CRIJ 5340
Legal Aspects of Criminal Justice Management
Term Paper
Select a topic of your choice related to the management of criminal justice professionals and write a 5-6-page research paper. The paper should be double-spaced, 12 points and Times New Roman in font. Your research paper should include the following:
1. An introduction (1-2 paragraphs)
2. Research question: Write one to two research questions that you would like to explore in your research.
3. Literature review (at least 4 pages). Find at least four law review or peer-reviewed articles and paraphrase important conclusions of these articles related to your research question. Make sure to cite them all using the APA style.
4. Conclusion: In this section summarize the important points that you found in your research.
While your paper must have a scholarly tone (e.g. using appropriate grammar and a college-level vocabulary, not using contractions or the first-person or the second person), it should consist mainly of your own original ideas and thoughts. Use the APA style for references. For example,
Worley, V.B., Vaughn, M.S., & Worley, R.M. (2012). Shocking’ consequences: Police officer liability for the use of tasers and stun guns. Criminal Law Bulletin, 48(4), 625-654.
The focus will be on integrating in your own language the literature available on the topic of your choice. Make sure the articles are peer-reviewed or law review articles and not book reviews, book review essays, newspaper articles, or descriptive pieces found on the Internet.
Please submit your term paper through Blackboard. Submit several times before the due date to check for plagiarism using SafeAssign on Blackboard. The originality report should contain less than 20% matching. Otherwise, it will not be graded. Please follow the writing rubric below while writing your paper.
Your assignment is due on April 26, 2020 at 11:59 p.m.
CRIJ 5340
WRITING ASSIGNMENT RUBRIC
Assignments with more than 20% matching will not be graded and will be assigned a “zero.” The 20% matching is allowed for the reference section and technical terms.
0-69 70-89 90-100 POINTS
Content & Development
50 pts
Poor
– Content is incomplete. – Major points are not clear and /or persuasive. – less than 3 peer-reviewed articles cited.
Fair
– Content is not comprehensive and /or persuasive. – Major points are addressed, but not well supported. – Research is inadequate or does not address course concepts. – Content is inconsistent with regard to purpose and clarity of thought. –
3 peer-reviewed articles cited.
Good
– Content is comprehensive, accurate, and persuasive. – Major points are stated clearly and are well supported. – Research is adequate, timely and addresses course concepts. – Content and purpose of the writing are clear.
-4- 5 peer-reviewed articles cited.
Organization & Structure
20 pts
Poor
– Organization and structure detract from the message of the writer. – Paragraph is disjointed and lack transition of thoughts.
Fair
– Structure of the paragraph is not easy to follow. – Paragraph transitions need improvement.
Good
– Structure of the paragraph is clear and easy to follow.
Format
10 pts
Poor
– Paper lacks many elements of correct formatting. – Paragraph is inadequate/excessive in length. Articles not cited properly as per the APA style; More than 5 mistakes in citation.
Fair
– Paper follows most guidelines. – Paper is over/ under word length. – Articles not cited properly as per the APA style; 1- 5 mistakes in citation.
Good
– Paper follows designated guidelines. – Paper is the appropriate length as described for the assignment. Articles cited properly in the APA style.
Grammar, Punctuation & Spelling
20 pts
Poor
– Paper contains numerous grammatical, punctuation, and spelling errors. – Language uses jargon or conversational tone; use of contractions and first person.
Fair
– Paper contains few grammatical, punctuation and spelling errors. – Language lacks clarity or includes the use of some jargon or conversational tone, use of contractions and first person.
Good
– Rules of grammar, usage, and punctuation are followed; spelling is correct. – Language is clear and precise; sentences display consistently strong, varied structure.
TOTAL POINTS
10 Geo. J. Gender & L. 625
Georgetown Journal of Gender and the Law
2009
Tenth Annual Review of Gender and Sexuality Law
Employment Law Chapter
Patrice Clair
Copyright © 2009 by The Georgetown Journal of Gender and the Law; Patrice Clair
STATE REGULATION OF SEXUAL HARASSMENT
I.
STATE APPROACHES TO SEXUAL HARASSMENT LAW
626
II.
FORMS OF SEXUAL HARASSMENT
629
A. QUID PRO QUO 629
B. HOSTILE WORK ENVIRONMENT
630
III.
TYPES OF HARASSMENT RECOGNIZED IN DIFFERENT STATES
631
A. CONDUCT OF A SEXUAL NATURE
631
B. CONDUCT BASED ON SEX
632
C. CONDUCT OF A SEVERE AND PERVASIVE NATURE
633
D. SAME-SEX SEXUAL HARASSMENT
633
1. The “But for” or “Because of” Gender Test
633
2. The Anti-Female or Anti-Male Workplace Test
634
3. The Conduct-Based Test
634
E. COMMON LAW TORT CLAIMS
634
IV.
IMPUTABILITY OF THE EMPLOYER
635
V.
EMPLOYER DEFENSES
635
INTRODUCTION
Sexual harassment law might be one of the most successful manifestations of the feminist movement. While it is clear that the feminist movement has made significant strides in a variety of important areas, true equality in the workplace has yet to be achieved.
For centuries, women have dealt with sexual harassment in the workforce. From slavery to domestic labor, from the Industrial Revolution to modernity, sexual harassment has been an ever-present reality for women.1 Judges who refused to understand the unequal power dynamic between masters and servants, and between men and women, often dismissed the early cases of sexual harassment in the workplace.2 Historically, some courts have blamed assaulted women for not resisting the sexualadvances of their superiors and have interpreted their inability to resist as a form of tacit consent.3 Title VII of the Civil Rights Act of 1964 implemented the first legal recognition of sexual harassment *626 outside of tort law.4 Section 703(a) of Title VII states that:
It shall be an unlawful employment practice for an employer–(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.5
Thus, Title VII created a legal cause of action for sexual harassment in the workplace.6 As interpreted by the Supreme Court, Section 703(a) protects employees from both tangible (quid pro quo) sexual harassment and intangible (hostile work environment) sexual harassment.7
This article will analyze the varying approaches to state sexual harassment law. Part I will discuss general approaches to sexualharassment and the ways in which state laws governing sexual harassment differ from sexual harassment claims under Title VII. Part II will explore the different forms of sexual harassment: quid pro quo and hostile work environment. Part III will examine the different standards and types of sexual harassment recognized under state laws. Part IV will explore the extent to which employers may be held liable for sexual harassment claims against employees and other perpetrators. Part V will discuss the different defenses available to an employer in defending a sexual harassment charge.
