Discrimination and Hostile Work Environment Claims Based upon Religion, National Origin, and Alienage

Transcription

1 Amercan Bar Assocaton Amercan Law Insttute Aprl, 2002 Dscrmnaton and Hostle Work Envronment Clams Based upon Relgon, Natonal Orgn, and Alenage by Rchard T. Seymour Table of Contents A. Introducton B. The Coverage of 2 U.S.C. 98. General 2. Alenage 2 3. Sec. 98 Suts by Independent Contractors Whose Employees Are Harassed 2. Interracal Relatonshps 3 C. General Harassment Law. What s Actonable Conduct? a. Not a Sngle Epsode of Profane Language b. Not f the Conduct s Alleged to be Mere Rudeness 5

2 c. Not f the Plantff Was Not Bothered by the Incdents 5 d. Yes, f Neutral n Form But Motvated by a Prohbted Motve 6 e. Yes, f One Protected Group s the Prmary, But Not Exclusve, Target 6 f. Racal or Ethnc Slurs 7 2. Who s a Supervsor? 0 a. For Purposes of Faragher and Ellerth 0 b. For Purposes of the Neglgence Theory 3. Tangble Employment Actons 2. Harassment by Persons Other than Supervsors 2 5. Falure to Complan 6. Adequacy of a Complant, and Reasons for Not Complanng Earler 5 7. How Many Tmes Must a Complanant Complan? 7 8. Actual or Constructve Notce of the Harassment 8 9. Adequacy of the Polcy 8 0. Adequacy of Correctve Acton 9. Drect Lablty Falure to Mtgate D. Evdence. Aggregaton vs. Dsaggregaton of Incdents 2. Evdence of Instances of Harassment Drected at Others 26 a. Decsons Allowng Such Evdence 26 b. Decsons Dsallowng Such Evdence for Reasons Pecular to the Case, Whle Expressng General Approval of Such Evdence 33

3 c. Decsons Dsallowng Such Evdence 3 3. Second-Hand Hostle-Envronment Evdence 35 a. Decsons Allowng Such Evdence 35 b. Decsons Dsallowng Such Evdence 36. Evdence of Harassment n Support of a Non-Harassment Clam Other Evdence of Harassment Evdence of Objectve Serousness 2 E. Puntve Damages. Enttlement to Puntve Damages Where No Compensatory or Nomnal Damages Are Awarded 2. Other Questons of Enttlement 6 3. Vcarous Lablty 9. Good-Fath Defense 5 5. Effect of Post-Event Remedaton Amount Effect of the Damages Caps n the 99 Act 55 F. Other Sources of Informaton 56 A. Introducton Much of the law of hostle-envronment clams apples equally to racal, natonal-orgn, relgous, and sexual harassment: the plantff s need to have a crtcal mass of conduct to be actonable, the role of tangble employment actons, and the affrmatve defense. There are some crtcal dfferences, however. Frst, courts and jures generally assume that racst and ethnc jokes and slurs are both subjectvely unwelcome and objectvely

4 offensve. Second, less crtcal mass s needed before conduct s consdered actonable. Thrd, hatred more often underles the challenged conduct. Fourth, references to volence seem to be more thnkable and thus have greater resonance. Ffth, f the facts are strkng, employers are less wllng to roll the dce and are more nterested n settlement. Sxth, my subjectve sense s that the general run of monetary awards n cases not nvolvng touchng, and the amounts a court wll allow the plantffs to keep, are larger than n sexual harassment cases. In addton, 2 U.S.C. 98 s generally avalable for clams nvolvng racal and ethnc harassment n contracts (ncludng employment contracts), allowng vctms to go drectly to court, assert clams under perods of lmtatons measured n years rather than days, proceed aganst ndvdual malefactors n addton to employers, and seek damages not capped by the lmts n the Cvl Rghts Act of 99. B. The Coverage of 2 U.S.C. 98. General Sec. 98 apples to ethnc as well as racal dscrmnaton. Sant Francs College v. AlKhazraj, 8 U.S. 60, 3 FEP Cases 305, 3 E.P.D. 37,08 (987). Ths s not the same as natonal orgn, whch may or may not be ted to ethncty. Sec. 98 covers relgous dscrmnaton where the relgon s closely ted to ethncty, such as Judasm, Rastafaransm, and Islam. Sec. 98 suts aganst muncpaltes are subject to the same constrants as 983 suts aganst such defendants: plantffs may not obtan damages or back pay unless they show an offcal polcy or custom of dscrmnaton. Jett v. Dallas Independent School Dstrct, 9 U.S. 70, 50 FEP Cases 27 (989).

5 2. Alenage Anderson v. Conboy, 56 F.3d 67, 69, 77 FEP Cases 278 (2d Cr. 998), cert. dsmssed sub nom. Unted Brotherhood of Carpenters and Joners of Amerca v. Anderson, 527 U.S. 030 (999), held that the unon's removal of the plantff from hs poston as Busness Representatve of Local 7 of the Unted Brotherhood of Carpenters and Joners because he was a Jamacan ctzen, and not a ctzen of the Unted States or Canada, volated 98. "We hold that Secton 98, at least snce the 99 amendment, proscrbes prvate alenage dscrmnaton wth respect to the rghts set forth n the statute." Wrght v. Southland Corp., 87 F.3d 287, 297 n.2, 80 FEP Cases 280 (th Cr. 999), whch dd not nvolve a clam under 98, stated n dctum: "Refusng to hre an ndvdual on the bass of alenage s llegal under 2 U.S.C. 98 (99). Clams under 98 are analyzed n the same manner as clams under Ttle VII or the ADEA." (Ctaton omtted.) 3. Sec. 98 Suts by Independent Contractors Whose Employees Are Harassed Danco, Inc. v. Wal-Mart Stores, Inc., 78 F.3d 8, 0, 79 FEP Cases 689, 79 FEP Cases 737 (st Cr. 999), cert. dened, 528 U.S. 05 (2000), affrmed the $300,000 judgment on a remtted $650,000 jury verdct for the 98 hostle-envronment plantff ndependent contractor and Benjamn Gulan, ts Mexcan-Amercan sole shareholder. The court held that 98 allows hostle-envronment suts by ndependent contractors, based on the race of the employee or other person who was harassed. The court noted that 98 does not dstngush between employment contracts and other types of contracts. Id. at 3. It rejected the defendant s argument that the legslatve hstory of the Cvl Rghts Act of 99, whch amended the statute so that t would apply to hostle-envronment and other post-contract-formaton clams, explctly sought only