Women and Justice: Keywords

Domestic Case Law

Phaila v. Director General National Security Services High Court of Lesotho (2008)

Employment discrimination, Sexual harassment

The applicant, a married woman, was a member of the National Security Services stationed at Maseru. On 4 May 2007 she received a letter from the respondent notifying her of her transfer from Maseru to Mafeteng, though the transfer was not implemented. The transfer letter followed a complaint of sexual harassment lodged by the applicant against one of her superiors. The applicant had lodged the complaint in April 2007, and it was duly attended to. A Commission of Enquiry was set up to investigate the matter, but no report was published nor furnished to the applicant despite her numerous requests. The applicant argued that, among other reasons, the transfer was unlawful because it was not bona fide and was intended to serve as a punishment for lodging the complaint of sexual harassment. The applicant stated that she had no problem leaving Maseru but that she had only received two weeks’ notice in which to do so. The respondent did not deny that the complaint of sexual harassment or its failure to furnish the applicant with a report. The High Court found that the transfer was mala fide as the applicant was not afforded a hearing prior to such transfer, the report was unreasonably withheld, and she was not afforded enough time to prepare herself and her family to move to that new station. The court declared the decision to transfer the applicant to Mafeteng null and void.

Raniola v. Bratton United States Court of Appeals for the Second Circuit (2001)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff, a female police officer sued a police department, alleging hostile work environment, sexual harassment, and retaliation claims under Title VII. The plaintiff alleged that she suffered years of abuse because she was a woman, including derogatory remarks, disproportionately burdensome assignments, sabotage of her work, threats, and false accusations of misconduct. The United States District Court for the Southern District of New York granted the defendants’ motion for judgment as a matter of law. The Second Circuit reviewed all the evidence in the light most favorable to the officer and found that a reasonable jury could have arrived at a different conclusion than the district court. The Second Circuit determined that the evidence presented by the officer formed a sufficient basis for a reasonable jury to conclude that she was subjected to hostile work environment because she was a woman and that she was suspended, put on probation, and then terminated in retaliation for having complained about her treatment. The Second Circuit vacated the judgment and remanded the claims for retrial.

Hoffman-La Roche Inc. v. Zeltwanger Supreme Court of Texas (2004)

Employment discrimination, Sexual harassment

The plaintiff-respondent worked as a sales representative for Hoffman-La Roche Inc, the defendant-petitioner. The respondent alleged that her supervisor told sexually inappropriate jokes and asked inappropriate questions on multiple occasions. She submitted complaints to Human Resources, which began an investigation. During the respondent’s performance review, her supervisor yelled at her and repeatedly criticized her performance, giving her a below average rating. Shortly afterwards, the petitioner fired both the respondent’s supervisor and the respondent. The respondent then filed a complaint for sexual harassment with the Texas Commission on Human Rights. At issue for the Supreme Court was whether the respondent could recover damages for emotional distress due to sexual harassment under the Texas Commission on Human Rights Act and common tort law. The Court of Appeals held that the respondent could recover under both statutory and common law, awarding damages. The Texas Supreme Court reversed, holding that when the complaint is for sexual harassment, the plaintiff must proceed solely under a statutory claim unless there are additional facts, unrelated to sexual harassment, to support an independent tort claim for intentional infliction of emotional distress. The Court found that the respondent could not identify additional extreme and outrageous conduct by the petitioner to support an independent intentional infliction of emotional distress claim. The Court reversed the judgment of the court of appeals and remanded to the trial court.

San Antonio Water System v. Nicholas Supreme Court of Texas (2015)

Employment discrimination, Sexual harassment

The petitioner claimed that she was terminated from her position because she confronted a male vice president about his repeated lunch invitations to two female employees outside his department. The Texas Supreme court held that no reasonable person could have believed the invitations gave rise to an actionable sexual harassment claim. Accordingly, the Court held the petitioner did not engage in a protected activity under the Texas Commission on Human Rights Act when she confronted the vice president about his behavior. The Court reversed the lower court and dismissed the claim.

