Women and Justice: Keywords

Legislation

Act of Gender Equality in Employment Act (2016)

Employment discrimination, LGBTIQ, Sexual harassment

The Act of Gender Equality in Employment (the “AGEE”) was enacted to protect gender equality in the workplace and promote the spirit of gender equality as enshrined in Article 7 of the Constitution. Chapter II of the AGEE provides that employers shall not discriminate against employees because of their gender or sexual orientation when hiring, evaluating, promoting, providing education, training and welfare, paying wages and in the case of retirement, discharge, severance and termination. Employers must also implement measures for preventing and correcting sexual harassment and establish complaint procedures and disciplinary measures. Employers who are found to be in violation of the AGEE may be fined between N.T. $20,000 and $1,500,000, depending on the offence. The names and titles of offenders and their supervisors will also be put on public notice and they will have to make improvements within a specified period. Failure to do so will result in further punishment.



Domestic Case Law

Caeiro v. Tecnosolar S.A., Caso No. SEF-0013-000001 / 2015 Tribunal Apelaciones Trabajo 2ºT (Second Labor Court of Appeals) (2015)

Employment discrimination, Sexual harassment

The plaintiff sued the defendant in Civil Labor Court for damages suffered because of sexual harassment in the workplace. The plaintiff was an employee of the defendant for 13 years, always received good performance reviews, and was promoted. One of the company’s directors continuously harassed her in the workplace for over two years even though the plaintiff rejected his propositions. Over the course of those two years, the director sent several inappropriate text messages and emails to the plaintiff, to which she never responded. On one occasion, he sent an email with more than 70 pictures of sexual content to the plaintiff. After this incident, the plaintiff filed a formal complaint with one of the company’s executives who asked the director to apologize, but did not take any additional action. The plaintiff then quit her job and sued her employer for sexual harassment in the workplace. The Trial Court ruled in favor of the plaintiff and awarded her UR$ 880.272 pesos and a 10% administrative fine against the defendant. The defendant appealed, arguing that there was insufficient evidence to find for the plaintiff and that, if anything, the plaintiff had consented to the director’s advances. The Appeals Court analyzed all the unanswered harassing emails and messages sent to the plaintiff and determined that the appeal had no basis. The court determined that the director’s conduct qualified as sexual harassment in the workplace per Law No. 18.561 and that his conduct had effectively created a hostile work environment for the plaintiff, which had forced her to quit her job. Therefore, The Appeals Court affirmed the Trial Court’s award.

La demandante demandó al acusado en el Tribunal de Trabajo Civil por los daños sufridos por el acoso sexual en el lugar de trabajo. La demandante era empleada del acusado durante 13 años, siempre recibió buenas evaluaciones de desempeño y fue promovida. Uno de los directores de la compañía la acosó continuamente en el lugar de trabajo durante más de dos años, a pesar de que la demandante rechazó sus propuestas. En el transcurso de esos dos años, el director envió varios mensajes de texto y correos electrónicos inapropiados al la demandante, a lo que ella nunca respondió. En una ocasión, envió un correo electrónico con más de 70 imágenes de contenido sexual a la demandante. Después de este incidente, la demandante presentó una queja formal ante uno de los ejecutivos de la compañía que le pidió disculpas al director, pero no tomó ninguna medida adicional. La demandante luego renunció a su trabajo y demandó a su empleador por acoso sexual en el lugar de trabajo. El Tribunal de Primera Instancia falló a favor de la demandante y le otorgó UR $ 880.272 pesos y una multa administrativa del 10% contra el acusado. El acusado apeló, argumentando que no había pruebas suficientes y que, en todo caso, la demandante había dado su consentimiento a los avances del director. El Tribunal de Apelaciones analizó todos los correos electrónicos y mensajes de acoso no respondidos enviados a la demandante y determinó que la apelación no tenía fundamento. El tribunal determinó que la conducta del director calificaba como acoso sexual en el lugar de trabajo según la Ley N ° 18.561 y que su conducta había creado efectivamente un ambiente de trabajo hostil para la demandante, lo que la había obligado a renunciar a su trabajo. Por lo tanto, el Tribunal de Apelaciones confirmó la conclusión del Tribunal de Primera Instancia.