I. STATE APPROACHES TO SEXUAL HARASSMENT LAW
In most states, employees can bring a cause of action for sexual harassment under either federal Title VII or a state Title VII equivalent. Most state statutes mirror the federal Title VII law.8 However, many of the state statutes expand the *627 class of people protected from sex discrimination in the workplace by extending the law to protect sexual minorities or those employed in a workplace with fewer than fifteen people.9 Some states no longer require any minimum number of *628 employees for an employer to be held liable.10
There are now only two states that do not have statutory provisions to protect public and private workers from sexualharassment: Alabama and Mississippi. *629 Alabama has no statutory provision, but does provide common law tort actions for sexual harassment.11 Alabama sexual harassment claims can be based on the torts of outrage, assault and battery, negligence, or invasion of privacy.12 While Mississippi has a statute that protects state employees from sexual harassment, all private sector employees must bring claims under recognized tort theories.13 The one exception to this requirement is a statutory provision which prohibits any employer from discriminating against women who use their break time to breastfeed.14 Mississippi tort theories include recovery for breach of contract, emotional distress, and reputational harm caused by sexual harassment.15
II. FORMS OF SEXUAL HARASSMENT
Under Title VII, states generally recognize two forms of sexual harassment: quid pro quo and hostile work environment. To decide sexual harassment cases, state courts often look to federal guidelines. In an effort to avoid federal and state statutory restrictions such as the statute of limitations or Equal Employment Opportunity Commission (EEOC) filing requirements, courts may also allow various tort claims in sexual harassment cases.
A, Quid Pro Quo
Quid pro quo harassment is a request for sexual favors in return for tangible employment benefits. Thus, quid pro quo is essentially harassment “because of sex.”16 To prove quid pro quo sexual harassment under most state laws, one must show that: (1) the plaintiff belongs to a protected class under antidiscrimination law; (2) the harassment allegedly experienced was based on sex; (3) the *630 harassment was unwelcome; (4) the harasser’s conduct was so severe and/or pervasive that it altered the victim’s work environment by detracting from the employee’s job performance and discouraging the employee from remaining on the job; (5) the harasser or any supervisory personnel knew or should have known of the harassment and chose to ignore it; (6) the plaintiff’s submission to the sexual advances of the harasser was a condition of obtaining a job benefit; and (7) the plaintiff’s refusal to submit resulted in a job detriment such as reduction in pay, failure to obtain a raise or to receive benefits, or termination of employment.17
B. HOSTILE WORK ENVIRONMENT
A hostile work environment claim usually involves continuous intimidation and hostility that interferes with an individual’s work performance. While a plaintiff must show that gender is a substantial factor in the discrimination, and “but for” the sex of the plaintiff, the plaintiff would not have been treated in that manner, no showing of economic harm is necessary.18 To make a prima facie showing of a hostile work environment, the victim must show that: (1) he or she belongs to a protected class under the antidiscrimination law; (2) the harassment allegedly experienced was based on sex; (3) the harassment was unwelcome; and (4) the harasser’s conduct was so severe and/or pervasive that it altered the victim’s work environment by detracting from the employee’s job performance and discouraging the employee from remaining on the job.19
Recent decisions have extended hostile work environment claims to employees who are not the intended recipients of unwelcome sexual advances. In Miller v. Department of Corrections, the male prison warden had affairs with numerous female employees and subsequently awarded them unwarranted favorable treatment.20 When other female employees complained about the practice of favoritism, the warden retaliated against them.21 These women brought a hostile *631 work environment claim.22 The California Supreme Court held that these women could bring a hostile work environment action against their employer under the state equivalent of Title VII.23 According to the court, management’s view of the female employees as “sexual playthings” was both demeaning to female employees and implied that the only way to advance professionally was to engage in sexual conduct with superiors.24 The court noted the deleterious effect that such widespread sexual favoritism could have on the work environment.25
III. TYPES OF HARASSMENT RECOGNIZED IN DIFFERENT STATES
A. CONDUCT OF A SEXUAL NATURE
In determining whether a hostile work environment exists, some states assess whether the unwelcome conduct of the harasserwas of a sexual nature.26 Other states do not require the harassing conduct to be overtly sexual, as long as it was motivated by the employee’s sex.27 Because most gender discrimination statutes are not fault-based, the offender’s intent is not deemed relevant. Many courts use the reasonable woman standard to establish if the conduct of a sexual nature created a hostile work environment for a female victim.28 To be considered sexual harassment, offensive commentary or behavior need not be directed*632 specifically at the plaintiff. There can be a finding of sexual harassment if the environment created by conduct of a sexualnature sufficiently offends or humiliates the plaintiff and affects the plaintiff’s ability to do his or her job.29
B. CONDUCT BASED ON SEX
To show that conduct is based on sex, plaintiffs often must show that a defendant’s conduct was motivated by gender stereotypes.30 Smith v. City of Salem is an example of this theory.31 In Smith, fire department officials discriminated against an employee diagnosed with gender identity disorder who had begun the transition to womanhood.32 The lower court granted summary judgment to the employer, determining that transsexuals are not protected under Title VII.33 The Sixth Circuit reversed, finding that there was a cause of action under Title VII because Smith was discriminated against based on gender non-conforming behavior or gender stereotyping.34
In Alphonse v. Omni Hotels Management Corp., a female plaintiff’s supervisor made improper references to plaintiff’s breasts and legs, berated her for being a weak woman, and said any emotional upset the plaintiff experienced was due to her menstrual cycles.35 The employer argued that there could be no sexual harassment claim because the supervisor was a homosexual man. Therefore, the argument went, his harassment of the female employee was not sexual in nature.36 The lower court and the Fourth Circuit rejected this argument, reasoning that the proper question is instead whether the harassing conduct was based on sex.37 The Fourth Circuit held that the supervisor’s conduct was sexual harassment because, but for employee’s sex, the harassing conduct would not have occurred.38
*633 C. CONDUCT OF A SEVERE AND PERVASIVE NATURE
Conduct of a severe and pervasive nature is generally shown by a single incident that was extraordinarily severe or by a series of incidents that were continuous and concerted enough to alter working conditions in a negative way.39 In assessing the severity and pervasiveness of conduct, courts consider the frequency of the harassment, the severity of the harassment, whether the harassment is physically threatening or humiliating, and whether the harassment unreasonably interferes with an employee’s work performance.40 The standard of review is normally both objective and subjective, meaning that courts must consider how the harasser’s behavior would be viewed by a reasonable person as well as how the harasser’s behavior was subjectively viewed by the plaintiff.41
D. SAME-SEX SEXUAL HARASSMENT
Many states are beginning to recognize same-sex sexual harassment under their anti-discrimination laws.42 Most have construed their state anti-discrimination statutes to encompass same-sex sexual harassment claims. States recognize same-sex sexual harassment claims based on the Supreme Court’s decision in Oncale v. Sundowner Offshore Services, Inc.43 Same-sex sexual harassment claims often turn on perceived sexual interest or attraction, or an employee’s failure to conform to stereotypical gender roles.44 There are three basic standards used in evaluating same-sex sexual harassment claims: the “but for” or “because of” gender test; the anti-female or anti-male workplace test; and the conduct-based test.
