Women and Justice: Topics: Employment discrimination, Sexual harassment

Legislation

Public Service (Amendment) Act 14 of 2000 (2000)

Employment discrimination, Sexual harassment

In 2000, the Public Service Act was amended to recognize sexual harassment. Sexual harassment is defined as “any unwanted, unsolicited or repeated sexual advance, sexually derogatory statement or sexually discriminatory remark made by an employee to another,” and it covers all offensive or objectionable remarks made in or outside the workplace that cause the recipient discomfort or humiliation or that “the recipient believes interferes with the performance of his or her job security or prospects” or that “create[s] a threatening or intimidating work environment.” The Act delineates the penalties for sexual harassment.



Sexual Offences Act (1998)

Sexual harassment, Sexual violence and rape, Trafficking in persons

The Sexual Offences Act recognizes in its preamble that women are particularly vulnerable to becoming victims of sexual offences, particularly adult prostitution. The Act prohibits prostitution, the operation of brothels, and other activities related to prostitution and brothel-keeping.



Cavanaugh v. Cavanaugh (2014)

Domestic and intimate partner violence, Sexual harassment, Stalking

An man appealed his restraining order, which prevented him from contacting his ex-wife, arguing that the lower court did not properly establish a finding of domestic abuse despite his ex-wife’s testimony that he repeatedly used vulgar and threatening language towards her, at times placing her in fear of physical harm. The Rhode Island Supreme Court upheld the restraining order and underlying finding of domestic abuse, citing the definition of domestic abuse in Title 15, Chapter 15 of the General Laws of Rhode Island: “Among the acts specified in . . . the statute as constituting ‘domestic abuse’ is ‘stalking,’ [which means] ‘harassing another person.’” Because the court found that the ex-husband was “harassing” (and thus “stalking”) his ex-wife, the ex-husband’s conduct fell within the plain meaning of the statute defining domestic abuse. This case is important because it provides that the “unambiguous language” of Rhode Island’s domestic abuse statute does not require a finding of actual physical harm or threats of physical harm as a predicate for domestic abuse—other harassing language is enough.



Labour Act (2007)

Employment discrimination, Gender discrimination, Sexual harassment

The Labour Act (the “Act”) establishes protections for employees and regulates the employer/employee relationship. In particular, this Act prohibits any form of child labor, forced labor, or discrimination and/or sexual harassment in the workplace. The Act also provides for basic conditions of employment to which an employer must adhere, including maternity leave for female employees. An employer may not provide disadvantageous terms in an employment contract or promote unfair labor practices. Violations of this Act expose employers to various penalties. Employees may refer disputes to the Labour Commissioner or the Labour Court to obtain relief.



Codice Penal (1930)

Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The Italian Penal Code prohibits domestic violence (art. 572), female genital mutilation (art. 583), and harassment (art. 612). Punishable crimes against a person's freedom also include slavery and forced prostitution (art. 600), human trafficking (art. 601), and sexual violence (art. 609). Sexual acts coerced through violence, threats, or abuse of authority carry a prison sentence of five to 10 years. Aggravating factors in sexual violence cases include pregnancy, a victim under 14 years old, and use of a weapon. Sexual acts with a minor are not punishable when(1) the perpetrator is also a minor, (2) the minor is at least 13 years old, and (3) the age difference between the two is no more than three years (art. 609).



Código Penal (Penal Code) (2018)

Abortion and reproductive health rights, Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Forced and early marriage, Gender-based violence in general, LGBTIQ, Sexual harassment, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Under section 142 (Crimes against people) of the Portuguese Penal Code, abortion is permitted if performed by a doctor and in the following scenarios: (1) risk of death or grave physical or mental harm to the mother; (2) the fetus is in risk of grave illness or malformation, up to the 24th week of pregnancy; (3) pregnancy was caused by rape or sexual assault, up to the 16th week of pregnancy; (4) by the mother’s choice, up to the 10th week of pregnancy. Article 118 provides that the statute of limitations on crimes of sexual violence and female genital mutilation against minors do not expire until the victim is at least 23 years old. Prostitution is not considered a crime in Portugal. However, the economic exploitation of prostitution by third parties is considered a crime under the Penal Code. A homicide that reveals “especial censurabilidade ou perversidade” (special censorship or perversity) is punishable with 12 – 25 years imprisonment. These special circumstances include a current or former spousal relationship between the perpetrator and victim, a sexual motive, and hate crimes including those based on sex, gender, sexual orientation, and gender identity. Article 144a bans female genital mutilation and imposes a prison sentence of two to 18 years. Articles 154b, 159, and 160 ban forced marriage, slavery, and human trafficking, respectively. Article 163 bans sexual coercion, which carries a sentence of one to eight years for coercing a significant sexual act. Article 164 punishes “violação”, which is forcible intercourse, with imprisonment for one to six years.



Código do Trabalho (Lei n.º 7/2009) (2018)

Employment discrimination, Gender discrimination, Sexual harassment

Section 29 of the Portugese Labor Law ensures equal opportunity in labor and and prevents gender discrimination. The Code also guarantees maternity and paternity leave, bans harassment, establishes universal preschool for children until the age of five, and requires children to attend school.



Law on Equal Opportunities for Women and Men (2012)

Gender discrimination, Sexual harassment

The Law on Equal Opportunities for Women and Men (the “LEOWM”) is specialized legislation that prohibits discrimination on grounds of sex and gender. Articles 3(3), 4, 5 and 7 expressly mention that prohibition of sex discrimination is an essential part of the law. The LEOWM further provides that “gender-based sexual harassment is any type of unwanted verbal, non-verbal or physical behaviour of sexual nature, aimed at or resulting in violation of the dignity of a person, especially when an intimidating, hostile, degrading, humiliating or offensive atmosphere is created.” (English translation available from the ILO through the external link.)



Law on Prevention of and Protection from Discrimination (Official Gazette of the Republic of Macedonia nos. 50/2010, 44/2014, 150/2015, 31/2016 and 21/2018) (2010)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The Law on Prevention of and Protection from Discrimination (the “LPPD”), which entered into force in 2011, introduced the concepts of direct and indirect discrimination (Article 6), instruction to discriminate (Article 9) and harassment and sexual harassment (Article 7). The LPPD covers almost all grounds of discrimination as covered by EU law i.e. “ sex, race, colour, gender, belonging to a marginalized group, ethnic origin, language, nationality, social background, religion or religious beliefs, other types of beliefs, education, political affiliation, personal or social status, mental and physical impediment, age, family or marital status, property status, health condition or any other basis anticipated by a law or ratified international agreement." However,  the LPPD does not cover discrimination based on sexual orientation. Article 9 of the LPPD also covers sexual harassment, which states that “sexual harassment shall be unwanted behavior of sexual nature, manifested physically, verbally or in any other manner, aimed at or resulting in violation of the dignity of a person, especially when creating a hostile, intimidating, degrading or humiliating environment." Article 4 of the LPPD covers a wide scope on the prohibition on harrassments, which includes: (a) labour and labour relations; (b) education, science and sport; (c) social security, including the area of social protection, pension and disability insurance, health insurance and health protection; (d) judiciary and administration; (e) housing; (f) public information and media; (g) access to goods and services; (h) membership and activity in unions, political parties, citizens’ associations and foundations or other membership-based organizations; (i) culture, and (j) other areas determined by law. (English translation available from the ILO through the external link.)



Protection Against Sexual Harassment Act (2003)

Sexual harassment

The Protection Against Sexual Harassment Act defines “unwelcome sexual advances,” outlines actionable forms of sexual harassment, and the process for filing a complaint with the court.  It is the court that may then carry out investigations and “may endeavor by such means as it considers reasonable to resolve a complaint.”  This Act also penalizes retribution and retaliation against complainants or witnesses, as well as false complaints.



Anti-Discrimination Act of 1992 (Northern Territory) (2018)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The Anti-Discrimination Act prohibits discrimination in certain settings on the grounds of any designated attribute, including sex, sexuality, marital status, pregnancy, parenthood, and breastfeeding.  Unlike in other Australian jurisdictions, “gender identity” and “sex characteristics” are not included as designated attributes in the Northern Territory.  The settings in which discrimination based on a designated attribute is prohibited include: education, work, accommodation, provision of goods, services and facilities, clubs, and superannuation.  Discrimination includes any distinction, restriction, or preference made based on a designated attribute that has the effect of nullifying or impairing equality of opportunity, and harassment based on a designated attribute.  Certain exceptions from the prohibition of discrimination exist, including: certain religious circumstances; provision of rights or privileges connected to childbirth; and discrimination aimed at reducing disadvantage.  Alleged victims of prohibited discrimination can lodge a complaint against the discriminating person or entity, which will trigger a conciliation.  If the matter is not resolved through conciliation, the Northern Territory Anti-Discrimination Commissioner may assess the complaint.  If the Commissioner finds that the complaint is substantiated, the Northern Territory Civil and Administrative Tribunal can order that the discriminator pay compensation to the victim, discontinue the discriminating behavior, or do any other act specified by the Tribunal.  



Domestic Violence (Amendment) Act 2017 (2017)

Domestic and intimate partner violence, Property and inheritance rights, Sexual harassment, Stalking

Prevent gaps in protection. An interim protection order (IPO) protects survivors during police investigation, while a protection order (PO) protects survivors during criminal court proceedings. The amendments specify when an IPO ends, and when a PO begins, so survivors won’t be left without protection between police investigations and court proceeding.Strengthen the IPO to prevent further abuse. With the amendments, an IPO can include additional safeguards, like prohibiting an abuser from coming near a survivor – so police can intervene before further violence happens.Expand the definition of domestic violence. The expanded definition will protect against: misappropriating property, which causes distress; threatening, which causes distress or fear for safety; or communicating (including electronically) with the survivor to insult modesty.Improve rehabilitation provisions. A court can no longer order a survivor to attend reconciliatory counselling with the abuser, which puts the survivor in danger. Instead, the abuser can be ordered to complete a rehabilitation programme.Recognise survivor’s right to exclusive occupancy. If a court grants a survivor occupancy of a shared residence, it must grant the survivor exclusive occupancy – not just a specified part of the residence.Keep survivors better informed. The police officer must keep survivors informed on the status of investigation, status of IPO and PO, and important court dates.Create the Emergency Protection Order (EPO). The EPO helps survivors get protection faster – EPOs are issued by social welfare officers who are easily accessible (IPOs are issued by magistrates). Survivors won’t have to make a police report to get an EPO. The EPO is valid for seven days, and protects against physical injury and fear of physical injury.


Schweizerisches Strafgesetzbuch/Swiss Penal Code (2014)

Female genital mutilation or female genital cutting, Forced and early marriage, Harmful traditional practices, Sexual harassment, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Art. 124: A person who seriously injures a female’s genitals can be sentenced to up to 10 years in prison or fined.  A person may be punished for causing such injuries abroad if the person is not extradited.

Art. 181a: The statute provides that anyone who coerces someone to marry or register a same-sex partnership by the use of force or threats can be punished by sentence of custody of up to five years.  The statute applies even if the marriage occurred outside Switzerland if the person has not been extradited. 

Art. 187: A person can be punished by up to five years in custody or a fine for (1) committing a sexual act with a person under 16 years old, (2) inciting a child under 16 to commit a sexual act, or (3) involving a child under 16 in a sexual act.

Art. 190: A person can be sentenced to between 1 and 10 years in custody or a fine for using violence, threats, or psychological pressure to force a female to engage in a sexual act, or for making her incapable of resisting. 

Art. 195: A person can be sentenced to 10 years in custody or fined for (1) inducing or encouraging a minor to engage in prostitution for financial gain, (2) inducing a person into prostitution by taking advantage of their dependency, (3) restricting a prostitute’s freedom to act by controlling his or her work as a prostitute, or (4) making a person continue as a prostitute against his or her will.

Art. 198: A person may be fined for offending someone by performing a sexual act in the presence of another who is not expecting it or sexually harassing someone through physical acts or indecent language. 



Federal Act on Gender Equality (1996)

Employment discrimination, Gender discrimination, Sexual harassment

Article 1 of this act states that it is intended to promote equality between men and women.  Article 3 prohibits discrimination against employees based on sex.  Article 4 prohibits sexual harassment in the workplace.  Article 5 provides for relief, including injunctive relief and lost salary.  Article 10 protects against retaliation against complainants. 



On Ensuring the Equal Rights and Opportunities for Women and Men (No. 2866-IV) (2005)

Employment discrimination, Gender discrimination, Gender-based violence in general, Sexual harassment

The Equal Opportunities Act of Ukraine (the “Act”) provides for the legal framework of men and women’s parity in all spheres of social life through providing legal support for equal rights and opportunities, removal of gender-based discrimination and prevention of misbalance between women’s and men’s opportunities in implementing the rights granted to each of them by the Constitution and other laws.  Pursuant to the Act, “equal rights” means absence of gender-based restrictions or privileges.  The Act provides that equal rights for men and women will be ensured in the election process, civil service, employment and career, social security, entrepreneurial activity and education, in each case, through the relevant government/regulatory bodies.  The Act prohibits gender-based violence (which is defined as “actions directed at persons through their sex, stereotyped widespread customs or traditions or actions that relate predominantly to persons of a determined sex and create physical, sexual, psychological or financial damage or suffering”) and sexual harassment (defined as "sexual actions of a verbal or physical nature, which may humiliate or insult the person who is dependent on the perpetrator due to work, official, financial or other reasons").  Violation of the Act can result in a limitation order being issued to temporarily restrict the rights of the offender and protect the rights of the victim, including prohibiting the victim on residing with the victim at their place of residence, approaching the victim up to a certain distance and limitations on telephone calls or other communication with the victim.



Gender Law of 10 May 2007 (2007)

Abortion and reproductive health rights, Divorce and dissolution of marriage, Employment discrimination, Gender discrimination, Harmful traditional practices, International law, LGBTIQ, Property and inheritance rights, Sexual harassment

The Gender Law of 10 May 2007 combats discrimination between women and men (thereby implementing European Union legislation) and prohibits every form of discrimination based on gender, change of gender, gender identity, gender expression, pregnancy, childbirth and motherhood. Direct and indirect discrimination, giving orders to discriminate, intimidation and sexual intimidation are all explicitly prohibited. Discrimination is prohibited with regard to access to goods and services, social security, social benefits, membership of professional organizations, and employment relations and conditions. Differences (in terms of access to certain goods or services, or employment conditions) are only allowed if it is objectively justified by a legitimate aim and if the restrictions are appropriate and necessary to achieve this aim. Differences are also allowed on a temporary basis in the context of positive action to prevent or compensate for gender-related disadvantages. Victims of discrimination can submit a reasoned complaint or take legal action. If the plaintiff has produced facts which indicate that there has been discrimination, the burden of proof is on the defendant to demonstrate that there was no gender-based discrimination.


Act on Securing, Etc., of Equal Opportunity between Men and Women in Employment (Act No. 113 of 1972) (2017)

Gender discrimination, Sexual harassment

The Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment (‘the Act’) aims to promote equal opportunities and treatment of men and women in the workplace. The Act falls under Article 1 of the Constitution’s mandate for the government to ensure equality under law and promote measures to ensure the health of working women during pregnancy and after childbirth.  Japan enacted the Act in 1985 upon the United Nation’s ratification of Convention on the Elimination of all forms of Discrimination against Women.  The Act prohibits employment discrimination based on sex at each stage of recruitment, assignment, and promotion. It also prohibits discriminatory treatment based on marriage status, pregnancy and childbirth.  In addition, an Amendment to the Act in 2017 obligates employers to take steps to prevent harassment based on a protected status.  To ensure its effectiveness, the Act requires that employer violations of the statute be publicly announced, and a fine imposed on employers who violate the reporting obligation.  



Law No. 06/019 of 20 July 2006, Modifying and Completing the Decree of 6 August 1959 Relating to the Congolese Penal Procedure Code (2006)

Female genital mutilation or female genital cutting, Forced sterilization, Gender-based violence in general, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

This law requires the courts to secure the privacy and dignity, as well as physical and psychological well-being of victims of sexual violence during proceedings.  However, it does not detail any specific measures to be undertaken.  The law also stops courts from inferring sexual consent from silence or lack of resistance and prevents courts from taking into consideration a victim’s sexual history in ascertaining a defendant’s guilt.



Law No. 06/019 of 20 July 2006, Modifying and Completing the Decree of 6 August 1959 Relating to the Congolese Penal Procedure Code (2006)

Forced and early marriage, Gender-based violence in general, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The 2006 amendment to the Congolese Penal Code has the explicitly stated aim of bringing Congolese law relating to sexual violence in line with international standards.  The age of minority was raised from 14 to 18, the definition of rape was widened, and new types of sexual assault were criminalised.



Employment (Sexual Harassment) Regulations of 2012 (2012)

Employment discrimination, Sexual harassment

The Employment (Sexual Harassment) Regulations of 2012 (the “ESH Regulations”) define, prohibit, and provide punishments for sexual harassment in the workplace.  The ESH Regulations were produced by the Directorate of Labour pursuant to the powers conferred by the Employment Act of 2006 (sec. 7, 97(1)).  The Regulations require employers with more than 25 employees to institute measures to prevent sexual harassment, including a written sexual harassment policy, providing the written policy to all employees with a copy, posting the policy in a public area, conducting regular trainings, and designating a “gender sensitive” person to handle sexual harassment complaints.  The Regulations also provide reporting guidelines, prohibition of retaliation, and appeals processes.  The penalty for sexual harassment is a fine not to exceed six currency points (a currency point is 20,000 USH) and/or imprisonment not to exceed three months.



Domestic Case Law

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. 



Brown v. Moore Supreme Court of Queensland (1996)

Employment discrimination, Gender discrimination, Sexual harassment

The respondent was a married aboriginal woman employed at the The Black Community Housing Service as a bookkeeper since 1985 and later as an Administrator until her resignation in August 1992. The first appellant became the director of the Housing Service in December 1990, and the second appellant was the employer, The Black Community Housing Service. The respondent started receiving calls from the appellant where he expressed his love to her and made inappropriate sexual remarks. The appellant also made inappropriate sexual remarks to the respondent when attending meetings together, on other occasions he gifted her “sexually explicit figurines,” and “touched her sexually suggestively on numbers of occasions.” The respondent did not confront the appellant in fear of losing her job, but she did complain to the board of directors who took no action against the appellant. Respondent filed a complaint against the appellant on the basis of sexual harassment and discrimination, and ultimately resigned when the board of directors would not remove appellant from his position while the investigation was underway. The Anti-Discrimination Tribunal found the claims of the respondent to be true. The Tribunal also learned that the employer did not have any policies on discrimination or sexual harassment, nor provided its employees with a training regarding the same. Since these are considered unlawful acts under the Anti-Discrimination Act 1991, the Tribunal ordered the employer and the appellant pay the respondent compensation for damages caused by the discrimination and sexual harassment. The first appellant filed this appeal stating that the Tribunal had no evidence that the respondent suffered any hurt and/or humiliation, nor that the respondent’s resignation was due to the behaviour of the appellant. The first appellant also objected on the compensation amount being “excessive in the circumstances.” The second appellant appealed, stating that the employer was not vicariously liable for the acts of the first appellant. The Supreme Court dismissed the appeal and affirmed the orders of the Tribunal.



Mount Isa Mines, Ltd. v. Hopper Supreme Court of Queensland (1998)

Employment discrimination, Gender discrimination, Sexual harassment

The respondent was employed as an apprentice by the first appellant, the second appellant was her supervisor, and the third, fourth, and fifth appellants were her co-apprentices. Over the course of the respondent’s employment with the first appellant, she was subject to unlawful discrimination and sexual harassment by the third, fourth, and fifth appellants (among others). The complaint by the respondent included her receiving sexual comments and unequal treatment by her superiors and co-workers because she was a female, and many of her peers told her that she was not fit for her job because she was a female. Examples of these acts were a display of pictures and posters of half-dressed women in various parts of the workplace, addressing the respondent in the presence of others at a training with inappropriate comments, not giving the respondent the same work opportunities as her male peers, and providing her with unfavourable report cards that included clear comments against her as a female. The Anti-Discrimination Tribunal in the first instance found that the first appellant was negligent in providing the proper training to its employees on anti-discrimination and sexual harassment at the work place, subsequently allowing the other appellants to act in a discriminatory way towards the respondent because of her gender. Since these are considered unlawful acts under the Anti-Discrimination Act 1991, the Tribunal ordered the appellants to pay the respondent compensation  for damages caused by discrimination and sexual harassment. The appellants’ filed this appeal objecting to the Tribunal’s findings. The Supreme Court dismissed the appeal and affirmed the orders of the Tribunal.



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.



Berning v. State Department of Correction Court of Appeals of Tennessee at Nashville (1999)

Employment discrimination, Sexual harassment

The plaintiff, the manager of the Tennessee Department of Correction’s Murfreesboro probation office, was fired after an anonymous letter was sent to the department alleging that the office was rife with sexual harassment, creating a hostile work environment. An administrative law judge reviewed the plaintiff’s termination and found it to be warranted. The plaintiff appealed the administrative law judge’s decision to the Davidson County Chancery Court, which affirmed the order. The Court of Appeals of Tennessee affirmed the Chancery Court’s decision, holding in part that the conduct for which he was fired was not protected speech under the First Amendment.



Keeton v. Hill Court of Appeals of Tennessee at Nashville (2000)

Gender discrimination, Sexual harassment

The plaintiff was fired for falsifying documents related to her work time. She sued in the Davidson County Chancery Court, alleging sexual harassment and retaliatory discharge in violation of the Tennessee Human Rights Act (“THRA”). The plaintiff alleged that her supervisors made sexually derogatory remarks to her, and that she was fired shortly after she complained about these comments. The Court granted summary judgment in favor of the defendant, and the Court of Appeals of Tennessee affirmed because the employer had established the affirmative defense of exercising reasonable care.



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.



Anderson v. Save-A-Lot, Ltd. Supreme Court of Tennessee (1999)

Employment discrimination, Sexual harassment

The plaintiff was the co-manager of a Save-A-Lot grocery store in Memphis, where her immediate supervisor sexually harassed her daily and threatened to kill her if she reported the harassment. She reported him and transferred to another store, but suffered post-traumatic stress disorder (“PTSD”) and other psychological problems for which she sought medical treatment. She filed a complaint for workers compensation, which is at issue in this appeal, as well as a claim in federal court for sexual harassment in violation of the Tennessee Human Rights Act (“THRA”) and Title VII of the Civil Rights Act of 1964. The Shelby County Chancery Court granted summary judgment in favor of her employer on her worker’s compensation claim, finding that that her injuries did not arise out of her employment. The Special Workers Compensation Appeals Panel reversed and remanded, but the Supreme Court of Tennessee reversed the Panel’s ruling, holding that her employment was not the “but for” cause of her injuries.



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.



Middlekauff v. Allstate Insurance Co. Supreme Court of Virginia (1994)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff sued her former supervisor and former employer for intentional infliction of emotional distress due to her supervisor’s harassment, which consisted of sexist and belittling remarks over an extended period of time.  The lower courts held that her claim was barred by the Virginia’s Workers Compensation Act, which supplies remedied for injuries by accident, arising out of and in, the course of the employment or occupational disease but excluded any other remedies for such injuries. The issue before the Court was whether a pattern of harassment constituted the type of injury for which a lawsuit had to be filed under the Workers Compensation Act only. In reversing the lower courts’ decision, the court overruled its prior decision in Haddon v. Metropolitan Life Insurance Co., 389 S.E.2d 712 (Va. 1990), which held that a pattern of sexual harassment constituted an “injury by accident” and thus could only be brought under the Workers’ Compensation Act.  The Court reasoned that Haddon was irreconcilable with long-established precedent holding that a “gradually incurred” injury over an extended period of time did not constitute an “injury by accident” and was thus not covered by the Act’s exclusion of other remedies.  The Court’s decision allowed for a tort cause of action for intentional infliction of emotional distress based on a pattern of sexual harassment in the workplace.   



Lockhart v. Commonwealth Education Systems Corp. Supreme Court of Virginia (1994)

Employment discrimination, Gender discrimination, Sexual harassment

Two plaintiffs, A and B, sued their former employer for wrongful termination, one based on racial discrimination and the other based on gender discrimination. Plaintiff B alleged that her supervisor touched her sexually without her consent and, when she complained, he fired her.  The lower courts dismissed the actions, concluding that, pursuant to the employment-at-will doctrine, the plaintiffs were at-will employees who could be terminated for any or no reason at all.  The issue before the Court was whether workplace discrimination could constitute a public policy exception to the employment-at-will doctrine and whether the availability of federal statutory remedies precluded state tort lawsuits. In reversing lower courts’ decision, the Court cited its precedents recognizing a public policy exception to the employment-at-will doctrine and concluded that it is “[w]ithout question” that it is the public policy of the Commonwealth of Virginia that individuals within the state are “entitled to pursue employment free of discrimination based on race or gender.”  The Court rejected the employer’s argument that the availability of federal statutory remedies should preclude a state tort cause of action based on wrongful discharge, explaining that it is not uncommon for injuries resulting from the same set of operative facts to give rise to multiple remedies.



Robinson v. Salvation Army Supreme Court of Virginia (2016)

Employment discrimination, Sexual harassment

The plaintiff sued her former employer, alleging wrongful termination because she refused her supervisor’s request for unmarried sex in violation of a statute that proscribed fornication. The plaintiff alleged that her supervisor also made frequent lewd requests and comments when he was alone with her as well as suggestive gestures and inquiries concerning her romantic life. After plaintiff played secret recordings of these conversations to human resources she was terminated without explanation.  The issue before the court was whether termination for refusing to engage in unmarried sex could be the basis of a public policy exception to the at-will employment doctrine. In rejecting the plaintiff’s claim, the court reasoned that a public policy argument cannot be based on an unconstitutional statute. Further, that a statute that sought to regulate private consensual sexual activity between adults was unconstitutional. Here, plaintiff could not base her claim on the statute that forbade unmarried sex because such a statute sought to regulate private consensual activity between adults and was therefore unconstitutional. This case is significant because the court reached this conclusion even though the conduct at issue was economically coercive and the same alleged facts could arguably have supported a wrongful discharge claim based on statutes concerning gender discrimination or “criminal acts” of “adultery and lewd and lascivious cohabitation,” statutes, which the court did not purport to overrule.   



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.



Williams v. General Motors Corp. United States Court of Appeals for the Sixth Circuit (1999)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff-appellant, who worked for General Motors for more than 30 years, sued the company for violating Title VII of the Civil Rights Act, claiming that she experienced a hostile work environment and retaliation. She alleged that she suffered a variety of sexually harassing comments, as well as other slights such as being the only employee denied a break and the only employee without a key to the office. The district court granted summary judgment in favor of her employer on both her hostile work environment and retaliation claims. The Sixth Circuit affirmed the district court’s grant of summary judgment on the plaintiff’s retaliation claim, but reversed and remanded the lower court’s ruling on her hostile work environment claim, finding that there was a genuine issue of material fact as to whether her allegations were sufficiently severe or pervasive enough to violate Title VII.



Smith v. City of Salem United States Court of Appeals for the Sixth Circuit (2004)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The plaintiff-appellant a trans woman lieutenant in the Salem, Ohio, Fire Department, sued the City of Salem, alleging discrimination based on sex in violation of Title VII of the Civil Rights Act. According to the plaintiff’s complaint, after she began expressing a more feminine appearance at work on a full-time basis, her co-workers informed her that she was not acting masculine enough. She then notified her immediate supervisor that she had been diagnosed with gender identity disorder and that she planned to physically transition from male to female. The plaintiff’s supervisor met with the City of Salem’s Law Director and other municipal officials, who required the plaintiff to undergo three psychological evaluations. The plaintiff retained legal counsel, received a “right to sue” letter from the U.S. Equal Opportunity Employment Commission, and was shortly thereafter suspended for one 24-hour shift, allegedly in retaliation for retaining counsel. The district court dismissed his complaint, but the Sixth Circuit reversed and remanded, holding that the plaintiff sufficiently plead a prima facie case of retaliation under Title VII, as well as claims of sex stereotyping and gender discrimination.



Barnes v. City of Cincinnati United States Court of Appeals for the Sixth Circuit (2005)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The plaintiff-appellant, a trans (“a pre-operative male-to-female transsexual”) police officer, applied to be promoted to sergeant within the Cincinnati Police Department. The plaintiff passed the sergeants exam but failed a rigorous training program and was denied promotion. The plaintiff sued the City of Cincinnati, alleging that the denial of her promotion was due to sex-based discrimination and failure to conform to male sex stereotypes, such as wearing makeup, in violation of Title VII of the Civil Rights Act and the Equal Protection Clause. The district court ruled in favor of the plaintiff and awarded her $320,511 as well as attorney’s fees and costs. The Sixth Circuit affirmed, holding that the plaintiff met all four requirements of a claim of sex discrimination: that the plaintiff is a member of a protected class, that she applied and was qualified for a promotion, that she was considered for and denied a promotion, and that other employees of similar qualifications who were not members of the protected class received promotions.



Thornton v. Federal Express Corp. United States Court of Appeals for the Sixth Circuit (2008)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff-appellant, a former employee of FedEx, the defendant, was discharged when she did not return from work after a 16-month leave of absence. She took this leave because of stress she suffered after being sexually harassed by her immediate supervisor, and she did not return to work because her health care providers had not released her from treatment for panic disorder and fibromyalgia. The plaintiff sued for sex discrimination in violation of Title VII of the Civil Rights Act, as well as discrimination based on disability in violation of the Americans with Disabilities Act. The District Court granted summary judgment in favor of FedEx, and the Sixth Circuit affirmed, holding that the plaintiff did not establish either that she was disabled under the Americans with Disabilities Act or that she suffered an adverse employment action.



Gilbert v. Country Music Association, Inc. United States Court of Appeals for the Sixth Circuit (2011)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

After the plaintiff-appellant, a theater professional who was openly homosexual, complained that a coworker had threatened him based on his sexual orientation and a union hiring hall of which the plaintiff was a member refused to provide him with work. Gilbert sued his union and a collection of various employers, alleging, among other claims, discrimination under Title VII of the Civil Rights Act. The district court granted the defendants’ motion to dismiss, holding that Title VII does not prohibit discrimination based on sexual orientation. The Sixth Circuit affirmed in part and reversed in part. The court observed that, while Title VII prohibits sex discrimination, and that this prohibition includes “sex stereotyping” whereby a plaintiff suffers an adverse employment action due to his or her nonconformity with gender stereotypes. The court held that Gilbert had not plead a sex stereotyping claim since other than his sexual orientation, the plaintiff fit every male stereotype, and sexual orientation did not suffice to obtain recovery under Title VII: “[f]or all we know,” the Court stated, “Gilbert fits every ‘male stereotype’ save one—sexual orientation—and that does not suffice to obtain relief under Title VII.”