McCauley v. Club Resort Holdings Pty Ltd. Queensland Civil and Administrative Tribunal (2013)

Employment discrimination, Sexual harassment

The complainant worked at the Club Resort Holdings Pty Ltd., the respondent.  She was working in a cold larder preparing food when a colleague sexually harassed her.  The complainant sought an investigation by their employer.  The complainant alleged that the employer improperly conducted this investigation, resulting in further distress for the complainant and her needing to take several months of work.  Ultimately, she resigned.  The complainant also alleged that their mutual employer was vicariously liable for these acts as a result of a failure to take “reasonable steps” to prevent such acts.  The Tribunal awarded damages to the complainant, finding that: (i) the complainant was sexually harassed by her colleague; (ii) the sexual harassment constituted sex discrimination; (iii) the harassment constituted age discrimination; (iv) that the complainant was not victimized by her employers because she brought a sexual harassment complaint; and (v) respondent did not take reasonable steps to prevent the sexual harassment. 



Bazemore v. Performance Food Group, Inc. Court of Appeals of Tennessee at Knoxville (2015)

Employment discrimination, Sexual harassment

The plaintiff was employed by the defendant as a sales manager. Another sales manager in her office sexually harassed her verbally and physically. He repeatedly made sexually explicit comments towards her and grabbed her buttocks on one occasion. The plaintiff sued in the Hamilton County Circuit Court, alleging sexual harassment and constructive discharge in violation of the Tennessee Human Rights Act (“THRA”). The Circuit Court granted summary judgment in favor of her employer, and the Court of Appeals of Tennessee affirmed, finding that the employer took reasonable steps to prevent sexual harassment.



Sanders v. Lanier Supreme Court of Tennessee (1998)

Employment discrimination, Sexual harassment

The plaintiff worked as a youth services officer with the Dyer County Juvenile Court, where she alleged that a Chancery Court judge sexually harassed her verbally and physically. When she rejected his advances, the judge demoted her from her supervisory position, denied her salary increases, and altered her job requirements weekly. She sued the judge for quid-pro-quo sexual harassment, in violation of the Tennessee Human Rights Act (“THRA”). The Dyer County Chancery Court determined that the State was not the plaintiff’s employer for purposes of the THRA and dismissed her complaint for failing to state a cause of action. The Court of Appeals of Tennessee reversed and the Supreme Court of Tennessee affirmed the Court of Appeals decision. The Supreme Court of Tennessee held that the plaintiff did state a cause of action because the State was the plaintiff’s employer and the defendant was a supervisor acting in the scope of his employment, making the employer strictly liable under an “alter-ego” theory of liability.



Parker v. Warren County Utility District Supreme Court of Tennessee (1999)

Employment discrimination, Sexual harassment

The plaintiff worked as a bookkeeper for the defendant. The general manager of the district repeatedly touched her inappropriately and made inappropriate remarks to her. Parker made numerous complaints to her immediate supervisor, but the harassing conduct continued until she resigned. Soon after, she sued the defendant for sexual harassment in violation of the Tennessee Human Rights Act in the Warren County Chancery Court. The court granted summary judgment in favor of the defendant, finding that it took prompt corrective action in response to plaintiff’s complaints, thereby establishing a complete affirmative defense. The Court of Appeals of Tennessee reversed, finding that there was a genuine issue of material fact as to whether the defendant acted promptly and adequately. The Supreme Court of Tennessee held that an employer is subject to vicarious liability for actionable hostile work environment sexual harassment by a supervisor with immediate, or successively higher, authority over employee, but that a genuine issue of material fact existed as to whether the employer exercised reasonable care. The Court remanded the case for further proceedings.



