SEXUAL HARASSMENT AND SEXUAL DISCRIMINATION CASE LAW UPDATE

SEXUAL HARASSMENT AND SEXUAL DISCRIMINATION CASE LAW UPDATE SARAH A. BRADLEY Sr. Deputy Attorney General SOPHIA G. LONG Deputy Attorney General

Federal & State Laws n Title VII of the Civil Rights Act of 1964 Race, Color, Religion, National Origin and Sex n NRS 613 (Employment) Race, Color, Religion, National Origin and Sex

Protected Categories n Race Color National Origin Religion n Sex n n n q Pregnancy q Sexual Harassment n n n Disability Age Genetic Information Sexual Orientation Gender Identity or Expression

Filing Jurisdiction n 15 or more employees n Last date of harm within 300 days of filing n Business located/licensed in Nevada n Employer/Employee relationship exists n Employment Agencies & Labor Organizations (Unions)

Sexual Harassment n “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment. ”

What is Harassing Conduct? n Offensive jokes, slurs, epithets or namecalling n Physical assaults, threats or intimidation n Ridicule, mockery, insults or put-downs n Offensive objects or pictures n Interference with work performance

Who Can Be the Harasser? n The victim’s supervisor n A supervisor from another section or area n An agent of the employer – independent contractor or service provider brought into the office by the employer n A co-worker n A non-employee, e. g. , customer or client n The harasser can be a man or a woman, and the victim and harasser can be the same sex

Who is the Victim? n The victim does not have to be the actual target of the offensive conduct. A victim can include: ¨ Another employee who witnesses the conduct; ¨A client; or ¨ Anyone else affected by the offensive conduct.

Sexual Harassment n Two Forms of Sexual Harassment ¨ Quid n Pro Quo A favor or advantage granted or expected in return for something ¨ Hostile n Work Environment Manager, supervisor, coworker, customer, vendor, third party

Quid Pro Quo “This for that. ” n Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature where: ¨ Submission to such speech or conduct is made either explicitly or implicitly a term or condition of a person’s employment; or ¨ Submission to or rejection of such speech or conduct by a person is used as the basis for employment decisions affecting that person. NAC 284. 0995

Quid Pro Quo TYPICAL EXAMPLES: 1) OFFERS: a supervisor coerces an employee into sexual relationship and then rewards the employee with a promotion; 2) THREATS: a supervisor takes disciplinary action or denies a promotion to an employee because he or she rejected sexual advance from the supervisor.

Rice v. Smithtown Volkswagen, 321 F. Supp. 3 d 375 (E. D. N. Y. 2018) n n n Owner of dealership made sexual advances toward the Plaintiff for months. Owner told Plaintiff that his job would be secure if he had sex with owner. Plaintiff reported owner's conduct to general manager. Shortly, thereafter, owner told general manager to fire Plaintiff. General manager told Plaintiff that the reason for his firing was that owner did not want Plaintiff at the dealership anymore. Court: This states a claim for quid pro quo sexual harassment.

Moody v. Atl. City Bd. of Ed. , 870 F. 3 d 206 (3 rd Cir. 2017) n Custodial foreman with discretion to select substitute custodians to work at the school and to assign work made sexual comments to plaintiff (substitute custodian) and offered to assign her more hours in exchange for sexual favors. Foreman also touched plaintiff inappropriately and sent explicit sexual texts. Foreman went to plaintiff’s house and demanded sex. Plaintiff felt job was threatened if she refused sexual advances and submitted. When she told foreman it would not happen again, her hours were reduced.

Moody v. Atl. City Bd. of Ed. , con't n After investigation by employer found no harassment, Employee sued the school district. n District’s MSJ granted with court finding harasser not supervisor and that employee didn’t suffer any tangible employment action. Also noted District’s prompt remedial action. n Circuit court reversed noting a reasonable factfinder could find: foreman’s actions sufficiently severe or pervasive to constitute sex harassment; that foreman was plaintiff’s supervisor for purposes of respondeat superior liability because he controlled work assignments and hours.

