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This simulation involves a hearing at the trial court level on a motion for summ
ary
judgment in a case involving the employer’s liability for alleged sexual harassment.
MOTION
Before a case goes to trial, the parties use various motions to refine and define the issues.
One such motion is the Motion for Summary Judgment. In this c
ase, the employer’s
Motion for Summary judgment claims that the employee has failed to
state sufficient
facts for a jury to be able to decide
that
a)
the
conduct complained of constitutes sexual
harassment and b) the employee who allegedly is guilty of h
arassment is a “supervisor”
,
and c)that the company maintained a “hostile workplace.”
BRIEFS
Motions for Summary Judgment are submitted in writing and are supported by written
arguments, called Briefs. Judges
will look at the motions, the briefs, and any
other sworn
statements that parties have made, such as oral depositions or sworn answers to discovery
(see page 171 in your text) and
will also hear oral argument from the parties
’
attorneys on
the issues raised in the motion.
THE FACTS
The moving party,
in this case Big Car Company, is attempting to convince the judge that
its employee
,
Clarence
,
did not sexually harass Maybelle
Darcy
, and that Clarence is not
a supervisor.
To win its point,
Big Car must
convince the judge
the facts stated by
Ms
Darcy
a
re not sufficient at law to
constitute
sexual harassment,
are not sufficient at law to
show that there was a “hostile work environment”
and are not sufficient at law to
show
that
Clarence is a supervisor.
Ms Darcy, in order to get her case to a jury, must
convince the judge of the opposite.
Supervisors and middle managers are routinely named as defendants in sexual
harassment cases. The awards can be quite large. The cases themselves can take many
years to resolve. The case upon which this simulation i
s based was in litigation for three
full years.
BEFORE WATCHING
Before you watch the simulation, review
the material covered in points
A, B and C
that
follow
. Watch the simulation, then complete the assignment below.
A
.
You will need to review pages
576
–
583 of your text, which discusses the law of
sexual harassment.
B
. In Faragher v. City of Boca Raton,
524 U.S. 775
and Harris v. Forklift Systems, 510
U.S. 17,
the Supreme Court set out
tests
for “hostile workplace.” The full opinion
s
can
be found in Doc Sharing
.
We directed courts to determine whether an environment is
sufficiently hostile or abusive by “looking at all the
circumstances,” including the “frequency of the discriminatory
conduct; its severity; whether it is physically t
hreatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work
performance.”. Most recently, we explained that Title VII does
not prohibit “genuine but innocuous differences in the ways
men and wome
n routinely interact with members of the same
sex and of the opposite sex.”
…
“simple teasing,” offhand
comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the “terms and
conditions of employment.”
(It i
s not)
“the ordinary tribulations of the workplace, such as
the sporadic use of abusive language, gender
–
related jokes, and
occasional teasing.”
Faragher
“…
in assessing a hostile environment claim, the totality of the
circumstances must be examined, inclu
ding "the frequency of
the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance."
Harris v. Forklift
Conduct
must be objectively offensive to a “reasonable person”
and seen as subjectively offensive by the person claiming sexual
harassment.
C
.
EEOC Enforcement Guidance Bulletin
on Vicarious Employer Liability for Unlawful
Harassment by Supervisors
(the full text
can be found in Doc Sharing) states
the Supreme
Court
has
made clear that employers are subject to vicarious liability for unlawful
harassment by supervisors.
The bulletin gives the following information on who is a
“supervisor”. (The entire bulletin ca
n be found in Doc Sharing)
An individual qualifies as an employee’s “supervisor” if:
the individual has authority to undertake or recommend tangible employment
decisions affecting the employee;
or
the individual has authority to direct the employee’s daily
work activities.
1. Authority to Undertake or Recommend Tangible Employment Actions
“Tangible employment decisions” are decisions that significantly change another
employee’s employment status. Such actions include, but are not limited to,
hiring, firing
, promoting, demoting, and reassigning the employee. An individual
whose job responsibilities include the authority to recommend tangible job
decisions affecting an employee qualifies as his or her supervisor even if the
individual does not have the final
say. As long as the individual’s
r
ecommendation is given substantial weight by the final decision maker(s), that
individual meets the definition of supervisor.
2. Authority to Direct Employee’s Daily Work Activities
An individual who is authorized to dire
ct another employee’s day
–
to
–
day work
activities qualifies as his or her supervisor even if that individual does not have
the authority to undertake or recommend tangible job decisions.