Kalich v. AT&T Mobility United States Court of Appeals for the Sixth Circuit (2012)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The plaintiff-appellant sued his employer, AT&T, in state court under Michigan’s Elliott-Larsen Civil Rights Act, and AT&T removed the action to the United States District Court for the Eastern District of Michigan. The plaintiff alleged that his immediate supervisor made a series of sexually inappropriate comments to him over the course of a year that created a hostile work environment. These comments included calling him by a girl’s name and telling him he looked like a girl. The district court granted the defendant’s motion for summary judgment, and the Sixth Circuit affirmed, holding that the plaintiff failed to demonstrate that his supervisor’s conduct toward him was because of his gender. The appellate court noted that the plaintiff stated in his deposition that he believed that his supervisor made these derogatory comments because he knew or suspected that the plaintiff was gay and that sexual orientation discrimination was not a protected classification under Title VII or Michigan law.



EEOC v. New Breed Logistics United States Court of Appeals for the Sixth Circuit (2015)

Employment discrimination, Sexual harassment

The plaintiff-appellant, the Equal Employment Opportunity Commission, initiated sexual harassment and retaliation claims under Title VII against New Breed Logistics, the defendant, on behalf of three employees. The plaintiff alleged that Calhoun, a supervisor at New Breed sexually harassed three female employees and then retaliated against the women after they complained. The plaintiff further alleged that Calhoun retaliated against a male employee who verbally objected to Calhoun’s harassment of the women. The evidence presented to the district court that showed that each woman communicated her intent to complain about Calhoun’s sexual harassment shortly after which all three women were fired or transferred. One of the women lodged a complaint through the company’s complaint line but the company asked Calhoun five questions about his conduct and determined there was no misconduct. A jury found the defendant liable under Title VII for Calhoun’s sexual harassment and retaliation, and the district court denied the defendant’s post-trial motions for a new trial and judgment as a matter of law. The district court determined that complaints to management and informal protests were protected activities under Title VII. Therefore, the three employees’ demand that Calhoun stop harassing them were considered protected activity under Title VII, and retaliation constituted a violation of Title VII. The defendant appealed, challenging the district court’s denial of its post-trial motions. The Second Circuit affirmed the district court’s decisions, finding that sufficient evidence supported the district court’s rulings and that the district court did not abuse its discretion when providing instructions to the jury.



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.



Life Office of Namibia Ltd. (NamLife) v. Amakali Labour Court of Namibia (2014)

Employment discrimination, Gender discrimination, Sexual harassment

The respondent was charged with two counts of sexual harassment of female coworkers and with the verbal abuse of another female coworker. His employer (the “company”) found that he had violated the company’s policies and fired him. The respondent brought a claim for wrongful termination to the Office of the Labour Commissioner, and the dispute was referred to arbitration. The arbitrator found in favor of the respondent and ordered the company to reinstate him and pay him N$102,000 in lost wages. The company appealed the decision to the courts. The judge overturned the arbitrator’s decision, finding that he overlooked numerous relevant facts in making his conclusions, which “no reasonable court or tribunal court have reached.” The court held that the company acted appropriately in terminating the respondent’s employment because sexual harassment and discrimination in the workplace are serious offenses that create obstacles to equality in employment. 



Gawaxab v. The State High Court of Namibia (2018)

Femicide, Gender-based violence in general, Sexual harassment

The accused was charged with assaulting and murdering a woman. At trial, the accused filed an application for his discharge at the close of the prosecution’s case, arguing that the prosecution failed to make a case requiring the accused to answer. According to prosecution evidence, after buying alcohol and drinking it with a group of women he did not know, including the deceased, an argument began because the accused stated that he could have sex with all the women. The driver stopped the car when the accused hit the deceased with a bottle. The accused continued to beat the woman outside of the car and the others drove away in fear for their lives to report the attack the police. Upon their return to the scene, they found and picked up the deceased, who was running down the road after escaping the accused. She later passed away from her injuries. At trial, prosecutors presented several eye-witnesses to testify against the accused, as well as direct and circumstantial evidence to support their case. The accused argued that the eye-witnesses had been intoxicated at the time of the assault and therefore their testimony was unreliable. He also argued that the prosecutors failed to meet their burden to convict him. However, the court agreed with the prosecution and refused to discharge the accused, finding that the prosecution’s evidence presented a prima facie case that the accused was legally obliged to answer.



H.V.N. v. EM-M Defensa-FAA and Others Cámara Nacional de Apelaciones en lo Contencioso Administrativo Federal (National Federal Administration Appeals Court) (2015)

Employment discrimination, Sexual harassment

The plaintiff filed suit against her employer, the Ministry of Defense—Argentine Air Force, seeking damages for sexual harassment and workplace persecution because her supervisor made indecent proposals, threatened her employment if she did not accede to his demands, made sexually explicit comments, and impeded her advancement.  The trial court ruled against the plaintiff on the basis that (1) a psychological report indicated that she suffered from “moderate reactive development,” therefore making it impossible to determine the level of fault that corresponded to the alleged hostile conduct or to her “moderate reactive development,” (2) while certain testimony indicated the plaintiff was subject to certain “inconveniences” caused by her supervisor, the court found that these were insufficient to support a claim of sexual harassment or other unlawful conduct and (3) the plaintiff was therefore subject to a higher burden of proof in relation to the alleged conduct and that this burden was not met.   In reversing the trial court’s ruling, the appellate court noted that (1) workplace sexual harassment is characterized by extreme psychological violence in the workplace that is both systematic and prolonged and that is carried out for the purpose of devaluing, perturbing, or debasing the victim so that the victim abandons the workplace or accepts other workplace conditions, and (2) particular difficulties arise in proving that the offensive conduct took place. For this reason, the court noted, special importance must be given to testimony given by work colleagues, medical or psychological reports to determine the existence of physical or psychological damage and documentary evidence.  Specifically, the appellate court found that the plaintiff presented sufficient witness testimony, documentary evidence and psychological and accounting reports to sustain her claims. In addition to allowing damages, the appellate court ordered the defendants to pay costs.



Sentenza N. 10959/2016 Corte de Cassazione: Sezioni Unite (Supreme Court: Joint Sections)

Domestic and intimate partner violence, Femicide, Gender-based violence in general, International law, Sexual harassment, Sexual violence and rape, Stalking, Statutory rape or defilement

The Supreme Court, in deciding upon the applicability of certain procedural rules, confirmed the main international definitions of violence within gender relationships. Particularly, the local court dismissed the case against a man charged with the crimes of stalking and mistreatment in the family pursuant to articles 612-bis and 572 of the Italian Criminal Code, without giving any notice thereof to the person injured by the crime in accordance with Article 408 of the Italian Code of Criminal Procedure. In deciding the case, the injured person appealed the decision of the local court and requested the Italian Supreme Court to declare the dismissal of the case null and void. In deciding the procedural issue at hand, the Italian Supreme Court pointed out that the Italian criminal law has drawn the definitions of gender violence and violence against women mainly from international law provisions, which are directly enforced in the system pursuant to Article 117 of the Constitution. In this decision the Italian Supreme Court gave all the definitions of violence within gender relationships in consideration of international conventions and specifically European law, and concluded that such definitions, even if not directly included in domestic regulations, “are fully part of our national system through international law and are therefore enforceable.” According to this interpretation, the definitions of gender violence given by the Istanbul Convention on preventing and combating violence against women and domestic violence are directly applicable in the Italian legal framework. On this basis, the Court ruled that notice of dismissal of the case must always be served on the person injured by crimes of stalking and mistreatment in the family pursuant to articles 612-bis and 572 of the Italian Criminal Code, as those provisions relate to the gender violence notion set forth under the international and EU provisions applicable in the Italian legal framework.



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.”



Gutierrez v. The Queen Court of Appeal of Belize (2018)

Employment discrimination, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of raping a 16-year-old female colleague and was sentenced to eight years in prison.  The Court of Appeal granted a retrial because the trial court had “erred in failing to give a proper/adequate direction to the jury.”  Under Section 92(3)(a) of Belize’s Evidence Act, a trial court has discretion to “warn the jury of the special need for caution” where the only evidence against a person charged with rape is the word of the victim.  Where a judge exercises such discretion, he or she must provide the reasons for cautioning the jury.  The trial judge did caution the jury in the case, but the Court of Appeal found he had erred by not warning the jury that the complainant had lied during her testimony and by not pointing out the complainant’s admission that she had been raped was made only after being threatened by her father.  The Court of Appeal also found that the trial judge should have warned the jury that the complainant “may have had some kind of relationship with the Appellant.”



Hofer v. Anti-Discrimination Commissioner Supreme Court of the Northern Territory (2011)

Employment discrimination, Sexual harassment

In 2009, a female employee made a formal complaint regarding improper conduct in the workplace, including continuous inappropriate and derogatory comments, by a Northern Territory Police Force member to whom she was a personal assistant, Bert Hofer.  The complaint resulted in an investigation and Hofer’s demotion and transfer.  On April 13, 2010, the female employee further made a complaint to the Northern Territory Anti-Discrimination Commission of discrimination and sexual harassment in violation of the Anti-Discrimination Act (Northern Territory).  Pursuant to Section 66 of the Anti-Discrimination Act, the Commissioner must accept or reject a complaint not later than 60 days after receipt of the complaint.  The complaint was accepted on November 1, 2010, well beyond the 60-day timeframe.  Hofer argued that the decision to accept the complaint should be set aside due to the Commissioner’s failure to accept the complaint within the statutory timeframe.  Further, Hofer argued that the Commissioner failed to consider whether the complaint was frivolous or vexatious.  The Supreme Court of the Northern Territory held that the Commissioner did consider whether the complaint was vexatious, and determined that it was not.  The fact that the Commissioner failed to accept the complaint within of the 60-day timeframe did not invalidate the decision as such a finding would result in unacceptable injustice inflicted on victims due to government inaction.  Accordingly, Hofer’s application was dismissed and the Commissioner’s decision to accept the complaint was upheld.



Ministério Público v. [Undisclosed Parties], 39/09.0TAFCR.C1 Tribunal da Relação de Coimbra (Court of Appeal of Coimbra) (2011)

Sexual harassment, Statutory rape or defilement

The defendant, a teacher, was charged with sexual harassment of children for multiple offenses against two of his students. On repeated occasions, the defendant inappropriately touched and made obscene gestures to the students, who were 11 and 12 years old. The Lower Court found the defendant guilty of the charges. The defendant appealed, arguing that he did not have sexual intent towards the students, and therefore did not satisfy all requisites of the crime of sexual harassment under section 171 of the Portuguese Penal Code. The Appellate Court affirmed the Lower Court’s decision, and held that the crime of sexual harassment of children under section 171 of the Penal Code requires only that the victim’s freedom and sexual self-determination is hindered by the defendant.



Ministério Público v. [Undisclosed Parties], 9/14.7GCTND.C1 Tribunal da Relação de Coimbra (Court of Appeal of Coimbra) (2016)

Sexual harassment, Statutory rape or defilement

The Public Prosecutor (Ministério Público) brought charges against the defendant, “A” (name omitted from public record), for sexual harassment against the victim, “D” (name omitted from public record) a minor girl. A had naked pictures of D and threatened to expose them using the internet unless D agreed to have sexual intercourse with him. The Lower Court held that D’s conduct did not meet the requirements of sexual harassment under section 163 of the Portuguese Penal Code, which requires a grave threat to the victim as an element of the crime. The Lower Court held that the threat to expose naked pictures of D is considered a grave threat under the Portuguese Penal Code. The Public Prosecutor appealed, and the Appellate Court reversed the decision, finding B guilty of sexual harassment.



F.A.P.A., Case No. 191-09-2016 Tribunal de Sentencia de Chalatenango (2016)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

F.A.P.A., the defendant, was a 54-year-old unmarried Salvadoran farmer residing in La Reina, El Salvador. At the time of the allegations giving rise to the case, he was receiving treatment for epilepsy.  An evening, F.A.P.A. visited his niece.  F.A.P.A. and his niece, a minor, were sitting on a couch watching television when his niece’s mother left the room to attend to her other children.  During that time, F.A.P.A. engaged in sexual behavior with his niece against her will by touching her genitals and kissing her in the mouth.  F.A.P.A. was subsequently arrested by Salvadoran police officers for sexually harassing his niece.  F.A.P.A. later confessed to these underlying facts.  Section 165 of the El Salvadoran Penal Code states a person is liable for sexual harassment when that person (1) engages in sexual behavior involving phrases, touching , signs, or other unequivocal conduct of a sexual nature or content, (2) the action is undesired by the person who receives it, (3) the action does not constitute a more serious sexual offence, (4) in the case of a person of legal age, the action is repeated, and (5) the action is intentional.  The court found that F.A.P.A.’s confession of intentionally touching his niece’s genitals and kissing her against her will satisfies the elements of sexual harassment.  Although F.A.P.A. was being treated for epilepsy, the court found that he was capable of distinguishing right from wrong and acted consciously.  The court found F.A.P.A. guilty of sexual harassment punishable by two years imprisonment.  However, in lieu of the prison sentence, the court exercised its discretion under articles 77 and 79 of the Penal Code and sentenced F.A.P.A. to two years of probation with the following restrictions: (1) prohibition from leaving the country; (2) prohibition from approaching the victim or her family; (3) prohibition from ingesting intoxicating drinks; and (4) will be under probationary surveillance.



Luis Alonso G.P., Case No. 145-2016-3 Tribunal Segundo de Sentencia de San Salvador (2017)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

In May 2015, a girl purchased bread from Defendant Luis Alonso, a 50-year-old baker, at his home.  While the girl was at Luis’ home, Luis physically attacked her and stated that he would “rape her.”  Although Luis did not carry out his threat, he threatened the girl that if she reported him, she would pay and that he would continue to harass her and physically assault her every time he saw her on the street.  In February, 2016, the girl was approached by Luis in a small town in Ciudad Delgado and was afraid that Luis would sexually assault her again so she reported the previous events to patrolling officers.  The patrolling officers arrested Luis for sexual harassment.  Section 165 of the El Salvadoran Penal Code provides that a person is liable for sexual harassment—punishable by three to five years imprisonment—when that person engages in unwanted sexual conduct involving phrases, touching, signs or other unequivocal sexual conduct that does not in itself constitute a more serious offense.  The court found that the defendant Luis Alonso sexually harassed the girl in violation of article 165.  The court replaced the three-year prison sentence with 144 days of community service and ordered that Luis pays the victim a civil penalty of $300.



Juan Carlos F.G., Case No. 18-2016-3 Tribunal Segundo de Sentencia de San Salvador (2017)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

Defendant Juan Carlos, a member of a gang known as the Mara Salvatrucha (MS), was arrested for sexually harassing and detaining a 16-year-old girl.  The victim was waiting for a bus an early afternoon when the defendant snatched her bag, attempted to kiss her, grabbed her by the neck, and forced her into a restaurant.  When the victim attempted to run away, the defendant pursued her and forcibly took her into a house where the defendant detained her in a room.  An anonymous individual in the neighborhood informed the police that the defendant was holding a girl captive.  Police officers entered the house and arrested the defendant.  Section 165 of the El Salvadoran Penal Code  provides that a person is liable for sexual harassment when that person engages in unwanted sexual conduct involving phrases, touching, signs or other unequivocal sexual conduct that does not in itself constitute a more serious offense.  Sexual harassment is punishable by three to five years of imprisonment.  Section 165 further provides that sexual harassment against a child under the age of 15 is punishable by eight years imprisonment.  Additionally, Section 148 of the El Salvadoran Penal Code provides that a person is liable for deprivation of freedom when that person deprives another of his or her individual liberty.  The crime of deprivation of freedom is punishable by three to six years imprisonment. The court found that the defendant sexually harassed the victim in violation of article 165 and deprived the victim of her freedom in violation of article 148.  Because the defendant performed multiple crimes, he was sentenced to 10 years 8 months of imprisonment. Three years of this sentence are attributable to sexual harassment, five years attributable to deprivation of freedom, increased by 1/3 for depriving a minor under the age of 18 of her liberty.  



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.



P.O. v. Board of Trustees, A.F., et al. Industrial Court at Nairobi (2014)

Employment discrimination, Gender discrimination, Gender-based violence in general, International law, Sexual harassment

The claimant accompanied one of respondents, a co-worker “J.”, on a work-related trip.  Throughout the business trip, J. made sexual innuendos towards the claimant and when his advances failed, he physically beat her.  He booked a single hotel room, while the claimant believed she would have her own room.  As a result, the claimant was forced to sleep on the floor and returned to Kenya two days later, while J. continued to the conference.  Upon the claimant’s return, she received multiple threatening emails from J. and her employment was terminated as of May 24, 2010 for alleged “misconduct” for not travelling to the conference.  Her salary for May was unpaid.  Although there were numerous legal issues decided in this case, including jurisdiction, the key issue was whether the claimant was subjected to gender-based discrimination and thus unlawfully terminated, and what, if any, entitlement is due to her.  The Industrial Court determined that J.’s conduct toward the claimant, no matter where it had occurred, clearly amounted to gender-based violence against an employee, and that his conduct “had the effect of nullifying or impairing the equality of opportunity or treatment in employment, based on her sex.”  The Industrial Court awarded P total compensation of Kshs 3,240,000, which included general damages for sexual harassment, and unfair and wrongful termination of Kshs 3,000,000.  This case is important to demonstrate Kenyan courts afford protection against sexual violence in multiple ways, including equal opportunity and human rights legislation, labor legislation, civil remedies and criminal law.  In addition to Kenyan employment law, the Industrial Court also relied on the 1993 UN Declaration on the Elimination of Violence against Women, the International Labour Organization, as well as other forms of jurisprudence to support eradicating violence and sexual discrimination against women in the workplace.  The decision noted that while the Constitution of Kenya was not yet in effect and thus not directly applicable when the case was tried, Articles 1, 3 and 5 of the 1948 UN Universal Declaration of Human Rights were included in the Kenyan Constitution and thus were applicable at the time the case occurred.



Caeiro v. Tecnosolar S.A., Case No. SEF-0013-000001/2015 Labor Appeals Court 2ºT (2015)

Employment discrimination, Sexual harassment

Fernanda Caeiro (Plaintiff) sued Tecnosolar S.A. (Defendant) in civil labor court for damages suffered because of sexual harassment in the workplace.  Plaintiff was an employee of defendant for 13 years and always had good performance reviews and was even promoted. One of the company’s directors, Mr. Gustavo Capurro, continuously harassed her in the workplace for over two years even though Plaintiff rejected his propositions.  Over the course of those two years, Mr. Capurro sent several inappropriate text messages and emails to Plaintiff. Plaintiff never responded to these messages.  On one occasion, he sent an email with more than 70 pictures of sexual content to Plaintiff. After this occurrence, Plaintiff filed a formal complaint with one of the company’s executives who asked Mr. Capurro to apologize but did not take any additional action against him.  Plaintiff quit her job and sued her employer for sexual harassment in the work place.  The Trial Court ruled in favor of Plaintiff and awarded her UR$ 880.272 pesos and a 10% administrative fine against Defendant.  Defendant appealed, arguing there was not enough evidence to find for Plaintiff and that, if anything, Plaintiff had consented to Mr. Capurro’s advancements. The Appeals Court analyzed all the unanswered harassing emails and messages sent by Mr. Capurro to Plaintiff and determined the appeal had no basis.  The court determined that Mr. Capurro’s conduct qualified as sexual harassment in the workplace per the definition included in Law No. 18.561 and that his conduct had effectively created a hostile work environment for Plaintiff that had forced her to quit her job.  Therefore, The Appeals Court affirmed the Trial Court’s award.



2016 (Ju) No. 2076 Supreme Court of Japan (2018)

Employment discrimination, Sexual harassment, Stalking

The appellee, a former employee of the appellant’s subsidiary, suffered sexual harassment and stalking from an employee of the appellant’s other subsidiary who shared the same work site with the appellee. The appellant had developed a corporate-group-wide compliance system, which included a consulting desk at which an employee of the appellant or its subsidiaries could raise and discuss any compliance-related matters.  The appellee brought the harassment issue to her supervisors at her immediate employer (i.e. the appellant’s subsidiary) twice, but sufficient solutions were not provided, following which she left the company without bringing the issues to the consulting desk.  The stalking continued even after her resignation, so her former colleague who still worked at the appellant's subsidiary brought the issue before the appellant through the consulting desk, but it did not provide sufficient solutions either.  The question brought before the Supreme Court was whether the appellant (i.e. a parent company of her former immediate employer) bore the duties based on the principle of good faith to provide certain protective measures to the appellant  because it had developed the corporate-group-wide compliance system.  The Supreme Court found that the appellant was not imposed with such duties in light of particular facts in the case since the appellant did not bring the harassment issue to the consulting desk during her employment.  However, in dicta, the Court stated that a parent company, depending on particular facts of the case, can be responsible for providing sufficient solutions to an employee of its subsidiary who is a victim of sexual harassment––failure of which would result in liability for damage based on the principle of good faith––if the parent company provides a system through which the employee could, and actually did, bring an issue of sexual harassment to the parent company’s attention.



Employment Termination (Jurisprudential Thesis Docket: 2a./J.66/2017 (10a.)) Supreme Court of Mexico (2017)

Employment discrimination, Gender discrimination, Sexual harassment

“EMPLOYMENT TERMINATION. WHEN EMPLOYMENT IS TERMINATED DURING AN EMPLOYEE’S PREGNANCY, THE EMPLOYER BEARS THE BURDEN OF PROOF TO DEMONSTRATE THAT SUCH TERMINATION WAS NOT DISCRIMINATORY.”

This jurisprudential thesis is a relevant example of case law, as the criteria issued by the Mexican Supreme Court is binding on all courts in the country. Mexico recognizes labor matters as independent from other matters of law, with a unique set of courts, legislation, and doctrine. This case law in particular comes from two different isolated theses, as settled by two different federal courts. The first case was settled by the Third Collegiate Tribunal in Labor Matters of the Third Circuit, and the second case was settled by the Third Collegiate Tribunal of Circuit in the Assistant Center of the Tenth Region. Both court resolutions contained contradictory substantive issues, which prompted the Supreme Court to settle these discrepancies. The Supreme Court acknowledged that all pregnant women should enjoy certain specific rights resulting from pregnancy. The Court also found that these rights should be extended to the postnatal period. The Supreme Court recognized that most pregnant women will likely face a lack of job security given the costs that maternity leave implies for most employers. The Supreme Court determined that pregnant women require certain social security benefits in order to eliminate the barriers and obstacles that they may face during the pre- and postnatal periods. When a pregnant employee is terminated and argues that the termination was discriminatory, the employer bears the burden of proving that such termination was not due to the woman’s pregnancy or any other discriminatory reason. In such scenarios, the courts must take a gender perspective approach in deciding such controversies in order to be able to effectively guarantee the rights of women recognized under the Mexican Constitution and international treaties to which Mexico is a signatory.

 

“TERMINACIÓN DEL EMPLEO. "CUANDO EL EMPLEO SE TERMINA DURANTE EL EMBARAZO DE UN EMPLEADO, EL EMPLEADOR ASUME LA CARGA DE PROBAR QUE DICHA TERMINACIÓN NO FUE DISCRIMINATORIA".

Esta tesis jurisprudencial es un ejemplo relevante de jurisprudencia, ya que los criterios emitidos por el Tribunal Supremo de México son de relevancia para todos los tribunales del país. México reconoce que los asuntos laborales son independientes de otros asuntos de la ley, con un conjunto único de tribunales, legislación y doctrina. Esta jurisprudencia en particular proviene de dos tesis diferentes, según lo resuelto por dos tribunales federales diferentes. El primer caso fue resuelto por el Tercer Tribunal Colegiado en Asuntos Laborales del Tercer Circuito, y el segundo caso fue resuelto por el Tercer Tribunal Colegiado de Circuito en el Centro Asistente de la Décima Región. Ambas resoluciones judiciales contenían cuestiones sustantivas contradictorias, lo que llevó a la Corte Suprema a resolver estas discrepancias. La Corte Suprema reconoció que todas las mujeres embarazadas deberían disfrutar de ciertos derechos específicos derivados del embarazo. El Tribunal también determinó que estos derechos deberían extenderse al período postnatal. La Corte Suprema reconoció que la mayoría de las mujeres embarazadas probablemente enfrentarán una falta de seguridad laboral, dado los costos que la licencia de maternidad implica para la mayoría de los empleadores. La Corte Suprema determinó que las mujeres embarazadas requieren ciertos beneficios de seguridad social para eliminar las barreras y obstáculos que pueden enfrentar durante los períodos pre y postnatal. Cuando una empleada embarazada es despedida y argumenta que la terminación fue discriminatoria, el empleador tiene la responsabilidad de probar que dicha terminación no se debió al embarazo de la mujer ni a ninguna otra razón discriminatoria. En tales escenarios, los tribunales deben adoptar un enfoque de perspectiva de género al decidir tales controversias para poder garantizar de manera efectiva los derechos de las mujeres reconocidos en la Constitución mexicana y los tratados internacionales de los que México es parte.



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.



Harmon v. GZK, Inc. Court of Appeals of Ohio (2002)

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

The plaintiffs worked at a restaurant operated by GZK. They alleged that a cook who worked with them repeatedly made lewd and sexually violent comments toward them, as well as touched them inappropriately without consent. The plaintiffs also alleged that a supervisor also made inappropriate sexual comments and groped them as he pretended to accidentally brush against them. They testified that they had brought this behavior to the attention of the management. The plaintiffs filed suit in the Montgomery County Court of Common Pleas, claiming sexual harassment, negligent supervision and retention, intentional infliction of emotional distress, and retaliatory discharge. The Court granted summary judgment in favor of their employer and the manager, but the Court of Appeals of Ohio reversed on all charges except the retaliatory discharge, finding genuine issues of material fact as to whether evidence of the cook and the manager’s inappropriate behavior rose to the level of creating a hostile work environment. 



Payton v. Receivables Outsourcing, Inc. Court of Appeals of Ohio (2005)

Employment discrimination, Gender discrimination, Sexual harassment

Marilyn Payton worked for Receivables Outsourcing for six weeks, during which time she was sexually harassed by a fellow employee who was assigned to train her at her new job. The harassment consisted of inappropriate comments until one day the coworker pulled up to her car as she was driving away from work, asked her to roll down her window, and then offered her ten dollars to perform a sex act. She complained to her manager that she felt unsafe, and the manager said he would “take care of it.” When she returned to work to find the manager not there, she informed the company lawyer of the harassment and left work, stating that she felt unsafe without the manager there. The next day she was fired for leaving work. She filed suit against her employer in the Cuyahoga Court of Common Pleas for hostile work environment sexual harassment and retaliatory discharge, but the Court granted summary judgment in favor of her employer. The Court of Appeals of Ohio reversed, finding that a genuine dispute of material fact existed as to whether the alleged harassment rose to the level of creating a hostile work environment and whether the employer negligently retained the alleged harasser.



Edwards v. Ohio Institute of Cardiac Care Court of Appeals of Ohio (2007)

Employment discrimination, Sexual harassment

The plaintiff-appellant worked as a scheduler at the Ohio Institute of Cardiac Care when she began to receive emails from her supervisor—approximately six to ten per day—that made her uncomfortable. Her supervisor then began touching her at work, such as on the lower back or shoulder, and his emails became more frequent. After she complained about this conduct, she began to receive tardy forms, and she was soon after fired, allegedly for changing clothes at work before Fourth of July weekend. She filed suit in the Greene County Court of Common Pleas, claiming sexual harassment and retaliation. After a jury trial, the court ruled in the plaintiff’s favor on her harassment claim but for the defendant on the retaliation claim, but the appellate court reversed and remanded because the defendant was entitled to a jury instruction as to its affirmative defense. Notably, the court held as a matter of first impression that a settlement between a supervisory employee and another employee does not extinguish the employer’s liability for sexual harassment claims.



Jones v. MTD Consumer Group, Inc. Court of Appeals of Ohio (2015)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff was fired from his job with MTD Consumer Group after sexually harassing a coworker. He and the coworker had been in a romantic relationship, which had since ended, when the coworker complained that the plaintiff had made a threatening gesture to her and her new boyfriend outside of her home. The plaintiff was also verbally derogatory toward this coworker until his employment was terminated. He sued MTD in the Medina County Court of Common Pleas, alleging reverse gender discrimination and negligent retention of his coworker. The Court granted the employer’s motion for a directed verdict, and the Court of Appeals of Ohio affirmed, holding that the evidence at trial was insufficient to support the plaintiff's claim that he was treated differently form a similarly-situated coworker.



Ex Parte Alabama Department of Youth Services Alabama Supreme Court (2003)

Sexual harassment, Sexual violence and rape

Plaintiffs, minor female children in the custody of Alabama’s Department of Youth Services (“DYS”), brought an action against DYS and its executive director, in which they alleged that the defendants failed to adequately respond to “a sexually hostile education environment” and sexual abuse and harassment. The plaintiffs brought federal claims under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. (“Title IX”) and 42 U.S.C. § 1983 (“§ 1983”), and state-law claims of intentional infliction of emotional distress, negligent hiring and supervision of employees, and intentional misrepresentation. The trial court denied the defendants’ motion to dismiss the claims based on various immunity arguments. The defendants filed a petition for writ of mandamus directing the Alabama Supreme Court to dismiss the complaint. In ruling on the defendants’ petition, the Alabama Supreme Court considered each claim for immunity. First, the Alabama Supreme Court held that DYS was not entitled to sovereign immunity under the Eleventh Amendment for claims brought under Title IX. Second, the Alabama Supreme Court found that the executive director was not entitled to federal qualified immunity for the § 1983 because the complaint alleged that he had notice of the sexual harassment and abuse yet failed to protect the plaintiffs from further harm. Finally, the Alabama Supreme Court considered the sovereign immunity provision of the Alabama constitution and found that dismissal of the plaintiffs’ state-law claims against the executive director in his official capacity was proper. Nonetheless, the Alabama Supreme Court found that the doctrine of state-agent immunity did not warrant dismissal of the plaintiffs’ state-law claims against the executive director in his individual capacity.



