Student Response 1 – This week’s reading titled Discussion Favoritism Clarence Thomas was an excerpt from the EEOC’s Policy Guidance on Employer Liability under Title VII for Sexual Favoritism.1 The full version of the policy on the EEOC’s website has footnotes that go into more detail on the various cases mentioned in the reading. In the following referenced cases, Benzies v. Illinois Dept. of Mental Health, Bellissimo v. Westinghouse Electric, Miller v. Aluminum Co. of America, and DeCintio v. Westchester County Medical Center, even though it was proven that sexual favoritism had resulted in preferential treatment towards certain employees, the courts decreed that no violation of Title VII sexual discrimination had occurred. In the Miller case, one of the judges wrote “Favoritism and unfair treatment, unless based on a prohibited classification, do not violate Title VII.”2 Week 2s PowerPoint slide on Consent and Offensive Conduct said “If two employees dated and engaged in consensual sex, this would not be sexual harassment. If one of the two then wanted to terminate the relationship, and the other used the unequal relative terms and conditions of employment of the work place to further the relationship, this would be sexual harassment in the workplace.” This made me think about the fact that when subordinates are receiving preferential treatment due to a consensual relationship with a superior, there is no violation of Title VII, and the subordinate is probably happy with the arrangement. But what happens when the relationship ends? The subordinate is no longer receiving preferential treatment, and probably unhappy. Employers and supervisors need to be especially careful in those situations. An article titled “Office Romances Can Get You Sued” warns employers that “In the event an office romance ends badly … the most common downside is the chance that an employee will file a claim of harassment, sexual or otherwise”.3 In reference to the case Clark v. Cache Valley Electric Company, which ruled that preferential treatment to a single female employee who was his paramour was not discrimination against Clark as a male, one law firm cautions “While this case is favorable to employers, they should still be aware that liability may result when the supervisor’s relationship with the paramour sours, particularly where the subordinate accuses the supervisor of engaging in harassment or discrimination prohibited by Title VII.”4 PREVENTING SEXUAL HARASSMENT assignment

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An article on related to sexual favoritism, though stating that “special treatment is permissible as long as it is not based on an impermissible classification” goes on to warn that “lots can go wrong when an office romance goes south. For example, what if, after the relationship ends, one says to the other, “I can do something to your job!”? Or, worse, the threats could be followed by extortion or blackmail.”5 The Society for Human Resources, in an article recommending employers have clear anti-harassment policies and reporting procedures, asks “What happens when a consensual office romance ends?” The article also points out “What may be acceptable one day may not be acceptable the next day.” 6 1 2 v. Aluminum Co. of America 3 5 6 4 Student Response 2 Hello class! In this week’s reading I was surprised by something that I read in the “Moving Women Forward” article. I was reading about Maria Bojorquez, who was sexually harassed and assaulted by her immediate supervisor and ended up winning a law suit for $812,000, and I read that “the outcome of Maria’s sexual harassment claim may have been different if adjudicated under today’s Title VII test governing liability for supervisor harassment” (11). A supreme court decision, Vance v. Ball State University, changed the definition of a supervisor from anyone in charge of another person to “only those with the actual authority to hire and fire subordinates” (11). I was shocked to learn about this change because it seems like such an obvious step in the wrong direction. By changing the definition of a supervisor the legal system is placing far less responsibility on people who can still exert power over others. There are often many people in the chain of command in an organization who are in charge of others but are not in charge of hiring or firing them. This change gives the low-level supervisors a free pass to harass the workers underneath them, but it takes away the rights of those workers to sue them. Why would the supreme court decide to take away responsibility from low-level supervisors when it is clear that increased responsibility and danger of punishment is a good way to prevent sexual harassment? Student Response 3 Moving Women Forward by Equal Rights Advocates really opened my eyes to the lack of equity and support women receive within their jobs. PREVENTING SEXUAL HARASSMENT assignment