Are Threats From a Supervisor Enough? n Both the Ninth and Second Circuit courts have held that threats to take some tangible employment action, such a termination, are sufficient to meet the requirements of a quid pro quo claim. n The Ninth Circuit said that a tangible employment action occurs when, in order to avoid a supervisor’s threatened action, the employee complies with the supervisor’s demands.

Threats From a Supervisor, con't n n In Holly D. v. Cal. Inst. Of Tech, 339 F. 3 d 1158 (9 th Cir. 2003), the Court found the supervisor had imposed the added requirement that she submit to his weekly sexual abuse in order to retain her job. The same has not been true in the Southern District of Texas, where at least two courts have declined to find a tangible employment action where employees submitted to the sexual advances to avoid the threatened employment action.

Hostile Work Environment Hernandez v. Fairfax County, 719 F. App'x 184 (4 th Cir. 2018) n Male fire station captain – female firefighter n Inappropriate touching and inappropriate suggestive comments lead to complaint to fire captain’s boss; fire captain starts to document female’s activities in binder. n Female ultimately transferred and then reprimanded for aggressive confrontation during a basketball game. Employee sued claiming hostile environment and retaliation.

Hernandez v. Fairfax County, con't n Circuit court reversed MSJ for defendant finding a reasonable jury could: ¨ Find the fire captain’s conduct was sufficiently severe or pervasive to constitute hostile work environment. ¨ Conclude that the fire captain’s conduct was imputable to county because: n n County knew about the binder n Never instructed fire captain to desist in tracking employee Remanded to determine if written reprimand was disproportionately severe and retaliatory.

Zetwick v. City of Yolo, 850 F. 3 d 436 (2017) n Female county correctional officer brought action against a male sheriff alleging that the sheriff created a hostile work environment, based on unwelcome hugs and at least one unwelcome kiss. n The proper standard is whether the defendant’s conduct was “severe or persuasive. ” Summary judgement is appropriate only if the conduct was “neither severe nor persuasive enough to alter the conditions of employment. ”

More About a Hostile Work Environment n Single, isolated statement from manager not enough; also not enough the employee described the work environment as "generally uncomfortable. " ¨ n Martinelli v. Bancroft Chophouse, LLC, 357 F. Supp. 3 d 95 (D. Mass. 2019). "Asian sluts" graffiti in men's restroom that referred to Plaintiff and three other employees was reprehensible but not enough to establish a hostile work environment. ¨ Zhou v. Intergraph Corp. , 353 F. Supp. 3 d 1220 (N. D. Ala. 2019).

More About a Hostile Work Environment, con't n "While 'a few isolated incidents of gender animus does not establish a pervasively hostile work environment, … the pervasiveness of the hostility is quintessentially a question of fact. " ¨ n Lints v. Graco Fluid Handling, Inc. , 347 F. Supp. 3 d 990 (D. Utah 2018). Nine victims testified to frequent and unwanted touching by foreman and to unwelcome compliments; requests for phone numbers, dates, sexual pictures, and sex; crude gestures; comments about sex, dreams, and masturbation. The Court: Jury can decide "objective hostility. " ¨ Washington v. Horning Brothers, LLC, 339 F. Supp. 3 d 1106 (E. D. Wa. 2018).

Sexual Orientation Harassment Examples of sexual orientation harassment that either interferes with an individual’s employment or creates a hostile work environment are as follows: n n Stating or implying in a joking or negative manner that an employee is a gay, lesbian, bisexual, transgender, gender non-confirming or heterosexual individual. Making jokes about gay, lesbian, bi-sexual, transgender, gender non-confirming or heterosexual individuals.

Sexual Orientation Harassment Inquiring into the sexual practices of gay, lesbian, bisexual, transgender, gender non-confirming or heterosexual individuals as a group. n Using derogatory slang about a gay, lesbian, bi-sexual, transgender, gender non-confirming or heterosexual individual. n Repeatedly expressing negative opinions about gay, lesbian, bi-sexual, transgender, gender non-confirming or heterosexual individuals. Any harassing activity that is directed towards an employee due to the employee’s sexual orientation, or that is negative about differing sexual orientations, can constitute sexual orientation harassment. n

EEOC v. Hob Bros. Const. Co. , LLC, 731 F. 3 d 444 (7 th Cir. 2016) n Court of appeal upheld lower court decision holding that plaintiff was harassed because of sex where plaintiff’s crew superintendent directed “sex-based epithets like ‘fa--ot, ’ ‘pu—y, ’ and ‘princess’” at plaintiff’s masculinity.