Thompson v. Louisville Metro Government Kentucky Court of Appeals (2013)

Employment discrimination, Gender discrimination, Sexual harassment

Dawn Thompson, an employee with the Louisville Department of Corrections, was approached by her immediate supervisor, Kevin Sidebottom, who wanted to begin a romantic relationship with her. After she rebuffed his advances, Thompson began to hear rumors that the two were romantically involved, which she denied. She was later denied a promotion to captain. Instead, the two promotions went to a woman who had the highest test scores and a man with lower test scores than Thompson. Thompson claimed that Sidebottom denied her promotion because she declined his romantic advances two years earlier. However, a higher-ranking officer claimed that he made the promotion decisions alone and declined to promote Thompson because of a recent EEO complaint against her, which was eventually dropped. Two months later, Thompson received a promotion to captain despite again hearing rumors about her romantic involvement with Sidebottom in addition to rumors that he had tried to prevent her promotion. After Thompson filed an EEO complaint, the department found that Sidebottom did not retaliate against her because he did not make the promotion decision. Thompson then sued the Louisville government and Sidebottom individually and in his professional capacity for sexual harassment, sex discrimination, and retaliation in violation of the Kentucky Civil Rights Act, but the Circuit Court granted summary judgment in favor of the defendants. The Kentucky Court of Appeals affirmed, holding that she was unable to demonstrate that the legitimate reason for her initial failure to be promoted was not the real reason she was denied, and in addition, failed to show that she suffered an adverse employment action.



Speedway Superamerica v. Dupont Florida 5th District Court of Appeal (2006)

Employment discrimination, Sexual harassment

Dupont, employed by Speedway convenience stores, sued Speedway alleging sexual harassment and hostile work environment. Dupont’s complaint stemmed from her interactions with a coworker, Coryell. For months, Dupont had complained to her superiors that Coryell acted inappropriately with her, both violently and sexually. For instance, Dupont complained that Coryell had inappropriately grabbed her, made sexual comments concerning female customers, and humiliated her. On appeal from a jury verdict, Speedway argued that it was entitled to summary judgment because the record did not establish that the misconduct was directed at Dupont because of her gender and the evidence did not establish that the conduct was so severe or pervasive that it established a hostile work environment. Speedway also argued that it was entitled to a directed verdict because it took prompt remedial action to address Dupont’s complaints. Finally, Speedway argued that the plaintiff should be barred from collecting $75,000 or more because she successfully filed to have the case remanded back to state court on the grounds that the amount in controversy was no more than $50,000 after Speedway obtained removal to federal court. The Court upheld the jury verdict. It found that Coryell’s conduct was motivated by a hostility toward women because of their gender and that the conduct was sufficiently severe and pervasive to alter the conditions of Dupont’s employment. Finally, the court found that the award of punitive damages was appropriate because Coryell’s conduct was clearly willful, Speedway had been at least negligent in failing to promptly and adequately respond to Dupont’s complaints, and Dupont requested remand to state court in good faith.



Blizzard v. Appliance Direct, Inc. Florida 5th District Court of Appeal (2009)

Employment discrimination, Sexual harassment

A female employee brought suit against her former employer for retaliation and sexual harassment based on claims that, among other things, her supervisor was constantly talking about his penis including graphic descriptions of its size, and his sexual prowess, history, successes, and aspirations. Blizzard did not allege that her supervisor’s comments were directed to her. Instead, she alleged that his comments were pervasive and that the female employees who were receptive to his “management style” received favors and preferences that Blizzard did not. Blizzard’s sexual harassment claim against her employer was based on the employer’s creation of a hostile work environment. The trial court granted a directed verdict for the employer. The appellate court explained that to establish a hostile work environment claim based on harassment by a supervisor, Blizzard was required to show: (1) that she is a member of a protected group; (2) that she was subjected to unwelcome sexual harassment, (3) that the harassment was based on her sex, (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of her employment and create a discriminatorily abusive working environment; and (5) that there was a basis for holding the employer liable. Relying on the Fourth Circuit’s decision in Jennings v. Univ. of North Carolina, 482 F.3d 686, 695 (4th Cir. 2007), the court found that Blizzard could maintain her claims even though the offensive language and acts at issue were not specifically directed at her and remanded the case for a new trial.



Byrd v. Richardson-Greenshields Securities Supreme Court of Florida (1989)

Employment discrimination, Sexual harassment

Female employees brought allegations of assault, sexual battery, intentional infliction of emotional distress, and negligent hiring and retention of employees. The Florida Supreme Court considered whether the workers’ compensation statute provided the exclusive remedy for a claim based on sexual harassment in the workplace. The Court found that applying the exclusivity rule of workers’ compensation to preclude all tort liability would abrogate the overwhelming public policy interest in outlawing and eliminating sexual discrimination in the workplace. The Court distinguished workers’ compensation, which addresses purely economic injury, from sexual harassment laws, which are concerned with more intangible injuries to personal rights.  



Jumbo v. Banja La Mtsogolo Industrial Relations Court of Malawi (2002)

Employment discrimination, Gender discrimination, Sexual harassment

The applicant, Salome Jumbo, claimed she was dismissed as a result of her pregnancy. In 1999, the applicant started as a temporary nurse aid at a clinic and continued in that position until 2001. In 2001, the manager of the clinic assured the applicant that her job had become permanent. On April 4, 2001, the manager discovered that the applicant was pregnant. He immediately warned the applicant that he would not allow her to keep her job if she remained pregnant, as they wanted a permanent nurse aid. The manager also enquired into the applicant’s private affairs and made inappropriate sexual remarks. On June 1, 2001, the manager terminated the applicant’s employment explicitly informing her that her termination was due to her pregnancy. The applicant asked for a reference letter, but the manager refused saying that she was a temporary employee and did not deserve one. The Industrial Relations Court of Malawi (the “Court”) ruled that the termination was contrary to the spirit of the Employment Act and ordered that the clinic immediately re-instate the applicant. The Court found that the respondent specifically violated the applicant’s rights under §31(1) of the Employment Act, which requires employers to provide a reference if the employee requests one on termination of an employment contract.  In addition, the respondent violated § 49 (1) of the Employment Act, which dictates that “terminating a woman’s employment because of pregnancy amount[s] to an offence [that is] punishable with a fine of K20,000 and imprisonment of five years” (p. 3). The Court also found that the manager’s inquiries into the applicant’s private affairs with her husband amounted to sexual harassment. This case is notable in Malawi because it set the precedent that inquiring into a married woman’s private affairs with her husband is an unfair labor practice.



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

Employment discrimination, Sexual harassment, Sexual violence and rape

The plaintiff, Phiri, 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 Phiri’s colleagues attacked her and attempted to rape her, only stopping after being apprehended when the plaintiff shouted for help. The plaintiff reported the incident to her employer’s management. In response, the company’s management accused her of misconduct for revealing to the public what the company considered an internal matter. On December 31 2005, the company fired the plaintiff citing the expiring fixed term contract for support. The plaintiff brought her case in front of the Industrial Relations Court of Malawi (the “Court”). The Court found that she had reason to believe her contract would have been renewed and that the company’s failure to renew her contract was based on the attempted rape incident. According to the Court, the company’s action breached an implied term of Phiri’s employment contract relating to mutual trust and confidence as well as the company’s obligation under the contract to protect female employees. The Court found that this incident was sexual harassment. Until recent amendments to the Employment Act, the labor laws of Malawi did not address sexual harassment. The closest Malawi’s labor regulation came to prohibiting sexual harassment in the workplace was § 5 of the Employment and Labor Relations Act read with § 20 of Malawi’s Constitution, which prohibits unfair discrimination in all forms. Despite the lack of a legal provision specifically addressing sexual harassment, the Court found that inappropriate sexually based behavior (e.g. sexual advances) creates a hostile work environment and leads to unfair labor practices. Therefore, the Court found Phiri’s dismissal invalid and held that the company violated Phiri’s “right to fair labor practices, the right to work, her right to safe working environment and personal dignity” (p 4).



2014 (Ju) No. 1310 Supreme Court (First Petit Bench) (2015)

Employment discrimination, Sexual harassment

The plaintiffs were two male employees who had been temporarily suspended from work and demoted from their managerial positions for sexually harassing female employees by making comments of a sexual nature in the office. The plaintiffs sued the company, seeking a declaratory judgment that such disciplinary actions were void because there were no grounds for such actions, and/or the actions were taken abusively. The High Court found for the plaintiffs. On appeal, the Supreme Court overturned the High Court’s judgment, finding that the disciplinary actions taken against the plaintiffs were not an abuse of the company’s right to take action, and that furthermore the actions did not lack objectively reasonable grounds and were appropriate from a general societal perspective. The Supreme Court reasoned that 1) the plaintiffs had repeatedly made obscene or insulting statements to or about the female employees, despite warnings from superiors, 2) the company had distributed guidelines prohibiting sexual harassment and had held a mandatory seminar on sexual harassment, 3) in many cases, employees who experience sexual harassment may not expressly object due to concerns about damaging relationships with colleagues, despite the distress caused by the harassment, and 4) the plaintiffs, who were in managerial positions, should have recognized the policy and attitude of the company on the issue of sexual harassment as a matter of course.



Individual Application of Gülşah Öztürk, et al. Constitutional Court (2016)

Custodial violence, Gender discrimination, Sexual harassment

In response to statements by the Turkish Prime Minister regarding abortion, the applicants demonstrated outside of the Ministry of Family & Social Policies of Turkey. The applicants asked for the Prime Minister and the Minister of Family & Social Policies to apologize for the statements. When police officers told the applicants that the Minister was not present in the Ministry building, the applicants tried, unsuccessfully, to enter the building using force. Following their failed attempt to enter the building, the Applicants headed to the Grand National Assembly of Turkey and blocked the road in front of it.  At this point, the applicants were arrested by police. The applicants allege that during the arrests they were injured and sexually harassed. They were held in custody for seven hours. Medical reports indicate that when they were released, each of the activists had several bruises on their bodies. The Office of Public Prosecutor (the “OPP”) failed to investigate the activist’s allegations of abuse, did not take the testimony of the police officers regarding this incident, and decided to not prosecute this case. The applicants appealed the OPP’s decision claiming gender discrimination, but their appeal was dismissed by the lower court. The Constitutional Court ruled that the force exerted by the police officers while they arresting the applicants was proportionate because the applicants had used force against the police officers. Furthermore, the Constitutional Court concluded that the bruises mentioned in the medical report indicate that police officers only used force to capture the applicants. Because of this, the Constitutional Court found that bruises were not evidence of sexual harassment. This case is important because it demonstrates that the Constitutional Court relies on the medical reports to judge allegations of sexual harassment.



Ragen, et al. v. Ministry of Transport, et al. Supreme Court (2011)

Gender discrimination, Sexual harassment

The petitioners sued the defendants for operating “mehadrin” bus lines for orthodox and ultra-orthodox Jews.  Petitioners argue that these bus lines discriminate based on gender by allowing men to board and sit in the front of the bus while requiring that women board by the rear door, sit in the back, and dress modestly.  Petitioners claim these restrictions violate their fundamental and constitutional rights to equality, dignity, freedom of religion, and freedom of conscience.  Petitioners refused to comply with the gender restrictions, which respondents claimed were not compulsory but voluntary and thus legal.  Petitioners, however, countered that the gender separation on mehadrin lines is not voluntary and that they were subjected to verbal harassment, threatened with physical violence, humiliated, and forced to leave the bus when they declined to observe the gender separation.  After the respondents agreed to an examination of public transportation arrangements on lines serving the ultra-orthodox sector by an independent committee and the committee delivered its analysis, the Court ordered respondent 1 to instruct respondent 2 to publicize the cancellation of the separation arrangements (within 10 days of the date on which the judgment was rendered), and ordered respondent 2 to carry out its instructions within 30 days of the judgment. Within that period of time, respondents 2 and 3 were to post signs regarding the cancellation in all buses formerly subject to “mehadrin” arrangements, without exception. 



Ms. A v. Mr. B [GBK I/408/12] Equal Treatment Commission (2014)

Sexual harassment

In this case, the Applicant brought an action against an older classmate in a vocational course for incessantly taunting and making sexually crude comments to or in the presence of the Applicant. Austria’s Equal Treatment Commission (the “Commission”) concluded that this amounted to sexual harassment in violation of Section 6 para. 1 of the Federal Equal Treatment Act (Bundesgleichbehandlungsgesetz). This opinion is notable for the Commission’s recognition that taking the woman’s age into account is important to the extent that harassed persons deal differently with such treatment and take different lengths of time to process sexual harassment. The Commission considered the practical links between hierarchy, power and sexual harassment, noting that while the occurrence of sexual harassment is always an unacceptable intrusion into the human dignity of the harassed persons, young people are particularly vulnerable. 



State v. Girardier Missouri Court of Appeals (2015)

Sexual harassment

Defendant was convicted of misdemeanor trespassing after he stayed for several hours in a women’s restroom at a gas station. Numerous store employees entered during the two hours he was in the restroom and told him that there was no smoking, as he smelled like smoke. During these encounters, the store personnel were under the impression the defendant was female as he disguised his voice to mimic a woman’s. When the defendant did not leave, the police arrived and escorted the defendant out of the restroom. The defendant gave the police consent to search him and they found lotion and a pornographic magazine; the defendant was then arrested. The trial court found him guilty of the misdemeanor trespass and sentenced him to six months in jail. The defendant appealed citing an error in denying his motion for acquittal and for exclusion of the lotion and pornographic magazine. The appellate court found that the lotion was relevant as to motive for remaining unlawfully and also relevant to whether his presence was an accident which undermines his defense. Accordingly, the evidence was lawfully admitted and the conviction stood.



Doe v. Hagenbeck United States District Court for the Southern District of New York (2015)

Gender discrimination, Gender-based violence in general, Sexual harassment, Sexual violence and rape

The plaintiff is a female former cadet at the United States Military Academy at West Point, where she claimed that she was forced to resign after her third year due to rampant sexual hostility. In May 2010, she was raped while at West Point after she took sleeping pills and she also cites several other instances of sexual assault and harassment, claiming that members the Sexual Assault Review Board at West Point failed to punish the perpetrators. The District Court found that the plaintiff had properly stated an equal protection claim under the Fourteenth Amendment of the United States Constitution, affording women the same protections under the law as men. The District Court also found that hearing the claim was not precluded by Feres Doctrine, which typically bars tort claims under the Federal Tort Claims Act and constitutional claims against superior officers incident to military service, since the rape was not a service-related injury and hearing the claim would not compromise the legislative or executive functions of government, including the disciplinary role of the Executive Branch over the nation's military. Therefore, the court denied the defendant’s motion to dismiss.



Doe v. Corrections Corporation of America United States District Court for the Middle District of Tennessee (2015)

Sexual harassment

Three female petitioners sued a state-managed prison facility after prison officials required them to verify that they were menstruating before bringing feminine hygiene products into a male prison when visiting inmates. One of the petitioners’ children was also forced to watch the mother being searched because prison rules require children be supervised at all times. The women cited violations of due process, invasion of privacy, negligence, intentional infliction of emotional distress, false imprisonment, unconstitutional seizures, unconstitutional search and a violation of the Fourteenth Amendment. The court denied the prison’s motion to dismiss, noting that filing a case against an agent in his official capacity as well as the entity to which the individual agent is not legally precluded and that liability can rest on the individuals given that the actors at least knowingly acquiesced in the search and likely facilitated the policy that allowed it to happen.



Hill v. Cundiff Court of Appeals for the Eleventh Circuit (2015)

Sexual harassment, Sexual violence and rape

Doe, a 14 year old eighth grader, was raped at school by 15 year old eight grader CJC who had a prior history of sexual harassment at school. The school’s policy on sexual harassment was to accept only three types of evidence as demonstrative of sexual harassment: catching the harasser in the act, physical evidence of the harassment, or an admission of guilt by the harasser. Doe was instructed by a teacher’s aide to lure CJC into a bathroom as a “rape-bait” sting to catch him in the act of sexual harassment. There, CJC anally penetrated Doe against her will before teachers could arrive to catch CJC pursuant to their plan. Doe filed a complaint against the school board and school administrators with a myriad of claims including a 42 U.S.C. §1983 claim for violation of the Equal Protection Clause. While the district court granted summary judgment in favor of the principal and school officials on the §1983 claims, the United States Court of Appeals for the Eleventh Circuit reviewed the case de novo and reversed the summary judgment. The Eleventh Circuit determined that the principal deprived Doe of equal protection through his deliberate indifference to inadequate sexual harassment policies. The Court also reversed the grant of summary judgment in favor of the school officials who suggested and acquiesced to the sting operation: the court found that they were not entitled to immunity because any reasonable government official would know that the plan violated the U.S. Constitution’s Equal Protection Clause.



Supreme Court Decision 2005Du6461 Supreme Court of South Korea (2007)

Sexual harassment

At an elementary school dinner party attended by school faculty, the Principal offered to pour alcohol to three male and three female teachers. The three male teachers then reciprocally offered the Principal alcohol, but the three female teachers did not do the same. The Vice Principal (Plaintiff/Appellee) twice requested the female teachers to offer the Principal alcohol as well. Two out of the three female teachers (Defendants) stated that they felt sexually harassed, the request causing the female teachers to feel a sense of sexual mortification or repugnance. Considering the nature of this dinner party, the relationship between the participants, the place, the prevailing situation when Plaintiff uttered the words in question, the lower court judged that the comment and language of Plaintiff in this case could not be interpreted as sexual harassment or unpardonable behavior in violation of public morals or social order, considering the common sense and customs of society as a whole. Defendants appealed. The Supreme Court interpreted the meaning of and criteria for determining the prerequisite "sexual speech and behavior, etc.," for a finding of sexual harassment under Article 2 Subparagraph 2 of the former Act on the Prohibition and Remedy of Sexual Discrimination (amended by Act No. 6915 of May 29, 2003). The Article stipulates that the prerequisite "sexual speech and behavior” for sexual harassment is behavior which provokes in the average person a feeling of sexual mortification and repugnance, viewed in terms of the sound knowledge and practices of society, usually involving a physical, linguistic, or visual act relating to the physical traits of man and woman or a physical relationship between the two. The Court stated that it was not necessary to show that the actor in question had a sexual motive or intent to establish sexual harassment, but rather that the acts would provoke a sense of sexual mortification and repugnance to the average person in a similar situation, taking into account the relationship between the parties, the place and circumstances of the behavior, the content of the clear or presumed response to the behavior, the content and degree of the behavior, and whether the act is fleeting or short-term, as opposed to continual. Considering the conversation of the dinner party location and the circumstances under which Plaintiff requested those acts, the Court interpreted Plaintiff’s request to be not of sexual intent, but of the intent that the offer of alcohol from the boss be reciprocated. Accordingly, the Court stated that sexual harassment could not be established merely by reason of the opposing party feeling sexual mortification and repugnance if it would not objectively provoke such sexual mortification and repugnance in the average person in a similar situation. The Court upheld the lower court’s decision and dismissed the appeal.



Teamsters Local Union No. 117 v. Washington Dept. of Corrections Court of Appeals for the Ninth Circuit (2015)

Gender discrimination, Gender-based violence in general, Sexual harassment, Sexual violence and rape

Female prisoners in Washington prisons alleged sexual abuse by the prison guards. As a remedial remedy, the Department of Corrections designated 110 positions as female-only. These female-only positions include observing female prisoners in sensitive locations, such as showers, as well as performing pat downs. The union of correctional officers sued the Department for Title VII violations for sexual discrimination in employment. The district court granted summary judgment for the Department. The Circuit Court affirmed citing sex as a bona fide occupational qualification for those positions given that sexual abuse is present in prisons and positions which require observing prisoners in sensitive areas or tasks can be performed by females only in order to protect female prisoners from abuse.



EEOC v. New Breed Logistics Court of Appeals for the Sixth Circuit (2015)

Employment discrimination, Sexual harassment

The EEOC alleged a Title VII violation on behalf of Hines, Pearson, and Pete after their employer Calhoun allegedly sexually harassed them. Another employee witnessed the sexual harassment and confronted Calhoun. Each woman communicated their intent to complain about Calhoun’s sexual harassment shortly after which all three women were fired or transferred. Pete did place a complaint in the company’s complaint line but the company asked Calhoun five questions about his conduct and determined there was no misconduct. The court determined that complaints to management and informal protests were protected activities under Title VII. Therefore, the women’s demands that Calhoun stop harassing them are considered protected activity under Title VII, and retaliation constituted a violation of Title VII.



Wilcox v. Corrections Corp. of America Court of Appeals for the Eleventh Circuit (2015)

Gender discrimination, Sexual harassment

Wilcox worked as a corrections officer at McRae Correctional Facility with her husband. After her husband was fired, Wilcox alleged that she was subject to sexual harassment by her supervisor. She alleged that her supervisor caressed her, touched her thighs and referred to them in evocative language, slapped her buttocks in front of other employees, and discussed his female friend’s genitalia with her. Wilcox complained to the EEOC that her supervisor’s actions created a hostile work environment. The Circuit Court agreed, citing that all five requirements for hostile work environment were met: 1) that the complainant belong to a protected group 2) that the complainant was subject to sexual harassment 3) the harassment was based on the sex of the complainant 4) the harassment was sufficiently pervasive or severe to change the conditions of employment and create an abusive working environment 5) a basis for holding the employer liable.



福建林某某、楼某某强制污辱妇女案,福建光泽县人民法院 (Fujian Province v. Lin, Lou) People’s Procuratorate of Guangzhe District Court (2013)

Gender discrimination, Gender violence in conflict, Gender-based violence in general, Sexual harassment

In 2013, a teenage girl name Lin gathered two other girls to get revenge on another girl, C., at Guangze senior high school, Fujian Province, for insulting her. C. hid and so their plan for revenge was unsuccessful. Later that day, Lin asked someone else to take C. to a quiet neighborhood. Lin and her friend slapped C.'s face, broke her nose, pulled her hair, and made C. take off all her clothes. C. was too frightened to say no and took off all her clothes. Lin and her friend took pictures of the naked C. and shared the photos. Guangzhe District Court found that Lin and her friends assaulted the victim C. According to Article 237, Criminal Law of the People’s Republic of China, Lin and her friend were convicted of humiliating a woman with force and coercion. Lin was sentenced to two-years’ imprisonment, with a full suspension of the sentence. Lin’s friend, Lou, was sentenced to one-year jail time with a full suspension of the sentence. The court said that because both the defendants and the victim were under age of 18, and because the defendants were willing to cooperate with the police, tell the truth, and plead guilty, the court under Article 63, Article 67, Article 72, and Article 73 of Criminal Law of People’s Republic of China to give the two defendants a mitigated punishment of community service. The court demanded that the defendants delete all the naked photos of the victim. After the crime, the defendants’ families compensated the victim and the victim forgave the defendants.

性别歧视、性暴力、性骚扰

2013年,被告人林某某认为其被陈某某辱骂,纠集楼某某、 黄某某(均为未成年女性),到福建省光泽县某中学找该校学生陈某某(女, 未成年)欲行报复。因陈某某警觉躲藏,林某某等人寻找未果。当日晚, 林某某通过他人将陈某某约出并带到光泽县某超市后面的巷子里。

林某某与楼某某先后对被害人实施打耳光、拉扯头发等殴打行为,致使被害人鼻子流血, 并叫被害人“把衣服脱光”。陈某某因害怕哭泣而不敢反抗,遂将衣裤脱光。林某某与楼某某及在场的另二名女学生对被害人围观取笑。其间楼某 某使用手机对陈某某的裸体拍摄了十余张照片并将照片传送给他人。法院经审理认为,被告人楼某某、林某某伙同他人聚众以暴力方法强制侮辱妇女,根据中华人民共和国刑法第二百三十七条,其行为已构成强制侮辱妇女罪。法院院综合考虑被告人作案时均不满十八周岁,主动归案并如实供述犯罪事实,根据刑法第六十三、六十七、七十二和七十三条,决定依法对被告人减轻处罚并适用缓刑。以强制污辱妇女罪判处林某某有期徒刑二年,缓刑二年;判处楼某某有期徒刑一年,缓刑一年。 法院要求被告人删除被害人裸照。被告人家庭案发后积极赔偿并取得对方谅解。



Schiavo v. Marina Dist. Development Co., LLC Superior Court of New Jersey Appellate Division (2015)

Employment discrimination, Gender discrimination, Sexual harassment

Twenty-one former employees of the defendant’s hotel and casino alleged sexual discrimination, gender stereotyping, and disparate treatment and impact as a result of their employer’s standards for appearance. The casino instituted a standard weight applicable to men and women (which was 7% above a base rate adjusted for gender). The women’s job was to bring drinks to casino patrons, and to do so wearing a revealing costume. The plaintiffs reported incidents of sexual harassment by casino patrons to their employers, who did not address the incidents. The lower court granted summary judgment to the casino on the complaints of facial discrimination citing the statute of limitations. However, the appellate court determined that the summary judgment was in error, as it did not take into consideration that the plaintiffs’ claim that the employer ignored sexual harassment by casino patrons, creating a hostile work environment was a continuing violation. Because one of the alleged acts occurred within the two years prior to filing the case, the case is thus not time-barred.



2007 (A) No. 520 Supreme Court of Japan (2007)

Sexual harassment

The defendant was indicted under the Stalker Regulation Law on a charge of stalking his former girlfriend by sending two rose bouquets and five letters. The defendant argued that the Stalker Regulation Law is unconstitutional because it infringes a “right to fulfill romantic feelings”. The Supreme Court rejected the defendant’s argument opining that even if a right to fulfill romantic feelings were to exist, the purpose of the Stalker Regulation Law is legitimate and its contents are reasonable.



R v. Dica [2004] Q.B. 1257 Court of Appeal of the United Kingdom and Northern Ireland (2004)

Sexual harassment

The defendant, knowing he was HIV positive, had unprotected sexual intercourse with two women who were unaware of his disease. The women were both subsequently diagnosed as HIV positive. He was found guilty of inflicting grievous bodily harm. As a general rule, unless the activity is lawful, the consent of the victim to the deliberate infliction of serious bodily injury on him or her does not provide the perpetrator with any defence. The effect of this judgment is to remove some of the outdated restrictions against the successful prosecution of those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it.



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.



Case of Liabilities for Sexual Harassment, Forced Drinking, Etc. 2006Na109669 Seoul High Court (2007)

Sexual harassment

The Plaintiff was hired by Company and placed in the marketing team of the marketing division. The Defendant served as the chief of the marketing division and the marketing team. On several occasions, the Defendant inappropriately touched the Plaintiff’s shoulders, legs, and breasts at work and work events. Additionally, the Defendant forced the Plaintiff to drink liquor on several occasions despite the Plaintiff informing the Defendant that she could not drink as a result of a stomach illness. At work and dinner parties, the Defendant often required the Plaintiff to sit next to him and often placed his arm around the Plaintiff’s waist. The Seoul High Court determined that the Defendant’s sexual actions violated the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, after considering factors such as the respective ages of the parties and their relation to one another, the location of the behavior, the existence of a sexual motive, the degree of the behavior, and the frequency of such behavior. In making a determination of unlawful conduct, it must be established that such behavior contravened social customs and order. Applying this standard to the facts of this case, the court found that the Defendant frequently touched the Plaintiff’s neck, shoulder, breasts, and waist at the workplace and at social events. Noting that the Defendant supervised and controlled the Plaintiff at work, the court found there was a clear sexual motive as the conduct was frequent and continuous over time and such conduct embarrassed and humiliated the Plaintiff. Consequently, the Defendant’s behavior violated the Plaintiff’s personal rights and was against societal norms and customs. In addition, the court found that the Defendant violated the law by forcing the Plaintiff to drink against her will. Therefore, the court awarded the Plaintiff damages of 30 million won with 5% interest per annum.



RO v. R Supreme Court of New South Wales (Court of Criminal Appeal) (2013)

Sexual harassment, Sexual violence and rape

This case concerns the sentencing of a sexual offender. The offender was convicted of eight counts of sexual intercourse and indecent assault against a sixteen year old girl. The defendant appealed his sentence, arguing that the judge erred in his determination that the victim “suffered significant psychological damage as a result of the offense.” On appeal, the Court found that the lower court erred in making the finding of “substantial” harm. The Court further held that the victim’s “psychological damage was multifactorial and that in the absence of medical evidence which separated out the effects of these offences,” the lower court’s determination of substantial psychological harm resulting from the offenses was inappropriate.



Gilroy v. Angelov Federal Court of Australia (2000)

Employment discrimination, Gender discrimination, Sexual harassment

Leoni Gilroy made allegations of sexual harassment against a co-worker, Branko Angelov, who is the respondent in this case. Gilroy sought damages against her employers, Craig and Toni Botting, the second respondents. Gilroy reported the sexual harassment to Mr. Botting, who told Gilroy that he didn’t believe Angelov would act in such a way. Nevertheless, Bottling agreed to keep Angelov away from her at work. Later, Mr. Botting terminated Gilroy’s employment, stating that Mrs. Botting believed that Mr. Botting and Gilroy were having an affair. The Court entered judgment in favor of Ms. Gilroy for $24,000 against the Bottlings, highlighting the emotional and financial difficulties experienced by Ms. Gilroy.



Liu v. Zhu Court of Huilai County, Guangdong Province (2013)

Divorce and dissolution of marriage, Sexual violence and rape, Sexual harassment

The plaintiff Liu alleged that she had a illegitimate son with a Yang when she was working in Sichuan province. Soon after that, she was having another child with a Chen. Since Chen was not going to perform his duty as a father, Liu decided to give birth to the child and raise it herself. Several months later, Liu’s first son, Yang was introduced by a matchmaker to the respondent as an adopted son. Out of the strait situation Liu faces, she agreed. Several days later, the respondent Zhu proposed since the son is too naughty and needs his mother to look after him, it is better that Liu came along. Liu came and Zhu’s little brother asked Liu to marry Zhu, and they will pay her 100,000 as gift, but Liu need to take care of Zhu. Liu agreed. After the wedding, Liu found out the respondent was disabled and sit on a wheelchair, having no sexual capability. However, the respondent kept sexually harassing the plaintiff. Plaintiff argued that she was cheated to get married, and Zhu lacks sexual ability, therefore she sued for divorce. The court finds that although the marriage is facilitated by a matchmaker, the two have lived together for many years and have developed some feelings for each other. Plaintiff’s arguments are not supported by any evidence, thus are not considered by the court.