I was introduced to the idea of women being discriminated against for being pregnant as well as being a mother. This idea is absolutely baffling to me as men are fathers and they are not mistreated or not given a promotion because of it. It was interesting to reevaluate Title VII of the Civil Rights Act of 1964 fifty years after it was passed. As many things have changed in the world, the beginning of this reading made me think it may be time to amend Title VII due to progression and change. It was unsettling to see some court cases interpret Title VII in a negative way where the victim did not receive justice. What stood out to me was the case that got it right, Williams v. General Motors Corp of 1999 as the courts stated “women working in the trades do not deserve less protection from the law than women working in a courthouse” (Equal Rights Advocates, p. 9). This case towards the labor factories that women worked in and there was nothing in place to protect the few women from the many men that felt sexism was okay because of the field. The list of factors impacted on victims of sexual harassment as well as the workplace really surprised me. Many of the recipients from this list suffer from so many psychological things as a result from being sexually harassed. I am sure this list would be even worse if they were to come forward and not be believed or not receive justice. Some things that really stuck out to me was the recipient suffering from lack of sleep, low self-esteem, self-loathing, and fear of safety. No one should have to suffer from these due to a colleague not being able to control themselves when it comes to sexual harassment. I had not thought of the impact that a sexual harassment case could have on the workplace but I was not surprised at the impact. The result of high turnover rates I felt would only make sense if the sexual harassment was being continued which would drive people out the door due to hostile environments. I was intrigued by this list as I had not thought of the factors that were impacted on both the harasser’s workplace and the recipient themselves. Discussion A. Isolated Instances of Favoritism Towards a “Paramour” Not Prohibited Not all types of sexual favoritism violate Title VII.1 It is the Commission’s position that Title VII does not prohibit isolated instances of preferential treatment based upon consensual romantic relationships. An isolated instance of favoritism toward a “paramour” (or a spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders.2 PREVENTING SEXUAL HARASSMENT assignment

A female charging party who is denied an employment benefit because of such sexual favoritism would not have been treated more favorably had she been a man nor, conversely, was she treated less favorably because she was a woman. See Miller v. Aluminum Co. of America, 679 F. Supp. 495, 47 EPD ¶ 38,112 (W.D. Pa.), aff’d mem., 856 F.2d 184 (3d Cir. 1988);3 DeCintio v. Westchester County Medical Center, 807 F.2d 304, 42 EPD ¶ 36,785 (2d Cir. 1986), cert. denied, 108 S.Ct. 89, 44 EPD ¶ 37,425 (1987).4 But see King. v. Palmer, 778 F.2d 878, 39 EPD ¶ 35,808, reh’g denied, 39 EPD ¶ 36,036 (D.C. Cir. 1985).5 B. Favoritism Based Upon Coerced Sexual Conduct May Constitute Quid Pro Quo Harassment If a female employee6 is coerced into submitting to unwelcome sexual advances in return for a job benefit, other female employees who were qualified for but were denied the benefit may be able to establish that sex was generally made a condition for receiving the benefit.7 Thus; in order for a woman to have obtained the job benefit at issue, it would have been necessary to grant sexual favors, a condition that would not have been imposed on men. This is substantially the same as a traditional sexual harassment charge alleging that sexual favors were implicitly demanded as a “quid pro quo” in return for job benefits.8 For example, in Toscano v. Nimmo, 570 F. Supp. 1197, 1199-1201, 32 EPD ¶ 33,848 (D. Del. 1983), the court found a violation of Title VII based on the fact that the granting of sexual favors was a condition for promotion. Although the individual who was granted preferential treatment was engaged in a consensual affair with her supervisor, there was evidence that the supervisor made telephone calls to proposition several female employees at home, phoned employees at work to describe his supposed sexual encounters with female employees under his supervision, and engaged in suggestive behavior at work.9 Many times, a third party female will not be able to establish that sex was generally made a condition for the benefit in question. For example, a supervisor may have been interested in only one woman and, thus, have coerced only her. Nevertheless, in such a case, both women and men who were qualified for but were denied the benefit would have standing to challenge the favoritism on the basis that they were injured as a result of the discrimination leveled against the woman who was coerced. See EEOC amicus brief (filed Sept. 30, 1988) in Clayton v. PREVENTING SEXUAL HARASSMENT assignment