1. The “But for” or “Because of” Gender Test
When using the “but for” or “because of” gender test, the employee must show *634 that but for his or her gender, he or she would not have been subject to the harassment–essentially that the harassment would not have occurred had the victim been a member of the opposite sex.45 Therefore, if a male would not have been harassed had he been female, the treatment of him would constitute sexual harassment because of his gender.
2. The Anti-Female or Anti-Male Workplace Test
The assumption in opposite-sex sexual harassment cases is that the victim is the focus of the harasser’s attentions or conduct because of his or her sex. However, this assumption does not always carry over into same-sex sexual harassment cases. The anti-male/anti-female test requires the plaintiff to prove that the co-worker either earnestly sexually solicited the victim or that there was general hostility toward males or females as a group in the work place. In such cases, the plaintiff must prove that the work environment as a whole was either anti-male or anti-female or that members of the plaintiff’s sex were generally treated more poorly than members of the opposite sex.46
3. The Conduct-Based Test
The conduct-based test does not inquire into the intent or motives of the harasser or sexual orientation of either party. Instead, this test examines whether the conduct is sexual in nature and unreasonably interferes with the employee’s ability to work.47
E. COMMON LAW TORT CLAIMS
Many states provide for common law tort claims which permit recovery for sexual harassment in the workplace. Tort claims can sometimes provide larger recoveries or help employees avoid statutes of limitations that may have run out. Common tort claims are outrage, assault and battery, or breach of contract.48
*635 IV. IMPUTABILITY OF THE EMPLOYER
Because most state anti-discrimination laws are modeled on Title VII, courts hold employers liable not only for the actions taken by the employer, but also for the acts of supervisors and other employees.49 Employers are held responsible for employees’ discriminatory or harassing conduct when the employer: (1) authorizes an employee’s harassing conduct; (2) fails to investigate complaints of sexual harassment; or (3) fails to correct or monitor the conduct that created the hostile working environment.50 In some instances, common law principles of agency may be applied to impute liability to the employer.51 For example, New Jersey has developed a four-prong test to determine whether an agency relationship existed between the employer and the harassingsupervisor. The fact finder must determine whether: (1) the employer gave the supervisor the authority to control the situation leading to the plaintiff’s complaint; (2) the supervisor exercised that authority; (3) the supervisor discriminated against the plaintiff in violation of a statute; and (4) the authority delegated by the employer aided the supervisor in causing the injury of which the plaintiff complains.52
Employer imputability depends on whether tangible action against the employee was taken by the supervisor. If there was no tangible action taken, the employer can raise the affirmative defense of reasonable care to prevent or correct discriminatory behavior. If the harasser is a fellow employee, the employer is liable only if he reasonably knew or should have known plaintiff was being harassed and failed to prevent or stop the harassment.53
V. EMPLOYER DEFENSES
Although both the employer and the individual supervisor could be held liable for sexual harassment, plaintiffs are more likely to file suit against the employer in an attempt to recover a larger monetary award. Most states allow defendants to *636 defend against state law sexual harassment claims with the affirmative defense introduced by the Supreme Court in Burlington Industries v. Ellerth.54 As in Title VII claims, the employer can defend against liability if it can prove that it first took reasonable care to address and correct the sexual harassment and that the plaintiff-employee then failed to take advantage of the corrective measures available to remedy the circumstance.55 Moreover, the employer may escape liability if it took adequate affirmative steps to investigate and remedy the harassment complaint.56 Courts will examine the reasonableness of the employer’s response to the plaintiff’s grievance, including the promptness of the response, when determining whether the employer’s affirmative defense articulates a reasonable response to the complaint.57
*637 The employer may also be relieved of liability if the harassing conduct did not occur in a work-related context; factors such as the time, location, and motivation of the actions may be considered when making this determination.58 However, employers may be held liable for retaliatory actions even if not related to the terms or conditions of employment.59 On the other hand, if the employer would have made the same employment decision absent discriminatory or retaliatory motive, the employer may also escape liability.60 Lastly, the employer may avoid liability if the employer was not on actual or constructive notice of the harassment.
CONCLUSION
Since the enactment of Title VII, most states have made an effort to comply with federal anti-discrimination laws. Furthermore, most states have worked to proactively protect employees by creating their own state-specific anti-discrimination laws. While some of these laws are modeled on Title VII, many of them provide greater protection for people who experience sexual harassment in the workplace. When filing or defending a sexual harassment claim, practitioners must be aware of the discrepancies between federal law, state law, and tort law. Understanding the different administrative procedures, remedies, and judicial interpretations can help practitioners determine which law should be used to support or defend a claim, so that a client may receive the most beneficial representation.
Footnotes
1
See Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 599 (1990) (describing lack of protection from sexual brutalization for Black women during and after slavery); see also Reva B. Siegel, Introduction: A Short History of Sexual Harassment, in DIRECTIONS IN SEXUAL HARASSMENT LAW. 3 (Catharine A. MacKinnon & Reva B. Siegel, eds., 2004) (citing that domestic servants often faced sexual advances from male heads of households; also citing that women in meat packing industry at end of the nineteenth century faced sexual extortion in factories).
2
See Siegel, supra note 1, at 4.
3
See, e.g., People v. Dohring, 59 N.Y. 374, 384 (N.Y. 1874).
4
See 42 U.S.C.A. § 2000e-2 (West, WESTLAW through P.L. 110-180).
5
Id. § 2000e-2(a)
6
See id.
7
See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) ( “[T]he language of Title VII is not limited to ‘economic’ or ‘tangible’ discrimination. [The intent of Congress was] to strike at the entire spectrum of disparate treatment of men and women in employment” (citations omitted). Title VII extends to hostile work environment cases where the harassment does not always lead to economic damages for the victim. Id. at 66.