Public Prosecutor v. Intol Bin Langgar Intermediate Court of Brunei (1993)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The defendant was charged with two charges of rape of the complainant, a 14 year old female, punishable under section 376(1) of the Penal Code, and two charges of unlawful carnal knowledge with a girl under 16 years old, an offence under section 2 of the Unlawful Carnal Knowledge Act (Cap. 29). DNA and other forensic evidence indicated that the defendant was the biological father of the complainant’s child. While that evidence alone could not prove rape, the complainant’s evidence, consisting largely of her testimony, was found credible despite minor discrepancies in the testimony of her various witnesses. The court held that the prosecution had proved beyond the reasonable doubt the four charges against the defendant, and he was accordingly convicted. The court sentenced the defendant to 10 years imprisonment on the first and second charge, and four years imprisonment on the third and fourth charge, to run concurrently. A total sentence of imprisonment was 10 years was imposed.



Public Prosecutor v. Yaha Bin Mansor High Court of Brunei (1991)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The defendant pleaded not guilty to (i) two charges of attempted rape and (ii) two charges of rape, punishable under section 376 of the Penal Code. The prosecution withdrew the fourth charge during the trial. The court noted that since the complainant was under the age of 14 at the time of each alleged incident, her consent was not relevant. As the court found no corroboration of the complainant’s evidence, it had to rely upon her credibility. The court found that the complainant was exaggerating when she claimed that the defendant attempted to rape her. The court did not agree that he did more than commit an act of indecency under Section 354 P.C., which contains the offence of assault or criminal force used on a woman with intent to outrage her modesty. The court acquitted the defendant of attempted rape and rape, but convicted him of the offence of indecency for all three charges. He was sentenced to three years and four strokes for each of the three charges, which are cumulative and consecutive sentences. The defendant was ordered to serve a total of nine years and suffer a total of 12 strokes, with a reduction for time already spent in custody.



Public Prosecutor v. Besar Bin Ahmad Intermediate Court of Brunei (1996)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The defendant pleaded not guilty to raping a 16 year old female, punishable under section 376(1) of the Penal Code, and the alternative charge of attempted rape, punishable under section 376(2) of the Penal Code. The court was satisfied that the complainant’s complaint to her mother was made by her at the earliest possible moment, which was consistent with her complaint to the police and other evidence, therefore corroborating the complainant’s evidence. The court found the complainant credible, and accepted her evidence indicating that she did not consent. In addition, the complainant was examined by a doctor, who found numerous injuries and concluded in her report that there was some injury to the complainant’s vulva, which may be due to attempted sexual intercourse. The court found, however, that the doctor did not seem sure whether penetration occurred. Regarding whether there was penetration, the court found the complainant’s evidence unreliable, and therefore reasonable doubt. The court convicted the defendant of attempted rape and voluntarily causing hurt. The court imposed sentences of 10 years imprisonment and 12 strokes.



Public Prosecutor v. Abdullah Bin HJ Yakub High Court of Brunei (1991)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The defendant pleaded not guilty to two charges of raping a 14 year old female, under sections 376(1) and (2) of the Penal Code, and having carnal knowledge of a female under the age of 16 years, under Section 2 of the Unlawful Carnal Knowledge Act, Cap. 29. The fact of sexual intercourse was not disputed. However, because the complainant was under 14 years old when the offences occurred, her consent was not relevant to the charge of rape. Nonetheless, because of her consent, the defendant was acquitted of the charge of aggravated rape. The court convicted the defendant of rape, and imposed a sentence of four years imprisonment and six strokes. The court also convicted the defendant of having carnal knowledge of a female under the age of 16 years, and imposed a sentence of three years imprisonment and six strokes. The sentences of imprisonment were concurrent, with the defendant to serve four years total. The sentences of whipping were consecutive, with the defendant to receive 12 strokes total.



Public Prosecutor v. HJ Bidin Din HJ MD Noor High Court of Brunei (1995)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The defendant pleaded not guilty to five charges of rape of an approximately 13 year old female, under section 376 of the Penal Code. The court emphasized that these were rapes only because of the complainant’s age, not because any force was used against her. The court noted that the fact that a rape is committed with consent does not lower the standard of proof which is required of the act itself. The court reasoned that it would be dangerous to convict in reliance on the complainant’s evidence, which had several inconsistencies. Additionally, the testimony of an examining doctor showed that the complainant’s evidence was suspect. The complainant denied having had sexual intercourse with anyone in the date range at issue, which did not agree with the evidence of the examining doctor, which the court accepted. The court found that if she cannot be believed as to that, it could not rely on her uncorroborated evidence on any of the charges. The defendant was acquitted of all five charges and the court ordered his discharge.



Public Prosecutor v. Khairul Bin Haji Dagang Intermediate Court of Brunei (1994)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The defendant pleaded not guilty to two charges of rape of a 14 year old female and a 24 year old female, under section 376 of the Penal Code. Regarding the first charge, the court accepted the first complainant’s evidence. Corroboration that she did not consent included fresh abrasions found by a doctor on the defendant’s arms and chest, the crying and distress of said complainant as observed by several witnesses very soon after the incident and the promptness of the complaints made by her. The court held the defendant guilty of having sexual intercourse with said complainant against her will or without her consent, imposing a sentence of seven years imprisonment and six strokes. The court also accepted the second complainant’s evidence. Corroboration that she did not consent included her sad condition and her crying as observed by a witness immediately after the incident, and the complaints she made to said witness, her mother, brother and the police. The court found that the defendant said threatening words which had put her in fear of death or hurt. The court held the defendant guilty of aggravated rape of said complainant, imposing a sentence of nine years imprisonment and 14 strokes. The sentences as to each rape were to run consecutively.



Mkandla v. The State High Court of Zimbabwe (2002)

Sexual harassment, Sexual violence and rape

The appellant was convicted of two counts of rape for allegedly raping the complainant, a 12 year old female, on two separate occasions. He was sentenced to a total of 20 years imprisonment, with half suspended for five years on condition of good behavior. The trial judge and court both found the complainant credible. The court found that the conviction of rape on count two should stand due to circumstantial evidence, which indicated penetration; however, not on count one, which included all of the essential elements of attempted rape, but insufficient proof of penetration so as to constitute rape. The conviction on (i) count one was quashed and reduced to one of attempted rape and (ii) count two was confirmed. The sentences imposed by the trial court were set aside and substituted with seven years of imprisonment on count one and 10 years of imprisonment on count two. Of the total 17 years imprisonment, eight years was suspended for four years on condition that the appellant in that period does not commit any offence involving rape or an offence of a sexual nature and for which he is convicted and sentenced to imprisonment without the option of a fine.



The State v. Imbayarwo High Court of Zimbabwe (2013)

Sexual harassment, Sexual violence and rape

The accused was convicted of two counts, rape and robbery, as he allegedly raped the complainant and threatened to kill her if she told anyone. The two counts were taken as one for the purpose of imposing a sentence of 20 years imprisonment. He received an effective prison term of 17 years. The court noted that the conviction of rape was not at issue; instead, it was the conviction of robbery and the trial judge’s sentencing approach at issue. The court was not convinced that the essential elements of robbery were established regarding the accused’s taking of a cellphone and his subsequent actions, as the circumstances under which the cellphone was surrendered were not clear. Therefore, the facts supported a conviction of theft, not robbery. The court found that the trial judge should not have treated both counts as one for the purpose of sentencing. The court confirmed the conviction of rape, with a sentence of 12 years imprisonment with labor. The robbery conviction was set aside, and substituted for theft of a cellphone, with a sentence of six months imprisonment with labor.



Mpande v. The State High Court of Zimbabwe (2011)

Sexual harassment, Sexual violence and rape

The appellant was convicted of one count of rape for allegedly raping a 3 year old child who had been left in his care, and infecting her with syphilis, a sexually transmitted infection. He was sentenced to 18 years imprisonment, with three years suspended for five years on condition of good behavior. The appellant appealed against the sentence. The court emphasized that courts are required to consider numerous factors, and have wide discretion, in sentencing. The trial court noted that the appellant’s case was aggravated because he was “in a protective relationship with complainant”, who was a very young child. The court agreed with the trial judge’s sentencing approach, noting that the appellant was extremely lucky that he did not get a harsher sentence. The court reasoned that an appeals court will only interfere with the trial court’s sentencing discretion where there is misdirection or a manifestly excessive sentence. As this had not been shown and as the relevant statute prescribes a higher sentence than the one imposed, the appeal was without merit and was dismissed.



The State v. Tirivanhu High Court of Zimbabwe (2010)

Sexual harassment, Sexual violence and rape

The accused was convicted of three counts of contravening s 65 of the Criminal Law (Codification and Reform) Act Cap 9:23, for allegedly raping the complainant, aged 12 years, on three different occasions. He was sentenced to five years imprisonment, with three years suspended on condition of good behavior and the remaining two years suspended on condition he performed 840 hours of community service. The court found that case law clearly demonstrated that rape can only be committed when there is penetration. Evidence of the slightest penetration is sufficient. As the accused failed to penetrate the complainant on the first and third occasions, the court found that he should not have been convicted of rape on counts one and three, but only attempted rape. The court overturned the convictions for rape on counts one and three, which were substituted for attempted rape. The court upheld the imposed sentence, but it reduced the community service sentence to 630 hours.



Banda v. The State High Court of Zimbabwe (2002)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The appellant was found guilty of allegedly raping the complainant, aged 5 years and 11 months. He was sentenced to 10 years imprisonment, with two years suspended on condition of good behaviour. He appealed against both the conviction and the sentence. The questions at issue were (a) whether the crime of rape was committed and (b) whether the complainant’s evidence was corroborated. The court highlighted that much of the complainant’s evidence was supported by the appellant’s wife. The trial court concluded that there was legal penetration. The court found, however, that mere contact without any slightest penetration does not amount to legal penetration. The court found that the appellant could not be guilty of rape, but only attempted rape. The conviction of rape was reduced to attempted rape. The court pointed out that the trial court erred on the side of leniency in sentencing. The court found that the sentence was still appropriate and did not interfere with it.



Pasvani v. The State High Court of Zimbabwe (2011)

Sexual harassment, Sexual violence and rape

The appellant, a Catholic priest, was convicted of two counts of rape as defined in section 65(1) of the Criminal Law [Codification and Reform] Act (Chapter 9:23), for allegedly raping the complainant, aged 23 years. He was sentenced to ten years imprisonment, with two years suspended on condition of good behavior. The appellant appealed his conviction. The evidence showed speculation about a possible love relationship between the parties. The court noted that the complainant wrote a letter to the appellant, which was not properly addressed during the trial. The court found that the letter should have been carefully addressed at trial. The court held that the trial judge should not have convicted the appellant. The conviction was quashed and the sentence was set aside.



Chimanikire v. The State High Court of Zimbabwe (2006)

Sexual harassment, Sexual violence and rape

The appellant was convicted of one count of rape for allegedly raping the complainant, a 16 year old female. The State argued that the appellant coerced and subdued the complainant into having sex with him without her consent. The appellant claimed that the sexual intercourse was consensual. He was sentenced to a term of eight years imprisonment, with two years suspended on condition of good behavior. The appellant appealed against the conviction. The court indicated that the nature and circumstances of the sexual encounter were in dispute, finding that it was clear from the complainant’s testimony that she was and continued to be in love with the appellant. The court further found that the State’s evidence did not counter the possibility that consensual sexual intercourse took place between the parties. The court held that the State failed to establish the appellant’s guilt beyond a reasonable doubt at his trial. Accordingly, the appeal was allowed. The conviction was quashed and the sentence was set aside.



Tirivanhu Ndoziva v. The State High Court of Zimbabwe (2011)

Sexual harassment, Sexual violence and rape

The appellant was convicted of two counts of rape for allegedly raping two girls, aged 4 and 8 years, respectively. He was sentenced to 10 years on each count, with five years suspended for five years on condition of good behavior. The appellant appealed against the convictions and the sentences. It was accepted that the two girls were sexually interfered with, which both confirmed through testimony. Both girls were (i) examined by a doctor, who observed attenuation of the hymen and a deep notch on both girls and (ii) able to identify the appellant as the perpetrator to the police. The court was satisfied with the identification, finding that the appellant was correctly convicted. The appellant argued that the sentence was too harsh. The court found that numerous factors were considered before sentencing. It held that the appellant did not use gratuitous violence, and was entitled to some leniency. The court ruled that the sentence imposed was unduly harsh and induced a sense of shock. The sentence was overturned and substituted for 10 years imprisonment, with two years suspended for five years on condition the appellant does not within this period commit any offence of a sexual nature for which he is sentenced to imprisonment without the option of a fine.



Gudu Masuku v. The State High Court of Zimbabwe (2004)

Sexual harassment, Sexual violence and rape

The appellant was convicted of raping the complainant ten years before she reported it to anyone and eleven years before she reported it to the police. He was sentenced to three and half years of imprisonment, with two years suspended on condition of good behavior. Although the trial judge found the complainant credible, the court found that she was not consistent in her evidence. It emphasized the trail court’s finding that she was suffering from post- traumatic stress disorder and her delay in reporting. As there was no independent evidence beyond the complainant’s testimony, the court could not hold that (i) the danger of false or erroneous implication was excluded beyond reasonable doubt or (ii) the state proved its case beyond reasonable doubt. Thus, the conviction was quashed and the sentence was set aside.



Ndondo v. The State High Court of Zimbabwe (2002)

Sexual harassment

The appellant was convicted of indecent assault and rape for allegedly taking the complainant to his house, chasing her around during the night and raping her. He was sentenced to one year imprisonment with labor and eight years imprisonment with labor, respectively, to run concurrently, with two years suspended for five years on condition of good behavior. The appellant appealed against both the conviction and the sentence on both counts. The court found that the complainant had an opportunity to report the incident on many occasions but she deliberately chose not to use it, which casts doubt as to her credibility. The court found that the complainant was not a convincing witness and the trial court should not have accepted her evidence in order to convict the appellant. The court held that the state completely failed to prove rape beyond reasonable doubt. The conviction and sentence on both counts were set aside. The appeal against conviction and sentence were upheld.



Teresita G. Narvasa v. Benjamin A. Sanchez, Jr. Supreme Court of Philippines (2010)

Sexual harassment

The respondent was found guilty of grave misconduct for sexually harassing his co-workers and was dismissed from Government service. The appeals court modified the ruling, finding him guilty of simple misconduct for which dismissal was not warranted. The Supreme Court reinstated the finding of grave misconduct, finding that the respondent’s actions were intentional, and since this was the third time he had been penalized for sexual harassment, dismissal was warranted.



Hercules P. Guzman v. National Labor Relations Commission, et al. Supreme Court of Philippines (2010)

Gender-based violence in general, Sexual harassment

The respondent, a law student, filed an administrative complaint for harassment against the petitioner, her professor, alleging that she was given a poor final grade because he wanted to go on a date with her. A school committee found that the petitioner improperly conducted school-related activities outside school premises, indicative of sexually motivated intentions, in violation of the respondent’s policy of providing its students with an environment free from sexual harassment. The NLRC affirmed, declaring a one year suspension from the University. The Supreme Court rejected the petitioner’s argument that his constitutional right to due process was violated, finding that in administrative proceedings, the essence of due process is simply an opportunity to be heard, to explain one’s side or to seek a reconsideration of the action or ruling complained of, and that the petitioner had been afforded that opportunity.



Yolanda Floralde, et al. v. Court of Appeals, et al. Supreme Court of Philippines (2000)

Employment discrimination, Sexual harassment

The respondent was found guilty of grave misconduct for sexually harassing his co-workers and was dismissed from Government service. He successfully appealed, arguing that the evidence was insufficient to support the ruling. The Supreme Court reinstated the ruling, citing the well-established rule that findings of fact of an administrative agency must be respected even if they are not overwhelming and even if the appellate court would weigh evidence differently.



Supreme Court Decision 2005Du13414 Supreme Court of South Korea (2006)

Sexual harassment

The Supreme Court dismissed an appeal by a governor of a province claiming that because he was found not violating the Election of Public Officials Act (the “Election Act”), he should also be found not guilty of sexual harassment charges under the former Prohibition of and Remedies for Gender Discrimination Act (the “Discrimination Act”). The governor sexually harassed the defendant, a president of a vocation association, at meetings to discuss the upcoming general elections for governor. The Supreme Court held that plaintiff’s sexual behavior at such meetings constituted workplace sexual harassment, because their meetings had relevance to work, i.e. meeting to discuss governor’s elections.



Expediente 04-001375-0166-LA Sala Segunda de la Corte Suprema de Justicia (2008)

Sexual harassment

This case relates to sexual harassment in the workplace. The relevant facts are as follows. The victim was a receptionist at her company, and experienced sexual harassment by her superior, as evidenced by lascivious emails he sent her. She reported the harassment to supervisors, who suggested that they work together to find a solution, which resulted in the employer suggesting that she resign. The victim resigned and the harasser was sanctioned with three days docked pay. The court found that the employer did not respond to the sexual harassment appropriately, resulting in the victim’s continued harassment and eventual loss of employment. The court notes that employers and supervisors have an obligation to maintain good working conditions for their employees, including preventing sexual harassment. Pursuant to this obligation, employers and supervisors must: (1) communicate to all employees about relevant policies, (2) establish procedures to guarantee the effectiveness of such policies and (3) protect any whistleblowers (including victims) with respect to sexual harassment. The court also notes that sexual harassment is a form of sexual violence and a form of discrimination because it denies victims of their fundamental human rights of freedom, respect, physical, sexual and emotional integrity, the right to work in a safe environment and equality under the law.

 

Este caso aborda acoso sexual en el centro de trabajo. Los hechos relevantes son los siguientes: la víctima era una recepcionista y sufrió acoso sexual de un superior evidenciado con correos electrónicos lascivos que ella recibió. Ella reportó el acoso a sus superiores, quienes acordaron en trabajar juntos para solucionar el problema. El empleador sugirió que la víctima resignara. Ella resignó su posición mientras que el acusado solo fue suspendido sin salario por 3 días. La corte concluyó que el empleador no respondió apropiadamente con respecto a la queja de acoso sexual, pues el resultado para la víctima después de haber traído el asunto a su atención, fue el continuo acoso y eventualmente la pérdida de su trabajo. La corte especifica que los empleadores y supervisores tienen una obligación continua de mantener buenas condiciones de trabajo para sus empleados, lo cual incluye prevenir el acoso sexual. Con respecto a esta obligación, los empleadores y supervisores tienen que: (1) comunicar esta política a todos los empleados, (2) establecer procedimientos que garanticen la efectividad de dichas políticas, y (3) proteger a los informantes, incluyendo la propia víctima, con respecto al acoso sexual. La corte también agrega que el acoso sexual es en sí una forma de violencia sexual y de discriminación porque le niega a las víctimas sus derechos fundamentales de libertad, respeto, integridad física, sexual, y emocional, así como el derecho de trabajar en un ambiente seguro y bajo igualdad legal.



SZAIX v. Minister for Immigration & Multicultural & Indigenous Affairs and Refugee Review Tribunal Federal Court of Australia (2006)

Sexual harassment, Sexual violence and rape

A citizen of Indonesia sought protection on the basis that she feared persecution on the grounds of race, religion and membership of a particular social group, alleged to be either Indonesian women or Chinese Christian women in Indonesia. The appellant was raped in Indonesia. The Refugee Review Tribunal concluded that perpetrators of sexual assault in Indonesia do not engage in rape as a means of persecuting ethnic Chinese women (or women) as a particular social group. The court found that the Tribunal did not fully consider the applicant’s arguments that she feared persecution from local authorities for reporting the rape and the applicant was granted leave to amend her application to raise that ground and any other new grounds.



Kumar v. Minister for Immigration & Multicultural Affairs Federal Court of Australia (2002)

Sexual harassment, Sexual violence and rape

A married couple, both of Indian ethnic origin and citizens of Fiji, sought protection for fear of persecution on the grounds that the wife was abducted and raped because of her Indian ethic origins and because of her husband’s local political activity. The Refugee Review Tribunal did not accept that the wife was raped for reasons of her Indian ethnic origins, nor her husband’s support for the FLP. The court affirmed.



SVFB v. Minister for Immigration & Multicultural & Indigenous Affairs Federal Court of Australia (2004)

Female genital mutilation or female genital cutting, Gender-based violence in general, Harmful traditional practices, Sexual harassment, Sexual violence and rape

A citizen of Nigeria sought protection for fear that she would be subject to female genital mutilation. The Refugee Review Tribunal found that female genital mutilation constitutes serious harm amounting to persecution, but that on the facts, there was no real risk that the applicant would be subjected to female genital mutilation.



Trina Williams v. Pacific Plastic Recyclers Limited Human Rights Review Tribunal (2004)

Sexual harassment

The plaintiff alleged that she was a victim of sexual harassment by an employee of the defendant. She received a settlement from the employee. In exchange, she agreed not to pursue her claim against him, and not to call him as a witness. At issue was whether the company could be held separately liable, and if it was liable, whether the plaintiff had released her claims against the company in her settlement with the employee. The Tribunal found that the company had individual liability due to the fact that it lacked a demonstrated harassment policy and thus did not take reasonably practicable steps to prevent the harassment. It held, however, that the settlement already reached was sufficient compensation for the harassment that she suffered. As to any other remedies, as such remedies were not provided in the settlement, the Tribunal could not determine whether the company had been released with respect to such remedies.



Ng Shiu v. Mohammed Naseeb Human Rights Review Tribunal (2004)

Sexual harassment

The plaintiff and the defendant were both taxi drivers. The plaintiff claimed the defendant harassed her with phone calls and unwanted and offensive touching. The court was not satisfied that the events that took place gave rise to any tenable claim of sexual harassment. The court found that for a short period at and about the time that the defendant was making contact with the plaintiff, she did suffer from a level of anxiety while at work, which was sufficient to constitute a ‘detrimental effect’ to her employment under the Human Rights Act.



Kanitchon Anansirisub v. Caster Peak Holdings, Co. Ltd. (Public) and party defendants (No. 8379/2550) Supreme Court of Thailand (2007)

Sexual harassment

The plaintiff was an employee of the defendant, under the subordination of the second defendant. In September 1995, the second defendant and the plaintiff started a sexual relationship which the plaintiff could not avoid. Later, the second defendant engaged the plaintiff in other sexual activities on several occasions, which if the plaintiff refused, the plaintiff might face consequences at work. The plaintiff resigned from her job position on June 7, 2001. The plaintiff asked the Court to grant her the right to damages paid by the defendants from the sexual harassment action, which made it impossible for her to stay in the job position, which was a violation of section 16 of the Labor Protection Act, B.E. 2541. The Supreme Court held that if the second defendant’s action was a sexual harassment, not only was the action a breach of tort duty, it was also a breach of the employment contract as well. The plaintiff therefore had the right to both the remedy for the torts claim and damages from the breach of contract claim.



Angelica Rangi Ngapera v. Gerry Reddick Human Rights Review Tribunal (2004)

Employment discrimination, Sexual harassment

The plaintiff worked at a motel. She alleged that her manager made offensive comments to her and spread rumors about her in the community. The court found that the plaintiff suffered a detriment in the course of her employment under the Human Rights Act.



Richardson v. Oracle Corporation Australia Pty Ltd Federal Court of Australia (2014)

Gender discrimination, Sexual harassment

Rebecca Richardson brought a sexual harassment suit against a former co-worker, Randol Tucker. Before Richardson left the company, Richardson and Tucker were colleagues at Oracle Corporation Australia. At trial, Ms. Richardson prevailed and was awarded $18,000 in damages for which Oracle Corporation Australia was vicariously liable. Ms. Richardson appealed, arguing that the award was inadequate. The High Court highlighted the difficulty in formulating awards of general damages in sex discrimination cases, but acknowledged that harassment can cause severe physical and mental strain. The Court noted that more significant awards were granted to the victims of workplace bullying than the victims of sexual harassment despite “comparable” damage caused by both types of conduct. Based on the distress Richardson experienced because of Tucker’s conduct, the Federal Court found that the $18,000 award was inadequate and substituted an award of $100,000 to compensate Ms. Richardson for psychological injury caused by the sexual harassment.



EN v. KIC Human Rights Review Tribunal (2010)

Sexual harassment

The plaintiff was employed at a bakery. After working there for several years, the bakery was acquired by new owners, including the defendant. The plaintiff claimed that the defendant made unwanted comments and physical overtures in the workplace, eventually causing the plaintiff to leave the job. The plaintiff claimed that the harassment caused humiliation, injury to feelings, and loss of dignity. The Tribunal found that the plaintiff was the victim of unlawful sexual harassment under the Human Rights Act and awarded damages. The Tribunal also ordered the defendant to attend a training session on sexual harassment in the workplace. The Tribunal noted that the case “demonstrates the dangers of running a business without any understanding of the provisions of the HRA relating to sexual harassment, and with no insight whatsoever that some behaviours can be unwelcome to others no matter how innocent they may be thought by the perpetrator to be.”



DML v. Montgomery Human Rights Review Tribunal (2014)

Sexual harassment

The plaintiff was a sex worker providing commercial sexual services at a brothel. She alleged her manager had violated the Human Rights Act 1993 by subjecting her to repeated unwelcome and offensive sexual conduct detrimental to her employment. The Tribunal found for the plaintiff, and further found that the owner of the brothel was vicariously liable for the employee’s actions.



Ayoub v. AMP Bank Limited Court of Appeal of Australia (2011)

Employment discrimination, Gender discrimination, Sexual harassment

Ms. Ayoub claimed harassment and discrimination following a performance appraisal after which her position was made redundant. She also sought worker’s compensation for anxiety/distress caused by the alleged conduct. An arbitrator found for Ms. Ayoub on the basis that the company had failed to consult her on the redundancy decision and mishandled the performance appraisal and these actions caused her mental injuries. A court overturned the arbitrator, finding that first, while it would be unreasonable for an employer to inform a worker of her redundancy in a callous way, the redundancy decision was unrelated to Ms. Ayoub’s performance, and second, Ms. Ayoub’s position was such that she did not legally have to be consulted ahead of time. The Court of Appeals affirmed the Acting Deputy President’s decision, finding no error of law.



VSAI v. Minister for Immigration & Multicultural & Indigenous Affairs Federal Court of Australia (2004)

Sexual harassment, Sexual violence and rape

A citizen of Eritrea sought protection on the basis that she feared persecution in Eritrea, where she would either be (i) conscripted into, and subject to rape and abuse by, the army or (ii) prosecuted for failure to report for conscription. Although she presented evidence that rape, sexual abuse and impregnation by military officers was committed against draftees, including at the camp to which she would be assigned, as well as evidence showing incidents of parents killed whilst resisting the drafting of their daughters, a delegate of the Refugee Review Tribunal denied the application. The court found that the Tribunal misdirected itself by not asking whether rape, sexual abuse and impregnation by military officers was deliberate or pre-meditated conduct, exposure to which the applicant could not be expected to tolerate. The court set aside the Tribunal’s decision and the matter referred back to the Tribunal.



State of Israel v. Ben-Hayim Supreme Court of Israel (2006)

Sexual harassment

The accused, a male manager of a branch of the Postal Authority, was convicted of unbecoming conduct under the Civil Service (Discipline) Law for sexually harassing a female temporary employee at his branch. The parties reached an agreement under which the accused was disciplined with severe reprimand, loss of one month’s salary, and reduction of one grade for a period of a year. The court held that the disciplinary measures should be significantly stricter, considering that the accused deliberately abused his authority, had considerable influence over the victim’s professional future, was twenty years older than the victim, and was aware that the victim had recently lost her father and was emotionally vulnerable.



Vent-Axia v. Wright (1999, EAT) Employment Appeal Tribunal (1999)

Sexual harassment

A department head accused of harassing four women was not permitted to learn the names of his accusers due to confidentiality issues. The EAT re-affirmed that the primary test when ordering disclosure of documents is whether disclosure is necessary for fairly disposing of the proceedings, not whether the document is confidential in nature. The Court ruled the alleged harasser must demonstrate that this information is necessary in the context of his specific case.



Janzen v. Platy Enterprises Ltd Supreme Court of Canada (1989)

Employment discrimination, Sexual harassment

The appellant waitresses had been harassed while working at Pharos Restaurant, a restaurant owned by Platy Enterprises Ltd. Multiple waitresses endured sexual harassment from the same employee. In each individual incident, the waitresses resisted the conduct and one waitress spoke to management. While the harassment stopped, the offending employee continued to behave in an “unpleasant manner.” An adjudicator for the Manitoba Human Rights Commission awarded damages to the victims of sexual harassment and found that they had been “victims of sex discrimination contrary to s. 6(1) of the Human Rights Act. The Court of the Queen’s Bench upheld the decision, but the Court of Appeal later reversed. The Supreme Court of Canada held that the lower court “should not have reduced the amount of damages given to the appellants” given the severity of the sex discrimination experienced by the employees.



Tumwesigye Kasim v. Uganda Court of Appeals of Uganda (2009)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

This appeal was limited to sentencing only. Appellant was convicted of defilement of a six-year-old girl and was sentenced to 14 years imprisonment. Appellant was a teacher at the victim’s school. The school held a special program for students during school holidays. During this program, appellant took the victim into his office at school and had sexual intercourse with her. Despite his warning not to tell anyone, the victim told her brother, who told her parents. A medical examiner confirmed that she had been defiled. On appeal, appellant argued that the sentence of 14 years was too harsh. In support, he argued that he was the sole breadwinner for 11 dependents, including two lame dependents and four orphans. Appellant also argued that since the victim was a very young child, she had already gotten over the trauma of the defilement. The court upheld the sentence and ruled against appellant. The court found that, as a teacher, he had a duty to protect the victim, but instead chose to ravish her, disgracing himself, his profession, and society.



Writ Petition No. 8769 of 2010 BNWLA v. Govt. of Bangladesh Supreme Court of Bangladesh (2011)

Sexual harassment

In this case the Bangladesh Supreme Court responded to a petition by the Bangladesh National Women Lawyers Association and handed down a set of directives aimed at addressing public sexual harassment (known euphemistically as "eve teasing"). These directives included stating formal definitions of "sexual harassment" and "stalking" to be used henceforth in addressing this problem, mandating a designated cell or team housed within each police station to address sexual harassment, mandating the government to require photo identification from users of cyber cafes to address cyber harassment and stalking, mandating immediate government steps to initiate victim and witness protection systems as well as programs to redress mental trauma suffered by victims, and directing the government to "take immediate steps to formulate law or amend the existing law for incorporating specific provisions giving evidential value to the audio/video recorded statements of victims or witnesses of sexual harassment so that the perpetrators can be punished solely on the basis of such recorded evidence of sexual harassment in case of unwillingness of the victim or other witnesses to give evidence fearing further attack and humiliation and/or torture."



