Sexual Harassment in the Workplace: Law & Practice, Fourth Edition

The law of sexual harassment is constantly evolving, and the number of sexual harassment claims is dramatically on the rise. Sexual Harassment in the Workplace, Fourth Edition, is a comprehensive guide that provides all the information you need to successfully litigate a sexual harassment claim.

Sexual Harassment in the Workplace guides you through the relevant administrative and legal proceedings, from client interviews to attorney's fees. It discusses state and federal remedies available to maximize recovery, including:

• The development and elements of the claim
• Sample pleadings
• Discovery documents
• Reviews of actual cases

Special attention is given to important topics such as:

• Suits by alleged harassers
• Insurance indemnification
• Class actions
• And many others

Sexual Harassment in the Workplace brings you up to date on the latest case law developments, including the following:

• A new checklist of items to cover when representing an employer
• The U.S. Supreme Court confirmed that retaliation is actionable under Title IX where a girls' high school basketball coach claimed that he suffered retaliation for complaining about sexual discrimination in the athletic program of the school, even though he himself was not the direct victim. Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005)
• In order to increase opportunities for mediation, the EEOC expanded the charges eligible for mediation and now mediation is available at the conciliation stage, after a finding of discrimination has been issued, in appropriate cases
• The U.S. Supreme Court has held that under the Federal Arbitration Act, where parties to an arbitration agreement include a provision that delegates to the arbitrator the threshold question of enforceability of the arbitration agreement, if a party specifically challenges the enforceability of the entire agreement, the arbitrator would consider the challenge. If, however, the party only challenges the enforceability of the arbitration provision, the challenge must be heard by a court. Rent-A-Center, West Inc. v. Jackson, 130 S. Ct. 2772 (2010)
• The lack of timeliness in filing a discrimination action is an affirmative defense and the burden of proof is on the employer. Salas v. Wisconsin Department of Corrections, 493 F.3d 913, 922 (7th Cir 2007)
• A federal employee's premature filing of a sexual harassment employment discrimination and retaliation complaint did not constitute a failure to exhaust administrative remedies so as to deprive the district court of subject-matter jurisdiction. Brown v. Snow, 440 F.3d 1259 (11th Cir. 2006)
• A majority of states impose a shorter period for filing with their agencies, though, so the filing deadline is not always extended when a state has its own agency
• The "single filing rule" - under which a party who has not filed an EEOC charge or received a right-to-sue notice may "piggyback" his or her judicial action on the claim of a party who has satisfied those prerequisites - has been described as a "carefully limited exception" to Title VII's procedural requirements. Price v. Choctaw Glove and Safety Co., 459 F.3d 595 (5th Cir. 2006)
• Provided that an act contributing to the claim occurs within the filing period, the court may consider the entire period of the hostile environment for purposes of determining liability. Jordan v. City of Cleveland, 464 F.3d 584 (6th Cir. 2006)
• The Supreme Court has held that a plaintiff's timely filing of an EEOC intake questionnaire, which was followed by an affidavit stating "Please force Federal Express to end their age discrimination . . ." constituted a charge, cautioning, however, that its permissive interpretation of what constitutes a "charge" should not be automatically applied to Title VII claims "without careful and critical examination." Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008)
• A former city police officer who brought suit against the city alleging that he was forced to resign in retaliation for conducting an internal investigation of a female officer's sexual harassment complaints did not participate in an investigation by the EEOC when he conducted an in-house investigation of a female police officer's second complaint of sexual harassment and reported his findings to the employer, and thus he did not engage in a protected activity for purposes of his Title VII retaliation claim. Crawford v. City of Fairburn, Georgia, 479 F.3d 774 (11th Cir. 2007)
• The Ninth Circuit has held, in EEOC v. Federal Express Corp., 558 F.3d 842 (9th Cir.), cert. denied, 130 S. Ct. 574 (2009), that the EEOC retains a right to issue and enforce administrative subpoena even after it issues a right to sue notice to a private party and the private party has instituted private litigation rejecting the view of the Fifth Circuit to the contrary in EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997), concluding that it need not decide whether EEOC has authority to bring a lawsuit after charging party has done so
• A trial court gave too much weight to the role of professional judgment and discretion in determining a physician was not an employee of the hospital where she retained privileges but an independent contractor. The proper focus the hiring party's control over the worker's manner and means of work is the relationship between the parties. Salamon v. Our Lady of Victory Hospital, 514 F.3d 217 (2d Cir. 2008)
• A compensation analysis is an antecedent inquiry in determining whether individual is an "employee" under Title VII. Bryson v. Middlefield Volunteer Fire Department, Inc., 546 F. Supp. 2d 527 (N.D. Ohio 2008)
• The Supreme Court further broadened Title VII’s reach when it held that an "aggrieved" person under Title VII includes any person with an interest arguably sought to be protected by statutes. Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011)
• Certification of a national class of women charging sex discrimination and seeking injunctive and declaratory relief, back pay, and punitive damages was denied when plaintiffs did not satisfy the Rule 23's basic "commonality" requirement, set forth in Rule 23(a)(2), because, even if statistical evidence revealed that female employees were paid less, and were promoted less often, than men, plaintiffs failed to establish that this disparity resulted from a discriminatory company-wide policy, practice or procedure. Wal-Mart Stores, Inc.v. Dukes, 131 S. Ct. 2541 (2011)
• Employees of companies contracted by others may also be subjected to sexual harassment for which the contracted company is liable. EEOC v. Cromer Food Services, Inc., 2011 414 Fed. Appx. 602 (4th Cir. 2011)
• The amended Rule 56, which became effective December 1, 2009, has made some significant changes in summary judgment practice