J. v. Victory Tabernacle Baptist Church Supreme Court of Virginia (1988)

Statutory rape or defilement

The plaintiff, the mother of 10-year-old girl, sued the defendant, the Tabernacle Baptist Church, alleging that her daughter had been repeatedly raped and sexually assaulted by an employee of the church.  The plaintiff alleged that the church knew or should have known that its employee had recently been convicted of aggravated sexual assault on a young girl, was currently on probation for this offense, and that a condition of his probation was that he not be involved with children.  In spite of this fact, the church hired the offending employee and entrusted him with duties that encouraged him to interact freely with children, gave him the keys to lock and unlock all of the church doors, and failed to supervise him.  As a result, the plaintiff’s daughter was raped by the employee multiple times, on and off of church grounds.  The trial court dismissed the action, concluding that, as a charitable organization, the church was immune from tort liability under the doctrine of charitable immunity.  The Virginia Supreme Court reversed and remanded. The question  before the court was whether the church, as a charitable institution, was immune from prosecution for torts under the charitable immunity doctrine. Answering in the negative, the Court cited cases in which Virginia courts held charitable hospitals liable for negligent hiring and concluded that there was no basis for distinguishing those cases from the case before it.  Thus, the Court held that the church could be held liable for negligently hiring an employee.



Niese v. City of Alexandria Supreme Court of Virginia (2002)

Sexual violence and rape

The plaintiff alleged that she was raped several times by a police officer who had been assigned to help her deal with her son’s behavioral issues.  The plaintiff reported the rapes to municipal mental health and domestic abuse entities, and she alleged that these entities violated their statutory duty to report these incidents or take further action.  Consequently, the plaintiff sued the Alexandria Police Department for intentional tort and negligent hiring.  The issue before the Court was whether the sovereign immunity doctrine barred the plaintiff from suing municipal entities for both intentional torts and negligence in failing to act upon plaintiff’s reports and in hiring and retaining the offending officer. The Virginia Supreme Court affirmed the lower court’s dismissal of the action as barred by sovereign immunity, explaining that a municipality is immune from liability for negligence associated with the performance of “governmental” functions, which include maintaining a police force and the decision to retain a specific police officer.  It declined to adopt an exception to sovereign immunity for the tort of negligent retention, as it had done in the context of charitable immunity.  The Court observed that whether a municipality is liable for an employee’s intentional torts was an issue of first impression in Virginia, but the Court relied on Fourth Circuit precedent to conclude that sovereign immunity applies in this context.  Finally, the Court held that the then-applicable statute requiring officials to make a report whenever they have “reason to suspect that an adult” has been “abused, neglected, or exploited” imposed a discretionary duty and not a ministerial duty upon the individuals subject to the reporting requirements and thus dismissed the claim. (i.e., ministerial duties make actions necessary when conditions for their performance arise while discretionary duties make actions optional, subject to the official’s judgment.)



DeCamp v. Dollar Tree Stores, Inc. Supreme Court of Rhode Island (2005)

Employment discrimination

A female employee sued her employer and supervisor for sex discrimination in violation of the Rhode Island Fair Employment Practices Act and the Rhode Island Civil Rights Act. In deciding the case, the court set out a three-step approach for determining liability. First, the employee must establish a prima facie case of gender discrimination. In a gender discrimination analysis based upon a termination, the establishment of a prima facie case requires the plaintiff to show that: “(1) she is a member of a protected class; (2) she was performing her job at a level that rules out the possibility that she was fired for inadequate job performance; (3) she suffered an adverse job action by her employer; and (4) her employer sought a replacement for her with roughly equivalent qualifications.” Once this “not especially onerous” burden has been met, the employer must offer a legitimate, nondiscriminatory reason for the adverse employment action. Finally, the employee is required to convince the judge or jury that that the legitimate, nondiscriminatory reason proffered by the employer is merely a pretext for her termination.



Ault v. Oberlin College United States Court of Appeals for the Sixth Circuit (2015)

Employment discrimination, Sexual harassment

The plaintiff-appellants, three female dining services department employees, sued Oberlin College, the defendant alleging that they suffered various acts of sexual harassment at the hands of the executive chef of the private contractor, Bon Appetit, that operated the dining facilities. The plaintiffs brought this suit under Chapter 4112 of the Ohio Revised Code, which prohibits sexual harassment in the work place and holds employers responsible for sexual harassment committed by employees or nonemployees in the work place, where the employer knows or should have known but fails to intervene. The plaintiffs initially sued in state court, and the defendants removed. The district court granted summary judgment in favor of the defendants, and the Sixth Circuit affirmed on all but one count. The court held that, with respect to one of the plaintiffs but not the other two, there was a genuine issue of material fact as to whether the conduct the employee endured was sufficiently severe or pervasive enough to affect the terms, conditions, or privileges of employment.