D.S. Grewal v. Vimmi Joshi Supreme Court of India (2008)

Employment discrimination, Gender discrimination, Sexual harassment

Vimmi Joshi was the principal of a public school who alleged her superior had sent her love letters and made sexual advances towards her. She brought a complaint to the School Managing Committee and was asked to bring the complaint in writing. Subsequently, the Committee received two anonymous complaints against Joshi and her employment was terminated. She challenged the termination claiming sexual harassment. The High Court held that this was a clear case of sexual harassment and ordered disciplinary actions to be taken. The Supreme Court reversed and remanded the High Court’s decision because the Supreme Court had previously laid out guidelines for sexual harassment complaints in Vishaka v. State of Rajasthan; a complaint committee must have been formed to inquire into the complaint further. The Supreme Court held that since the High Court did not fully look into the matter, they could not have found that this was a clear-cut case of sexual harassment. The High Court was directed to appoint a three-member committee, which must be headed by a woman, to hear the case.



Mugasa Joseph v. Uganda Court of Appeal of Uganda (2010)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

This appeal was limited to sentencing only. Appellant was convicted of defilement of a baby girl and was sentenced to 17 years imprisonment. Appellant was a relative of the child and was known as a teacher of Christianity. Appellant requested a more lenient sentence of 10 years. The Court of Appeals ruled against Appellant and increased his sentence to 25 years, citing the policy consideration that, despite the fact that defilement can be punishable by death, individuals still continue to defile babies. Thus, the court used this case as an opportunity to send a message to society that “violating the rights of child females must stop.”



Mashita Katakwe v. Hakasenke High Court of Zambia (2006)

Gender discrimination, Gender violence in conflict, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

Rosaria, a thirteen-year-old schoolgirl, was raped by defendant teacher, and consequently contracted a venereal disease. The rape occurred in the defendant's home, which Rosaria entered with the intent of picking up some past school papers that the defendant had failed to bring to school on multiple occasions. After bringing this incident to the Head Teacher's attention, it was uncovered that the defendant had done this before, that measures had been taken to warn or protect students from the defendant, that the defendant had only received a verbal warning, and that the previous student victim had transferred to another school. In his defense, the defendant claimed that he was in a relationship with Rosaria, to which she consented, as evidenced by a Valentine's Day card that Rosaria had given him. The High Court held that the defendant breached the duty of care that he owed to his pupils and was therefore negligent, noting that it is the duty of a school teacher to care for his pupils, as would a father for his family. The Court reasoned that school teachers are in a position of moral superiority, and a young schoolgirl's "consent" is fictitious in light of the ethics compelling a teacher to not engage in sexual relations with schoolgirls, a young girl's cognitive inability to truly consent, as well as Section 138 of the penal code, which states that defilement of a girl under the age of 16 is an offense. Notably, the Court held that society's indignation of this type of behavior ought to be reflected in the amount of damages awarded. The Court entered a judgment in favor of Rosaria for K 45,000,000 for her pain and suffering, medical expenses, aggravated damages, and mental torture. Furthermore, the Court held that the School, Ministry of Education, and the Attorney General are vicariously liable for this judgment, noting that the government is responsible for all school going children in the care of its agents, including teachers like the defendant.



In re Schwartz New Mexico Supreme Court (2011)

Sexual harassment

This is a proceeding for the disciplining of Schwartz, a trial court judge. Judge Robert Schwartz initiated a romantic relationship with an assistant public defender with cases before him. The assistant public defender informed her supervisor of Judge Schwartz’s planned recusal via a voice message. In the following days, Judge Schwartz provided dishonest reasons for his recusal from some cases involving the assistant public defender, and entered rulings in some other cases involving the assistant public defender.



Allen v. Dep't. of Employment and Training Vermont Supreme Court (1992)

Gender discrimination, Sexual harassment

Plaintiff was denied unemployment benefits by the Employment Security Board because prior to quitting her job, she did not notify her business manager that she was being sexually harassed by her supervisor. The plaintiff appealed. Plaintiff worked as a secretary for housekeeping and maintenance.  For several months during her employment, the plaintiff’s supervisor made repeated sexual advances towards her by grabbing her, kissing her, and apologizing thereafter.  Plaintiff complained once, but otherwise never complained to anyone other than her supervisor, and eventually quit her job out of fear of further unwanted sexual advances.  She testified that she had never received a personnel policy, never knew of the existence of such a policy, and believed that she was to complain to her immediate supervisor.  Notwithstanding, the Board found the plaintiff did not show that she had “good cause” to quit her job, since her business manager had no knowledge of the harassment.  Under 21 V.S.A. § 1344(a)(2)(A), a party may not receive unemployment benefits where she quits voluntarily unless she shows she quit with “good cause.”  On appeal, the court found that if there were a personnel policy in effect, there was no evidence that it was ever made known or available to the defendant’s employees.  The court found that the plaintiff could not adhere to a policy (to notify a manager) that is not “sufficiently disseminated by the employer to employees.”  Thus, the court reversed the Board’s conclusion and remanded the matter.



In re Grievance of Butler Vermont Supreme Court (1997)

Gender discrimination, Sexual harassment

Plaintiff worked for the defendant as a police officer. During training where plaintiff was one of three women amongst twenty-four participants, plaintiff started to feel that she could never raise complaints because of her gender as a result of comments such as how the male troopers had better “watch out” or she would charge them with sexual harassment, or about another female trooper whose sex discrimination complaint had been dismissed by the Board. Plaintiff also received lewd and sexually inappropriate comments from a male officer in training who also attacked her in a kick-boxing fashion, and ridiculed her when she protested. After completing training, plaintiff was the only female full-time officer in her department and continued to experience more harassment, including exposure to openly-displayed pictures of semi-nude women, an officer telling his girlfriend that plaintiff was his sex slave, personnel and supervisors frequently discussing plaintiff’s marital difficulties, and interfering with her personal relationship with a former police officer. During the plaintiff’s first evaluation, she received a good score for her work performance but her overall score was lowered due to comments from others. Further, when it was a male colleague’s birthday, he demanded the plaintiff kiss him and when she refused, he made fun of her appearance. When plaintiff’s supervisor did not respond to her complaints regarding these incidents, she met with the Commissioner, setting forth her sexual harassment claims. She was offered an unfeasible transfer far from her home and children as the only alternative. When the plaintiff failed to report to the transfer location, she was terminated. Plaintiff subsequently filed claims for sexual harassment and hostile work environment with the Board. The Board found there was discrimination and ordered her reinstatement and reimbursement of back pay. In response to the state’s appeal, the court agreed with the Board and found that the plaintiff’s work environment, characterized by her colleagues’ and supervisor’s attitudes towards her as a woman, established that she was judged more harshly than her male colleagues. The court found the evidence supported the Board’s conclusion that there existed a hostile work environment and that the plaintiff was sexually harassed.



Motsinger v. Lithia Rose-Ft, Inc. Oregon Court of Appeals (2007)

Employment discrimination, Gender discrimination, Sexual harassment

Plaintiff, who was employed for fourteen months by defendant as a part-time receptionist, alleged that she was subjected to repeated acts of sexual harassment by several male employees. Plaintiff also alleged that her employment was terminated in part as retaliation for reporting this sexual harassment to management. Plaintiff brought a wrongful termination action against the employer, alleging claims of sexual harassment under Or. Rev. Stat. § 659A.030(1)(a), retaliation under Or. Rev. Stat. § 659A.030(1)(f), wrongful discharge, battery, and intentional infliction of emotional distress. The trial court denied defendant's petition to abate the proceeding pending arbitration, ruling that the arbitration clause contained in plaintiff's employment contract with defendant was unenforceable because it constituted an unconscionable contract of adhesion. The appellate court found that the employee did not show that the contract formation carried indicia of procedural and substantive unconscionability other than an unequal bargaining power. Consequently, the Court of Appeals of Oregon reversed and remanded the case.



A.L.P. Inc. v. Bureau of Labor & Indus. Oregon Court of Appeals (1999)

Gender discrimination, Sexual harassment

Here, petitioner, a male employer, sought review of a final order of the Commissioner of the Bureau of Labor and Industries, which found petitioner had created an intimidating, hostile and offensive working environment based on respondent’s gender, in violation of Or. Rev. Stat. § 659.030(1), which provides, “(1) [i]t is an unlawful employment practice: (B) [f]or an employer, because of an individual's . . .  sex . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”  The statute does not require that the unlawful employment practice be “sexual” in nature to be actionable.  It requires only that the practice have occurred “because of” the employee’s sex.  Furthermore, no independent corroboration of a complaining witness is required to establish an unlawful employment practice claim. Petitioner, the owner of a store selling adult toys and gifts, only referred to his employee, respondent Theresa Getman, using derogatory terms.  Petitioner also frequently passed derogatory comments on the appearance of female customers and directed a number of sexually inappropriate remarks towards Getman.  Additionally, petitioner frequently threatened Getman that he was going to “bitch slap” her and on several occasions slapped Getman on the top of her head and across her face.  Throughout the duration of the employment, Getman was physically ill. She had a stomach ache and found herself unable to sleep because of the stress.  The appellate court affirmed the finding that respondent was the victim of gender discrimination in her employment, as there was substantial evidence to support the finding that all of petitioner’s offensive conduct had occurred because respondent was a woman.



Werth v. Empl. Dep't. Oregon Court of Appeals (2010)

Sexual harassment

Here, claimant sought judicial review of an order of the Employment Appeals Board that denied her claim for unemployment insurance benefits after finding that claimant failed to establish that her belief that further stalking by a fellow employee would occur was reasonable. Claimant argued that the Appeals Board erred in concluding that she quit her job without good cause after being stalked by a co-worker for several months. Under ORS 657.176(12), an individual could not be disqualified from receiving benefits under subsection (2)(c) if: (a) [t]he individual is a victim, or is the parent or guardian of a minor child who is a victim, of domestic violence, stalking, or sexual assault; (b) [t]he individual leaves work . . . to protect the individual or the minor child from further domestic violence, stalking or sexual assault that the individual reasonably believes will occur at the workplace or elsewhere.” The Court of Appeals of Oregon reversed and remanded for further proceedings, finding that claimant’s belief that further stalking would occur was reasonable, in light of her stalker ignoring warnings from the police to leave claimant alone, disregarding some of the restrictions that employer instituted after the first temporary stalking protective order (SPO) was issued and in light of his conduct escalating and becoming increasingly alarming.



Byers v. Labor and Indus. Review Comm. Wisconsin Supreme Court (1997)

Sexual harassment

Here, the petitioner obtained a restraining order against her co-worker who had constantly harassed the petitioner and repeatedly made sexual advances towards her. The co-worker violated the restraining order and the petitioner complained to her employer to take measures to stop the harassment. Despite her complaints , the co-worker was not terminated, suspended or reprimanded for his sexual harassment. The petitioner finally filed a complaint with the Equal Rights Division of the DILHR “alleging sex discrimination by the employer for allowing the co-[worker] to sexually harass her at work in violation of WFEA.” The DILHR held that it did not have jurisdiction to hear her case because the Worker’s Compensation Act (WCA) provided her sole remedy for her work-related injury. The WCA exclusive remedy provision “mandates that when the conditions for an employer’s liability under the WCA exists, the employee’s right to recover compensation under the WCA shall be the employee’s exclusive remedy against an employer.” Since the petitioner had previously raised a complaint under the WCA for her employer’s failure to take action to remedy the sexual harassment and that complaint had been dismissed, the petitioner no longer had any remedies available.


Nava v. Santa Fe New Mexico Supreme Court (2004)

Sexual harassment

Nava has been a police office since 1993. In 2000, according to Nava, Gallegos, one of Nava’s supervisors, harassed her almost daily. Gallegos checked on her location more than other officers, raised his voice to her, denied her many of the same privileges male officers were afforded, followed her to her house to monitor how long she took on bathroom breaks, assigned rape calls to her even when other officers were closer to the scene of the crime, and threw a file folder at her on one occasion. Nava brought a sexual harassment claim based on a hostile work environment theory under the New Mexico Human Rights Act. At trial the jury awarded Nava $285,000 in damages. The trial court subsequently reduced the amount to $90,250 on the city’s motion. Both parties appealed.



Hat Six Homes, Inc. v. State Wyoming Supreme Court (2000)

Gender discrimination, Sexual harassment

Appellant-employer challenged the decision from the District Court, affirming findings of appellee, Wyoming Department of Employment, Unemployment Insurance Commission, holding, among other things, that appellee employee had quit her employment with appellant employer for good cause under Wyo. Stat. Ann. § 27-3-311(a)(i) (1997).  In this case, appellee-employee left her employment because of sexual harassment and hostile work environment. This included the president of appellant-employer touching her under her shirt and behind her knees in an unwelcome manner and continuing this behavior after appellee employee asked him to stop. Additionally, conduct of the vice-president created a tension that “could [be] cut . . . with a knife . . .” On several occasions, the vice-president threw around staplers and cellular phones and yelled at customers and other employees. The Supreme Court of Wyoming affirmed the District Court’s decision and held that this conduct on the part of appellant-employer sufficed for the determination that appellee-employee had quit her employment for good cause.


Littell v. Allstate Ins. Co. New Mexico Court of Appeals (2007)

Sexual harassment

Littell worked as a paralegal for Allstate in 1996. Aakhus, Littell’s supervisor, regularly told demeaning jokes, touched women inappropriately, commented about other employees’ sexual preferences, and tolerated similar behaviors by other coworkers. After Littell anonymously reported Aakhus to Allstate headquarters, Aakhus started to belittle her in public, disciplined her for pretextual reasons, and became more aggressive in general. Littell eventually left her job after Aakhus denied her leave to deal with a “family crisis.” Aakhus was discharged after Littell left Allstate. Littell subsequently sued Allstate, alleging, among other things, sexual harassment and retaliatory discharge. The jury reached a verdict in favor of Littell, awarding her $360,000 in compensatory damages and $1 million in punitive damages. Allstate appealed.



Kanzler v. Renner Wyoming Supreme Court (1997)

Sexual harassment

Appellant, a former dispatcher with the Cheyenne Police Department, appealed from the summary judgment which was entered in favor of police officer-appellee, also employed by the Cheyenne Police Department, on appellant’s claim of intentional infliction of emotional distress. The Wyoming Supreme Court reversed, because as a matter of law, appellant presented sufficient evidence in support of her claim of intentional infliction of emotional distress, based on inappropriate sexual conduct by a co-employee in the workplace, to survive appellee’s motion for summary judgment. The court identified several recurring factors that could be used in determining whether particular conduct in the workplace is sufficiently outrageous to survive a preliminary motion: (1) abuse of power; (2) repeated incidents and/or pattern of harassment; (3) unwelcome touching and/or offensive, non-negligible physical contact; and (4) retaliation for refusing or reporting sexually-motivated advances. The court found that conditions and circumstances alleged by appellant, including repeated incidents over a period of time and offensive, non-negligible physical contact, could lead a jury to construe appellee’s conduct as outrageous. Furthermore, appellant’s evidence was sufficient to create a jury issue on the severity of her emotional distress.



Ocana v. Am. Furniture Co. New Mexico Supreme Court (2004)

Sexual harassment

Ocana worked for the Santa Fe store of the American Furniture Co. (“AFC”) from July, 1997 to November 1998.On January 10, 2000, Ocana, acting pro se, filed a complaint in a trial court, charging AFC with, among other things, sexual harassment in violation of the NMHRA.In particular, Ocana claimed that the store manager touched himself in suggestive ways, stared at her breasts, and parked next to her even when he had a different, dedicated parking spot.AFC moved for summary judgment. The trial court granted summary judgment in favor of AFC, reasoning that “there was no evidence corroborating Ocana’s claims of sexual harassment; there were no witnesses and no evidence that she complained about the harassment until after she was fired; and she had been disciplined for as many as 14 major mistakes.”Ocana appealed.The Supreme Court of New Mexico reversed, holding that genuine issues of material fact precluded summary judgment on employee’s sexual harassment claims under the New Mexico Human Rights Act (“NMHRA”).



Bangladesh National Women Lawyers Association v. The Cabinet Division Bangladesh Supreme Court (2011)

Gender-based violence in general, Harmful traditional practices, Sexual harassment, Sexual violence and rape, Trafficking in persons

In an application under Article 102 of the Constitution, the Bangladesh National Women's Lawyers Association (BNWLA) petitioned the Supreme Court of Bangladesh (High Court Division) to address the exploitation and abuse endured by child domestic laborers in Bangladesh. The BNWLA argued that child domestic workers are subjected to economic exploitation, physical and emotional abuse, and the deprival of an education in violation of their fundamental constitutional rights. In support of these arguments, it presented multiple reports of extreme abuse suffered by child domestic workers. In deciding this case, the Court reviewed the current laws in Bangladesh, including the Labour Act, 2006, which fails to extend labor protections to "domestic workers," including children, and lacks an effective implementation and enforcement system. The Court directed the government of Bangladesh to take immediate steps to increase its protection of the fundamental rights of child domestic workers including prohibiting children under the age of twelve from working in any capacity including domestic settings; supporting the education of adolescents; implementing the National Elimination of Child Labour Policy 2010 and applying the Labour Act, 2006 to domestic workers. Additionally, the Court directed the government to monitor and prosecute incidents of violence against child domestic workers, maintain a registry of domestic workers and their whereabouts to combat trafficking, promulgate mandatory health check-ups and strengthen the legal framework relating to child domestic workers.



Sabella v. Manor Care, Inc. New Mexico Supreme Court (1996)

Sexual harassment

Sabella worked for Manor Care, Inc. (“Manor”) from 1989 to 1990. Sabella claimed that her supervisor sexually harassed her and retaliated against her rejections by assigning her to less desirable jobs. On February 8, 1990, Sabella filed a grievance with the Equal Employment Opportunity Commission (the “EEOC”), but not with the New Mexico Human Rights Division (the “NMHRD”). While the investigation was pending, Sabella filed a claim for workers’ compensation benefits, claimed injuries such as bruised breast and emotional trauma due to sexual assaults. Sabella and Manor eventually settled the workers’ compensation claim. She signed an agreement that discharged Manor all current and future liabilities under the Workers’ Compensation Act. On August 24, 1993, Sabella received an order of non-determination from the NMHRD. Sabella appealed the order to the trial court. Manor filed a motion to dismiss, claiming that Sabella had not exhausted her administrative remedies as required by the NMHRA. Id. at 902-03. Manor specifically pointed out that Sabella had not filed her grievance with the NMHRD. Id. The trial court granted Manor’s motion to dismiss. Sabella appealed.



Gavin v. Rogers Tech. Servs., Inc. Nebraska Supreme Court (2008)

Sexual harassment

Gavin worked as the personal assistant to Rogers, president of RTSI. A few days into her employment, Gavin discovered that the conversations between her and Rogers always had a sexual overtone, if not outright about sex. One day, when Gavin entered Rogers’ home office in the morning, Gavin appeared to be wearing nothing but a pair of boxer shorts. Gavin immediately left and never returned to work again. On these facts, Gavin brought a sexual harassment suit under VII of the Civil Rights Act of 1964 against RISI.


Ford v. Revlon, Inc. Arizona Supreme Court (1987)

Sexual harassment

Plaintiff Ford’s supervisor, Karl Braun, began to sexually harass Ford at a dinner on April 3, 1980, where Braun told Ford that she would regret it if she didn’t sleep with him. At a company picnic a month later, Braun said to Ford: “I want to fuck you, Leta,” and restrained her in a chokehold, from which Ford eventually escaped. Despite Ford having reported the harassment to regional management later than month and to headquarters in November, 1980, no action was taken until Braun’s employment was terminated in October, 1981, almost a year and a half after plaintiff’s original complaints. During this period Braun’s continuing threats led to Ford developing symptoms of emotional stress such as high blood pressure and chest pains.



Madeja v. MPB Corp. New Hampshire Supreme Court (2003)

Sexual harassment

Here, the plaintiff worked for the defendant, who manufactured ball bearings. After commencing work, the plaintiff’s trainer told a supervisor that he could not work around the plaintiff due to her attitude. The plaintiff responded that the trainer had been engaging in sexually harassing behavior. The supervisor warned the trainer, following which the trainer did not bother the plaintiff again, but was hostile towards her. Soon thereafter, another trainer, friend of the previous trainer, started making complaints about plaintiff. After this new complaint, the supervisor inspected the plaintiff’s work and concluded she was unproductive. The supervisor then spoke with the senior shift supervisor about the plaintiff’s low productivity. The shift supervisor did not know about the plaintiff’s complaint against the trainer and recommended that the supervisor terminate the plaintiff. The plaintiff was subsequently terminated and then sued the defendant for sexual harassment. The jury during the trial found the defendant was guilty for a hostile work environment under N.H. Rev. Stat. § 354-A. The defendant argued that the judge’s jury instructions were improper because they would hold the defendant liable for a merely negligent response to the sexual harassment, which should be insufficient to find liability. The court noted that under N.H. Rev. Stat. § 354-A, an employer is liable for sexual harassment committed by a co-worker of the plaintiff if the employer knew or should have known about the harassment and failed to take prompt, effective remedial action to end the harassment. The court further noted that an employer may be liable for an employee’s sexual harassment based on the employer’s negligence to remedy the situation.


Thames Talent, Ltd. v. Com'n on Human Rights and Opportunities Connecticut Supreme Court (2003)

Employment discrimination, Sexual harassment

Plaintiff was hired as a bookkeeper and secretary for the defendant company, and worked exclusively for the company’s president. The president subjected plaintiff to comments about the her clothing and body, quizzed her about intimate details of her sex life, purchased underwear for her, and showed her pictures of naked women. Some of this behavior was done in front of other employees. In response, plaintiff began wearing baggy clothing to work and told the president that his behavior made her uncomfortable. Subsequently, in a discussion about plaintiff’s work performance, the president told plaintiff that he was happy with her work and that she may receive a raise if her performance continued. Two days after this discussion, plaintiff met with the president again to discuss her discomfort at work due to his comments. Several days later, the president terminated plaintiff’s employment. Plaintiff sought back pay and reimbursement to the state for unemployment compensation benefits. The trial court granted back pay but did not order reimbursement. Defendant appealed against having to provide back pay, arguing that under Gen. Stat. § 46a-86, an order of reinstatement to the employment position is a prerequisite for back pay or reimbursement, and the court had not ordered reinstatement. The court rejected this argument and found it could order back pay and reimbursement even though reinstatement to the position was not ordered by the trial court.



Schneider v. Plymouth State College New Hampshire Supreme Court (1999)

Sexual harassment

Here, the plaintiff was a student at the defendant-college. The plaintiff took a course with a professor, had a positive experience and ultimately majored in the subject of the class. The professor became the plaintiff’s academic advisor. Subsequently, the professor began to sexually harass the plaintiff. When the plaintiff refused the professor’s advances, he grew angry and threatened to make her life very difficult. He withheld academic support for her and ridiculed her in front of faculty. He also gave her a poor mark for her work as an intern without ever consulting the supervisor at the company. The plaintiff reported the harassment to faculty members (to a professor and the dean of the college). The plaintiff also reported the harassment in a paper to a professor, but no action was taken in response. The plaintiff eventually spoke with another professor about the harassment but wished to remain anonymous for fear of worse treatment by the professor. That professor then told the chair of the college’s art department. Further, more students had reported the harassment of the plaintiff. Action was not taken against the professor though because the plaintiff wished to remain anonymous and the school would not act without a “firsthand account.” After the plaintiff graduated, she wrote to the dean who was acting as interim president of the school that she was harassed as a student. The professor was then dismissed on the ground of moral delinquency. The plaintiff then sued the defendant for vicarious liability for the professor’s sexual harassment. She also claimed breach of fiduciary duty. The court found that there was a fiduciary relationship between the plaintiff and the defendant; the plaintiff depended on the defendant for her education and relied upon the defendant to adopt and enforce practices to minimize danger that students will be exposed to sexual harassment. The court did not analyze the school’s liability under the hostile environment theory as it found the school guilty of a breach of fiduciary duty. Thus, in an academic setting, a plaintiff may be entitled to relief for harassment under a breach of fiduciary duty in addition to the usual hostile environment claims.


Miller v. State, Dep't of Public Safety Delaware Superior Court (2011)

Sexual harassment

Plaintiff alleged that her superior violated the Department of Public Safety’s sexual harassment policy to attempt to pursue a sexual relationship with her. At various times during plaintiff’s employment, her superior had allegedly engaged in sexually harassing behavior towards her. At a later date when plaintiff had received poor performance reviews, claimed that her supervisor made her believe he could save her job if internal investigations against her concerning the reviews did not go well. With this indication, the supervisor made sexual advances towards the plaintiff, who felt pressured into submitting to these advances for fear of losing her job. The court noted that Delaware courts have not yet adopted federal tests to determine a quid pro quo sexual harassment claim. However, it noted that based upon the Supreme Court’s interpretation, “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes quid pro quo sexual harassment when ‘(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual’.” The court noted that under this test, the consequences of a rejection to such advances or requests must “be sufficiently severe as to alter the harassed employee’s compensation, terms, conditions, or privileges of employment.” The court found that the plaintiff pleaded a qui pro quo claim of sexual harassment against the defendant.



Monge v. Beebe Rubber Co. New Hampshire Supreme Court (1974)

Employment discrimination, Sexual harassment

Here, the plaintiff worked for the defendant in a union shop and she joined the union as a requirement for her employment. After working without incident for a few months, the plaintiff applied to work a different position for higher pay. The plaintiff’s foreman told her that if she wanted the job, she would have to be nice. The plaintiff got the job. Subsequently, the foreman asked her out and she refused. Following this, the plaintiff’s personnel manager visited her at home about some annoying phone calls the plaintiff was receiving, and during that visit, the manager told the plaintiff he knew that the foreman used his position to make advances at female employees under his authority, and asked the plaintiff “not to make trouble.” After that, only three weeks after having worked in the new position, her machine was shut down, her overtime was taken away (even though no one else’s was), and she had to return to a position at a lower salary. The foreman continued to harass plaintiff in various ways, eventually firing her for refusing to comply an order at the very moment she was making a complaint to the union steward. After she was reinstated, the plaintiff was fired yet again when she called in sick over a period of time. The plaintiff did not file a claim for hostile working environment upon her termination. However, she did sue for breach of her employment contract. The plaintiff was an at-will employee. The court noted that in order to find termination was improper, the plaintiff would need to show that the termination was motivated by bad faith or malice. The court noted that the facts of the case—in particular, the foreman’s overtures, manipulation of assignments, and the connivance of the personnel manager, all supported the jury’s conclusion that termination was maliciously motivated and thus improper. Thus, even though the plaintiff did not sue for sexual harassment, she was able to use the harassment to show she was maliciously terminated from her job.



Schuster v. Derocili Delaware Superior Court (2001)

Employment discrimination, Sexual harassment

Here, the plaintiff was an at-will employee whose contract could be terminated by either party giving thirty days written notice. The plaintiff mainly worked for the defendant, who was the president and controlling shareholder of the company. The plaintiff alleged the defendant made sexual comments and advances towards her a few weeks after she commenced work and also touched her inappropriately. The plaintiff told the defendant his behavior made her uncomfortable but he did not stop. Subsequently, the plaintiff began recording the defendant’s conduct in a journal and rejecting his advances more forcefully. The defendant subsequently fired the plaintiff for substandard job performance. Under 19 Del. C. § 711, an employer may not discriminate against an employee based upon gender. The defendant argued that there could be no common law cause of action for employment discrimination because there was already a statutory scheme, and the plaintiff was required to abide by the specific procedures of that statute to bring such a claim. Specifically, the defendant argued that judicial review is only available after the Delaware Department of Labor Review Board hears the matter. Plaintiff based her theory on a breach of the implied covenant of good faith and fair dealing derived from the employment contract and as such, her claim did not arise directly from § 711. The court found that the plaintiff had a common law cause of action and she could bring her claim.



Mancini v. Township of Teaneck New Jersey Supreme Court (2004)

Gender discrimination, Sexual harassment

Plaintiff was hired as a police officer. Since the beginning of her employment she felt that other members of the Department were unhappy because they felt it was not a job for women. Plaintiff also suffered sexual harassment. During her first four years there, plaintiff had a locker in the men’s room as there were no women’s locker rooms, and male co-workers would shower and walk around naked in the locker room. Plaintiff’s boss told her that he did not expect her to make it as an officer, that he did not want women on the job, and that he would not accommodate her, but that he had a mattress waiting for her in his closet. The plaintiff interpreted this as a sexual advance. Plaintiff also received other inappropriate remarks, for example, in response to plaintiff’s complaint about not having a shower, her boss told her several times that he would wash her. Officers also kept pornographic magazines and pinups both at work and in patrol cars. The plaintiff also received in her mailbox at work panties, a motel key, and a note reading, “back stabbing c-t.” There were also sexual cartoons, some pertaining to her and others to other women. Plaintiff ultimately sued for sexual harassment and sex discrimination. At trial, the jury awarded the plaintiff $1 million in compensatory damages and $500,000 in punitive damages. The trial court vacated the punitive damages and reduced the compensatory damages. The defendant appealed, asserting laches – that the plaintiff unreasonably delayed in filing the suit. The court found the defendant did not make an adequate factual record in this defense and it otherwise affirmed the holding finding the defendant liable.


Lowery v. Klemm Supreme Judicial Court of Massachusetts (2006)

Sexual harassment

Here, the plaintiff volunteered at a swap shop operated by the Town of Falmouth at its waste management facility.  The defendant was the land supervisor and gatekeeper of the facility.  The defendant often visited the shop and made sexual advances toward the plaintiff for three years, despite her requests that he leave her alone.  The town subsequently terminated the plaintiff’s volunteer services and barred her from the facility.  Id. at 572.  The plaintiff sued the defendant for sexual harassment in violation of M.G.L.A. 214 § 1C.  The court found that M.G.L.A. 214 § 1C states that “[a] person shall have the right to be free from sexual harassment, as defined in chapter 151B and 151C.”  Id. at 577.  The court then noted that the definition of sexual harassment in G. L. C. 151B and 151c does not explicitly protect volunteers from sexual harassment and instead limit conduct to academic and employment contexts.  The court thus found that there is only statutory protection against sexual harassment in employment and academic contexts and there was no such protection for volunteers.  Id.  However, persons outside of this context, including volunteers, may pursue common law claims of sexual harassment.  Id. at 580-81.