Roches v. Belize Agricultural Health Authority and Attorney General of Belize Supreme Court of Belize (2017)

Employment discrimination, International law, Sexual harassment

The claimant brought a claim of damages for unlawful termination of employment because she alleged she was terminated before her two-year contract had run despite a positive one-year evaluation. She claimed her contract was not renewed because she made reports of sexual harassment by her supervisor to the police. However, that report was made four months after the claimant was informed of the decision not to renew her contract. The court also determined that her contract was a one-year contract. As a result, her claim was dismissed. However, the court “condemn[ed] in the strongest possible terms the exploitation and degradation of women by predatory male behavior in the workplace” and found that the respondent “has an obligation to not sweep these grave allegations under the rug.” The court urged an investigation into the alleged conduct by claimant’s supervisor and for the respondent to “duly penalize such behavior if substantiated, in keeping with Belize’s national and international obligations to protect the rights of women and children from sexual exploitation under treaties such as the Convention on the Elimination of All Forms of Violence and Discrimination Against Women.”

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.

Tucker v. Bluegrass Regional Mental Health Retardation Board Kentucky Court of Appeals (2017)

Employment discrimination, Gender discrimination

Angela Tucker, a licensed clinical social worker, requested salary increases from her employer after five years, and again after seven years, of employment, but was denied both times. She informed the director of human resources that male staff members had received large raises, and her pay was subsequently increased fifteen percent, but soon she began to be harassed by her employer and to receive additional scrutiny without justification. After her employer determined that she had inappropriately filed an involuntary hospitalization form for one of her patients, her employer required her to complete a three-month correction plan; when she refused, her employment was terminated. She filed suit against her employer for gender discrimination and retaliation in violation of the Kentucky Civil Rights Act, but the Fayette Circuit Court granted summary judgment in favor of her employer. The Kentucky Court of Appeals affirmed, holding that she had failed to demonstrate a causal connection between her termination and her protected action (filing an EEOC complaint).

Banker v. University of Louisville Athletic Association, Inc. Supreme Court of Kentucky (2015)

Employment discrimination, Gender discrimination

Mary Banker, an assistant track coach at the University of Louisville, made a series of complaints about the conduct of male track coaches which she believed to be deprecating to women. When her contract was not renewed, she filed suit for retaliatory discharge, gender discrimination, and hostile work environment. The Jefferson County Circuit Court found for the university on the latter two counts, but awarded Banker damages for her retaliatory discharge. The Kentucky Court of Appeals reversed on the retaliatory discharge claim, but the Kentucky Supreme Court reversed the Court of Appeals, holding that Banker had established a prima facie case of retaliatory discharge, albeit in part through circumstantial evidence of causation.

Asbury University v. Powell Supreme Court of Kentucky (2016)

Employment discrimination, Gender discrimination

Deborah Powell was the women’s basketball coach at Asbury University who brought numerous complaints over several years to the university’s athletic director that the men’s team was receiving preferential treatment. Later, the university placed Powell on administrative leave allegedly for her having an inappropriate relationship with a female assistant coach. Powell brought suit under the Kentucky Civil Rights Act claiming that Asbury discriminated against her based on gender, defamed her, and retaliated against her for her complaints about her team receiving inferior treatment. The Jessamine Circuit Court ruled in Asbury’s favor regarding the discrimination and defamation, but in Powell’s favor on the retaliation claim. Both the Kentucky Court of Appeals and the Kentucky Supreme Court affirmed, holding that while the school had not engaged in gender discrimination, it had engaged in retaliation against Powell for her complaining about alleged gender discrimination, which is in itself unlawful.

Phiri v. Smallholder Coffee Farmers Trust Industrial Relations Court of Malawi (2007)