On the other hand, someone who merely relays other officials’ instruc
tions
regarding work assignments and reports back to those officials does not have true
supervisory authority. Furthermore, someone who directs only a limited number
of tasks or assignments would not qualify as a “supervisor.”
ASSIGNMENT
After listening
to the simulation and considering the points discussed in the introduction,
write a 300
–
500 page paper in which you
1. State whether you agree with the Judge’s decision; give reasoning for your
answer
2. State how, if you were a juror on this case, y
ou would decide; i.e., would you
find that a) Clarence was a supervisor, b) Clarence’s conduct constituted sexual
harassment and c) there was a hostile workplace environment. Give reasons for your
decision.
SIMULATION
Judge: Good morning. I understand we are here today to hear
Big Car’s Motion the
Summary Judgment.
Mr. Cheatam
:
Good morning, your honor, Dewey Cheatam for Big Car Company.
That’s correct, your honor.
Judge: I also know that this case is set for a
jury trial. So what you want me to decide
today is whether or not Ms Darcy has stated sufficient facts that might support a ch
arge
of sexual harassment. You, Mr. Cheatam
are going to tell me that
, on the facts as stated
by Ms Darcy, no reasonable jury c
ould, under the law, find the defendants here guilty of
sexual harassment and maintaining a hostile workplace.
Mr. Cheatam
: That’s correct, Your honor
Judge: On the other hand
, you, Ms Daggett, as
Ms Darcy’s counsel
, will
argue that she
has stated suff
icient facts for a jury to decide in her favor.
Ms Daggett
:
Good morning, your honor. J. Noble Daggett for Ms Darcy.
That’s right,
your honor. We believe that, under the law, we’ve stated sufficient facts for a jury to
hear the case.
Judge:
I’d like
you to refresh me on the facts,
Ms Daggett
, before we hear from Mr.
Cheatam.
Ms Daggett
:
Ms Darcy was 18 when she started work at Big Car in January of last year.
In February she was promoted to the Body Build Line which was solely under Clarence’s
cha
rge. In their very first conversation, Clarence asked her if she ever cheated on her
husband.
Thereafter, he made vulgar, lewd and sexual gestures with hands and tongue; he
continued despite her protests .
He propositioned her in very sexually graphic
language,
directed obscene gestures toward her, uttered vulgar comments and inquiries, engaged in
various types of objectionable physical contact, such as hugging her, bumping into her
with his body, and grabbing her ponytail, and subjected her to other su
ch conduct as
blocking her way down a hallway. Another co
–
worker testified that she personally
observed a lot of these incidents.
Ms Darcy complained to another Team Leader about Clarence’s behavior. She also
protested to her supervisor, who acknowledged
that Swindle would tell the plaintiff
things she did not want to hear but laughed and made a joke about Swindle’s behavior.
Ashe asked to be transferred to a different line, away from Clarence.
No action was
taken on either of these complaints.
Judge: Di
d Ms Darcy ever file a formal complaint with human relations?
Ms Daggett
: Yes. In July she filed a formal complaint.
Judge: Did the company take any action?
Ms Daggett
: Yes. My client was demoted and given work at a dirtier and less desirable
work st
ation.
Judge: What is the position of Big Car Company:
Mr. Cheatam:
These incidents Ms Darcy complains of were not sufficiently severe or
pervasive to amount to a hostile work environment to affect her ability to do her job.
Several of Edwards’ complaints about Swindle had nothing to do with her sex and
therefore are not considered in determining whether there was severe or pervasive
conduct The mere fact that an employee uses profanity, including the “f” word does not
suppor
t a hostile work environment claim.
Ms Darcy made a number of claims in her complaint, but, your honor, you can also take
notice of the statement she made in depositions.
She said he used the “f” word. He
allegedly told her if she had been with him sh
e would not want to go back to her husband;
he allegedly put his hands behind his back and butted up against her on a few occasions;
he touched the outside of her pants leg once; he claimed she had “never been f…d” while
thrusting his body into a chair; t
elling her it turns him on when she pushes him away;
telling her he is an “a.. man;”
Judge: Do you rely on any case law to support your statement that these acts don’t
constitute sexual harassment?
Mr. Cheatam: Yes, your honor. The case law says that
mere ‘sex talk,’ without more,
does
not rise to the level of objectively severe and pervasive harassment.” The case law
says that co
–
workers teasing and making sexual jokes aimed at a female did not make out
a case of sexual harassment.
