Wednesday, November 28, 2007

Sexual harassment case against Fordham goes forward

Not that we're keeping score, but for the second time in two days, the Second Circuit has reversed the dismissal of an employment discrimination case, sending the case back to the district court for further proceedings. The moral of the story is that supervisors who watch pornography in the workplace are asking for a lawsuit.

The case is Patane v. Clark, decided on November 28. As alleged in her Complaint, Patane was a secretary at Fordham University, where one of her supervisors, Clark, "engaged in inapporpriate sexually-charged conduct in the workplace," including spending substantial time watching pornography on the office television and using Patane's computer to view hard-core pornographic websites. Patane also had to open Clark's mail, which included pornographic videotapes. Patane complained to a college EEO official who did nothing other than pass along the complaint to a college administrator. Clark, meanwhile, retaliated against Patane because of her complaints, removing nearly all her job responsibilities and keeping her out of the "loop" on office matters. One of Clark's friends furthered that campaign of retaliation when he became Chairman of an academic department, issuing a pretexual performance evaluation and attempting disciplinary action against her. The district court dismissed the case under Rule 12(b) because the Complaint failed to state a claim.

The Court of Appeals (Calabresi, Wesley and Brieant) disagreed, but not before pausing to affirm the district court's holding that the Complaint did not properly allege gender discrimination. Instead, drawing a subtle distinction, the Court of Appeals found that Patane did properly plead a hostile work environment based on gender. The mere presence of pornography in the workplace is enough to create a hostile work environment, even if, as the district court noted, plaintiff was not forced to watch it. Since some of the pornography was in the mail that Patane opened and it was also in her own computer, she has a viable sexual harassment claim. Nor does it matter that men were also exposed the to pornography in the workplace. It's offensive to women, and that's enough for a sexual harassment claim.

Patane also has a viable retaliation claim. We can infer that her immediate supervisor, Clark, knew about Patane's complaints about the harassment since "she complained about Clark's conduct to a Fordham employee whose job it was to investigate and receive such complaints." We also assume that "general corporate knowledge" about the complaints brought them to Clark's attention. While the district court ruled that Patane's job restrictions in the wake of her complaints were not sufficiently severe for a lawsuit, they still qualify as "adverse employment actions" because Clark removed nearly all her job duties. That's enough under Second Circuit precedent. It's also enough under a recent Supreme Court case, Burlington N. & Santa Fe v. White, 126 S.Ct. 2405 (2006), which holds that an "adverse employment action" consists of an employer response that would dissuade any reasonable employee from filing an internal complaint. The twist here is that, although Patane did complain a second time, holding the second complaint against her "would require that no plaintiff who makes a second complaint about harassment could ever have been retaliated against for an earlier complaint."

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