Employment discrimination, Sexual harassment, Sexual violence and rape

The applicant, was a security guard. She was employed on a fixed term renewable contract, renewable upon satisfactory performance. On December 26, 2005, near the end of her employment term, one of the applicant's colleagues attacked her and attempted to rape her, only stopping after being apprehended when she shouted for help. The applicant reported the incident to her employer’s management, which convened a hearing. During the hearing, the company’s human resources representative accused the applicant of misconduct and embarrassing the company by discussing the attempted rape, which the company considered to be an "inside thing." On December 31, 2005, the company fired the applicant, citing the expiring fixed term contract for support. The applicant brought her case to the Industrial Relations Court of Malawi (the “Court”). Calling it "a case of the worst forms of unfair labour practices," the Court found that (i) the applicant had reason to believe that the company would renew her contract and (ii) that their refusal to do so was based on the attempted rape incident. According to the Court, the company’s actions breached an implied term of the plaintiff’s employment contract relating to mutual trust and confidence as well as the company’s obligation under the contract to protect female employees from sexual harassment and abuse. Until recent amendments to the Employment Act, the labor laws of Malawi did not address sexual harassment, other than reading § 5 of the Employment and Labor Relations Act with § 20 of Malawi’s Constitution, which prohibit unfair discrimination in all forms. Despite the lack of a legal provision specifically addressing sexual harassment, the Court found that sexual harassment creates a hostile work environment, leads to unfair labor practices, and thus constitutes discrimination based on sex. Therefore, the Court found the plaintiff's dismissal invalid and held that the company violated her “right to fair labor practices, the right to work, her right to safe working environment and personal dignity.” The Court considered remedies, finding that compensation in the form of 57 months' salary was appropriate, noting that the first-choice remedy in unfair dismissal cases, reinstatement, was not acceptable in this case because of the egregious conduct of the company's human resources representative.

Mejia v. Catholic Charities of the Archdioceses of Chicago United States District Court for the Northern District of Illinois (2015)

Employment discrimination

Plaintiff worked for Defendant when she became pregnant with a high-risk pregnancy. Plaintiff told supervisor that she was not strong enough to endure the pregnancy and had several dangerous near-miscarriages. Plaintiff was shortly demoted to a position which included manual labor. After work-related anxiety attacks, she prematurely delivered a son. Plaintiff brought claims for intentional infliction of emotional distress, gender discrimination, and pregnancy-related retaliation under Title VII of the Civil Rights Act of 1964 as well as a negligence claim on behalf of her son. Defendant moved to dismiss the claims brought on behalf of Plaintiff’s son. The court determined that children have a right to be born free of prenatal injuries which a breach of duty on the mother’s behalf could foreseeably cause and that a child has a right to recover for injuries obtained prenatally from the negligence of another. Accordingly, the court denied the motion to dismiss.

Page v. Superior Court California Court of Appeal (1995)

Sexual harassment

Plaintiff worked as a research specialist under her supervisor, Dennis Montgomery (“Montgomery”). On several occasions during her employment Montgomery asked Plaintiff to perform oral sex on him. He also repeatedly told Plaintiff he was going to arrive at one of Plaintiff’s many jobsites to engage in sexual activity with her. Twice Montgomery masturbated in front of Plaintiff during work hours. During one of those times, Plaintiff ran from the office to her car and Montgomery followed her, grabbed her arm, tried to grab her breasts, and tried to stop her from entering her car. Plaintiff repeatedly complained to the corporation’s president and chief executive officer and others about Montgomery’s conduct. No one took action to prevent the harassment. Plaintiff took a one-month leave of absence because she suffered from severe emotional distress as a result of these incidents. Her supervisors promised her a new position when she returned. But in retaliation against Plaintiff for reporting Montgomery’s 13, they gave the position to someone else. They ultimately fired Plaintiff under the pretext that she was no longer needed. Among other claims, Plaintiff sued the corporation, the corporation’s president and chief executive officer, and Montgomery for 13, retaliation, and the creation of a sexually hostile environment that violated California’s Fair Employment and Housing Act (the “FEHA”). Montgomery demurred to these claims and argued that a supervisor cannot be held personally liable for 13 or retaliation under the FEHA. The trial court sustained the demurrer. The Court of Appeal overruled the demurrer and held that the FEHA’s clear language supports imposing personal liability to supervisors for their own acts of harassment or retaliation in employment. The Court noted that this holding worked toward the deterrence and elimination of harassment and retaliation in employment.

Affaire Zabsonre Asseta C/ Direction Regionale de la Santé de Tenkodogo Court of Appeal of Burkina Faso at Ouagadougou (2001)

Employment discrimination, Gender discrimination, Sexual harassment

Mrs. Z.A. contended that she had been unfairly dismissed for having refused sexual advances by the personnel manager. The Court found that Mrs. Z.A. did not have the obligation to prove that she had been the subject of sexual harassment. Her employer had the burden of proof to show that she had been dismissed fairly. The Court found that Mrs. Z.A. had been dismissed because she did not submit to her personnel manager's sexual advances, and therefore awarded her punitive damages in addition to six months pay.