Richardson's Market v. Covais Delaware Superior Court (1995)

Sexual harassment

Here, the defendant employer appealed the Board’s decision that the plaintiff had good cause to walk away from her employment as she was sexually harassed and her employer failed to rectify the situation. The son of the defendant-business owner and the defendant’s manager sexually harassed the plaintiff in a verbal and physical nature. The plaintiff tried to discuss the situation with the business owner but the harassment continued. Further, she was advised by the owner that all managerial responsibilities were given to his son and that the plaintiff would have to work it out with the son. The plaintiff attempted to discuss the situation again with the owner but after waiting for fifteen or twenty minutes, she left and quit without being able to speak to him. The plaintiff sued for hostile work environment, and the court found the defendant was liable. The employer appealed, arguing that the plaintiff did not make a reasonable effort to inform it about the hostile working environment and remedy the situation. The court disagreed and affirmed the Board’s decision.



Gaines v. Bellino New Jersey Supreme Court (2002)

Sexual harassment

Plaintiff worked the midnight shift in a prison. One night another officer kissed her without any invitation and subsequently repeatedly referred to the incident, and made intimidating jokes about raping the plaintiff. Despite being made aware of these incidents, plaintiff’s superiors did not take any action. It was almost two years before the warden responded to plaintiff’s attempts to talk to him about the harassment, at which time plaintiff refused to file a complaint in fear for her safety. The warden later advised her again to file a complaint and issued a cease and desist letter to the officer. Eventually, the County filed disciplinary charges against the officer but dismissed the charges. Plaintiff eventually brought a lawsuit alleging a hostile work environment. Although the County had an anti-sexual harassment policy, numerous employees testified that they were never trained on the policy, and the plaintiff testified that the policy was loosely enforced. The trial court dismissed the plaintiff’s complaint, reasoning that the fact that an individual violates a policy does not render the policy wrong. The Appellate Division affirmed. The plaintiff appealed the Appellate Division decision, contending that in determining employer liability for sexual harassment, the court was required to consider (1) whether the company had mandatory training for supervisors and managers which is offered to all members of the company; and (2) effective sensing or monitoring systems to check the trustworthiness of the prevention and remedial structures for employees. The court agreed with the plaintiff; even though the policy was known to many high-ranking officials, no action was taken to address the plaintiff’s complaints, even if they were not “formal” complaints. The court found that summary judgment was improper because there were questions of fact as to the adequacy of the policy.



Cuddyer v. Stop & Shop Supermarket Co. Supreme Judicial Court of Massachusetts (2001)

Employment discrimination, Sexual harassment

Here, the plaintiff worked for the defendant as a worker on production lines.  Since the first day she was sexually harassed by her supervisor and two foremen, as were other women workers. Although plaintiff reported some of the incidents, she did not report all because she was afraid the supervisor would make her work harder if she complained. Complaints to management were followed by periods of relief, but the sexual harassment would restart or would turn into a hostile work environment. Similar occurrences continued and the plaintiff filed the suit against the defendant for a hostile work environment. Gen. Law. C. 151B, § 5 requires a plaintiff to file a complaint with the Massachusetts Commission against Discrimination (“MCAD”) within six months of the occurrence of the discrimination to allow the MCAD an opportunity to investigate the claim and to provide the defendant with notice of potential liability. However, this requirement does not exist where the discrimination is of a continuing nature and where there is a discrete violation within the six-month period to anchor the earlier claims. Here, the plaintiff did not file a complaint with the MCAD within six months of the first occurrence. The defendant argued that the continuing violation doctrine does not apply here because the plaintiff admitted in her deposition that she considered the discrimination by other employees at the time the acts occurred. A continuing violation claim will fail if the plaintiff should have been aware that she was being discriminated against while the earlier acts which are now untimely, were taking place. Id. at 534-35. The court found though that a plaintiff may not be able to appreciate the true character of the discriminatory environment until after it has continued for some time. Further, a hostile work environment constitutes a pattern of sexual harassment, which by definition, has to take place over time. The court found the plaintiff’s claims were thus timely and not barred by the six-month requirement.



Watt v. UniFirst Corp. Maine Supreme Court (2009)

Sexual harassment

After commencing her employment, plaintiff agreed to prepare lunches for a new co-worker in exchange for $25 a week. Plaintiff later stopped providing lunches to the co-worker who in return, became hostile towards her, commencing a pattern of sexual harassment, including lewd comments, uninvited sexual advances, and interference with her ability to work. In keeping with company policy, plaintiff addressed complaints to her supervisor. Although the supervisor met with the co-worker and issued warnings, the harassment continued. Eventually the general manager suspended the co-worker and changed his duties so he would not be working near the plaintiff. When he returned, however, the co-worker continued to harass plaintiff. Eventually, there was an incident where the two got into a physical altercation, for which both were suspended. The plaintiff sued the defendant for failing to remedy the situation and for a hostile work environment. The court found that an employer may be liable for the sexual harassment of an employee by a co-worker under a hostile environment claim if the employer knew or should have known about the harassment and failed to take immediate and appropriate steps to correct it. The court noted that in determining whether a work environment is hostile, a court should consider the frequency of the discriminatory conduct, its severity, if it is physically threatening or humiliating as opposed to a mere offensive utterance, and if it reasonably interferes with the plaintiff’s work. The court then concluded that a jury could conclude that the defendant’s response to the harassment was neither immediate nor appropriate. Specifically, the three-day suspension and warnings were insufficient given the pattern of harassment. Thus, the court vacated the trial court’s issuance of summary judgment to the defendant and remanded the case.



Lehmann v. Toys R Us New Jersey Supreme Court (1993)

Sexual harassment

Plaintiff was employed by defendant as a file clerk and subsequently promoted to supervisory positions. Sometime thereafter, defendant hired a new supervisor to the plaintiff. This supervisor started sexually harassing female employees, including plaintiff, through offensive sexual comments and touching. Although plaintiff immediately reported incidents to the supervisor’s boss, she was told to handle the matter herself. Upon continuing to bring incidents to the attention of the manager, plaintiff was told that she was being paranoid. Eventually plaintiff addresses the executive vice president, expressed that she felt she was being forced out of the company, and when she was offered an undesirable transfer as a solution, offered her resignation. The plaintiff sued the defendant for hostile work environment, arguing that its investigation into the harassment was inadequate. To bring a claim for hostile work environment, the plaintiff needed to show: (1) the conduct would not have occurred but for the employee’s gender; (2) the conduct was severe or pervasive enough to make a (3) reasonable woman believe (4) that the conditions of employment are altered and the working environment is hostile or abusive. The court found that even though the defendant had a written policy against sexual harassment, the manager did not keep any records about the investigation, did not document the investigation, and did not question key witnesses about events. The court found that this enabled a hostile work environment, and held the defendant liable.



Ramsdell v. Western Mass. Bus Lines, Inc. Supreme Judicial Court of Massachusetts (1993)

Employment discrimination, Sexual harassment

Here, a female employee appealed the decision of the Commission Against Discrimination which dismissed her complaint against her employer for sexual discrimination.  The Massachusetts Supreme Court affirmed the Commission’s decision.  Under Gen .L. C. 151B, §4(1) (1990), employment discrimination on the basis of gender is prohibited.  The Massachusetts Code defines sexual harassment as “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.”  Gen. L. C. 151B, §1(18) (1990). 



Nadeau v. Rainbow Rugs Maine Supreme Court (1996)

Sexual harassment

The plaintiff worked as an administrative assistant for the defendant, whose office was located at the home of the company’s president. The plaintiff worked in the same room as the president and he supervised the plaintiff’s work. The president asked her uncomfortable personal questions about her marriage and financially distressed situation, stating that she had options available to make money, but that he needed to speak to her in private about them. He followed this by offering to give the plaintiff money in exchange for sex. The plaintiff immediately rejected the proposal and the president told her that her position was not jeopardized but left the offer open in case the plaintiff changed her mind. The plaintiff reported the incident that day to a supervisor of the warehouse. However the president was her only supervisor so she did not report the incident to anyone else. The defendant had no policies for sexual harassment or complaint procedures. The plaintiff subsequently resigned due to the president’s comments and filed a complaint with the Human Rights Commission suing the defendant for the harassment by her supervisor under 5 M.R.S.A. § 4572 for a hostile work environment. The court found that under the Maine Human Rights Act, “employers are liable for hostile environment harassment by supervisors and co-workers if an official representing the institution knew, or in the exercise of reasonable care, should have known, of the harassment’s occurrence, unless that official can show that he or she took appropriate steps to halt it.” Here, the court found that because the president was the plaintiff’s only supervisor, she had no one else to consult, and because the defendant had no harassment policy in place, she had no avenues of relief. Any higher officials than the president were located in Belgium. Further, the president was an official representing the defendant and obviously knew of the occurrence. He could have taken steps to stop the harassment by rescinding his offer but he left it open in case the plaintiff changed her mind. Thus, the defendant could be liable for the president’s harassment.



College-Town, Div. of Interco, Inc. v. Mass. Comm’n Against Discrimination Supreme Judicial Court of Massachusetts (1987)

Employment discrimination, Gender discrimination, Sexual harassment

Here, an employer appealed the superior court’s decision that it discriminated against an employee on the basis of sex.  A few weeks after College-Town hired the employee, Rizzi, Rizzi’s supervisor began making sexually suggestive comments to her.  Once he touched her back, and another time he put his hand over a slit in her dress and told her to fix her skirt.  On one occasion, Rizzi asked her supervisor to review her performance in a meeting and he told her that she handled it well and that he “liked the way [her] tits stood out in the red shirt.”  Once, he asked her if she was a good f----.  Rizzi then spoke to the director of manufacturing, who told her he was “not qualified to go into these things,” and refused to talk to her.  Rizzi had to wait several days before she could tell someone else at work.  A College-Town executive finally spoke with the supervisor about the allegations, which were denied.  A meeting was held to determine the truth of the allegations, which the supervisor and all other women in the department attended except for Rizzi.  She was not asked to the meeting or notified of its occurrence.  At the meeting, the supervisor explained the allegations and Rizzi’s co-workers were generally supportive of the supervisor.  College-Town made no further investigation.  Prior to that meeting, Rizzi sought a promotion to a position in another department.  After the meeting was held, Rizzi was informed she was not qualified for the promotion and College-Town hired someone with more knowledge and experience.  Soon thereafter, College-Town attempted to transfer Rizzi as tension in the office was affecting productivity and she declined.  Rizzi was never told the transfer was mandatory, and within weeks of her denial, she was discharged. The trial court found that College-Town’s supervisor created a sexually harassing work environment, it failed to remedy the situation, and it retaliated against the employee in its attempt to transfer her and discharge her once she declined the transfer.  Id. at 158.  The Massachusetts Supreme Court affirmed the decision and found that sexual harassment may constitute discrimination under Gen. L. C. 151B, §4(1), which prohibits employment discrimination on the basis of gender.



Frieler v. Carlson Mktg. Group, Inc. Minnesota Supreme Court (2008)

Sexual harassment

Here, the appellant, Judy Frieler, sued the respondent for violating § 363A.03(43) and § 363A.08(2) of the Minnesota Human Rights Act (MHRA), “based on a hostile working environment due to sexual harassment by a supervisor.” Ms. Frieler worked part-time and was interested in a full-time position in the shipping department. She expressed her interest and was referred to Ed Janiak, the supervisor of that department. Ms. Frieler alleged that Janiak had verbally abused her and on three to four occasions lured her into a locked room, pressed himself against her and made sexual advances towards her. Ms. Frieler reported the incident to her employer (respondent) but before a full investigation could take place, Janiak resigned from his position. Janiak was made aware of the allegations just a few days before his resignation, and he denied them. Ms. Frieler subsequently sued her employer under § 363A.03(43) and § 363A.08(2). The trial court and court of appeals dismissed her sexual harassment claims for failing to raise an issue of material fact as to whether the employer knew about the harassment and whether Janiak was Ms. Frieler’s supervisor for vicarious liability purposes. The Minnesota Supreme Court reversed and remanded the court of appeals’ ruling. The court held that: 1) a plaintiff does not need to prove that his or her employer knew about the harassment in order to maintain a claim under the MHRA; 2) employers are not strictly liable for sexual harassment claims; 3) “an employer is subject to vicarious liability for an actionable hostile environment created by a supervisor with immediate authority over a victimized employee;” and 4) in this case, there was a material issue of fact whether Janiak was Ms. Friedler’s supervisor at the time of the harassment.



Ex parte Alabama Department of Youth Services Supreme Court of Alabama (2003)

Custodial violence, Sexual harassment, Sexual violence and rape

Jane Doe 1 and Jane Doe 2, female minor children in the custody of Alabama’s Department of Youth Service (“DYS”), brought an action against DYS and its executive director, alleging federal claims of sexual harassment and abuse under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. (“Title IX”) and 42 U.S.C. § 1983, and state claims of intentional infliction of emotional distress, negligent hiring and supervision of DYS employees, and intentional misrepresentation. Defendants’ filed a motion to dismiss the claims based on various arguments for immunity, which the trial court denied. Defendants filed a petition for writ of mandamus directing the Circuit Court to dismiss the complaint. In ruling on Defendants’ petition, the Supreme Court considered each claim for immunity. First, DYS claimed it was immune from liability under the Eleventh Amendment. The Court, however, held that, because Congress enacted Title IX not only pursuant to its Article I powers, but also pursuant to its Fourteenth Amendment, § 5, power, Congress successfully abrogated the Eleventh Amendment immunity of the states from suits in federal and state courts for violations of Title IX. Second, the executive director argued he was entitled to federal qualified immunity from the § 1983 claim, since he was a government official. The Court disagreed, citing law holding that there is no state interest in protecting government officials accused of sexually molesting a child. Because the plaintiffs alleged that the executive director failed to protect them from harm even after he received notice of the sexual harassment and abuse, he did not have a clear legal right to dismissal of plaintiffs’ § 1983 claim on the ground of federal qualified immunity. Third, the Court found that, based on the sovereign immunity provision of the Alabama constitution, dismissal of plaintiffs’ state-law claims against the executive director in his official capacity was proper. However, the Court found that the doctrine of state-agent immunity did not warrant dismissal of plaintiffs’ state law claims against the executive director in his individual capacity.



Hill v. Ford Motor Co. Missouri Supreme Court (2009)

Gender discrimination, Sexual harassment

Cynthia Hill worked under the supervision of various people including Kenny Hune. Mr. Hune often made sexual comments to Ms. Hill and asked her inappropriate personal questions. Ms. Hill told Mr. Hune that she was offended by his comments and she repeatedly rejected his sexual advances. Upon receiving a complaint about Mr. Hune from Ms. Hill and another female employee, group leader Pete Wade raised these complaints with Mr. Hune. A few months after this, Ms. Hill was assigned to Mr. Hune’s supervision, where Mr. Hune refused to work with her, branded her a hostile worker, and created problems over small or non-issues. When Ms. Hill sought to bring a complaint to Mr. Edds, the labor relations supervisor, Mr. Edds told Ms. Hill to get psychiatric help and not return to work until she had done so. Upon receiving such treatment Ms. Hill resorted to the company’s 24-hour “Hotline” to report Mr. Edds and Mr. Hune. An hour later, Mr. Edds had suspended Ms. Hill from work for three days for a minor mistake. Upon Ms. Hill’s return to work, Mr. Edds told her she had been fired. The Missouri Supreme Court held that there were genuine issues of material fact to preclude the grant of summary judgment in favor of the employer. There was enough evidence for a jury to find that Mr. Hune had created a hostile work environment through his constant sexual harassment, which would constitute gender discrimination under MHRA 213.055.


N.C. v. P.R. Caldwell Alabama Supreme Court (2011)

Sexual violence and rape, Sexual harassment

N.C., a minor, filed a personal injury action against her physical education teacher, her school principal, and the Tallapoosa County Board of Education. N.C. alleged that, following her 7th grade physical education class, she was pulled into the boys’ locker room and raped by A.H, a 12th grade student who her teacher, Mr. Caldwell, had allegedly appointed as a teacher’s aide. N.C.’s complaint alleged that Mr. Caldwell had actual knowledge that A.H. was sexually harassing students and negligently or wantonly supervised N.C. and the other students in her class. Mr. Caldwell, the principal, and the Board filed motions for summary judgment, arguing that N.C.’s claims were barred by the doctrine of State-agent immunity. N.C. opposed entry of summary judgment only against Mr. Caldwell. The trial court found that the doctrine of immunity is strong and the Supreme Court “has been particularly reluctant to hold an educator responsible for sexual misconduct by another.” On that ground, the trial court granted summary judgment in favor of Mr. Caldwell on the basis of Stage-agent immunity. On appeal, the court considered an exception to the law of State-agent immunity, which provides that “a State agent shall not be immune from civil liability in his or her personal capacity . . . when the State acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” N.C. argued that there was a genuine issue of material fact as to whether Mr. Caldwell acted beyond his authority: (1) when he allegedly failed to properly supervise A.H.; (2) when he allegedly allowed A.H. to act as a teacher’s aide; and (3) when he ignored and failed to report previous claims by other female students. The appellate court held that there was a genuine issue of material fact as to whether Mr. Caldwell actually appointed A.H. as a student aide, and, if he did, whether he acted beyond his authority in doing so. The court also found that there was a genuine issue of material fact as to whether Mr. Caldwell was actually aware that A.H. was sexually harassing other female students and, if he was, whether he failed to respond to the allegations. Thus, the appellate court concluded that the trial court erred in entering summary judgment for Mr. Caldwell.


Lacey v. State Nebraska Supreme Court (2009)

Gender discrimination, Sexual harassment

Lacey worked at the Department of Correctional Services as a temporary employee. Lacey’s supervisor was known for “creating a fun atmosphere” by “giving each other a hard time in a joking manner.” The supervisor’s jokes and questions were often sexual in nature, including inquiring Lacey about the frequency, locations, and types of sex she and her boyfriend had. Towards the end of Lacey’s temporary placement, the jokes and questions were made daily and became increasingly vulgar. Supervisor also subjected Lacey to unwanted touching. Lacey eventually complained and the supervisor was ordered to stay away from here. Soon after, Lacey was terminated under questionable circumstances. Lacey filed a complaint against the Department of Correctional Services on June 7, 2006, alleging, among other things, sexual harassment in violations of the Nebraska Fair Employment Practice Act (NFERA). The trial court awarded Lacey $60,000 in damages for her sexual harassment claim. The State appealed.



In re Piatt Arizona Supreme Court (1997)

Sexual harassment

In May of 1990, Piatt represented clients A and B in their respective domestic relations actions.  During his representation of client A, Piatt repeatedly asked her questions such as whether she had masturbated at the age of fourteen, and whether she had ever had sexual relationship without emotional involvement.  He also made comments about the length of client A’s skirt and how “delicious” she looked.  Piatt later told client A during a meeting that if she did not respond to his sexual advances, he would be forced to charge her a large sum of money for continued representation.  Piatt threatened client B in substantially the same way.



Brittell v. Dep’t. of Correction Supreme Court of Connecticut (1998)

Sexual harassment

Here, a former correction officer claimed the Department of Correction created a hostile work environment through an officer’s sexual harassment. Prior to the plaintiff’s employment, she attended a training academy to be a correction officer. One of the plaintiff’s classmates commented that the plaintiff did not date men and that she liked women. The plaintiff warned the classmate to never make such a comment again, but she did not report the comment to a supervisor. Id. at 151. Within a few months after the plaintiff started working, inmates began making sexually obscene comments towards her. As the comments continued and took a threatening nature, i.e.--inmates threatened to assault her to determine her gender, the plaintiff reported the comments. The plaintiff was told by inmates that officers had started a rumor about her that she had a sex change operation, but was not given names. Id. at 151-52. The defendant underwent an investigation and questioned officers. It also warned all employees against sexual harassment. It offered the plaintiff aid through the employee assistance program, which the plaintiff declined. Id. at 153. The defendant continued to monitor and investigate the situation as the comments and harassment continued, and eventually offered to transfer the plaintiff to any institution of her choice within the facility, but the plaintiff declined. Id. at 159. The plaintiff then asked to go on unpaid medical leave, which was granted. The plaintiff then failed to submit the necessary medical documentation and she was considered to have resigned. Id. at 160-61. The plaintiff then sued for sexual harassment creating a hostile work environment and claimed that the defendant failed to adequately investigate and remedy the harassment. The court considered Gen. Stat. §46a-60, which prohibits discriminatory employment practices. The court then looked to federal law for guidance on whether to hold an employer liable for sexual harassment committed by the plaintiff’s co-workers. The court concluded that “once an employer has knowledge of a sexually combative atmosphere in the work-place, he or she has a duty to take reasonable steps to eliminate it.” Id. at 168 (quoting Snell v. Suffolk County, 782 F.2d 1094, 1104 (2d Cir. 1986)). The court noted that an employer’s response will be analyzed in terms of how prompt, appropriate and adequate it was. Id. The court found that the defendant did not only investigate the harassment but also made reasonable efforts to identify the inmates and officers responsible for the rumors, warned all staff that sexual harassment would not be tolerated, provided the plaintiff with access to supervisors to report any incidents to, and offered a transfer to the plaintiff which was in no way onerous, punitive or unreasonable. Id. at 171-72. The court found this was reasonable and the defendant would not be liable.



Brett v. Berkowitz Supreme Court of Delaware (1998)

Sexual harassment

Here, the plaintiff sued her former attorney for sexual misconduct and malpractice.  Under 11 Del. C. § 601, there are criminal penalties for sexual harassment.  The statute does not explicitly provide for a private right of action.  Further, the plaintiff did not bring her cause of action under this statute, and instead, claimed she could bring a common law cause of action for sexual harassment.  The court held that the plaintiff did not have a private cause of action under § 601; in other words, she could not bring common law private claims under that section for sexual harassment.  Id. at 512-13



Konstantopoulos v. Westvaco Corp. Supreme Court of Delaware (1996)

Sexual harassment

Here, the plaintiff sued her former employer for allowing her to be subjected to sexual harassment, sexual discrimination, and sexual assault by her co-workers.  The plaintiff claimed that her co-workers made sexual comments and engaged in inappropriate sexual behavior, but that she was not physically injured by the conduct.  She also had no prior or subsequent contact with her co-workers outside of work.  Id. at 938.  The plaintiff complained to her supervisors but nothing was ever done to rectify the situation.  The plaintiff subsequently elected to take a layoff from her job once the harassment continued.  The defendant argued that the plaintiff had no common law right of action because any of these claims were encompassed by the Delaware Workmen’s Compensation Act (19 Del. C. § 2301).  Under this Act, a plaintiff’s compensation for personal injuries is limited to compensation that is provided in the Act.  The court agreed with the defendant and found that the Act did not exclude acts of a sexual nature that occurred at work, and that the plaintiff could not bring a private cause of action for sexual harassment.  Id. at 939-40.  Thus, any action for sexual harassment would have to be brought pursuant to 19 Del. C. § 2301.



Tex. S. Univ. v. Rodriguez Court of Appeals of Texas – Houston Division (2011)

Sexual harassment

Lisa Rodriguez was a patrol officer at Texas Southern University (“TSU”) who alleged that her supervisor sexually harassed her by making sexual innuendos, making inappropriate remarks, commenting on her physical attractiveness, asking about the color of her undergarments, and keeping a picture of her on his desk.  Eventually, Ms. Rodriguez filed a charge form with the Texas Workforce Commission Civil Rights Division (“TWC”) alleging, among other things, 13.  In the charge form, she alleged that the 13 began a week after she was hired, and had continued until as recently as four months before filing the TWC complaint.  As a defense, TSU claimed Ms. Rodriguez had failed to meet the 180-day deadline for filing the complaint.  In Texas, a complaint under the Texas Labor Code for 13 (a type of sex discrimination) must be filed “not later than the 180th day after the date the alleged unlawful employment practice occurred.”  Tex. Lab. Code Ann. § 21.202(a).  TSU argued that because Ms. Rodriguez only documented 13 at the beginning of her employment, the 180-day deadline had passed.  However, the court recognized there are two types of 13—quid pro quo and hostile work environment.  “Quid pro quo harassment occurs when employment benefits are conditioned on sexual favors, while a hostile work environment is the result of 13.”  Since Ms. Rodriguez’s claim was of a hostile work environment, the “continuing violation doctrine” applied since the “unlawful employment practice manifest[ed] itself over time, rather than as a series of discrete acts.”  Since Ms. Rodriguez alleged “a series of related acts, one or more of which [fell] within the limitations period,” the complaint was timely filed and the appellate court found that it had jurisdiction over the case.



Harvill v. Rogers Court of Appeals of Texas – Tyler Division (2010)

Sexual harassment

Molly Harvill sued her fellow employee, Oscar Rogers, for sexual assault and battery and intentional infliction of emotional distress.  Ms. Harvill alleged that Mr. Rogers grabbed and kissed her, shot rubber bands at her breasts, and rubbed against her at work after repeated requests for him to stop.  The trial court entered summary judgment in favor of Mr. Rogers because Ms. Harvill didn’t allege damages as a result of the sexual assault.  However, the appellate court reversed on this count, recognizing that no actual damages are required for an allegation of sexual assault.  All that is required is that a person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.  Tex. Penal Code. § 22.01(a)(3).  The court recognized that bodily injury is not required and damages for mental suffering are recoverable without an actual physical injury.



O’Dell v. Wright Court of Appeals of Texas – Fort Worth Division (2010)

Sexual harassment

Rebecca Wright was a waitress at Arlington Steakhouse, Inc. for four months.  She alleged that during this time, her supervisor, Christopher O’Dell, made lewd sexual comments to her, touched her in sexual ways that she found offensive, and created a hostile work environment by his 13.  Specifically, Ms. Wright alleged O’Dell put his fingers down her blouse and in her pants and brushed up against her, offered to pay her for oral sex, verbally degraded her and the other waitresses, and made inappropriate comments about her physical appearance.  The jury trial resulted in a verdict for Ms. Wright on all claims, finding O’Dell assaulted her, Ms. Wright was constructively discharged, and was subjected to 13.  The jury award was for $175,000 in mental anguish damages for assault and $250,000 in mental anguish damages for 13.  O’Dell appealed this decision on many grounds, one of which was that the award of damages was unsupported and violated the statutory cap on damages for employers with less than 500 employees.  The appellate court affirmed, recognizing that mental anguish damages require a plaintiff introduce “direct evidence of the nature, duration, and severity of her mental anguish, thus establishing that there was a substantial disruption of her daily routine.”  The requirement is a “high degree of mental pain and distress” and must be more than “mere worry, anxiety, vexation, embarrassment or anger.”  Direct evidence must be shown of this and the evidence shown must justify the amount awarded to be affirmed on appeal.  The court found Ms. Wright presented sufficient evidence at the trial since she experienced severe anxiety, clenched her jaw, held her breath, at times felt paralyzed and nauseous, and had nightmares of her attacker, O’Dell.  In addition, the appellate court found the amount was fair and reasonable since the jury considered the “disruption in her life and personal toll taken by the events surrounding the assault and 13.”  The court also found that the statutory cap provided in Texas Labor Code Section 21.2585 (capping damages based on the size of the employer) did not apply because the burden was on the defendant to plead and prove this defense, it was not an automatic cap.



East Tex. Med. Ctr. EMS v. Nieves Court of Appeals of Texas – Waco Division (2010)

Sexual harassment

Kathy Nieves sued her co-worker, Jeremy Cox, for sexual assault and sued her employer, East Texas Medical Center EMS (ETMC) for, among other things, 13.  Ms. Nieves was an EMT and Mr. Cox a paramedic who would work shifts with Ms. Nieves.  Ms. Nieves alleged sexual assault by Mr. Cox, arguing that he had subjected her to forced sexual contact at her apartment, and 13 during the work shift when Mr. Cox allegedly tried to hold her hand and have other unwanted contact while at work.  Texas recognizes that a person commits assault if he (1) intentionally, knowingly or recklessly cause bodily injury to another, (2) intentionally or knowingly threaten another with imminent bodily injury, or (3) intentionally or knowingly cause physical contact with another when he knows or should reasonably believe that the other will regard the contact as offensive or provocative.  The jury was instructed that “sexual assault is without the consent of the other person if (1) the actor compels the other person to submit or participate by the use of physical force or violence, (2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat, or (3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist.”  The jury trial handed down a verdict for Ms. Nieves on all claims and substantial damages for past and future physical pain and mental anguish.  Mr. Cox and ETMC both appealed the jury verdict, though ETMC ended up settling the claims against it.  The appellate court affirmed the trial court’s order, recognizing the important role of the jury in determining which “side of the story” is more credible and whom to believe.  In this type of case, a court must consider the “entire context, circumstances, conversations, writings, acts, and relationships between the parties” in determining whether to reverse the trial court.  Here, the appellate court found there was sufficient evidence for the trial court outcome and that the jury’s verdict was not unreasonable.



Spring v. Walthal, Sachse & Pipes, Inc Court of Appeals of Texas – San Antonio Division (2010)

Sexual harassment

An insurance agency, Walthall, Sachse & Pipes, Inc., brought suit against its former employee, Rosemary Spring, for opening a competing insurance agency in violation of her non-compete agreement.  Ms. Spring then brought several counterclaims against her former employer, including claims for 13 under the Texas Labor Code and Title VIII of the Civil Rights Act of 1964 and assault by her supervisor, Mr. Sachse.  She alleged that he pushed her head into his hip, thrust his buttocks into her pelvic area and grinded against her while laughing, and kissed her cheek and neck.  The trial court entered summary judgment against Ms. Spring on all counts and she appealed.  The appellate court held that Ms. Spring failed to plead a prima facie case for 13.  To plead 13 under a hostile work environment theory, a plaintiff must establish: (1) she is a member of a protected class, (2) she was the victim of uninvited 13, (3) the harassment was based on sex, and (4) the harassment affected a “term, condition, or privilege” of her employment.  The appellate court recognized that for the conduct to be actionable, she must show “the workplace was permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile or abusive working environment.”  The 13 must be sufficiently severe or pervasive such that to a reasonably objective third person the conduct created an “abusive working environment.”  Despite her allegations, the court looked at other similar cases where the harassment was even more severe and found that the conduct didn’t rise to “such severe or pervasive 13 that would create a hostile or abusive work environment as to affect a term, condition, or privilege of employment of a reasonable person in Spring’s position.”  However, the court did reverse the entry of summary judgment on the assault claim.  Conduct can be actionable as civil assault when it doesn’t rise to the level of discrimination under the Texas Labor Code and Title VII of the Civil Rights Act of 1964.  To allege assault, Ms. Spring must have shown Mr. Sachse intentionally or knowingly caused physical contact with her when he knew or should have known she would regard the contact as offensive or provocative.  Ms. Spring presented testimony of a co-worker who corroborated the contact in the elevator.  The other two incidents both involved physical contact.  Since reasonable minds could differ on whether the unsolicited physical contact was offensive or provocative, the court reversed on the assault claim.



