Some Developments in Harassment Law – Mary Rose Strubbe Chicago-Kent College of Law

Harassment Based on Religion EEOC v. Sunbelt Rental, 521 F.3d 306 (4 th Cir. 2008) and EEOC v. WC & M Enterprises, Inc., 496 F.3d 393 (5 th Cir. 2007) In both cases, the EEOC alleged that employees were being harassed in the wake of September 11 because they were practicing Muslims

Religion (cont.) Both appellate courts reversed s.j. for the employer Sunbelt Rentals: “But the event that shook the foundations of our buildings did not shake the premise of our founding – that here, in America, there is no heretical faith.”

Religion (cont.) WC & M: in establishing that the harassment was severe or pervasive, a showing that the employee’s job performance suffered is simply a factor to be considered, not a prerequisite. Harassment claim based on national origin does not require that the harassing comments refer directly to the victim’s national origin --

Religion (cont.) rather, the discriminatory acts do not even have to identify the victim’s actual country of origin – it is sufficient that the acts of discrimination occur “because an individual has the physical, cultural or linguistic characteristics of a national origin group.” [the “dumb discriminator” rule?]

Ellerth/Faragher affirmative defense Lauderdale v. Tex. Dep’t. of Criminal Justice, 512 F.3d 157 (5 th Cir. 2007) –Where employer has anti-harassment policy and educational programs, and victim reported the harassment to her immediate supervisor but immediate supervisor “explicitly indicated his unwillingness to act on her complaint,” summary judgment appropriate for employer because it was “unreasonable” of employee not to file a 2 nd complaint with someone else!! [Concluding that employer had established the affirmative defense]

Affirmative defense (cont.) Jackson v. County of Racine, 474 F.3d 493 (7 th Cir. 2007) –Where county had anti-harassment policy, but plaintiffs insisted they did not want to lodge formal complaints against the harasser, County cannot be liable for the fact that harassment persisted during 3 month period –Because county undertook full investigation as soon as plaintiffs requested it, court concluded county had established the affirmative defense

Affirmative defense (cont.) Brenneman’s v. Famous Dave’s of America, Inc., 507 F.3d 1139 (8 th Cir. 2007) –employer can establish the affirmative defense by showing 1) that is has valid anti-harassment policy with non-retaliation provision and flexible reporting procedure; 2) that it investigated promptly and proposed a solution; and 3) that the employee failed to take advantage of corrective opportunites

Affirmative defense (cont.) In Brenneman, the employer “offered to work out a new schedule with Brenneman and offered to relocate her to a restaurant five miles away.” Note that it is the victim here to has to work a new schedule or relocate! And the court affirmed the grant of summary judgment, concluding that the victim’s failure to accept this “assistance” was unreasonable, and that therefore the employer had established the “correction” prong of the defense. See also Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287 ( 11 th Cir. 2007), with much the same reasoning.

Affirmative defense (cont.) There were also a number of decisions where appellate courts affirmed summary judgment on the grounds that the employer had established the affirmative defense where 1) the company took prompt and effective action after receiving a complaint of harassment; or 2) the plaintiffs delayed in reporting the harassment, and the company took action when it finally received notice

Affirmative defense See e.g. Anda v. Wickes Furniture Co., 517 F.3d 526 (8 th Cir. 2008) (prompt and effective response to complaints) and Weger v. City of Ladue, 500 F.3d 710 (8 th Cir. 2007) ( delay in reporting plus prompt action in response to complaint).

Affirmative Defense But see Freytes-Torres v. City of Sanford, 2008 WL (11 th Cir. March 25, 2008), where the court reversed the grant of summary judgment after concluding that the city “did not execute its sexual harassment policy in good faith.”

Other incidents Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6 th Cir. 2008) Davis v. Team Electric, 520 F.3d 1080 (9 th Cir. 2008) Herrera v. Lufkin Ind., 474 F.3d 675 (10 th Cir. 2007) Tademy v. Union Pacific Corp., 520 F.3d 1149 (10 th Cir. 2008)

“Target area” – related to “Other Incidents” Yuknis v. First Student, Inc., 481 F.3d 552 (7 th Cir. 2007) court harkens back to its position that offensive conduct is not actionable harassment if one is “not within the target area of the offending conduct – if, for example, the speech or conduct is offensive to women and one is a man, or offensive to whites and one is a black.” If a group of which plaintiff is a member is being vilified, however, the conduct may be actionable even if plaintiff was not the specific target.

Welcomeness Bannon v. Univ. of Chicago, 503 F.3d 623 (7 th Cir. 2007) (unreasonably long delay in reporting supervisor’s name calling, coupled with extensive social relationship with supervisor outside work led court to conclude that a reasonable jury could not find that plaintiff viewed her work environment as hostile).

Welcomeness (cont.) Vajdlv. Mesabi Academy of Kidspeace, Inc., 484 F.3d 546 (8 th Cir. 2007) (when plaintiff characterized her co-workers’ conduct as “flirting,” “an absurdity,” and “ridiculous,” and testified that she never felt threatened by her co- workers’ conduct, court concluded that she did not find the conduct subjectively unwelcome).

Sufficiency of Employer’s Remedial Action Lapka v. Chertoff, 517 F.3d 974 (7 th Cir. 2008) Brenneman v. Famous Dave’s of America, 507 F.3d 1139 (8 th Cir. 2007) Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287 (11 th Cir. 2007) Anda v. Wickes Furniture Co, 517 F.3d 526 (8 th Cir. 2008) Weger v. City of Ladue, 500 F.3d 710 (8 th Cir. 2007)

Complaint Procedure and Employee’s Role EEOC v. V & J Foods, Inc., 507 F.3d 575 (7 th Cir. 2007) Bombaci v. Jounal Community Pub. Group, Inc., 482 F.3d 979 (7 th Cir. 2007)