• 1. SEXUALITY, SOCIAL RELATIONS, AND THE WORKPLACE
  • Sex Roles and Workplace Relations
• 2. HISTORY OF SEXUAL HARASSMENT LAW
  • Title VII and EEOC Guidelines
  • Quid Pro Quo and Hostile Environment Harassment
  • Federal Circuit Court Recognition of Sexual Harassment
  • EEOC Guidelines
  • Decisions after EEOC Guidelines - Meritor
  • EEOC Retreats
  • The Civil Rights Act of 1991
  • Other Statutes
  • Post-Meritor Supreme Court Decisions
• 3. ELEMENTS OF SEXUAL HARASSMENT CLAIMS
  • Effects of Meritor Decision
  • Effects of Harris Decision
  • Effects of Faragher and Burlington Decisions
  • Elements of a Sexual Harassment Claim
  • Types of Claims
• 4. PREPARING THE SEXUAL HARASSMENT CASE
  • Client Representation
  • Interview Checklist
  • Remedies Available
• 5. ADMINISTRATIVE PROCEDURES
  • Actions
  • Filing Charges
  • Investigation
  • Settlement
  • Conciliation and Arbitration
• 6. TRYING THE SEXUAL HARASSMENT CASE: PRETRIAL MATTERS
  • Procedural Requirements
  • Class Action Litigation
  • Preparing the Pleadings
  • Pretrial Matters
• 7. TRYING THE SEXUAL HARASSMENT CASE: TRIAL MATTERS
  • Trial Matters
  • Proof Issues
  • Settlement and Costs
  • Remedies
  • Appeals
• 8. EMPLOYER DEFENSES
  • Order and Burden of Proof
  • Characterizing Employee Conduct
  • Terms and Conditions of Employment Not Affected
  • Lack of Notice
  • Prompt and Appropriate Remedial Action
  • Company Policy and Grievance Procedures
  • Business Reasons for Employment Decisions
  • Retaliation
  • Constructive Discharge
• 9. SEXUAL HARASSMENT CLAIMS UNDER OTHER CIVIL RIGHTS LAWS
  • Section 1983 Claims
  • Defendants in § 1983 Claims
  • Elements of § 1983 Claims
  • Remedies
  • Other Possible Bases for Claims
• 10. COMMON LAW LIABILITY AND COMPENSATORY DAMAGES
  • Effect of State Antidiscrimination Laws
  • Employer Liability Under Common Law Theories
  • Tort Claims Based on Sexual Harassment
  • The Common Law Tort of Sexual Harassment
  • Workers' Compensation Statutes
• 11. ACTIONS BY ALLEGED HARASSERS AND OTHER SPECIAL ISSUES
  • Actions by Alleged Harassers
  • Unemployment Compensation Sought By Victim of Harassment
  • Indemnification
  • Criminal Sanctions
• 12. STATE-BY-STATE SURVEY OF SEXUAL HARASSMENT LAW
• Appendix A Sample Complaints
• Appendix B Sample Plaintiff's Questions for Voir Dire
• Appendix C Sample Interrogatories to Defendants
• Appendix D Sample Brief Opposing Defendant's Motion to Compel Answers to Interrogatories
• Appendix E Sample Plaintiff's Request for Production of Documents
• Appendix F Sample Plaintiff-Appellants' Brief re Same Sex Harassment
• Appendix G Sample Plaintiff's Reply Memorandum in Support of Motion to Remand to State Court
• Appendix H Sample Defendant-Appellant's Reply Brief re Jury Instructions and Damages
• Appendix I Sample Petition or Rehearing and Request for Publication
• Appendix J Sample Plaintiff's Brief for Attorney's Fees
• Appendix K Sample Memorandum in Support of Plaintiff's Motion to Certify a Class
• Appendix L Sample Brief Amici Curiae of Twenty-One Organizations Committed to Equality for Working Women in Support of Plaintiff-Appellant
• Appendix M Guide to the University of Pennsylvania Sexual Harassment Policy
• Appendix N EEOC: Policy Guidance on Sexual Harassment
• Appendix O EEOC: Enforcement Guidelines on Vicarious Employer Liability for Unlawful Harassment by Supervisors
• Appendix P EEOC: Policy Guide on Employer Liability for Sexual Favoritism under Title VII
• Appendix Q EEOC Policy Guidance on Compensatory and Punitive Damages under the Civil
• Rights Act of 1991
• Appendix R Civil Rights Act of 1991
• Appendix S Sexual Harassment Charges EEOC & FEPAs Combined: FY 1997 - FY 2008
• Table of Cases
• Table of Statutes
• Index