White Hall School District, 875 F.2d 676, 50 EPD ¶ 39,048 (8th Cir. 1989), in which the Commission argued that a white employee had standing under Title VII to challenge her employer’s decision to deny her an employment benefit pursuant to an employment policy which it allegedly enforced for the purpose of denying the same benefit to a black employee; although the plaintiff was not the object of racial discrimination, she was injured as a result of the race discrimination practiced against the black employee.10 See also DeCintio v. Westchester County Medical Center, 807 F.2d at 307-08 (by implication) (male plaintiffs’ claims of favoritism rejected not because of lack of standing but because the woman who received the favorable treatment was not coerced into submitting to sexual advances); EEOC v. T.I.M.E.-D.C. Freight, Inc., 659 F.2d 690 n.2, 27 EPD ¶ 32,202 (5th Cir. 1981) (white plaintiffs could challenge discrimination against blacks provided that they could establish a personal injury); Allen v. American Home Foods, Inc., 644 F. Supp. 1553, 42 EPD ¶ 36,911 (N.D. Ind. 1986) (males who lost their jobs due to their employer’s discrimination against female coworkers suffered an injury as a result of the discrimination, and therefore had standing to sue under Title VII). C. Widespread Favoritism May Constitute Hostile Environment Harassment If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors. In these circumstances, a message is implicitly conveyed that the managers view women as “sexual playthings,” thereby creating an atmosphere that is demeaning to women. Both men and women who find this offensive can establish a violation if the conduct is “sufficiently severe or pervasive ‘to alter the conditions of [their] employment and create an abusive working environment.’” Vinson, 477 U.S. at 67 [quoting Henson v. City of Dundee, 682 F.2d 897, 904, 29 EPD ¶ 32,993 (11th Cir. 1982)].11 An analogy can be made to a situation in which supervisors in an office regularly make racial, ethnic or sexual jokes. Even if the targets of the humor “play along” and in no way display that they object, co-workers of any race, national origin or sex can claim that this conduct, which communicates a bias against protected class members, creates a hostile work environment for them. See Rogers v. PREVENTING SEXUAL HARASSMENT assignment

EEOC, 454 F.2d 234, 4 EPD ¶ 7597 (5th Cir. 1971), cert. denied, 406 U.S. 957, 4 EPD ¶ 7838 (1972) (discriminatory treatment of medical patients created hostile work environment for plaintiff employee); Commission Decision No. 71-969, CCH EEOC Decisions (1973) ¶ 6193 (supervisor’s habitual use of racial epithet in referring to Black employees created discriminatory work environment for White Charging Party); Compliance Manual Volume II, Section 615.3(a)(3) Examples (1) and (2) (sexual harassment of females may create hostile work environment for other male and female employees). Managers who engage in widespread sexual favoritism may also communicate a message that the way for women to get ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their fair treatment.12 This can form the basis of an implicit “quid pro quo” harassment claim for female employees, as well as a hostile environment claim for both women and men who find this offensive. 13 The case of Broderick v. Ruder, 685 F. Supp. 1269, 46 EPD ¶ 37,963 (D.D.C. 1988) illustrates how widespread sexual favoritism can be found to violate Title VII. In Broderick a staff attorney at the Securities and Exchange Commission alleged that two of her supervisors had engaged in sexual relationships with two secretaries who received promotions, cash awards, and other job benefits. Another of her supervisors allegedly promoted the career of a staff attorney with whom he socialized extensively and to whom he was noticeably attracted. In addition, there were isolated instances of sexual harassment directed at the plaintiff herself, including an incident in which her supervisor became drunk at an office party, untied the plaintiff’s sweater, and kissed her. The court found that the conduct of these supervisors “created an atmosphere of hostile work environment” offensive to the plaintiff and several other witnesses. It further stated that the supervisors’ conduct in bestowing preferential treatment upon those who submitted to their sexual advances undermined the plaintiff’s motivation and work performance and deprived her and other female employees of promotions and job opportunities. Broderick, 685 F. Supp. at 1278.PREVENTING SEXUAL HARASSMENT assignment

