.S.C. § 206(d))
Prohibits discrimination in compensation on the basis
of sex “for equal work on jobs the performance of
which requires equal skill, effort, and responsibility,
and which are performed under similar working
conditions, except where such payment is made
pursuant to (i) a seniority system; (ii) a merit system;
(iii) a system which measures earnings by quantity or
quality of production; or (iv) a differential based on
any other factor other than sex . . .”
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Equal Pay Claims
Heller v. Elizabeth Forward School District
(2005)
District hired new teachers at Step 1 who were:
Females;
Over the age of 50; and
With prior teaching experience
Subsequently, the District hired seven other teachers
who were:
Male (5 of 7)
Younger
Hired at higher salary stepswww. tuckerlaw.com 29
Equal Pay Claims
Heller v. Elizabeth Forward School District
Jury found:
District failed to meet its burden of proof that it paid
each plaintiff less than any of its male teachers for a
legitimate reason other than sex; and
District's conduct in paying each of the three female
claimants less than any of its male teachers because
of their sex was "willful."
Jury awarded $666,000 plus attorneys fees /
expenses
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Equal Pay Claims
Defurior v. Elizabeth Forward School District
(2008) Award in favor of claimants for $1.2 million and $350,000 in
attorneys fees and expenses
McGrew v. Steel Valley School District (2017)
Suit settled; school district filed petition for court
approval for borrowing for unfunded debt
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Equal Pay Claims
Take-aways:
Age should never have an inverse impact on step
placement
More “seasoned” candidate typically would warrant higher
pay than the “greenhorn”
Consistency in placement of new hires critical
Whether to provide step credit for prior experience
What type of experience credited (school, industry, etc.)
What credit for experience provided
These tend to be adverse impact claims rather than
evidence of intentional discrimination
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Equal Pay Claims
Legitimate reasons other than sex
Hard-to-find certifications
Dual certifications
Relevant industry experience
Meaningful differences in academic, experiential or
other qualifications
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The Transgender Issue in Employment
Title VII of the Civil Rights Act of 1964
Prohibits discrimination in employment based “on the
basis of sex”
Equal Employment Opportunity Commission
interprets and enforces Title VII prohibition of
sex discrimination as forbidding employment
discrimination based on sexual orientation or
gender identity
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Case Law Evolution
Price Waterhouse v. Hopkins, 490 US 228 (1989)
Supreme Court held that woman who was denied a
promotion because she failed to conform to gender
stereotypes had cognizable Title VII claim for
discrimination because she was discriminated against
“because of her sex”
Employee informed that to improve her chances for
partnership she should "walk more femininely, talk more
femininely, dress more femininely, wear make-up, have
her hair styled, and wear jewelry."
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Case Law Evolution
Price Waterhouse v. Hopkins, 490 US 228 (1989)
Premise of sex stereotyping claim is that plaintiff was
harassed for not conforming to her harasser’s vision of
how a woman should look, speak and act
Logical that this premise subsequently would be extended
to transgender and sexual orientation contexts
Bibby v. Philadelphia Coca Cola Bottling Co., 260
F.3d 257 (3d Cir. 2001) – transsexual employee
subjected to harassment for failing to conform to
gender stereotype states viable Title VII claim
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Title VII Applied to Sexual Orientation
Culp v. Dep’t of Homeland Security, 2013 WL 2146756 (May
7, 2013) - complaint stated a claim of sex discrimination under
Title VII where supervisor counseled complainant that
associating with lesbian colleague created an improper
perception
Couch v. Dep’t of Energy, 2013 WL 4499198 (Aug. 13, 2013)
- repeated derogatory slurs (“fag” and “faggot”) were a sex-
based epithet against gay men and sufficient premise for
hostile environment claim
Baldwin v. Dep’t of Transportation, EEOC No. 0120133080
(July 15, 2015) - claim alleging discrimination on the basis of
sexual orientation necessarily states a claim of discrimination
on the basis of sex under Title VII
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Title VII Applied to Transgender
Macy v. Department of Justice, 2012 WL
1435995 (April 20, 2012)
EEOC held that intentional discrimination against a
transgender individual because of that person’s
gender identity is, by definition, discrimination based
on sex that violates Title VII
Sex discrimination based on non-conformance with
gender norms and stereotypes
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The Restroom Issue
Per EEOC, denying access to common restroom
corresponding with gender identity can be basis
for Title VII sex discrimination claim
Denial of use of restroom consistent with gender
identity - Lusardi v. Department of the Army,
2015 Wl 0120133395 (Mar. 27, 2015)
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Best Practices
On employment forms, use the name and
gender the employee gives you, regardless of
how they present themselves in person
Ask employee what name and pronoun are
preferred to be used
Update office dress codes
Instead of “men must wear slacks” or “women must
were dresses/skirts,” use “business causal is
required”
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Best Practices
Inform and train management on LGBT
discrimination issues
Update discrimination policies and employee
handbooks to reflect that discrimination, bullying,
hazing or harassment based on transgender
status or sexual orientation are prohibited
Ensure that revised policies are disseminated and
staff is informed
Be sensitive, creative and practical
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Questions
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