8
See ALASKA STAT. § 18.80.220 (WESTLAW through 2008 2d Reg. Sess.); ARIZ. REV. STAT. ANN. § 41-1463(B) (West, WESTLAW through July 7, 2008); ARK. CODE ANN. § 16-123-107 (West, WESTLAW through 2008 Extra. Sess.); CAL. GOV’T CODE §§ 12920 to 12996 (West, WESTLAW through 2008 Reg. Sess., ch. 267 & 2007-2008 3d Extra. Sess., ch. 7); COLO. REV. STAT. ANN. § 24-34-402 (West, WESTLAW through 2008 2d Reg. Sess.); CONN. GEN. STAT. ANN. § 46a-60 (West, WESTLAW through 2008 2d Reg. Sess.); DEL. CODE ANN. tit. 19, § 711 (WESTLAW through 76 Laws 2008, ch. 421); D.C. CODE § 2-1402.11 (WESTLAW through July 27, 2008); FLA. STAT. ANN. §§ 760.01-760.11 (West, WESTLAW through 2008 2d Reg. Sess., ch. 298); GA. CODE. ANN. §§ 45-19-20 to 45-19-45 (West, WESTLAW through 2008 Reg. Sess.); HAW. REV. STAT. § 378-2 (WESTLAW through 2008 Reg. Sess., Act 181); IDAHO CODE § 67-5909 (WESTLAW through 2008 2d Reg. Sess., ch. 410); 775 ILL. COMP. STAT. ANN. 5/2-102 (West, WESTLAW through 2008 Reg. Sess., P.A. 95-905); IND. CODE ANN. § 22-9-1-2 (West, WESTLAW through 2008 Reg. Sess.); IOWA CODE ANN. § 216.6 (West, WESTLAW through 2008 2d Reg. Sess.); KAN. STAT. ANN. § 44-1009 (WESTLAW through 2007 Reg. Sess.); KY. REV. STAT. ANN. § 344.040 (West, WESTLAW through 2007); LA. REV. STAT. ANN. § 23:332 (West, WESTLAW through 2008 2d Extra. Sess.); ME. REV. STAT. ANN. tit. 5, § 4572 (WESTLAW through 2008 2d Reg. Sess. & 1st Spec. Sess., Ch. 288); MD. CODE ANN., art. 49B, § 16(West, WESTLAW through 2008 Reg. Sess.); MASS. GEN. LAWS ANN. ch. 151B, § 4 (West, WESTLAW through 2008 2d Ann. Sess., ch. 297); MICH. COMP. LAWS ANN. § 37.2202 (West, WESTLAW through P.A. 2008, No. 268); MINN. STAT. ANN. § 363A.08 (West, WESTLAW through 2008 Reg. Sess. June 30, 2008); MO. ANN. STAT. § 213.055 (West, WESTLAW through 2008 2d Reg. Sess.); MONT. CODE ANN. § 49-2-303 (WESTLAW through 2007 Reg. Sess. & May 2007 Spec. Sess.); NEB. REV. STAT. § 48-1104 (WESTLAW through 2007 1st Reg. Sess.); NEV. REV. STAT. ANN. § 613.330 (West, WESTLAW through 2007 Reg. Sess. & Spec. Sess.); N.H. REV. STAT. ANN. § 354-A:7 (WESTLAW through 2008 Reg. Sess., Ch. 274); N.J. STAT. ANN. § 10:5-12 (West, WESTLAW through 2008 1st Ann. Sess., Ch. 29); N.M. STAT. ANN. § 28-1-7 (West, WESTLAW through 2008 2d Reg. Sess.); N.Y. EXEC. LAW § 296 (McKinney, WESTLAW through 2008 Reg. Sess., Ch. 391); N.C. GEN. STAT. ANN. § 95-151 (WESTLAW through 2008 Reg. Sess., S.L. 2008-23); N.D. CENT. CODE §§ 14-02.4-01 to 14-02.4-02(WESTLAW through 2007 Reg. Sess.); OHIO REV. CODE ANN. § 4112.02 (West, WESTLAW through Sept. 2, 2008); OKLA. STAT. ANN. tit. 25, § 1302 (West, WESTLAW through 2008 2d Reg. Sess.); OR. REV. STAT. ANN. § 659A.030 (West, WESTLAW through 2008 Spec. Sess.); 43 PA. STAT. ANN. § 955 (West, WESTLAW through 2008 Reg. Sess. Acts 2008-18); R.I. GEN. LAWS § 28-5-7 (WESTLAW through 2008 Reg. Sess.); S.C. CODE ANN. § 1-13-80 (WESTLAW through 2007 Reg. Sess.); S.D. CODIFIED LAWS § 20-13-10 (WESTLAW through 2008 Reg. Sess.); TENN. CODE ANN. § 4-21-401 (West, WESTLAW through 2008 2d Reg. Sess.); TEX. LAB. CODE ANN. § 21.051 (Vernon, WESTLAW through 2007 Reg. Sess.); UTAH CODE ANN. § 34A-5-106 (West, WESTLAW through 2008 Gen. Leg. Sess.); VT. STAT. ANN. tit. 21, § 495 (WESTLAW through March 24, 2008); VA. CODE ANN. § 2.2-3900 (West, WESTLAW through 2008 Spec. Sess. I & II); WASH. REV. CODE ANN. § 49.60.180 (West, WESTLAW through Sept. 30, 2008); W VA. CODE § 5-11-9 (West, WESTLAW through 2008 2d Extra. Sess.); WIS. STAT. ANN. § 111.321 (West, WESTLAW through 2007 Act 242); WYO. STAT. ANN. § 27-9-105 (WESTLAW through 2008 Budget Sess.).