B. v. King of the King Group Limited District Court of the Hong Kong Special Administrative Region (2012)

Employment discrimination, Sexual harassment

The Plaintiff worked as a cashier at King Palace Chinese Restaurant, which was operated by King of the King Group Limited (“Defendant”). The Plaintiff alleged that she was sexually assaulted by Mr. Leung, an employee of the Defendant, who made a sexual remark to the Plaintiff and also touched the Plaintiff’s chest. Immediately after the incident, the Plaintiff reported it to her direct supervisor, who promised to follow up on the incident, but did not do so. When the Plaintiff raised the harassment again later on and wanted to report it to the police, her supervisor asked the Plaintiff not to do so or the Defendant would terminate both her and Leung’s employment.  Eventually, her supervisor arranged a meeting and asked Leung to apologize to the Plaintiff, but he did it reluctantly and disrespectfully.  The Plaintiff, irritated by the disrespect, slapped Leung, and was then immediately fired by the Defendant.  The Plaintiff settled the case with Leung and made a claim under the Sex Discrimination Ordinance. The Court held that the dismissal was not made by the Defendant on the ground of the Plaintiff’s sex, or because she was sexually harassed, but because the Plaintiff slapped the harasser.  However, the Court ruled that the acts committed by Leung constituted unlawful sexual harassment, and that the Defendant, as employer of Leung, was vicariously liable for Leung’s sexual harassment for the reason that the Defendant failed to take all reasonably practicable steps to prevent the sexual harassment against the Plaintiff in the workplace. The Court awarded the Plaintiff damages for injury to her feelings and costs caused by or in connection with the sexual harassment.



Anania v. Daubenspeck Chiropractic Court of Appeals of Ohio (1998)

Employment discrimination, Sexual harassment

Two former employees of the defendant were subjected to repeated instances of sexual harassment by the clinic’s patients. The employees alleged that they complained to the defendant about the conduct, but he failed to take any corrective action. They filed suit in the Clark County Court of Common Pleas alleging sexual harassment. The court granted summary judgment in favor of the defendant, holding that Ohio law did not recognize such a claim based on the conduct of non-employees. The Court of Appeals of Ohio reversed, holding that Ohio Civil Rights law does permit courts to impose liability on employers for non-employees’ sexual harassment at the place of employment.



Supreme Court Decision 2008Da89712 Supreme Court of South Korea (2009)

Employment discrimination, Gender discrimination, Sexual harassment, Sexual violence and rape

The Plaintiff worked as an employee for a corporation in which the Defendant served as a supervisor. The Defendant, who had the authority to hire and fire employees, singled out the Plaintiff frequently for her passive nature and alleged inferior job skills. On numerous occasions, the Defendant forced the Plaintiff to touch his penis and engaged in other various acts of sexual misconduct. The lower court found that the Defendant’s sexual misconduct constituted an invasion of the Plaintiff’s right to self-determination. Additionally, the lower court found the employer, the Defendant-Corporation, liable for the supervisor’s sexual misconduct. The Supreme Court of Korea affirmed, finding the supervisor and employer liable. Under Article 756 of the Civil Act, an employer can be held liable for an employee’s action if the act is “related to the employee’s execution of the undertaking (for which he is employed).” Thus, the Supreme Court noted that when an employee injures another intentionally, even if the act is not related to the employee’s undertaking of his job responsibilities, employer liability still attaches if the misconduct is “apparently and objectively related” to the employer’s work. Additionally, if an employee commits an intentional act such as sexual misconduct, the court noted employer liability attaches where the misconduct was objectively related to the execution of the employer’s work. Noting the Defendant-employee’s authority to fire and hire employees, as well as his ability to punish the Plaintiff for resisting his unwelcome sexual advances, the Supreme Court held that the Defendant-employee took advantage of his superior position over the Plaintiff and therefore committed the sexual misconduct in a situation proximate, in terms of time and place, to his job responsibilities. Therefore, the court found the lower court correctly applied the law in finding employer liability, as the sexual misconduct was objectively related to the Defendant’s job duties.