KKO 2010:1 Supreme Court of Finland (2010)

Gender discrimination, Sexual harassment, Sexual violence and rape

The issue here was whether A, the CEO of a company for which the victims worked, was guilty of sexual abuse, of a work safety offense, and of employment discrimination. A had performed sexual acts on his subordinates while they were resting in the break room. These acts included touching intimate parts such as breasts and bottom. The District Court and the Court of Appeal held A guilty of these charges, and A appealed to the Supreme Court.  The Supreme Court considered whether the public prosecutor had a cause of action given that the injured party had not reported the offense within the statute of limitations period.  According to Chapter 20 Section 11 of the Finnish Criminal Code (39/1889, as amended) (the "Criminal Code"), the public prosecutor may not bring charges for the offenses referred to in Sections 3 or 4 or Section 5(1)(2) or 5(1)(4), unless the injured party reports the offense for the bringing of charges or unless a very important public interest requires that charges be brought.The Court held that since A was the victim's supervisor, important public interest required the case to be brought to court by the prosecutor. Turning to the merits of the case, the Court found that A had abused his position in violation of Chapter 20 Section 5(1) of the Criminal Code.  It therefore held A guilty of sexual abuse towards B, C, D and E.  In addition, the Court upheld A's convictions for a work safety offense under Chapter 47 Section 1(1) of the Criminal Code and Section 27 of the Finnish Occupational Safety and Health Act (738/2002, as amended).  Finally, the Court upheld A's conviction for employment discrimination in violation of Section 8(2)(4) of the  Finnish Equality Act (609/1986, as amended), in accordance with Chapter 47 Section 3(1) of the Criminal Code.



Frazier v. Badger South Carolina Supreme Court (2004)

Sexual harassment

Frazier, a middle school teacher, alleged that Badger, the assistant principal, sexually harassed her.  When she rejected his advances, he allegedly had her classroom moved to the basement.  The jury found that Badger’s conduct met the elements of the tort of outrage and the Court of Appeals affirmed.  The South Carolina Supreme Court, in assessing the new issues brought before it, held that Badger did not get to claim governmental immunity.  Under South Carolina law, governmental immunity would be provided to a governmental employee who commits a tort while acting in the scope of his official duty.  The court held that sexual advances do not fall within the scope of official duties.  It looked at the phrase “scope of employment,” used in insurance policies, and found that it had previously concluded that 13 is not within the “scope of employment.”  Since “scope of official duties” is a phrase construed more narrowly than “scope of employment,” it concluded that 13 could not fall under the “scope of official duties.”  The court found that Frazier’s testimony that Badger began making sexual advances towards her years before, when he was her high school basketball coach, did not warrant a mistrial.  The court also held that Frazier did not have to file a 13 claim; it was permissible to file an outrage claim.  The court rejected Badger’s argument that the Court of Appeals erred in upholding the jury’s punitive damage award, noting that “a defendant’s inability to pay does not prohibit a jury from awarding punitive damages.” 



Sangamon County Sheriff’s Department v. Illinois Human Rights Commission Iliinois Supreme Court (2009)

Gender discrimination, Sexual harassment

Donna Feleccia was a records clerk with the county sheriff’s department. A coworker sent her a letter that appeared to be from the Illinois Department of Public Health informing her that she may have been exposed to a sexually transmitted disease. When Feliccia read the letter, she became very upset and started shaking. The letter was sent by Yanor, a coworker of Feliccia’s, as a practical joke. Feliccia’s coworkers heard about the letter and/or that Feliccia had a sexually transmitted disease and Feliccia missed work and sleep over the incident. Yanor was only lightly disciplined and advised not to have any contact with Feliccia. Prior to the letter, Feliccia had endured several incidents of sexual harassment by Yanor, including once incident when he grabbed her and asked for a kiss and another when he asked her to go to a motel with him. Feliccia filed a charge of sexual harassment and retaliation against the sheriff’s department and Yanor. The court held that, under section 2-102(D) of the Illinois Human Rights Act, the sheriff’s department (i.e. the employer) was strictly liable for Yanor’s (i.e. a supervisory employee) “hostile environment” sexual harassment regardless of whether it was aware of the harassment or took measures to correct the harassment. It was irrelevant that Yanor did not have direct supervisory authority over Feliccia’s working conditions; in other words, an employer’s liability is not limited based on the harasser’s relationship to the victim. In addition, the court held that a sexual harassment claim is timely as long as it is filed within 180 days of any act that is part of the hostile work environment and that a factfinder may consider all of the conduct that makes up the hostile environment claim. Feliccia’s sexual harassment claim was meritorious because Yanor’s forged letter and other harassing conduct caused Feliccia to miss work and sleep.



Parker v. Warren County Util. Dist. Tennessee Supreme Court (2009)

Sexual harassment

Plaintiff Parker alleged that defendant Grissom, a general manager who hired her as a bookkeeper, sexually harassed her.  She reported the harassment to her immediate supervisor, Link.  Parker stated that she feared losing her job if she did anything, so asked that Link do nothing.  The harassment continued, and Link reported it to Vinson, a member of the Utility’s Board of Commissioners.  Vinson agreed that plaintiff would likely lose her job if she reported the harassment.  Plaintiff later discussed the issue with Vinson, who did not assure her that she would not lose her job.  Grissom voluntarily resigned in April of 1994 but was rehired in the fall, despite the fact that plaintiff notified the board of the alleged harassment.  The board rehired him, but also retained counsel to conduct an independent investigation of his alleged harassment. Plaintiff filed several claims; the remaining hostile work environment/13 claim before the Court was against the Utility District under the Tennessee Human Rights Act.  The Utility District filed a summary judgment motion, arguing that “it took prompt corrective action in response to plaintiff’s complaints and that the corrective action was ‘a complete defense’ to a claim for 13.”  An employer has an affirmative defense to a hostile work environment claim based on 13 by a supervisor if the employer can show: (1) that employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by employer or that employee unreasonably failed to otherwise avoid the harm.  The court held that Parker’s supervisor could be held vicariously liable for her hostile work environment 13 claim.  There was no evidence that the District exercised reasonable care to prevent the alleged harassment, and that there was no evidence of a written anti-discrimination policy given to employees to deal with the circumstances of the case.  It reversed the trial court’s grant of summary judgment to the employer, and modified a previous decision, Carr v. United Parcel Service, 955 S.W.2d 832, according to which a supervisor could be vicariously liable only for quid pro quo, and not hostile work environment 13 claims.  The court modified Carr to “reflect the recently articulated standard for supervisor harassment adopted by the United States Supreme Court.”



Chambers v. Trettco, Inc. Michigan Supreme Court (2000)

Sexual harassment

A former employee brought an action against her employer under the Michigan Civil Rights Act.  She alleged that the employer was vicariously liable for 13 she suffered under her temporary supervisor.  The Michigan Supreme Court held that the Court of Appeals wrongly relied on federal law to claims brought under the Michigan Civil Rights Act regarding 13.  The Michigan Supreme Court described two types of 13 outlined under Michigan law (M.C.L. § 37.2103(i), one type, “quid pro quo harassment” occurs when submission to conduct is a term or condition to obtain employment, or is used as a factor in determining decisions regarding employment.  A hostile work environment occurs when an employee must show that the employee was subjected to unwelcome sexual conduct or communication on the basis of sex, and “was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment, and respondeat superior.  The court noted that while it has found vicarious liability in cases of quid pro quo harassment, it has not when the allegation is hostile work environment because there the supervisor “acts outside the scope of actual or apparent authority to hire, fire, discipline or promote.”  Instead, an employer will be vicariously liable if the employee shows that the employer failed to take prompt remedial action.  The court found no evidence of quid pro quo harassment; however, it did find that plaintiff’s testimony established a hostile work environment claim.  It remanded the case for a determination of whether the employer failed to take prompt remedial action in response to her hostile work environment claim.


Mitchem v. Counts Supreme Court of Virginia (2000)

Sexual harassment

Mitchem filed a motion for judgment against her former employer, Counts, alleging wrongful discharge in violation of the common law following her refusal to have a sexual relationship with him, as well as several instances of 13.  She argued that her discharge violated Virginia’s policy “that all persons . . . are entitled to pursue and maintain employment free of discrimination based upon gender.”  The trial court held that the amendments to the Virginia Human Rights Act “eliminated the VHRA as a source of public policy to support a common law cause of action for wrongful termination.  The trial court also held that Code §§ 18.2-57, -344 and -345 do not articulate public policies that support a common law action for wrongful termination.  The court dismissed Mitchem’s action with prejudice, and Mitchem appealed from this judgment. On appeal, Mitchem withdrew parts of her previous claim, arguing that she was discharged from employment due, not to gender but rather, to the fact that she would not consent to her employer’s demands that she violate sections of the Virginia code prohibiting fornication, lewd and lascivious cohabitation, and was discharged for failing to “consent to commission of a battery upon her person.” The court addressed whether Code §2.1-725(D) “bars a common law action for wrongful termination based on public policies not reflected in the VHRA, when the conduct alleged in the motion for judgment also violates a public policy reflected in the VHRA.”  That section states, “Causes of action based upon the public policies reflected in this chapter shall be exclusively limited to those actions, procedures and remedies, if any, afforded by applicable federal or state civil rights statutes or local ordinances.”  The court noted that the statute only abrogated common law causes of action for wrongful discharge based on public policies in the VHRA; common law causes of action for wrongful discharge based on public policies not in the VHRA are not prohibited by the section.  The Court upheld the trial court’s dismissal of plaintiff’s wrongful discharge claim based on the public policy of “refusing to consent to commission of battery upon her person” – since if she had consented, there would have been no battery.  However, it reversed the trial court’s holding as to wrongful termination based on public policy in Code §§ 18.2-344 and -345, which prohibit fornication, and lewd and lascivious behavior respectively.



Radtke v. Everett Michigan Supreme Court (1993)

Sexual harassment

Plaintiff alleged that defendant sexually harassed her during a break from work.  The Court held that “a hostile work environment claim is actionable when the work environment is so tainted that, in the totality of the circumstances, a reasonable person in the plaintiff’s position would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment.”  The court found that, although generally, more than one incident of 13 is needed for a hostile work environment claim, a single incident of 13 may be sufficient to establish a hostile work environment claim if the harassment is perpetrated by a supervisor in a close working environment.   The court also held that in determining whether a hostile work environment exists, the use of the reasonable person standard was acceptable; there was no need for the court to assess based on a “reasonable woman” standard.


Middlekauf v. Allstate Ins. Co. Supreme Court of Virginia (1994)

Sexual harassment

A former employee brought an action against supervisor and employer for intentional infliction of emotional distress due to harassment. She alleged that her supervisor intentionally sought to humiliate her in front of her co-workers and made harassing, sexist, and belittling comments.  Although she complained to her manager and other supervisors, they failed to intervene.  The Defendant argued that her claims were barred by the exclusivity provision (Code § 65.2-307) of the Virginia Workers’ Compensation Act.  The court held that her allegations of gradually incurring severe emotional distress due to harassment did not amount to “injury by accident” under the Workers’ Compensation Act; therefore the action against the employer was not barred by the exclusivity provision of the Act.



Ruffin Hotel Corp. v. Gasper Maryland Supreme Court (2011)

Sexual harassment

Respondent sought damages from petitioner and Irman Ahmed, who terminated Respondent’s employment.  Respondent brought, inter alia, claims of negligent hiring and retention against Ruffin Corp. and intentional infliction of emotional distress by Ahmed; employment discrimination and 13 by Ruffin and retaliation by Ruffin.  Gasper alleged that Ruffin hotel hired Ahmed, despite its knowledge that a number of employees had complained of his abusive behavior, behavior that included 13.  She also alleged that Ahmed refused to intervene when she was harassed by another employee and that he fired her after she complained of the harassment.  The court held that petitioner’s claim for negligent hiring and retention, due to her allegation that Ruffin hired an individual against whom allegations of 13 had been made, was not preempted by Title VII, the Maryland Human Relations Act, a county code provision prohibiting retaliation for complaining of 13 or the Maryland Workers’ Compensation Act.  It also found that the rule prohibiting introduction of evidence of other crimes was only applicable in criminal, not civil cases; however, Gasper could not introduce evidence of harassment by Ahmed occurring prior to Ahmed’s rehire because her current allegation was against another employee.



Roth v. DeFeliceCare, Inc. Supreme Court of West Virginia (2010)

Sexual harassment

Plaintiff brought a hostile work environment claim, among others.  She witnessed her supervisor and another employee in a compromising position.  Her supervisor threatened her with the loss of employment and her license if she shared what she had witnessed.  She promised to remain silent and shortly thereafter went on vacation.  When she returned, her supervisor fired her, stating that he did not like the way she dressed or styled her hair.  Plaintiff was an at-will employee at the time of termination.  Plaintiff alleged that she “was subjected to improper and sexually explicit conduct by her superiors … thereby creating a hostile and abusive environment in violation of the West Virginia Human Rights Act.”  To state a claim for 13 under the West Virginia Human Rights Act, a plaintiff must prove “(1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the … [plaintiff’s] conditions of employment and create an abusive work environment, and (4) it was imputable on some factual basis to the employer.”  The Court also held that “an employee may state a claim for hostile environment 13 if unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature have the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile, or offensive working environment.”  The Court held that plaintiff sufficiently pled a cause of action for hostile workplace and overturned the lower court’s grant of a motion to dismiss.



Thoreson v. Penthouse Int’l, Ltd. Appelate Division, First Department (1992)

Sexual harassment

Ms. Thoreson brought an action against her employer to recover for 13 under New York Human Rights Law (“Executive Law § 290”).  Plaintiff worked at the men’s magazine, Penthouse, and was an aspiring actress and model.  The trial Justice found that Plaintiff was pressured into engaging in sexual activity with the company’s business associates.  Specifically, she alleged an eighteen-month liaison with a financial advisor.  Plaintiff claimed her compliance to engage in the above mentioned activities was an implicit condition of her employment, which was terminated when she refused to participate in a promotional tour in Japan because she was afraid of what she would be required to do while on tour.  The trial court found that Plaintiff had stated a sufficient cause of action for which she could recover.  The court stated, “Plaintiff’s testimony concerning this matter was contraverted only by Defendant’s blanket denial that the events took place.  I do not believe him.”  The Appellate Division affirmed the trial court’s holding.  Further, it provided that while Defendant’s “observation that Plaintiff willingly embarked upon a career which exploited her sexuality is entirely accurate, it does not preclude the subsequent withdrawal of consent to exploitation, nor does it necessarily imply consent to sexual encounters of the type complained of.”



Poole v. Copland, Inc. North Carolina Supreme Court (1998)

Sexual harassment

Plaintiff sued John Haynes for intentional and negligent infliction of emotional distress and Copland, Inc. for ratification of Haynes’ conduct, negligent retention and supervision of Haynes, and imputed liability.  The plaintiff alleged that Haynes intimidated and harassed her during the one year that she worked for Copland, Inc.  She asked him to stop and reported the incidents to her supervisor.  The supervisor reportedly told her that he was a “youngun” and to ignore him.  After one incident outside of work, she complained to her supervisors.  They had a meeting with the plaintiff and Haynes; Haynes was terminated, and the plaintiff was also terminated later that day.  The plaintiff alleged that the harassment caused her to cry, disturbed her sleep, and gave her nightmares.  She testified to a long history of sexual abuse at the hands of various individuals.  Experts explained that she had a dissociative disorder and the experience of harassment caused a flashback that triggered severe mental problems.  The trial court dismissed all claims except the claim “for intentional infliction of emotional distress against Haynes and the claims against Copland for ratification of Haynes’ conduct and negligent retention of Haynes.”  The jury awarded monetary damages, and the Court of Appeals ordered a new trial, citing an error in the charge.  The North Carolina Supreme Court considered the “thin skull” rule, which “provides that if the defendant’s misconduct amounts to a breach of duty to a person of ordinary susceptibility, he is liable for all damages suffered by the plaintiff notwithstanding the fact that these damages were unusually extensive because of the particular susceptibility of the plaintiff.”  Copland argued that there was error because the jury was permitted to “consider the thin skull damages when it determined the liability issue.”  Copland contends therefore that the jury was able to find liability “without finding that defendant Haynes’ action could have caused severe emotional distress in a person of ordinary susceptibility.”  The court disagreed, noting that a clinical psychologist testified that a person of “ordinary sensibilities” could have been affected in a manner similar to the plaintiff in this case.  It also held that there was no error in the jury instructions, and that the instructions correctly explained that the jury had to find that Haynes’ actions could have reasonably injured a person of normal sensibilities before it could hold him liable for all of the consequences of his actions.  The court also did not review the Court of Appeals finding that the thin skull rule applies to mental, not just physical injury, and that the fact that the jury received instructions during the damages, rather than liability phase of the case, was not error.



Byrd v. Richardson-Greenshields Securities Florida Supreme Court (1989)

Sexual harassment

his case was brought by all female employee plaintiffs who claimed assault, sexual battery, intentional infliction of emotional distress and negligent hiring and retention of employees based on incidents in which male employees touched the women and made sexual advances on them in the work place. The trial court dismissed the plaintiffs’ complaint on the grounds that the workers’ compensation statute provided the exclusive remedy for these claims, and the Second District affirmed. The Supreme Court of Florida noted that in light of the overwhelming public policy against workplace 13 the Court could not say that the exclusivity rule of the workers’ compensation statute should shield an employer from all tort liability based on incidents of 13. The Court distinguished workers’ compensation, which addresses purely economic injuries, from 13 laws, which are concerned with an intangible injury to personal rights. It asserted that both of such injuries, to the extent they are separable, should be enforced separately. As such the Court held that whenever a claim is based on the Human Rights Act, Title VII of the Civil Rights Act of 1964, the Educational Equity Act, or any other statute prohibiting sexual discrimination or harassment, such claim cannot be barred by the exclusivity rule. Furthermore the court held that to the extent a claim alleges assault, intentional infliction of emotional distress arising from 13, or a battery similar to the one alleged in this case, the exclusivity rule will not apply to bar it.



Ohio Government Risk Management Plan v. Harrison Supreme Court of Ohio (2007)

Sexual harassment

The Court held that alleged 13 by police chief was not outside the scope of his employment; therefore the insurer owed the police chief a duty to defend him in a lawsuit brought by a former employee alleging 13.  Plaintiff alleged that defendant used the department’s computer system to distribute pornographic images and emails and also used hidden electronic devices to record female employees in the restroom.  Plaintiff filed a five-count complaint that included claims for hostile work environment due to her gender and a sex-discrimination claim.  She sued him in his individual and official capacity, arguing that he acted in his official capacity as chief of police.  At the time, the Ohio Government Risk Management Plan provided liability insurance coverage to Harrison, the police chief.  It filed a declaratory judgment action seeking a declaration that it had no duty to provide coverage or a defense to Harrison. The court held that whether acts fall within the scope of employment will vary from case to case; however, the court would not find that 13 always lies outside the scope of employment.  Whether or not acts occurred within the scope of employment “turns on the fact-finder’s perception of whether the supervisor acted, or believed himself to have acted, at least in part, in his employer’s interests.”  The Court also examined the language of the policy and held that the insurer had a duty to defend.



Blizzard v. Appliance Direct, Inc. Florida 5th District Court of Appeal (2009)

Sexual harassment

Blizzard sued her employer, Appliance Direct, for damages for 13 and maintenance of a hostile work environment along with back pay and damages for retaliation based on claims that, among other things, her supervisor was constantly talking about his penis including graphic descriptions of its size, and his sexual prowess, history, successes and aspirations. Blizzard did not allege that her supervisor’s comments were directed to her. However, she alleged that his comments were pervasive and that the female employees who were receptive to his “management style” received favors and preferences that Blizzard did not. Blizzard based her 13 claim against Appliance Direct on her supervisor’s “creation of a hostile work environment caused by 13 that is sufficiently severe or pervasive to alter the terms and conditions of work.” To establish a hostile work environment 13 claim based on harassment by a supervisor Ms. Blizzard was required to show: (1) that she is a member of a protected group; (2) that she was subjected to unwelcome 13, (3) that the harassment was based on the sex of the employee, (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that there is a basis for holding the employer liable. At particular issue in this case was element 5. The Court held with respect to element 5 that Blizzard could maintain her 13 claim against her employer based on her supervisor’s creation of a hostile work environment even though her supervisor’s actions and remarks were not specifically targeted to her.



Raya & Haig Hair Salon v. Pennsylvania Human Relations Commission Commonwealth Court of Pennsylvania (2007)

Sexual harassment

Aida Armani worked as a hairstylist at Raya and Haig Hair Salon.  One of her customers, Kadyshes, began verbally and physically sexually harassing Aida by telling sexual jokes, commenting on her breasts, telling her she would be good in bed, and touching her rear and shoulders.  The Salon eventually hired Kadyshes as a business manager, and he became Aida’s direct supervisor.  Aida complained on at least six occasions but no action was taken to stop Kadyshes’s conduct.  Eventually Aida decided to open her own salon but before she could resign the Hair Salon learned of her plans and fired her.  The Commission found that the Salon unlawfully discriminated against her by subjecting her to a hostile work environment and constructively discharging her because of her sex.  The Salon challenged the decision on multiple grounds.  First, it argued that Aida was not discharged because of her sex but because she opened her own salon.  The court found that Aida established a prima facie claim for hostile work environment and that the evidence supported the conclusion that the Hair Salon violated the Pennsylvania Human Relations Act by allowing the existence of a hostile work environment.  In order to establish a prima facie claim for hostile work environment, a complainant must prove that she (1) suffered intentional discrimination because of her race or gender; (2) the harassment was severe or persuasive and regular; (3) the harassment detrimentally affected the complainant; (4) the harassment would detrimentally affect a reasonable person of the same protected class; and (5) the harasser was a supervisory employee or agent.  Constructive discharge occurs when an employer knowingly permits conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.  The fact that Aida stayed at her job did not preclude a finding of constructive discharge—she was the sole source of income for her family and she endured the treatment as long as she could take it.  Second, the Salon argued that it was improper to admit testimony about Aida’s work conditions that predated the time frame for which she alleged discrimination.  But the entire scope of a hostile work environment claim is permissible for assessing liability, including behavior alleged outside the statutory time period.  Third, the Salon challenged the determination that Aida attempted to mitigate her damages.  While a plaintiff has a duty to mitigate her damages, the burden of showing that she did not exercise reasonable diligence in seeking comparable employment lies with the employer.  Aida’s self-employment constituted mitigation because she took immediate steps to open her salon after she was fired.



Speedway Superamerica, LLC v. Dupont Florida 5th District Court of Appeal (2006)

Sexual harassment

Dupont, employed by Speedway convenience stores, sued her employer alleging a hostile work environment and 13, in violation of Florida’s Civil Rights Act. Dupont’s complaint stemmed from her interactions with a coworker, Coryell, who shared Dupont’s midday shift. Dupont had for months complained to her superiors that Coryell acted inappropriately with her, both violently and sexually. For instance, Dupont complained that Coryell had inappropriately grabbed her, made sexual comments concerning female customers, and humiliated her. Speedway, at the time, had a written 13 policy, yet no action was taken. Speedway continued to place Dupont and Coryell together on the same shift. The Court found Dupont’s claim viable, noting that Coryell’s conduct – even if not entirely sexual in nature – constituted 13 where motivated by a hostility toward women because of their gender. The Court went on to describe Florida’s policy against 13 in the workplace as strong, noting that courts should liberally construe section 760.10, Florida Statutes. Finally, the Court found an award of punitive damages appropriate, even where the jury had not found Speedway’s conduct willful, because Coryell’s conduct was clearly willful and Speedway had been at the very least negligent in failing to respond to Dupont’s complaints.



Mescanti v. Mescanti Superior Court of Pennsylvania (2008)

Domestic and intimate partner violence, Sexual harassment

William and Elizabeth Mecanti were married with children.  William subjected Elizabeth to a pattern of harassment that lasted months.  The couple had been experiencing marital difficulties and Elizabeth had been sleeping on the couch.  She slept during the daytime because she worked the night shift.  William would come home from work and wake her up to argue and instigate fights.  He hacked into Elizabeth’s emails and looked through her pockets, cell phone logs, purses, and car.  He would follow her when she was out with friends.  He wrote her pages expressing his love, his fear of losing her, and his wish to stay together forever.  On one occasion William hid her house and car keys and locked her out of the house; when she was finally able to reenter the house, Elizabeth discovered that he had disconnected the telephone lines.  Elizabeth sought a protection from abuse (“PFA”) order after an incident when William wanted her to sleep with him in their bedroom, even though she had told him she wanted a divorce and they had been sleeping apart for three years.  When she refused to follow him to the bedroom, William told her “this is going to get ugly” and “this is just the tip of the iceberg.” Then he left the house.  Elizabeth went to sleep on the couch and woke up when William returned home and turned on the television.  She asked him to turn it off but he refused; after some argument he stormed out of the room after saying “you better not go to sleep.  You better not even close your eyes.”  Elizabeth heard a noise like the cocking of a gun (William kept guns in the house) so she called the police.  After this incident she sought the order of protection, which was granted.  She had not filed for divorce because she was afraid of what William might do.  On appeal, William argued that the PFA should not have issued because his threats were indirect and Elizabeth never testified to a past occasion when he threatened her as he did the night of the incident.  The court considered the pattern of harassment as a whole, including Elizabeth’s testimony that she had heard William cock guns in the past, and concluded that that his behavior established “abuse” under the statute.



Moniz v. Reitano Enterprises, Inc. Florida 4th District Court of Appeal (1998)

Sexual harassment

Moniz was injured in an attack by her supervisor at her place of employment during which her supervisor bit her. Moniz was paid $20,000 as a worker’s compensation settlement. This amount was comprised of $12,000 for past and future monetary compensation benefits including any re-employment services and assessment benefits and $8,000 for past and future medical benefits. Attorneys’ fees and doctors’ bills were also paid, including bills for her treatment for psychological injuries. While the worker’s compensation claim was pending, Moniz filed a seven count complaint against her employer, Reitano and her supervisor for 13, retaliation, intentional infliction of emotional distress, assault, battery and false imprisonment, based in part on the “biting” incident and in part on allegations that her supervisor continually made sexual suggestions and threatened to fire her if she did not “do the right thing”. She claimed he touched her breasts, grabbed her buttocks, pulled her underwear and rubbed up against her in an aroused condition. The trial court granted summary judgment against Moniz based on its belief that the election of remedies doctrine barred Moniz from seeking relief in tort and under Title VII for 13 because of her worker’s compensation settlement. This Court held that to the extent Moniz’s claims can be separated from the biting incident on which the worker’s compensation settlement was based, the election of remedies doctrine will not bar such claims. As such, Moniz’s claims for 13 and intentional infliction of emotional distress, which were based on a much broader course of conduct than the battery by her supervisor in the biting incident, were not barred by the election of remedies doctrine.



Hoy v. Angelone Superior Court of Pennsylvania (1997)

Sexual harassment

Louise Hoy worked at Shop-Rite as a meat-wrapper.  During her tenure there, Dominick Angelone repeatedly subjected her to sexual propositions, filthy language, off-color jokes, physical groping, and the posting of sexually suggestive pictures in the workplace.  Eventually Hoy took medical leave to receive psychiatric treatment; when she returned, she requested that the store manager move her to another department.  In order to recover under a hostile environment claim, the employee must prove that (1) she suffered intentional sex discrimination because of her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the employee; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability.  Hoy established the first four elements but Shop-Rite argued that it could not be liable under the Pennsylvania Human Relations Act for Angelone’s conduct because it did not know nor had reason to know of the existence of a sexually hostile environment, and it took remedial action.  A plaintiff may establish an employer’s knowledge by showing (i) that she complained to higher management or (ii) that the harassment was so pervasive that the employer will be charged with constructive knowledge.  The court upheld the jury’s finding that the store manager knew or should have been aware of the conduct before Hoy requested transfer out of the meat department and failed to take remedial action; indeed, the conduct was so pervasive that several of Hoy’s coworkers knew of the abuse.  Thus, Shop-Rite was liable for Angelone’s conduct because the manager failed to take remedial action despite this knowledge.


Garner v. State Commission on Ethics Florida 2nd District Court of Appeal (1983)

Sexual harassment

Complaints were filed with Florida Commission on Ethics against Garner alleging that he attempted to use his position as president of Hillsborough Community College to sexually harass or obtain sexual favors from various female personnel. Following a hearing on the complaints the Commission on Ethics suspended Garner from office for three months. Garner appealed based on Florida Statutes Section 112.313 which provides that “no public officer or employee of an agency shall corruptly use or attempt to use his official position … to secure a special privilege, benefit or exemption for himself or others …” The section defines “corruptly” as “done with a wrongful intent and for the purpose of obtaining ... any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties.” Garner claimed that this statute did not provide adequate notice that 13 was prohibited and that it was intended to cover only economic benefits. In addition, Garner claimed that there were no adverse job-related effects upon employees subject to his conduct. This Court held that since the charges against Garner included his obtaining sexual favors, Garner was “benefited” and that his actions were consistent with the definition of “corrupt” as being inconsistent with the performance of his official duties. Furthermore the Court indicated that it could find no legislative intent to restrict the reach of the statute to economic benefits and that there is no requirement in the statute that as a result of the public officer’s efforts to obtain a benefit from an employee that employee will necessarily be impacted in any particular way. As such, the Court upheld Garner’s suspension.