9
Compare 42 U.S.C.A. § 2000e-2 (West, WESTLAW through RL. 110-180), with ARK. CODE ANN. § 16-123-102 (West, WESTLAW through 2008 Extra. Sess.) (establishing that employers with nine or more employees can be held liable); CAL. GOV’T CODE §§ 12920-12996 (West, WESTLAW through 2008 Reg. Sess., ch. 267 & 2007-2008 3d Extra. Sess., Sh. 7) (establishing that employers with five or more employees may be held liable, and protecting sexual orientation); CONN. GEN. STAT. ANN. § 46a-51, 46a-60 (West, WESTLAW through 2008 2d Reg. Sess. (establishing that employers with three or more employees may be held liable); DEL. CODE ANN. tit. 19, § 710, 711 (WESTLAW through 76 Laws 2008, ch. 421) (establishing that employers with four or more employees may be held liable); IDAHO CODE § 67-5902, 5909 (WESTLAW through 2008 2d Reg. Sess., ch. 410) (establishing that employers with five or more employees may be held liable); IND. CODE ANN. § 22-9-1-2to 3 (West, WESTLAW through 2008 Reg. Sess.) (establishing that employer with six or more employees may be liable); KAN. STAT. ANN. § 44-1002, 44-1009 (WESTLAW through 2007 Reg. Sess.) (establishing that employer with four or more employees may be held liable); KY. REV. STAT. ANN. § 344.030, 040 (West, WESTLAW through 2007) (establishing that employer with eight or more employees may be held liable and protecting smokers and nonsmokers); MD. CODE ANN., art. 49B, § 16 (West, WESTLAW through 2008 Reg. Sess.) (protecting sexual orientation); MASS. GEN. LAWS ANN. ch. 151B, §1, 4 (West, WESTLAW through 2008 2d Ann. Sess., ch. 297) (establishing that employers with six or more employees may be held liable and protecting sexual orientation); MINN. STAT. ANN. § 363A.03, 08 (West, WESTLAW through 2008 Reg. Sess., June 30, 2008) (establishing that employers with one or more employee can be held liable and protecting sexual orientation and discrimination based on age); MO. ANN. STAT. § 213.010, 055 (West, WESTLAW through 2008 2d Reg. Sess.) (establishing that employers with six or more employees may be held liable); MONT. CODE ANN. § 49-2-101, 303 (WESTLAW through 2007 Reg. Sess. & May 2007 Spec. Sess.) (establishing that employer with one or more employees may be held liable); NEV. REV. STAT. ANN. 613.330 (West, WESTLAW through 2007 Reg. Sess. & Spec. Sess.) (protecting sexual orientation); N.H. REV. STAT. ANN. § 354-A:2, 7 (West, WESTLAW through 2008 Reg. Sess., Ch. 274) (establishing that employer with six or more employees may be liable and protecting sexual orientation); N.M. STAT. ANN. § 28-1-2, 7 (West, WESTLAW through 2008 2d Reg. Sess.) (establishing that employers with four or more employees may be held liable; protecting sexual orientation and gender identity if employer has fifteen or more employees); N.Y. EXEC. LAW § 292(5) (McKinney, WESTLAW through 2008 Reg. Sess., ch. 391) (establishing that employers with four or more employees may be liable and protecting sexual orientation); OHIO REV. CODE ANN. § 4112.01 (West, WESTLAW through Sept. 2, 2008) (establishing that employers with four or more employees may be held liable); OR. REV. STAT. ANN. § 659A.030 (West, WESTLAW through 2008 Spec. Sess.) (protecting gender identity and sexual orientation); 43 PA. STAT. ANN. § 954 (West, WESTLAW through 2008 Reg. Sess. Acts 2008-18) (establishing that employer with four or more employees may be liable); R.I. GEN. LAWS § 28-5-6, 7 (WESTLAW through 2008 Jan. Sess.) (establishing that employers with four or more employees may be liable and protecting sexual orientation and gender identity); TENN. CODE ANN. § 4-21-102 (West, WESTLAW through 2008 2d Reg. Sess.) (establishing that employers with eight or more employees may be liable); Wash. Rev. Code Ann. § 49.60.040 (West, WESTLAW through Sept. 30, 2008) (establishing that employers with eight or more employees may be liable); W. VA. CODE § 5-11-3 (West, WESTLAW through 2008 2d Extra. Sess.) (establishing that employers with twelve or more employees may be liable); WYO. STAT. ANN. § 27-9-102 (WESTLAW through 2008 Budget Sess.) (establishing that employers with two or more employees may be liable).
10
See COLO. REV. STAT. ANN. § 24-34-401, 402 (West, WESTLAW through 2008 2d Reg. Sess.) (stating no set employee limit for employer to be held liable); D.C. CODE §§ 2-1401.02, 2-1402.11 (WESTLAW through July 27, 2008) (explaining age refers to persons over the age of 18; there is no minimum number of employees an employer must have in order to be held liable; personal appearance, sexual orientation, family responsibilities, matriculation, and political affiliation are protected); HAW. REV. STAT. §§ 378-1, -2 (WESTLAW through 2008 Reg. Sess., Act 181) (stating employers with one or more employee may be held liable); IOWA CODE ANN. § 216.2, 216.6 (West, WESTLAW through 2008 2d Reg. Sess.) (explaining there is no minimum number of employees an employer must have in order to be held liable); ME. REV. STAT. ANN. tit. 5, § 4553, 4572 (WESTLAW through 2008 2d Reg. Sess. & 1st Spec. Sess.) (stating there is no minimum number of employees an employer must have in order to be held.liable); MICH. COMP. LAWS ANN. § 37.2201 (West, WESTLAW through RA. 2008) (explaining an employer with one or more employees may be held liable); N.J. STAT. ANN. §’ 10:5-5, 10:5rl2 (West, WESTLAW through L2008) (stating there is no minimum number of employees an employer must have in order to be held liable; affectional or sexual orientation are protected); N.D. CENT. CODE §§ 14-02.4-01, 14-02.4-02 (WESTLAW through 2007 Reg. Sess.) (explaining employers with one or more employees may be held liable); OR. REV. STAT. § 659A.001, 659A.030 (West, WESTLAW through 2008 Spec. Sess.) (stating employers with one or more employees may be held liable and persons eighteen years and over are protected under age discrimination); S.D. CODIFIED LAWS § 20-13-1 (WESTLAW through 2008 Reg. Sess.) (stating there is no minimum number of employees an employer must have in order to be held liable); VT. STAT. ANN. tit. 21, §§ 494, 495 (WESTLAW through March 24, 2008) (explaining employers with one or more employees may be liable and sexual orientation is protected); WIS. STAT. ANN. § 111.32 (West, WESTLAW through 2007 Act 242) (explaining there is no minimum number of employees an employer must have in order to be held liable).
11
See, e.g.. Stabler v. City of Mobile, 844 So. 2d 555 (Ala. 2000).
