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JUDICIAL UPDATES Supervisor’s Frequent Advances Toward Subordinate Created Hostile Work Environment The U.S. Court of Appeals for the Ninth Circuit addressed claims under Title VII of the Civil Rights Act of 1964 in Craig v. M&O Agencies, Inc. et al. Eileen Craig (a former employee) appealed the district court’s grant of summary judgment in favor of M&O Agencies (The Mahoney Group), Leon Byrd and Patricia Roberts in her sexual harassment suit. Craig alleged that the repeated advances of her direct supervisor, Leon Byrd, and the company’s subsequent investigation constituted an actionable claim under Title VII. Craig worked for The Mahoney Group as branch manager and reported to Byrd. Over the course of several months, Byrd made repeated inappropriate comments to Craig about her legs and how she should wear shorter skirts. At Byrd’s invitation, Craig met him for drinks after work. She had previously been to other happy hours and lunches with Byrd to discuss work-related matters and thought this would be a similar meeting. Byrd made several sexual comments to Craig and, at one point, asked Craig “if she had ever thought of making love to him.” Craig later excused herself to go the restroom, and moments later Byrd followed her into the women’s bathroom. When Craig exited the stall, Byrd grabbed her arms, gave her an open-mouthed kiss, and stuck his tongue in her mouth. Craig remained in the restroom for five minutes to compose herself, after which she picked up her purse from the table and left the restaurant alone while Byrd was paying the check. Byrd called Craig’s phone later that night, but hung up when her husband answered. Approximately one week later, Byrd continued calling Craig and visiting her office to ask her out, and to ask if she would like to make love to him. Craig’s response was consistently and emphatically, “No.” At some point, Byrd told Craig that he did not think he could work with her anymore. He never explicitly conditioned her continued employment or promotion on entering a sexual relationship with him. Craig reported Byrd’s conduct to an employee identified on the company’s sexual harassment policy as a person to whom complaints should be made. Reporting the claim spurred the company to immediate action and, after investigation, led to certain recommendations. When Craig was told that the investigation was complete, she began reporting to Byrd again. While the company re-assigned some of Craig’s job functions, she eventually resigned, citing medical problems and stress. Craig filed a complaint alleging, among other things, sexual discrimination in violation of Title VII. Title VII forbids an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” (42 U.S.C. § 2000e-2(a)(1).) Title VII’s prohibition is not limited to economic or tangible discrimination, but includes sexual harassment. In addition, an employer may be vicariously liable under a hostile environment theory when harassment is perpetrated by a supervisor. In reversing the district court’s summary judgment with respect to The Mahoney Group on the Title VII hostile environment claim, the court held that while Craig did not make a prima facie case for liability under Title VII on a theory of quid pro quo harassment, Byrd’s actions created sufficient triable issues of fact to overcome summary judgment with respect to liability under a hostile work environment theory. In reaching its decision, the court found that (1) Byrd’s actions subjected Craig to verbal or physical conduct of a sexual nature; (2) this conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of Craig’s employment and create an abusive working environment. In making this finding, the court pointed out that Byrd’s position as Craig’s immediate boss made his actions emotionally and psychologically threatening. While Craig was not subjected to Byrd’s comments and propositions for a period of years, the time period over which it occurred was not de minimis. There was no evidence that Craig unreasonably failed to take advantage of any preventive or corrective opportunities provided by The Mahoney Group.. (Ninth Circuit Court of Appeals Case Number 05-16427; August 9, 2007.)
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