The EEOC and Sexual HarassmentThe EEOC and Sexual Harassment

Jennifer GoldsteinJennifer GoldsteinSenior Appellate AttorneySenior Appellate Attorney

EEOC Office of General CounselEEOC Office of General Counsel

July 19, 2011July 19, 2011

EEOC – Appellate DivisionEEOC – Appellate Division

EEOC casesEEOC cases

Amicus BriefsAmicus Briefs

TopicsTopics

1. “Because of sex”1. “Because of sex” Directed at women but not sexual or gender-Directed at women but not sexual or gender-specificspecific

Sexual or gender-specific, but not directed at Sexual or gender-specific, but not directed at womenwomen

2. Remote Locations2. Remote LocationsThe Teenager problemThe Teenager problem

The Truck Driver problemThe Truck Driver problem

Oncale v. Sundowner Offshore Oncale v. Sundowner Offshore Services, Services, 532 U.S. 75 (1998)532 U.S. 75 (1998)

SCTSCT– Rejects categorical rule excluding same sex Rejects categorical rule excluding same sex

harassmentharassment– ““The critical issue … is whether members of one sex The critical issue … is whether members of one sex

are exposed to disadvantageous terms or conditions are exposed to disadvantageous terms or conditions of employment to which members of the other sex are of employment to which members of the other sex are not exposed.” not exposed.”

– Harassment need not be motivated by sexual desireHarassment need not be motivated by sexual desire– Can prove “because of sex” by using comparative Can prove “because of sex” by using comparative

evidence about harasser treats men and women in evidence about harasser treats men and women in workplaceworkplace

Post-Post-Oncale confusionOncale confusion

1. What if conduct is directed at women but 1. What if conduct is directed at women but not sexual or gender-related?not sexual or gender-related?

--or----or--

2. What if conduct is sexual or gender-2. What if conduct is sexual or gender-related but not directed at women?related but not directed at women?

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

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

District Court:District Court:

EEOC failed to prove either that the EEOC failed to prove either that the harasser was “motivated by lust” or that he harasser was “motivated by lust” or that he was trying to drive women out of the was trying to drive women out of the workplaceworkplace

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

Reeves v. C.H. Robinson Reeves v. C.H. Robinson WorldwideWorldwide, 594 F.3d 798 (11th Cir. , 594 F.3d 798 (11th Cir.

2010) (en banc)2010) (en banc)

Co-workers: “bitch,” “fucking bitch,” “stupid Co-workers: “bitch,” “fucking bitch,” “stupid bitch,” “fucking whore,” “crack whore,” bitch,” “fucking whore,” “crack whore,” “cunt”“cunt”

Branch manager: Branch manager: “talk to stupid bitch on line “talk to stupid bitch on line 4,” “what are Asian bitches good for,” “lazy 4,” “what are Asian bitches good for,” “lazy good-for-nothing bitch,” “she may be a good-for-nothing bitch,” “she may be a bitch but she can read”bitch but she can read”

Reeves v. C.H. Robinson Reeves v. C.H. Robinson WorldwideWorldwide, 594 F.3d 798, 594 F.3d 798

District Court:District Court:

offensive conduct “was not motivated by offensive conduct “was not motivated by Reeves’s sex, because the derogatory Reeves’s sex, because the derogatory language in the office was not directed at language in the office was not directed at her in particular”her in particular”

““because the language was used …in the because the language was used …in the presence of all employees,… both men presence of all employees,… both men and women were afforded like treatment”and women were afforded like treatment”

Reeves v. C.H. Robinson Reeves v. C.H. Robinson WorldwideWorldwide, 594 F.3d 798, 594 F.3d 798

A woman “cannot be forced to endure A woman “cannot be forced to endure pervasive, derogatory conduct and pervasive, derogatory conduct and references that are gender-specific in references that are gender-specific in the workplace, just because the the workplace, just because the workplace may be otherwise rife with workplace may be otherwise rife with generally indiscriminate vulgar generally indiscriminate vulgar conduct”conduct”

Reeves v. C.H. Robinson Reeves v. C.H. Robinson WorldwideWorldwide

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

Reeves v. C.H. Robinson Reeves v. C.H. Robinson WorldwideWorldwide

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

Remote LocationsRemote Locations

The teenager problemThe teenager problem

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

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

District Court:District Court:

what “matters most” was that what “matters most” was that “the “the complaint did not reach V & J” complaint did not reach V & J”

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

complaint mechanism must be complaint mechanism must be reasonable, “and what is reasonable reasonable, “and what is reasonable depends on ‘the employment depends on ‘the employment circumstances.’”circumstances.’”

““the company was obligated to suit its the company was obligated to suit its procedures to the understanding of the procedures to the understanding of the average teenager.”average teenager.”

Age and education relevant to adequacy Age and education relevant to adequacy of complaint mechanism of complaint mechanism

Remote LocationsRemote Locations

The notice problemThe notice problem

Who is a supervisor anyway?Who is a supervisor anyway?

a/k/a the truck driver problema/k/a the truck driver problem

EEOC v. CRST Van Expedited, No. EEOC v. CRST Van Expedited, No. 09-3764 (809-3764 (8thth Cir.) Cir.)

EEOC v. CRST Van ExpeditedEEOC v. CRST Van Expedited

District Court:District Court:

Trainers not “supervisors”Trainers not “supervisors”

Anti-harassment training would be difficultAnti-harassment training would be difficult

CRST had no notice (or notice after the CRST had no notice (or notice after the fact)fact)

Every complaint “he said/she said”Every complaint “he said/she said”

Verbal warnings/“no females” sufficientVerbal warnings/“no females” sufficient

EEOC v. CRST Van ExpeditedEEOC v. CRST Van Expedited

EEOC arguingEEOC arguing

1. Trainers control truck/work environment – 1. Trainers control truck/work environment – makes them “supervisors”makes them “supervisors”

2. Constructive notice – aware of a serious 2. Constructive notice – aware of a serious problemproblem

EEOC v. CRST Van ExpeditedEEOC v. CRST Van Expedited

3. No effective remedial action3. No effective remedial action

““no females” is not disciplineno females” is not discipline

Women in trucks isolated and vulnerable – Women in trucks isolated and vulnerable – employer needs to be employer needs to be more more vigilantvigilant

Not a remedy to do nothing just because Not a remedy to do nothing just because alleged harasser denies italleged harasser denies it