12
See, e.g., Ex parte The Birmingham News, Inc., 778 So. 2d 814, 818 (Ala. 2000) (stating the invasion of privacy tort consists of four distinct wrongs: “(1) intruding into the plaintiff’s physical solitude or seclusion; (2) giving publicity to private information about the plaintiff that violates ordinary decency; (3) putting the plaintiff in a false, but not necessarily defamatory, position in the public eye; or (4) appropriating some element of the plaintiff’s personality for a commercial use.”) (internal citation omitted); Thomas v. BSE Indus. Contractors, 624 So. 2d 1041, 1043-44 (Ala. 1993) (noting that Alabama Supreme Court has recognized the tort of outrage in a case involving egregious sexual harassment and explaining that proof for tort of outrage requires plaintiff to demonstrate that: (1) the defendant either intended to inflict emotional distress, or knew or should have known that emotional distress was likely to result from his or her conduct; (2) the defendant’s conduct was extreme and outrageous; and (3) the defendant’s conduct caused emotional distress so severe that no reasonable person could be expected to endure it).
13
MISS. CODE ANN. § 25-9-149 (West, WESTLAW through 2008 Reg. Sess.).
14
MISS. CODE ANN. § 71-1-55 (West, WESTLAW through 2007 Reg. Sess. & 1st Extra. Sess.).
15
See e.g., Univ. of S. Miss. v. Williams, 891 So. 2d 160, 172, 174 (Miss. 2004) (explaining contract contains implied covenant of good faith and fair dealing in performance and enforcement, thus; plaintiff could recover for mental anguish and emotional distress, but only for the breach of contract after plaintiff was denied the opportunity to receive her doctoral degree due to sexual harassment by a professor. Additionally, the court held that plaintiffs may recover damages for “mental anguish and emotional distress in breach of contracts actions without proof of physical manifestation.”).
16
See Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977).
17
See Miller v. Dep’t of Corr., 115 P.3d 77, 87 (Cal. 2005); Labra v. Mid-Plains Constr., Inc., 90 P.3d 954, 958, 960 (Kan. Ct. App. 2004); Island v. Buena Vista Resort, 103 S.W.3d 671, 676 (Ark. 2003); Liebno v. Drexel Chem. Co., 586 S.E.2d 67, 70 (Ga. Ct. App. 2003); Schnitz v. Bob Evans Farms, Inc., 697 N.E. 2d 1037, 1040 (Ohio Ct. App. 1997); Ewald v. Wornick Family Foods Corp,, 878 S.W.2d 653, 658-59 (Tex. App. 1994); Westmoreland Coal Co. v. W. Va. Human Rights Comm’n, 382 S.E.2d 562, 566-67 (W. Va. 1989).
18
See Yanowitz v. L’Oreal USA, Inc., 116 P.3d 1123, 1137 (Cal. 2005); Ocana v. Am. Furniture Co., 91 P.3d 58, 69 (N.M. 2004); Lively v. Flexible Packaging Ass’n, 830 A.2d 874, 889 (D.C. 2003); Nelson v. Univ. of Haw., 38 P.3d 95, 111 (Haw. 2001); McElroy v. State, 637 N.W.2d 488, 499 (Iowa 2001); Manikhi v. Mass Transit Admin., 758 A.2d 95, 103 (Md. 2000); Hampel v. Food Ingredients Specialties, 729 N.E.2d 726, 732 (Ohio 2000); Byrd v. Richardson-Greenshields Sec., Inc., 552 So.2d 1099, 1102-03 (Fla. 1989).
19
Miller, 115 P.3d at 87; Elezovic v. Ford Motor Co., 697 N.W.2d 851, 853 n.4 (Mich. 2005); Nava v. City of Santa Fe, 103 P.3d 571, 574 (N.M. 2004); Lively, 830 A.2d at 888; McElroy, 637 N.W.2d at 498-99; Goins v. W. Group, 635 N.W.2d 717, 725 (Minn. 2001); Cincinnati Bar Ass’n v. Young, 731 N.E.2d 631, 639-40 (Ohio 2000); Veco, Inc. v. Rosebrock, 970 P.2d 906, 910 (Alaska 1999);
20
Miller, 115 P.3d at 82.
21
Id. at 83-85
22
Id. at 85.
23
Id. at 80.
24
Id.
25
See id. at 92. See also Broderick v. Ruder, 685 F. Supp 1269, 1277 (D.D.C. 1988) (discussing how defendant’s sexualfavoritism created a hostile work environment for a female staff attorney); Badrinauth v. Metlife Corp., No. Civ. A. 04-2552, 2006 WL 288098 at *4-5 (D.N.J. Feb. 6, 2006) (holding that sexual favoritism can give rise to a hostile work environment claim but not a sex discrimination claim under Title VII)
26
Shotwell v. Donahoe, 85 P.3d 1045, 1047 (Ariz. 2004) (finding that the employer created a hostile work environment by allowing unwelcome conduct of a sexual nature in the workplace); Arquero v. Hilton Hawaiian Vill. LLC, 91 P.3d 505, 510 (Haw. 2004)(requiring that to establish a claim for hostile work environment due to sexual harassment a plaintiff must first show that “he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct or visual forms of harassment of a sexual nature …”).
27
See, e.g., Payne v. Children’s Home Soc’y, 892 P.2d 1102, 1106 (Wash. Ct. App. 1995). Some of these states require causation-in-fact, so that the plaintiff-employee must allege that the harassment would not have occurred but for his or her sex. SeeHampel v. Food Ingredients Specialties, 729 N.E. 2d 726, 734 (Ohio 2000); Campbell v. Fla; Steel Corp., 919 S.W. 2d 26, 28 (Tenn/ 1996); Huck v. McCain Foods, 479 N.W. 2d 167, 170 (S.D. 1991); Miner v. Mid-America Door Co., 68 P.3d 212, 217 (Okla. Civ. App. 2003); Birschetin v. New United Motor Mfg., 112 Ca;. Rptr. 2d 347, 353 (Cal. Ct. App. 2001). Other states allow mixed-motive claims, where sex need only be a contributing factor. See Nava v. City of Santa Fe, 103 P.3d 571, 574-75 (N.M. 2004); Meyers v. Chapman Printing Co., 840 S.W. 2d 814, 823 (Ky. 1992).