While the court in Broderick grounded its ruling on the hostile environment theory, it is the Commission’s position that these facts could also support an implicit “quid pro quo” harassment claim since the managers, by their conduct, communicated a message to all female employees in the office that job benefits would be awarded to those who participated in sexual conduct. See also Spencer v. General Electric, 697 F. Supp. 204 (E.D. Va. 1988).14 Example 1 – Charging Party (CP) alleges that she lost a promotion for which she was qualified because the co-worker who obtained the promotion was engaged in a sexual relationship with their supervisor. EEOC’s investigation discloses that the relationship at issue was consensual and that the supervisor had never subjected CP’s co-worker or any other employees to unwelcome sexual advances. The Commission would find no violation of Title VII in these circumstances, because men and women were equally disadvantaged by the supervisor’s conduct for reasons other than their genders. Even if CP is genuinely offended by the supervisor’s conduct, she has no Title VII claim. Example 2 – Same as above, except the relationship at issue was not consensual. Instead, CP’s supervisor regularly harassed the co-worker in front of other employees, demanded sexual favors as a condition for her promotion, and then audibly boasted about his “conquest.” In these circumstances, CP may be able to establish a violation of Title VII by showing that in order to have obtained the promotion, it would have been necessary to grant sexual favors. In addition, she and other qualified men and women who were denied the promotion would have standing to challenge the favoritism on the basis that they were injured as a result of the discrimination levelled against their coworker. Example 3 – Same as Example 1, except CP’s supervisor and other management personnel regularly solicited sexual favors from subordinate employees and offered job opportunities to those who complied. Some of those employees willingly consented to the sexual requests and in turn received promotions and awards. Others consented because they recognized that their opportunities for advancement would otherwise be limited. CP, who did not welcome this conduct, was not approached for sexual favors. However, she and other female and male coworkers may be able to establish that the conduct created a hostile work environment.PREVENTING SEXUAL HARASSMENT assignment

She can also claim that by their conduct, the managers communicated to all female employees that they can obtain job benefits only by acquiescing in sexual conduct. 1/12/90 Date Approved: /s/ Clarence Thomas Chairman Moving Women Forward On the 50th Anniversary of Title VII of the Civil Rights Act A Three-Part Series Part One: Sexual Harassment Still Exacting a Hefty Toll Jamieka, shipyard worker and ERA client Page 1 Acknowledgements This Report benefitted from the dedication of many individuals. The principal authors were Equal Rights Advocates staff members Noreen Farrell, Jennifer Reisch, Monali Sheth, Joelle Emerson, and Mia Munro. We also thank Jocelyn Sperling and Irma Herrera for outstanding editorial suggestions and drafting assistance. Equal Rights Advocates thanks and acknowledges a Blue Ribbon Panel of national experts who contributed invaluably to the direction of the report in its early stages and offered editorial suggestions. They are: Herma Hill Kay, Professor of Law at University of California Berkeley School of Law Joanna Grossman, Professor of Law at Hofstra University School of Law Katherine M. Kimpel, Sanford Heisler LLP Jeannette Cox, Professor of Law at University of Dayton School of Law Linda Hamilton Krieger, Professor of Law at University of Hawaii at Manoa William S. Richardson School of Law Leslye Orloff, Professor of Law and Director of the National Immigrant Women’s Advocacy Project at American University Washington College of Law Monica Ramirez, former Acting Deputy Director of Centro de los Derechos del Migrante, Inc. William Tamayo, U.S. Equal Employment Opportunity Commission Ariane Hegewisch, Institute for Women’s Policy Research Roberta Steele, National Employment Lawyers Association Equal Rights Advocates thanks the institutional funders who generously support our work and the movement for social justice in this country, including the Ford Foundation, the NoVo Foundation, the Levi Strauss Foundation, the Skadden Fellowship Foundation. PREVENTING SEXUAL HARASSMENT assignment


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