Robertson v. Siouxland Cmty. Health Ctr. , 938 F. Supp. 2 d 831 (N. D. Iowa 2013) n The court found plaintiff has adequately pleaded that she was subjected to discrimination or harassment because of sex. Plaintiff alleged her female supervisor was “inappropriately infatuated with [plaintiff’s] sexual orientation, because the supervisor sent a number of inappropriate texts and emails about her attraction to Plaintiff and her curiosity about hooking up with a woman. ”

Is the Harassment Objectively Hostile? n In deciding if the conduct rises to actionable harassment, courts have considered: ¨ The frequency of the conduct; ¨ The severity of the conduct; ¨ Whether it is physically threatening of humiliating or merely an offensive utterance; and ¨ Whether it unreasonably interferes with the plaintiff’s work performance. ¨ Generally a jury question, using a "reasonable person in plaintiff's situation" standard.

Isolated Incident by Non-Supervisor? n Brooks v City of San Mateo, 229 F. 3 d 917 (9 th Cir. 2000). ¨ Employee was touched on stomach and breast by coworker. When reported, the offending employee was placed on leave pending investigation. Although not the employee’s first act of assault, it was the first reported. ¨ When complaining employee returned to work after a leave of absence, she was ostracized by male employees and her supervisors mistreated her, including in relation to shifts, vacation time and sick leave, as well as giving discipline disproportionate to other employees and negative job evaluations.

Brooks, con't n On summary judgment, the trial court found no hostile work environment, holding the incident was not severe or pervasive enough to give rise to hostile work environment. n Ninth Circuit upheld lower court, noting the offensive conduct must be subjectively as well as objectively offensive, based on the totality of the circumstances. It determined that because there was ¨ No likelihood of the incident being repeated ¨ No physical injury or harm requiring medical intervention, and ¨ Employer took immediate action n There was no remedy under Title VII for sex harassment, and n The employer could not be held liable for retaliation because there was no adverse employment action.

Nevada Gaming Control Board n n Gaming Control Board Proposes New Sexual Harassment Prevention Rules: https: //www. reviewjournal. com/business/casinos -gaming/gaming-board-proposes-new-sexualharassment-prevention-rules/ Notice to Licensees from Chairwoman Becky Harris: https: //gaming. nv. gov/modules/showdocument. aspx? documentid=13635 Proposed rule would require all 3, 000 privileged licensees report the number of valid sexual harassment complaints received internally and filed with other agencies, including NERC and the EEOC. ¨ Also would require all licensees to answer an extensive list of questions regarding the licensee's sexual harassment policy. ¨

Recent Headlines n City Seeks Dismissal of Sexual Harassment, Hostile Work Environment Lawsuit: https: //thisisreno. com/2018/11/city-seeks-dismissal-of -sexual-harassment-hostile-work-environment-lawsuit/ n Judge Dismisses Part of Ashley Judd's Lawsuit Against Harvey Weinstein: https: //www. nytimes. com/2019/01/09/business/media/ashley-judd -lawsuit-harvey-weinstein. html n Message to VA on Sexual Harassment, "Do Better": https: //www. militarytimes. com/news/pentagoncongress/2019/05/14/message-to-va-on-sexual-harassment-do-better/ n Sexual Harassment and Bullying, Global Edition: https: //www. law. com/americanlawyer/2019/05/14/sexual-harassment -and-bullying-global-edition/? slreturn=20190414215319 n Women Claim Sexual Harassment within Sandusky County Prosecutor's Office: https: //www. toledoblade. com/local/courts/2019/05/14/women-sexualharassment-claims-filed-sandusky-county-prosecutorcivil/stories/20190514111

SEX DISCRIMINATION NRS 613. 330; NRS 233. 010(3) n Unlawful Employment Practices based on sex ¨ Pregnancy or childbirth ¨ Sexual orientation ¨ Biological gender ¨ Gender identity ¨ Gender expression ¨ Gender stereotypes ¨ Assumptions based on sex