28
See Nichols v. Azteca Rest. Enters., 256 F.3d 864, 871-72 (9th Cir. 2001); Arquero, 91 P.3d at 510; Tarr v. Ciasulli, 853 A.2d 921 (N.J. 2004); Veco, Inc., 970 P.2d at 915 n.21; Fowler v. Kootenai County, 918 P.2d 1185, 1189 (Idaho 1996); Radtke v. Everett, .501 N.W.2d 155 (Mich. 1993); Brown v. Scott Paper Worldwide Co., 989 P.2d 1187, 1194 (Wash. Ct. App. 1999); Mclntyre v. Manhattan Ford, Lincoln-Mercury, Inc., 175 Misc. 2d 795, 802 (N.Y. Sup. Ct. 1997); Wood v. Emerson Elec. Co., No. 86-159, 1994 WL 716270, at *16 (Tenn. Ct. App. Aug. 12, 1994); Bougie v. Sibley Manor, 504 N.W.2d 493, 499 (Minn. Ct. App. 1993); Miller v. Servicemaster by Rees, 851 P.2d 143 (Ariz. Ct. App. 1992).
29
See Fisher v. San Pedro Peninsula Hosp., 262 Cal. Rptr. 842, 851 (Cal. Ct. App. 1989).
30
Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (requiring plaintiff to show that employer relied on gender in making decision in order to prove that adverse action was taken because of gender stereotypes).
31
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).
32
Id. at 568.
33
Id. at 569.
34
Id. at 572.
35
Alphonse v. Omni Hotels Mgmt. Corp., 643 So.2d 836, 838 (4th Cir. 1994).
36
Id. at 839.
37
Id.
38
Id. at 839-40; see Brissette v. Franklin County Sheriff’s Office, 235 F. Supp: 2d 63, 89 (D. Mass. 2003) (finding sexualharassment based on sex, as opposed to sexual harassment of a sexual nature, where female officers were told that they were not suited for police work because of their gender, and were routinely verbally harassed and disciplined in a harsher way than the male officers); see also O’Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001) (“[W]here a plaintiff endures harassing conduct, although not explicitly sexual in nature, which undermines her ability to succeed at her job, those acts should be considered along with overtly sexually abusive conduct in assessing a hostile work environment claim.”); Nava v. City of Santa Fe, 103 P.3d 571, 574 (N.M. 2004) (“The discriminatory conduct does not have to be overtly sexual in order to constitute harassment; rather, a hostile work environment claim may arise from disparate treatment on the basis of sex.”).
39
See Miller v. Dep’t of Corr., 115 P.3d 77, 87 (Cal. 2005); Constantine v. Kay, 792 N.Y.S.2d 308, 311 (N.Y. Sup. Ct. 2004).
40
Miller, 115 P.3d at 87-88; Constantine, 792 N.Y.S.2d at 311.
41
Miller, 115 P 3d at 97.
42
See Storey v. Chase Bankcard Servs., 970 F. Supp. 722, 731 (D. Ariz. 1997) (denying motion to dismiss when female employee claimed sexual harassment by female supervisor after supervisor made sexual advances toward her). In Storey, the court’s ruling centered on the fact that the harasser had treated members of one sex differently from members of the other sex. Id.; see also Melnychenko v. 84 Lumber Co., 676 N.E.2d 45, 48 (Mass. 1997) (holding that supervisor’s sexual orientation was irrelevant where he repeatedly touched plaintiffs in a sexual way and made sexual comments); Mogilefsky v. Superior Court, 26 Cal. Rptr. 2d 116, 116 (Cal. Ct. App. 1993) (recognizing plaintiff’s claim of sexual harassment by supervisor of the same sex). In Mogilefsky, the court explained that the proper inquiry is “whether the victim has been subjected to sexual harassment, not what motivated the harasser.” Id.; see also Green v. Ford, No. 01-220, 2003 WL 22100835, at *2-3, 2003 Me. Super. LEXIS 182, at *6, 10 (Me. Sup. Ct. Aug. 25, 2003) (recognizing same-sex sexual harassment using the elements described in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), but finding that supervisor’s sexual comments about plaintiff’s wife were not based on the plaintiff’s sex; thus, no sexual harassment could be found).
43
Oncale, 523 U.S. at 79.
44
Janet Halley, Sexuality Harassment, in LEFT LEGALISM/LEFT CRITIQUE 82 (Wendy Brown & Janet Halley, eds. Duke Univ. Press 2002).
45
See Quick v. Donaldson Co., 90 F.3d 1372, 1379 (8th Cir. 1996) (finding that harassing behavior directed only at the area of male sexual organs may have constituted prohibited sexual harassment); Caldwell v. KFC Corp., 958 F. Supp. 962 (D.N.J. 1997) (holding when a supervisor harasses a subordinate because of the subordinate’s sex, the supervisor is discriminating on the basis of sex regardless of the parties’ respective genders).
46
See Mogilefsky, 26 Cal. Rptr. 2d at 116 (holding creation of an anti-male workplace through same-sex sexual harassment is not mitigated by the fact that the work place is male-dominated); Zalewski v. Overlook Hosp., 692 A.2d 131 (N.J. Super. Ct. Law Div. 1996) (finding that when plaintiff was harassed for being a virgin, jury could find that plaintiff was discriminated against because he was a man and did not fit into gender stereotypes).
47
See Sheffield v. Los Angeles County, 134 Cal. Rptr. 2d 492, 499-500 (Cal. Ct. App. 2003) (finding that repeated telephone calls to plaintiff requesting a date and threatening behavior after rejection created hostile work environment).
48
See Potts v. Hayes, 771 So.2d 462, 465 (Ala. 2000). Alabama’s Supreme Court has recognized the tort of outrage in regard to only three kinds of conduct: (1) wrongful conduct in the family burial context; (2) barbaric methods employed to coerce an insurance settlement; and (3) egregious sexual harassment. To succeed in an outrage case, the plaintiff must demonstrate that the defendant’s conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it. Id.
49
See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
50
Burlington Indus., Inc., 524 U.S. at 758-59.
51
See Entrot v. BASF Corp., 819 A.2d 447, 453, (N.J. Super. Ct. App. Div. 2003) (holding that to establish employer liability, a plaintiff must prove that the harassing employer was a “supervisor” and that “the employer contributed to the harm through its negligence, intent, or apparent authorization of the harassing conduct, or [that] the supervisor was aided in the commission of the harassment by the agency relationship.”).
52
Id.
53
See Veco, Inc. v. Rosebrock, 970 P.2d 906, 915 (Alaska 1999) (holding that an employer can be held vicariously liable when a harasser relies on apparent authority). In Veco, the court found no requirement that the offending employees be managerial, but did find that the acts must be within the scope of employment. Id.; see also State Dep’t of Health Servs. v. Superior Court, 79 P.3d 556, 562 (Cal. 2003) (explaining employers are held strictly liable for supervisor’s harassment and may be liable for non-supervisory harassment if they knew or should have known of the harassment and did not take steps to correct it).