Judge: What is
the standard for hostile environment?
Mr. Cheatam: It has to be an environment that a reasonable person would find hostile
and abusive, and one that the claimant
–
Ms Darcy here
–
actually did perceive as hostile
and abusive.
Judge: Did Ms Darcy comp
lain to management?
Mr. Cheatam: She didn’t complain of this so
–
called harassment to the company for an
extended period of time, there is also an issue as to whether she subjectively perceived
her work environment to be hostile at the time she was allege
dly harassed. She never said
anything to co
–
workers. Many of these things happened more than four months before
she complained.
Judge: Could you sum up your argument?
Mr. Cheatam: While Clarence’s conduct (if proved) certainly involves inappropriate
b
ehavior, Ms Darcy has failed to present evidence required to support a sexual
harassment claim of “extensive, long lasting, un
–
redressed and uninhibited sexual threats
that permeated
plaintiff’s work environment.” which is required by law. Further, there
is
no evidence that she was affected in any way in the performance of her job.
Judge: Was Clarence Ms Darcy’s supervisor?
Mr. Cheatam: No, he was not. He did not have authority to hire, fire, promote or re
–
assign Ms Darcy.
Judge:
Ms Daggett
, how do you respond to
Mr. Cheatam’s argument
?
Ms Daggett
: With all due respect to learned counsel, he misreads both the facts and the
law.
Here are some facts he missed: On one occasion he asked her if she had ever had a
man’s finger up her butt; he
forcibly tried to kiss her on many occasions; on three
occasions he simulated sexually explicit acts, followed them up with sexually explicit
remarks and invited her to have sex with him
.
Judge: Did he threaten her?
Ms Daggett
: On one occasion he told
her there was nothing she could do to make him
stop because he was “king of the line”.
He would physically follow her down the line, so
much so and so often that she burst into
tears
.
Judge: And how do you differ from Mr. Cheatam’s view of the law?
Ms
Daggett
: First of all, by any reasonable standard, the statements and acts of Clarence
are offensive and degrading. No reasonable woman would want to work in such an
atmosphere. Secondly, Ms Darcy was offended and upset by this conduct. She
complained
about his conduct and asked for a transfer.
Judge: What about the fact that this conduct appears to have started in January and she
didn’t go to Human Resources until July?
Ms Daggett: Your honor, my client is very young, This was her first real jo
b. Clarence
was a very powerful figure at Big Car Company. She was intimidated by him. Sand she
did talk to other supervisors during that time, before she went to HR.
Judge: Was Clarence a supervisor?
Ms Daggett: Yes,
as the law defines supervisor.
He guided the team members, had the
ability to assign team members to various tasks. Some tasks were more desirable than
others, and if Clarence was displeased with a worker he would give them less desirable
tasks.
He monitored their activity. Ms Dagge
tt was once told by a senior supervisor that
she would be transferred to Clarence’s if he (Clarence) requested it, saying “What
Clarence wants, Clarence gets.”
Judge: Did the company ever respond to Ms Darcy’s complaints?
Ms Daggett: As I said before,
there was no response when she talked to Clarence’s direct
supervisors. It was not until July, when she took her case to Human Relations, that the
company finally conducted an investigation.
Judge: Did the company do anything at that time?
Ms Daggett
: Yes. Clarence was given a written reprimand, suspended for two weeks
without pay and assigned to a work station where he would not have contact with Ms
Darcy.
Judge: What about Ms Darcy? Did the company do anything for her?
Ms Daggett: Yes. About
11 days after Clarence was reprimanded,
my client was
demoted and
given a new job which
, although it was 300 feet away from Clarence’s work
station,
was much dirtier and less desirable than her previous job.
Soon after, s
he was
placed in
yet another work
station that was now about 30 feet away from Clarence,
instead of 300 feet.
Judge: Thank you both, counsel. I have read the pleadings in this case, as well as the
briefs and supporting documents submitted by both sides. It is my ruling that Ms Darcy
has stated sufficient facts to maintain her case for sexual harassment, for a hostile
workplace, and for Clarence’s position as a supervisor. You understand that my ruling
today does not mean that I have decided the case. This ruling merely means that Ms
Darcy has presented sufficient facts in her pleadings that, if proved, would allow a jury to
consider those three elements: That there was sexual harassment, that Big Car Company
maintained a hostile workplace and that Clarence had the authority of a sup
ervisor.
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