Ericson v. Syracuse Univ. United States District Court for the Southern District of New York (1999)

Sexual harassment

Ms. Ericson and Ms. Kornechuk brought an action against Syracuse University and its employees under Title IX of the Education Amendments of 1972, 20 U.S.C. section 1681 (“Title IX”) and the Violence Against Women Act, 42 U.S.C. section 13981 (“VAWA”). Plaintiffs alleged that they were sexually harassed by their tennis coach, and that the University was aware of the tennis coach’s behavior and conducted a sham investigatory proceeding to conceal the extent of the tennis coach’s misconduct, which had occurred for more than twenty years. Defendants moved to dismiss the claims. They contended that Title IX did not provide a private right of action and the VAWA claim was barred by the statue of limitations. The court held that there was a private right of action under Title IX pursuant to the U.S. Supreme Court’s decision in Gebser v. Lago Vista Indep. Sch. Dist. (1998). Erickson held that a student who has been sexually harassed by an employee of an institution may bring suit against the institution, under Title IX, for private damages if: (1) the institution has authority to institute corrective measures on its behalf; (2) has actual notice of the behavior; and (3) is deliberately indifferent to its employee’s misconduct. The court found that Plaintiffs’ complaint, on its face, satisfied that standard because it alleged the individuals who investigated the charges against the tennis coach not only had actual notice that the tennis coach had been harassing female student-athletes for twenty years but had also conspired to conduct a sham investigation to conceal the full extent of the coach’s misconduct. The court reasoned that the allegation that the institution knew of the 13 of female-athletes and did not respond adequately was sufficient to state a claim under Title IX. The court also held that the statute of limitations did not bar the Plaintiffs’ claim under the VAWA. VAWA provides a civil cause of action to victims of gender-motivated crimes of violence. It does not contain an express statute of limitations. Accordingly, the court found that it should look to the “most appropriate or analogous state statute of limitations.” The court reasoned that Congress’ stated purpose, in enacting this law, was to “protect the civil rights of victims of gender motivated violence by establishing a federal civil rights cause of action.” Because of Congress’ stated purpose, the court found that the cause of action that was most analogous to VAWA was a personal injury claim, and as such, a three-year statute of limitations should apply. Thus, Plaintiffs’ claim under VAWA was not barred by the statue of limitations because the alleged acts of violence occurred within three years from when Plaintiffs filed their complaint.



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.



In the Matter of Dwayne M. Brown Indiana Supreme Court (1998)

Sexual harassment

The court upheld an elected clerk’s three-year suspension from the practice of law for various acts, including sexual advances toward female employees in the clerk’s office.  Six female employees made allegations that he sexually harassed them.  Respondent attempted to argue that his actions toward the employees did not meet the standard for “13” as defined by the EEOC.  The Court found that it did not need to rely on a federal agency’s definition to “find that the respondent’s creation and perpetuation of a work environment infected with inappropriate and unwelcome sexual advances violated Prof. Cond. R. 8.4(d).”  It found that his acts were “prejudicial to the administration of justice,” whether or not they met a legal definition of 13.  Furthermore, he did not testify at the hearing or otherwise rebut the evidence, but merely contended that the allegations by former employees were untrue.  It therefore suspended him from the practice of law for three years.



People v. Chipikili Subordinate Court of the First Class for the Lusaka District (2010)

Sexual harassment, Sexual violence and rape

The accused, a teacher, was accused of sexually assaulting a nine-year-old girl while administering an examination to her. The girl testified that she had reported to the school where she was to be enrolled for aptitude tests. She was taken to a classroom where she found herself alone with the teacher. She said that while she was writing the exam, the teacher hugged her from behind and began fondling her breasts. She moved to another seat and finished the exam. He then lifted her up and told her that she was going to help him, but she pushed him away and ran to the principal's office. The teacher denied the charges, arguing that the girl was a slow learner and was mentally disturbed. When he took the stand at the trial, however, he frequently contradicted himself. On the one hand, he stated that people outside would have seen what happened through the windows and that there were other pupils in the class at the time. On the other hand, he said that the alleged assault could have happened so quickly that nobody would see and noted that the schools closed in December, which meant that no other pupils were in class in January when the girl took the exam. Weighing the evidence and taking into account the contradictory testimony of the accused, the Resident Magistrate found that the prosecution had proved its case beyond a reasonable doubt. She therefore convicted the teacher of indecently assaulting the young girl.



Griffin v. City of Opa-Locka United States Court of Appeals for the Eleventh Circuit (2001)

Sexual harassment, Sexual violence and rape

A. Griffin was employed as a billing clerk in the City of Opa-Locka’s water department in 1993. Shortly after hiring Griffin, the city hired Earnie Neal as its City Manager. After taking office, Neal immediately began sexually harassing Griffin. He called her derogatory names, aggressively pursued her, and made inappropriate advances. He performed some of these acts in front of the Mayor and City Commissioner. Griffin continually resisted his advances and attempted to go on with her daily routines in fear of being fired. Eventually, Neal raped Griffin in her apartment after insisting he drive her home after an event put on by the city. Griffin waited several months to come forward about the rape, and the lawsuit ensued. Griffin sought damages against the City for 13 and sexual assault under Title VII; the Florida Civil Rights Act; 42 U.S.C. § 1983, and state tort law. She also alleged claims against Neal. At trial, a jury found that Neal sexually harassed Griffin, that the harassment was a custom or policy of the City, Neal raped Griffin under color of law, the City was deliberately indifferent in hiring Neal, and found against Neal on all tort claims. The subsequent damage award amounted to $2 million dollars. On appeal, the Eleventh Circuit agreed with the district court that Neal was acting under the color of law and that 13 was the on-going, accepted practice at the City and that the City Commissioner, Mayor, and other high ranking City officials knew of, ignored, and tolerated 13. But because the record did not establish that the jury below found the City had a custom or policy of allowing rape or that the rape incident was part of the custom or pattern of 13, the court found that the suit lacked all essential aspects of a § 1983 case against the City. As such, the verdict and judgment against the City for rape under § 1983 was vacated. All other charges against the City were affirmed. The $1.5 million dollar verdict against the City was reversed. The City was still found liable for 13 due to the hostile work environment it fostered, as well as deliberate indifference in the hiring of Neal.



Doe v. University of Illinois United States Court of Appeals for the Seventh Circuit (2000)

Sexual harassment, Sexual violence and rape

Jane Doe attended University High School in Urbana, Illinois. Although University High was a public school, it was affiliated with the University of Illinois, which had the responsibility for overseeing the school’s administration. From January 1993 through May 1994, while a student at University High, Jane was a victim of an ongoing campaign of verbal and physical 13 perpetrated by a group of male students at the school. Doe and her parents complained on numerous occasions to officials of both the high school and the University of Illinois. The school officials suspended a few of the students and transferred one out of Doe’s biology class, but did nothing else to prevent further instances. Some administrators even suggested that it was Doe’s fault. In 1995, Doe and her parents filed suit against the University of Illinois and other individual officials of University High and the University of Illinois, alleging a violation of, among other things, Title IX. The United States District Court for the Central District of Illinois dismissed Doe’s Title IX claim. On appeal, the Seventh Circuit remanded the case, holding that Jane Doe alleged a valid claim under Title IX, and that a Title IX recipient may be held liable for its failure to take prompt, appropriate action in response to student-on-student 13, as was the case here. The court reasoned that Title IX prohibits discriminatory government conduct on the basis of sex when it occurs in the context of State-run, federally funded educational programs and institutions. In particular, Title IX provides that no person in the U.S. shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. Prior to this case, it was well settled that 13 of a student in a federally funded educational program or activity, if it is perpetrated by a teacher or other employee of the funding recipient, can render the recipient liable for damages under Title IX. What was less clear was whether a school can be liable for failing to take prompt, appropriate action to remedy known 13 of one student by other students. Although inconsistent with three other circuits, the court ultimately held that a Title IX fund recipient may be held liable for its failure to take prompt, appropriate action in response to student-on-student 13 that takes place while students are involved in school activities or otherwise under the supervision of school employees, provided the recipient’s responsible officials actually knew that the harassment was taking place. The failure to promptly take appropriate steps in response to known 13 is itself intentional discrimination on the basis of sex. Since Jane Doe alleged such a failure, she properly alleged the sort of intentional discrimination against which Title IX protects. Doe’s case was then remanded to the district court for further proceedings consistent with the court’s opinion.



Trayling v. Board of Fire and Police Commissioners Court of Appeals Second District (1995)

Sexual harassment

Karen McGloon was employed by the village fire department as a secretary. Guy Trayling was a lieutenant with the fire department and worked in the same office as McGloon. On one occasion Trayling kissed McGloon on the cheek and on another he put his han


State v. Human Rights Commission Court of Appeals Fourth District (1989)

Gender discrimination, Sexual harassment

Lynda Savage filed a complaint against the Illinois Department of Corrections alleging that she had been sexually harassed by her immediate supervisor, Nicholas Howell, and discharged in retaliation. Howell would describe women by their physical attribut


Media 24 Ltd. & Another v. Grobler (2005)

Gender discrimination, Sexual harassment

The respondent won a judgment against the appellant for 13 by a manager trainee employed  by the appellant.  On appeal the appellant claimed (1) it could not be held liable for its employee's actions that occurred off work premises, (2) it had no knowledge of the harassment incidences, and (3) the employee was not acting within the scope of employment.   The court held that employers have a legal duty to protect their employees from physical and psychological harm caused by co-employees.



SONKE Gender Justice Network v. Malema Equality Court for the District of Johannesburg (2009)

Gender discrimination, Sexual harassment, Sexual violence and rape

The respondent made comments at a political rally regarding the consent of the complainant in Jacob Zuma's rape trial. Specifically, he opined that a rape victim would leave early in the morning, but the complainant in this case had stayed for breakfast and requested money for a taxi. The plaintiff, a gender justice organization, sued him for hate speech, unfair discrimination, and harassment of women. The court found that the respondent's comments were based on prohibited grounds as outlined in South Africa's Equality Act, specifically sex and gender. The court also found the comments expressed by the respondent constituted "generalizations about women, rape, and consent which reinforce[d] rape myths." Moreover, the respondent's words suggested "that men need not obtain explicit [sexual] consent from women." The court found the respondent liable for hate speech and harassment.  For these reasons, the court concluded the respondent infringed the rights of women and ordered him to pay a fine and make a public apology.



Burris v. Azadani Court of Appeal (Civil Division) (1995)

Sexual harassment

Mr. Azadani, the appellant, was under an injunction not to go within 250 yards of a specified address, after he had repeatedly sought a close and intimate relationship with Ms. Burris, which she refused, leading to repeated telephone calls and threats. Ms. Burris sought and obtained an interlocutory injunction prohibiting Mr. Azadani from pestering or contacting Ms. Burris, her children or her friends, or of going within 250 yards of her house. He breached the injunction and was committed to prison; he appeals the injunction. The Court held that an order prohibiting the defendant from being in a defined area in which the plaintiff's home was situated was possible in support of an injunction forbidding tortious harassment.



R. v. Ireland; R. v. Burstow House of Lords (1998)

Sexual harassment

In the Ireland case, the appellant was convicted of three counts of assault occasioning actual bodily harm for harassing three women by making repeated silent telephone calls to them.   In the Burstow case, the appellant was convicted of unlawfully and maliciously inflicting grievous bodily harm for harassing a women after she broke off their relationship, in behavior ranging from silent telephone calls, offensive notes, taking photographs of her and her family, and being frequently at her house and place of work.   The House of Lords held that silent telephone calls can amount to an assault as long as the victim is made by them to fear some physical harm.



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.



Sentencia T-622/05 Constitutional Court of Colombia (2005)

Custodial violence, Gender-based violence in general, Sexual harassment

The Court held that prison procedural rules that required vaginal inspections of female visitors, and that did not allow female visitors to enter the prison while menstruating, violated female visitors' right to dignity, personal liberty and health. The Court ordered the National Institute of Prisons and Jails (Instituto Nacional Penitenciario y Carcelario) to stop such intrusive inspections and install at the prison in question, the Cárcel Distrital Villahermosa de Cali, equipment necessary to accomplish the safety objectives of a vaginal inspection without needing to conduct such an inspection.



Reports

Analysis of the precedents of the Cantonal Courts on the Gender Equality Act (2017)

Employment discrimination, Gender discrimination, Sexual harassment

The study is an in-depth analysis of 190 records of cantonal conciliation hearings and judgments under the Federal Gender Equality Act, 1996 (the “Act”) over the period of 2004 to 2015 by authors Karine Lempen (Law Professor, University of Geneva) and Aner Voloder (Lawyer, Office for Gender Equality of the Municipality of Zurich).  Among the major findings and conclusions reached in the study are the following:

Proceedings under the Act are nearly always brought by private individuals (mainly women) and very rarely by organizations, notwithstanding the provision of the Act authorizing court actions relating to gender discrimination to be brought by organizations. Individuals bringing a case of gender discrimination to the courts most commonly complain of pay discrimination or discriminatory dismissal, and in the vast majority of cases employment has ceased before the court issues its judgment.  Bringing an action under the Act very often entails losing one's job. Almost one-third of discrimination cases relate to pregnancy or maternity, with discrimination often occurring on return to work after maternity leave and the mother being dismissed by the employer. Discriminatory or constructive dismissal cases are often adjudged solely under Swiss employment laws rather than under the specific provisions of the Act. In some cases this has resulted in a failure to relax the plaintiff’s burden of proof as provided in the Act. Most persons bringing proceedings for gender-based discrimination do not win their cases, with the analysis showing that 62.5% of rulings enforcing the Act find mostly or entirely against the claiming employee. Similarly, it is not unusual for the employee in the action to be ordered to pay costs which may amount to several thousand Swiss francs. The protection in the Act against constructive dismissal has proved to be fairly ineffective in practice, with court actions rarely being brought under that provision and all but one of such actions failing. The failure rate is particularly high (82.8%) when the alleged form of discrimination is sexual harassment, with the courts often failing to recognize that the intention of procuring sexual favors is not necessary to a finding of a hostile working environment, and therefore of sexual harassment under the Act.  Moreover, it is rare for judgments to assess the extent to which the employer has met its obligation to prevent harassment. The special compensation allowed under the Act for sexual harassment is rarely awarded.

Based on the conclusions reached in the study, the authors make a number of recommendations -- for amendments to the Act and other specific legislative changes, improved training of the judiciary with regard to the Act, actions by Swiss equality offices (including improved data collection, more in-depth study of maternity-based discrimination in Switzerland and actions to raise awareness generally of the Act and the rights it provides), and universities (to require study of the Act as part of the bachelor’s degree course of study in law) -- in order to improve access to justice for people discriminated against on grounds of gender in working life.



Sexual Violence by Educators in South African Schools: Gaps in Accountability (2014)

Gender-based violence in general, Sexual harassment, Sexual violence and rape

The Centre for Applied Legal Studies at the University of Witwatersrand and Avon Global Center for Women and Justice at Cornell Law School released a joint report on sexual violence committed by educators against students in South African schools.



"They are Destroying Our Futures" Sexual Violence Against Girls in Zambia's Schools (2012)

Gender discrimination, Gender-based violence in general, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

A report by the Avon Global Center for Women and Justice at Cornell Law School, Women and Law in Southern Africa-Zambia, and the Cornell Law School International Human Rights Clinic examining the problem of sexual violence against girls in school in Zambia.



Meeting Minutes: Expert Group Meeting on the Causes, Consequences and Conditions of Women's Imprisonment (2013)

Custodial violence, Sexual harassment, Sexual violence and rape

On May 14th, The Avon Global Center and the University of Chicago Law School co-hosted a meeting of experts on the causes, conditions and consequences of women’s imprisonment globally. About 35 experts from the U.S., U.K., Russia, and Argentina participated in the meeting, including policy advocates, impact litigators, scholars, service providers, and senior department of corrections officials.

 

El 14 de mayo, el Avon Global Center y la Facultad de Derecho de la Universidad de Chicago organizaron conjuntamente una reunión de expertos sobre las causas, las condiciones y las consecuencias del encarcelamiento de mujeres en todo el mundo. Alrededor de 35 expertos de los EE. UU., EE. UU., Rusia y Argentina participaron en la reunión, incluidos defensores de políticas, litigantes de impacto, académicos, proveedores de servicios y funcionarios superiores del departamento de correcciones.



You Dress According to Their Rules (2010)

Gender discrimination, Harmful traditional practices, Sexual harassment

Report by Human Rights Watch documenting acts of violence, harassment, and threats against women in Chechnya to intimidate them into wearing a headscarf or dressing more "modestly."



Memoranda

Maternity Benefits: International and Regional Standards and Guidelines on Maternity Benefits and Country Samples of Best Practices (2015)

Employment discrimination, Gender discrimination, Sexual harassment

Adequate and sufficient maternity leave, coupled with appropriate accommodations on return to work, are essential to women’s physical and psychological wellbeing after giving birth. This memorandum outlines the international and regional framework relating to maternity benefits and provides country illustrations of best practices from Sweden, Croatia, Chile, South Africa, and Vietnam.



International Case Law

Juhnke v. Turkey European Court of Human Rights (2008)

Custodial violence, Sexual harassment

The applicant was a German national arrested in Turkey on suspicion of belonging to a terrorist organization. She claimed that she was subjected to a gynecological exam during her detainment and that the local gendarmes stripped her naked and sexually harassed her. The court found that in these circumstances the gynecological exam was an interference with her right to physical integrity and her right to respect for her private life.



Söderman v. Sweden European Court of Human Rights (2013)

Sexual harassment

In 2002, when Eliza Söderman (applicant) was 14 years old, she discovered that her stepfather had attempted to secretly film her naked by hiding a recording video camera in the bathroom. The applicant’s mother destroyed the videotape and reported the incident to the police who prosecuted the stepfather for sexual molestation. The stepfather was acquitted on appeal in 2007 because although he had intentionally filmed the minor, his behavior was not covered under the provision of sexual molestation because he had no intention of the applicant finding out about the film. Further, the Swedish appeals court pointed out that there is no general prohibition in Swedish law of filming an individual without their consent, even if that individual is a minor. The applicant brought this complaint to the European Court on Human Rights relying on Article 8 (right to respect for private life) of the European Convention on Human Rights to which Sweden is a party. The applicant alleged that Sweden had failed to comply with its obligation to provide her with remedies against her stepfather’s violation of her personal integrity. The court held for the applicant and held that Sweden had violated Article 8. The Court held so because Swedish laws in force at the time allowed for the applicant’s stepfather to film her naked in her home without any remedy. The stepfather had been acquitted of sexual molestation not on account of lack of evidence but because his actions did not constitute sexual molestation at the time. The provision on sexual molestation has since been amended in Sweden (in 2005), which to court highlighted as evidence that the previous version of the sexual molestation provision had not protected the applicant from the act in question.



Zoilamérica Narváez Murillo v. Nicaragua Inter-American Commission on Human Rights (2001)

Sexual harassment, Sexual violence and rape

Ms. Zoilamérica Narváez Murillo suffered physical (sexual abuse, rape, and sexual harassment) and psychological violence by her adoptive father, Mr. Daniel Ortega Saavedra. Mr. Ortega was a deputy in Nicaragua’s National Assembly and protected by congressional immunity from charges against him. Ms. Murillo argued to the Inter-American Commission on Human Rights (IACHR) that the Nicaraguan state denied her from enjoying access to justice for the restitution of her violated rights. The IACHR decided on whether Ms. Murillo adequately exhausted domestic remedies, which would then allow the IACHR to competently review her petition. Ms. Murillo claimed to have exhausted domestic remedies by filing suit against Mr. Daniel Ortega with the First District Criminal Court in Managua while at the same time requesting the National Assembly to suspend Mr. Ortega’s congressional immunity. The Nicaraguan State argued that Ms. Murillo did not fully exhaust domestic remedies because the National Assembly created a Special Commission to determine Mr. Ortega’s immunity and because Ms. Murillo did not file for amparo relief against the National Assembly Steering Committee’s resolutions. The IACHR held that waiting over three years for the National Assembly to reply to Ms. Murillo’s request for suspension of Mr. Ortega’s immunity was not an appropriate judicial remedy. Although all domestic remedies were not exhausted, Ms. Murillo did adequately seek available domestic judicial redress; therefore, full exhaustion of domestic remedies was not needed to determine the competency of the IACHR. Further, the IACHR held that Ms. Murillo’s petition met the admissibility requirements and that the IACHR was competent to review this case.

 

La Sra. Zoilamérica Narváez Murillo sufrió violencia física (abuso sexual, violación y acoso sexual) y violencia psicológica por parte de su padre adoptivo, el Sr. Daniel Ortega Saavedra. El Sr. Ortega era diputado en la Asamblea Nacional de Nicaragua y estaba protegido por la inmunidad del Congreso de los cargos en su contra. La Sra. Murillo argumentó ante la Comisión Interamericana de Derechos Humanos (CIDH) que el estado nicaragüense le negó el acceso a la justicia para la restitución de sus derechos violados. La CIDH analizó si la Sra. Murillo habia agotado adecuadamente los recursos internos, lo que permitiría a la CIDH revisar de manera competente su petición. La Sra. Murillo afirmó haber agotado los recursos internos al presentar una demanda contra el Sr. Daniel Ortega ante el Tribunal Penal del Primer Distrito en Managua, mientras que al mismo tiempo le pedía a la Asamblea Nacional que suspendiera la inmunidad de él. El Estado nicaragüense argumentó que la Sra. Murillo no agotó completamente los recursos internos porque la Asamblea Nacional creó una Comisión Especial para determinar la inmunidad del Sr. Ortega y porque la Sra. Murillo no presentó una demanda de amparo contra las resoluciones del Comité Directivo de la Asamblea Nacional. La CIDH sostuvo que esperar tres años antes de que la Asamblea Nacional respondiera a la solicitud de suspensión de la inmunidad de Ortega por parte de la Sra. Murillo no era un recurso judicial apropiado. Aunque no se agotaron todos los recursos internos, la Sra. Murillo buscó adecuadamente la reparación judicial interna disponible; por lo tanto, el agotamiento total de los recursos internos no fue necesario para evaluar la competencia de la CIDH. Además, la CIDH sostuvo que la petición de la Sra. Murillo cumplía con los requisitos de admisibilidad y que la CIDH era competente para revisar este caso.



Bracebridge Engineering Ltd. v. Darby Employment Appeal Tribunal (1990)

Sexual harassment

Sexual harassment. Two of Mrs. Darby’s male supervisors, Mr. Daly and Mr. Smith, grabbed and sexually assaulted Mrs. Darby in the works manager’s office at Bracebridge. Mr. Smith threatened Mrs. Darby with a written warning when she attempted to get away from him, but she was eventually able to run away from the men. Mrs. Darby reported the incident, but the general manager did not take action against the men and Mrs. Darby subsequently resigned. An Industrial Tribunal upheld Mrs. Darby’s complaints of sex discrimination and unfair dismissal, awarding £3,900 to Mrs. Darby. Bracebridge appealed to the Employment Appeal Tribunal, and the Employment Appeal Tribunal dismissed Bracebridge’s appeal. The EAT found no error in the Industrial Tribunal’s finding of sex discrimination by Bracebridge, noting that the single incident of sexual harassment was sufficiently detrimental to Mrs. Darby and therefore no pattern of harassment was necessary to reach this finding. The EAT also noted that the incident took place in the workplace and was perpetrated by Mrs. Darby’s supervisors, further supporting a finding of sex discrimination under s.6(2)(b) of the Sex Discrimination Act. The EAT also found no error in the Industrial Tribunal’s finding of constructive dismissal (unfair dismissal) by Bracebridge, because the company failed to respond appropriately when Mrs. Darby reported the incident and Mrs. Darby left her position at the company as a result of Bracebridge’s failure to act.



Zoilamérica Narváez Murillo v. Nicaragua Inter-American Commission on Human Rights (2009)

Sexual harassment, Sexual violence and rape

Ms. Zoilamérica Narváez Murillo suffered physical (sexual abuse, rape, and sexual harassment) and psychological violence by her adoptive father, Mr. Daniel Ortega Saavedra. Mr. Ortega was a deputy in Nicaragua’s National Assembly and protected by congressional immunity from charges against him. The Inter-American Commission on Human Rights (IACHR) held in 2001 that it had competence to review Ms. Murillo’s petition. The IACHR withheld on deciding the case on the merits in hopes that the parties would amicably come to a settlement. On June 9, 2009, Ms. Murillo sent a communication to the IACHR, which expressed her willingness to withdraw the lawsuit against the state of Nicaragua. Ms. Murillo requested that the IACHR keep the reasons of her amicable withdraw confidential.

La Sra. Zoilamérica Narváez Murillo sufrió violencia física (abuso sexual, violación y acoso sexual) y violencia psicológica por parte de su padre adoptivo, el Sr. Daniel Ortega Saavedra. El Sr. Ortega era diputado en la Asamblea Nacional de Nicaragua y estaba protegido por la inmunidad del Congreso de los cargos en su contra. La Comisión Interamericana de Derechos Humanos (CIDH) sostuvo en 2001 que tenía competencia para revisar la petición de la Sra. Murillo. La CIDH se negó a decidir el caso en cuanto al fondo con la esperanza de que las partes llegaran a un acuerdo amistoso. En efecto, el 9 de junio de 2009, la Sra. Murillo envió una comunicación a la CIDH, que expresaba su disposición a retirar la demanda contra el estado de Nicaragua. La Sra. Murillo solicitó a la CIDH que mantuviera la confidencialidad de los motivos de su retiro amistoso.



Abramova v. Belarus CEDAW Committee (2011)

Gender discrimination, Sexual harassment

Ms. Abramova, a citizen of Belarus, is a journalist who was arrested for her activism on behalf of the “For Freedom” movement and convicted of “minor hooliganism.” She was held in a temporary detention facility for five days, where she shared a small, unheated cell with an unenclosed toilet area that lay in open view of the all-male staff. During her detention, the male prison staff directed numerous humiliating comments at Ms. Abramova, treatment that the male detainees at the facility did not receive. Upon her release, Ms. Abramova submitted a complaint of violation of her rights in detention to authorities at the Interior Department, who informed her that her allegations had not been verified. Ms. Abramova then filed a complaint with the Prosecutor’s Office, again with a response that her claims had not been confirmed. Next, Ms. Abramova filed an application to the District Court under civil procedure, but the court claimed that it lacked jurisdiction and rejected her application. She appealed, and the Judicial Board rejected her appeal. Ms. Abramova proceeded to file a complaint to the District Court under administrative procedure, which again refused to initial civil proceedings. On appeal, the Judicial Board reversed the decision of the District Court and remanded the case for new consideration; on remand, the District Court dismissed Ms. Abramova’s complaint on procedural grounds. She submitted a complaint to the CEDAW Committee alleging that the conditions under which the State detained her constituted inhuman and degrading treatment, and that such treatment amounted to discrimination against her on the basis of gender. The Committee found that Ms. Abramova’s temporary detention in poor, unhygienic conditions, in a facility staffed exclusively by men, amounted to inhuman and degrading treatment and discrimination on the basis of her gender. Further, the Committee found that the State was in violation of its obligations under the Convention (CEDAW).



Slovak Republic, District Court, File No. 17C/65/2009 District Court (2009)

Sexual harassment, Sexual violence and rape

Ms V.Š. (the claimant) was sexually assaulted by her colleague, Mr. S.B. (the defendant) at work.  The criminal court found the defendant guilty of sexual violence by means of an agreement on crime and punishment.  The claimant sued the defendant for damages sustained as a result of the defendant’s actions.  The claimant supported her claims with the opinion of a psychological expert, who stated that the claimant had suffered damage to her dignity, honor and personal and intimate life, as well as material costs.  The amount of non-pecuniary damage awards is determined with regard to the facts of each case individually and the opinion of the court.  As a result of the sexual assault, the claimant was traumatized, depressed and afraid to go to work because of the obvious threat posed by the defendant. The district court held that the protection of privacy and other aspects of the personal life of each individual is paramount.  Every individual has the right to make decisions about his/her intimate and sexual life and in this case, such right was grossly violated.  Furthermore, under Section 11 of the Civil Code, the claimant has the right to protect her life, health, honor, dignity, privacy, name and expressions of personal value.  The district court held that the defendant was obliged to pay to the claimant non-pecuniary damages in the amount of EUR 3,319.



Perozo et al. v. Venezuela Inter-American Court of Human Rights (2009)

Custodial violence, International law, Sexual harassment

This case was brought against Venezuela under allegations of harassment and physical and verbal assault toward journalists, including some female journalists, by state actors over a period of four years. While the Court found Venezuela to be in violation of the right to speak freely, to receive and impart information, and to humane treatment (violations of Articles 1(1), 5(1) and 13(1) of the American Convention on Human Rights), the Court also found there was insufficient evidence to establish violations of Articles 13(3), 21 and 24 of the American Convention on Human Rights.  The Court further noted that it would not analyze the alleged actions under Articles 1, 2 and 7(b) of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.



X and Y v. Argentina Inter-American Commission on Human Rights (1996)

Custodial violence, Gender-based violence in general, Sexual harassment

Vaginal inspections for visits to family inmates.  A complaint was brought against Argentina by a woman and her 13-year old daughter who were routinely subjected to vaginal inspections when they would visit the woman's husband (and girl's father) at a prison. The complaint alleged that such inspections violated the "American Convention as it offends the dignity of the persons subjected to such a procedure (Article 11), and is a degrading penal measure which extends beyond the person condemned or on trial (Article 5.3) and, furthermore, discriminates against women (Article 24), in relation to Article 1.1."  Argentina argued that such inspections were reasonably necessary and conducted with as little intrusion as possible by female guards. The Commission opined that such an inspection should not occur unless absolutely necessary. In this case, the Court found that the procedure was not absolutely necessary as there were alternatives that could achieve the same objective. The Commission also held that in cases where such an inspection was absolutely necessary, they should only be carried out by pursuant to a judicial order, and by qualified medical personnel. The Commission found the inspections in this case to violate Articles 5, 11, 17, 19 of the American Convention on Human Rights.

 

Inspecciones vaginales para visitas a familiares de internos. Una mujer y su hija de 13 años de edad fueron sometidas de forma rutinaria a una inspección vaginal cuando visitaban al marido de la mujer (y al padre de la niña) en una prisión, por lo cual demandan a Argentina. La queja alegó que tales inspecciones violaron la "Convención Americana, ya que ofende la dignidad de las personas sometidas a tal procedimiento (Artículo 11), y es una medida penal degradante que se extiende más allá de la persona condenada o enjuiciada (Artículo 5.3) y además, discrimina a las mujeres (artículo 24), en relación con el artículo 1.1 ". Argentina argumentó que tales inspecciones eran necesarias y que se llevaron a cabo con la menor intrusión posible de las guardias. La Comisión opinó que tal inspección no debería ocurrir a menos que sea absolutamente necesario. En este caso, el Tribunal consideró que el procedimiento no era absolutamente necesario ya que había alternativas que podrían lograr el mismo objetivo. La Comisión también sostuvo que en los casos en que dicha inspección fuera absolutamente necesaria, solo deberían llevarse a cabo de conformidad con una orden judicial y por personal médico calificado. La Comisión consideró que las inspecciones en este caso violan los artículos 5, 11, 17 y 19 de la Convención Americana sobre Derechos Humanos.