54
Burlington Indus., Inc., 524 U.S. at 742; see, e.g., Natson v. Eckerd Corp., Inc., 885 So.2d 945, 947-48 (Fla. Dist. Ct. App. 2004); Zeller Elevator Co. v. Slygh, 796 N.E.2d 1198, 1212 n.3 (Ind. Ct. App. 2003); Farmland Foods, Inc. v. Dubuque Human Rights Comm’n, 672 N.W.2d 733, 744 (Iowa 2003) (“When a supervisor perpetrates the harassment, but no tangible employment action occurred, the employer may assert the Ellerth-Faragher affirmative defense to avoid liability.”); Am. Gen. Life & Accident Ins. Co. v. Hall, 74 S.W.3d 688, 692 (Ky. 2002) (explaining Kentucky Civil Rights Act recognizes the Ellerth-Faragheraffirmative defense); Entrot v. BASF Corp., 819 A.2d 447, 463 (N.J. Super. Ct. App. Div. 2003) (finding there is no barrier to applying Title VII affirmative defenses to New Jersey’s Law Against Discrimination claims); cf. Garcez v. Freightliner Corp., 72 P.3d 78, 87 (Or. Ct. App. 2003) (finding that although the Ellerth-Faragher defense cannot be used in claims of co-worker harassment, its principles are embedded in the requirement that the plaintiff establish that the employer knew or should have known of the harassing conduct (construing Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001))). But see Barra v. Rose Tree Media Sch. Dist., 858 A.2d 206, 216-17 (Pa. Commw. Ct. 2004) (holding an employer cannot raise the Ellerth-Faragher affirmative defense if the employee raises a genuine issue of material fact regarding whether the supervisor’s act amounted to constructive discharge (citing Penn. State Police v. Suders, 542 US 129, 139 (2004))).
55
See Dudley v. Metro-Dade County, 989 F. Supp. 1192, 1200 (D. Ha. 1997) (applying federal and Florida law) (“[A]n employer is insulated from liability for hostile working environment sexual harassment if (1) the employer has an explicit policy against sexual harassment and (2) it has effective grievance procedures calculated to encourage victims of harassment to come forward”) (citations omitted); State Dep’t of Health Servs., 79 P.3d at 565 (finding employer can affirmatively defend against a sexual harassment suit under the Fair Employment and Housing Act under the avoidable consequences doctrine by proving that (1) the employer took reasonable steps to prevent and correct the harassment; (2) the employee unreasonably failed to use the available preventative and corrective measures that the employer provided; and (3) reasonable use of the employer’s procedures would have prevented at least some ofthe harm that the employee suffered); Lee v. Delta Air Lines, Inc., 778 So. 2d 1169, 1173 (La. Ct. App. 2001) (finding the burden is on plaintiff to prove that employer knew or should have known of the sexual harassment and failed to take proper remedial action). But see Velez v. City of Jersey City, 817 A.2d 409, 415 (N.J. Super. Ct. App. Div. 2003) (finding plaintiff bears the burden of proving that the employer knew of the harassing conduct and failed to take any reasonable steps to remedy it).
56
See N.H. Dep’t of Corr. v. Butland, 797 A.2d 860, 864 (N.H. 2002) (holding employer not liable for sexual harassment against plaintiff where it investigated plaintiff’s harassment complaint on same day plaintiff filed complaint, completed investigation two days later, and suspended co-worker as a result of investigation). But see Norcon, Inc. y. Kotowski, 971 P.2d 158, 172 (Alaska 1999) (finding employer failed to instruct employees of how to respond to sexual harassment complaints and, consequently, when plaintiff complained of sexual harassment, employer took no action).
57
See Madeja v. MPB Corp., 821 A.2d 1034, 1042 (N.H. 2003) (explaining defendant’s remedial action must be “reasonable and adequate”). The Madeja court held that the reasonableness inquiry turns on the remedy’s ability to stop the individual harasserfrom continuing to engage in the harassment, and its ability to discourage other potential harassers from engaging in similar conduct. Id.; See also Payton v. N.J. Turnpike Auth., 691 A.2d 321, 327 (N.J. 1997) (finding when the remedial process is unduly prolonged or unnecessarily and unreasonably leaves the employee exposed to continued hostility in the workplace, it is considered ineffective and does not prevent employer from being held vicariously liable); Velez, 817 A.2d at 415 (explaining that entire remedial process must be judged to determine its effectiveness, or its calculated ability to end the alleged harassment, and that fact finder must consider the speed, diligence, and good faith with which a sexual harassment investigation is performed).
58
See Doe v. Capital Cities, 50 Cal. App. 4th 1038, 1048 (Cal. Ct. App. 1996) (holding employer can be liable for sexualharassment outside of the workplace under the California Fair Employment and Housing Act, if harassment occurs within a work-related context); Lee, 778 So.2d at 1174 (finding employee’s conduct is within the scope of his employment if (1) the conduct is of the kind that he is employed to perform; (2) occurs substantially within the authorized limits of time and space; and (3) is performed in part to serve the employer); Tanner v. Reynolds Metals Co., 739 So.2d 893, 897 (La. Ct. App. 1999) (stating that an employer is vicariously liable if the tortious conduct of its employee is “so closely connected in time, place, and causation to his employment duties as to be regarded a risk of harm fairly attributed to the employer’s business.”); Phelps v. Vassey, 437 S.E.2d 692, 694 (N.C. Ct. App. 1993) (explaining employer is liable for harassing actions of its employees if the harassmentwas expressly authorized, if the harassment was in the scope of the employee’s employment and in furtherance of the employer’s business, or if the harassment was ratified by the employer); Doe v. Oberweis Dairy, 456 F.3d 704, 715-16 (7th Cir. 2006) (finding that although sexual intercourse between supervisor and employee took place outside of work, it still affected conditions of employment).
59
See Burlington Northern & Santa Fe Ry. Co. v. White, 524 U.S. 53, 58 (2006).
60
Johnson v. Curtis Dworken Chevrolet, 242 B.R, 773, 780 (D.D.C. 1999) (“[I]f the plaintiff successfully shows that a discriminatory or retaliatory motive played a motivating part in an adverse employment action, the employer can nevertheless avoid liability by demonstrating by a preponderance of the evidence that it would have taken the same action absent discriminatory or retaliatory motive …”).