Sexual Harassment Hostile Work Environment: Proving Discrimination
Suppose that a woman applies for a promotion within her company, but it goes to a man. In her current position, she experienced legal sexual harassment in the form of a “hostile work environment” from her colleagues, and management (the same ones who interviewed candidates for the position) did not act to prevent it. Assuming that she is at least as qualified as the man who got the promotion, and a court accepts her claim of “hostile work environment” as true, has she proven discrimination in the promotion decision (i.e. has she shown that any employer claim of a legitimate reason for not promoting her was just pretext)?
Important — if you have sources, please list them. Especially court cases.
This is actually for a business law class paper, not a case I’m actually involved with. (That’s also why I asked for court cases, so I could cite them in the paper.)
One Response to Sexual Harassment Hostile Work Environment: Proving Discrimination
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Even if the court has not yet accepted her claim, but she had a reasonable basis to believe she was subjected to hostile working condition and filed a complaint; she has an excellent chance of prevailing. But my argument would be based on claims of RETALIATION. Research shows that employers win 90% of the claims filed with EEOC; but lose just about most of them when the charge is retaliation.
What you are talking about is retaliation at this point. Based on the facts you provided it is just about impossible for you to lose. I could probably provide you with some case law; but my information is based on settled laws involving hostile work conditions and retaliation.
Look at the nexus between the time you filed the original complaint and application for promotion. The closer you are, the better your chances of prevailing on a claim of retaliation. Six months or less is generally considered great. Two years or more, difficult.
Here are some citations you can pick and chose from. Still, FOCUS ON RETALIATION.
46 For example, in Merritt v. Dillard Paper Company, 120 F.3d 1181 (11th
Cir. 1997), the plaintiff testified in a co-worker’s Title VII action
about sexual harassment in the workplace. Shortly after the case was
settled, the president of the company fired the plaintiff. The court
found direct evidence of retaliation based on the president’s statement to
the plaintiff, "[y]our deposition was the most damning to Dillard’s case,
and you no longer have a place here at Dillard Paper Company."
47 Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.),
cert. denied, 474 U.S. 981 (1985).
48 970 F.2d 39 (5th Cir. 1992).
49 See Kachmar v. Sunguard Data Systems, 109 F.3d 173 (3d Cir. 1997)
(district court erroneously dismissed plaintiff’s retaliation claim
because termination occurred nearly one year after her protected activity;
when there may be reasons why adverse action was not taken immediately,
absence of immediacy does not disprove causation).
50 Miller v. Vesta, Inc., 946 F. Supp. 697 (E.D. Wis. 1996).
51 Fields v. Phillips School of Business & Tech., 870 F. Supp. 149 (W.D.
Tex.), aff’d mem., 59 F.3d 1242 (5th Cir. 1994).
52 See, e.g., Hossaini v. Western Missouri Medical Center, 97 F.3d 1085
(8th Cir. 1996) (reasonable person could infer that defendant’s
explanation for plaintiff’s discharge was pretextual where defendant
launched investigation into allegedly improper conduct by plaintiff
shortly after she engaged in protected activity).
53 EEOC v. Chrysler Corp., 733 F.2d 1183, 1186 (6th Cir.), reh’g denied,
738 F.2d 167 (1984). See also EEOC v. City of Bowling Green, Kentucky,
607 F. Supp. 524 (D. Ky. 1985) (granting preliminary injunction
preventing defendant from mandatorily retiring policy department employee
because of his age; although plaintiff could have collected back pay and
been reinstated at later time, he would have suffered from inability to
keep up with current matters in police department and would have suffered
anxiety or emotional problems due to compulsory retirement).
54 See, e.g., Garcia v. Lawn, 805 F.2d 1400, 1405-06 (9th Cir. 1986)
(chilling effect of retaliation on other employee’s willingness to
exercise their rights or testify for plaintiff constitutes irreparable
harm).
55 29 C.F.R. § 1601.23 sets forth procedures for seeking preliminary or
temporary relief. Section 13.1 of Volume I of the EEOC Compliance Manual
sets forth procedures for selecting, developing, and obtaining approval of
such cases.
56 29 U.S.C. § 216(b).
57 See Moskowitz v. Trustees of Purdue University, 5 F.3d 279 (7th Cir.
1993) (FLSA amendment allows common law damages in addition to back wages
and liquidated damages where plaintiff is retaliated against for
exercising his rights under the ADEA); Soto v. Adams Elevator Equip. Co.,
941 F.2d 543 (7th Cir. 1991) (FLSA amendment authorizes compensatory and
punitive damages for retaliation claims under the EPA, in addition to lost
wages and liquidated damages).
58 See Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (evidence of
retaliation supported jury finding of reckless indifference to plaintiff’s
rights; although $7 million award for punitive damages was excessive,
district court’s lowered award of $300,000 was not).