GENDER: Nevada 2011 n Gender identify or expression: n ¨ “Gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth” NRS 233. 020(4); NRS 613. 310(4)

GENDER: Macy v. Holder, EEOC ATF-2011 -00751 (transgender and Title VII) n Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) (assumptions based on sex) n Roberts v. CCSD, 215 F. Supp. 3 d 1001 (D. Nev. 2016)(gender identity) n

Gender Identity Macy v. Holder (EEOC 2012) n Qualified candidate denied position when revealed was transitioning from male to female (transgender) Gender identity ¨ Sex Stereotyping ¨ n n Transgender persons have a gender identity different from the one assigned at birth, regardless of sexual reassignment surgery Department of Justice (Agency): Sex discrimination = Title VII (access to EEOC) ¨ Sexual orientation and gender identity discrimination something else (no access to EEOC) ¨ =

Macy v. Holder, con’t Could a gender identity/transgender discrimination claim qualify as a claim of sex discrimination under Title VII? n “consideration of gender stereotypes will inherently be part of what drives discrimination against a transgendered individual. ” Sex stereotyping: “biological men should present as men and wear male clothing. ” ¨ Discrimination against individuals who changed their sex n Ex: religious converts ¨ Thus, Title VII always protected transgendered persons from discrimination “because of… sex. ” ¨

Macy v. Holder, con’t n n n Title VII has been interpreted to ban discrimination on the basis of both sex—that is, the biological and anatomical differences between men and women—and gender—that is, the social and cultural expectations that attach to biological sex. “individual has expressed his or her gender in a nonstereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person. ” “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition. ”

Post Macy v. Holder n n n 2014: Attorney General Eric Holder issues memorandum that the DOJ would consider adverse employment actions against transgender (gender identity) individuals to be in violation of federal civil rights. 2017: Attorney General Jeff Sessions issues memorandum that reverses Holder’s 2014 memo stating that: “this is a conclusion of law, not policy. ” 2019: SCOTUS Altitude Express, Inc. v. Zarda, 2 nd Cir. (sexual orientation) and ¨ Bostock v. Clayton County of Georgia, 11 th Cir. ¨ R. G. &G. R. Harris Funeral Homes v. EEOC, 6 th Cir. (transgender) n "whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping" under Price Waterhouse v. Hopkins case. ¨

Gender Stereotyping Pricewaterhouse v. Hopkins (1989) n Female manager denied promotion in part because her supervisors believed that her demeanor and attire were not sufficiently feminine. n “A woman who acted like a man. ” n gender stereotyping—discrimination based on someone failing to act and appear according to societal expectations defined by gender. “gender discrimination occurs any time an employer treats an employee differently for failing to conform to any genderbased expectations or norms. ” Thus, discrimination is related to the sex of the victim. n

Gender Identity Roberts v. CCSD (2016) n Transgender school police officer prohibited from using either the men’s or women’s bathroom, but only genderneutral restrooms. Nevada law prohibits gender discrimination ¨ Title VII: protection against sex discrimination include genderidentity discrimination? ¨ n Elements of discrimination: he belongs to a protected class, ¨ he performed his job satisfactorily, ¨ he suffered an adverse employment action and, ¨ the employer treated him differently than a similarly situated employee who does not belong to the same protected class. ¨

Roberts v. CCSD, con’t "[e]qual access to restrooms is a significant, basic condition of employment, and [ ] denying transgender individuals access to a restroom consistent with gender identity discriminates on the basis of sex in violation of Title VII. “ n It provides one set of terms and conditions of employment for transgender individuals and another set for male and female individuals. Nevada holds that Title VII’s prohibition against sex discrimination includes both sex and gender. n

Changing Culture n Embrace policies that support inclusion and protect employees n Publish policies n Be mindful of power dynamics

NERC Complaint Processing Charge Filed Respondent Notified & Position Statement Requested Informal Settlement Meeting (ISM) Investigation No Probable Cause Appeal Court Action Probable Cause Conciliation Court Action

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