Bill Conroy currently focuses his practice on the litigation of catastrophic injury cases and has devoted his practice to trial work for almost 30 years. The majority of legal claims arising from accidents or injuries do not reach a civil court trial -- most are resolved earlier through a negotiated settlement among. Autumn 2003 (vol. This Land Is Your Land . In a civil trial, a judge or jury examines the evidence to decide whether, by a preponderance of the evidence, the defendant should be held legally responsible for. After the preliminary hearing and before a criminal case goes to trial, the prosecutor and the defense team usually appear before a criminal court judge and make. Harassment in the Workplace. Katz, Marshall & Banks partner Debra S. Katz and Alan Kabat of the Bernabei Law Firm published a continuing legal education white paper entitled “Harassment in the Workplace.” The paper was presented at an American Law Institute- American Bar Association continuing legal education seminar entitled “Current Developments in Employment Law,” which was held in Santa Fe, New Mexico on July 2. The full text of the paper is available below. Harassment in the Workplace. By Debra S. Katz and Alan R. Kabat. Download the PDF version here. INTRODUCTIONThis chapter provides an overview of harassment employment law claims under Title VII and Section 1. There are no comprehensive statistics for the total number of all workplace harassment complaints, formal and informal, since there is no central repository for the reporting of complaints that are resolved before going through the agency or judicial stage. The EEOC's most recent enforcement statistics show there were 1. These statistics do not include charges filed with state or local agencies but not cross- filed with the EEOC. ![]() The EEOC no longer provides comparable statistical information for racial or national origin harassment claims. APPLICABLE FEDERAL STATUTESMost racial and sexual harassment claims are brought under Title VII of the Civil Rights Act of 1. U. S. C. Racial harassment claims against state or local governments can be brought under 4. U. S. C. In similar circumstances, a claim may also be brought under the conspiracy statutes, 4. U. S. C. The state statutes covering racial and sexual harassment are tabulated in . Section 1. 98. 1. ![]() A Section 1. 98. 1, part of the Civil Rights Act of 1. Thirteenth Amendment and bars racial discrimination. In 1. 98. 9, the Supreme Court interpreted Section 1. Patterson v. Mc. Lean Credit Union, 4. U. S. 1. 64, 1. 71 (1. In response, the Civil Rights Act of 1. ![]() Section 1. 98. 1 to add subsections (b) and (c), which provide for a broader reading of the right to . Thus, courts now recognize that racial discrimination and harassment claims by employees lie within the statutory protection of Section 1. See Gonzalez v. Ingersoll Milling Mach. Co., 1. 33 F. 3d 1. Cir. Section 1. 98. All persons . The statute of limitations for Section 1. Section 1. 98. 1 when that statute was amended in 1. The Supreme Court recently resolved a split among the circuits, and held that the 3 catchall federal four- year statute of limitations, 2. U. S. C. Donnelley & Sons Co., 1. S. 1. 83. 6, 1. 84. However, for failure- to- hire claims, the state personal injury or tort statute of limitations remains operative. The significant result of the Jones decision, for harassment plaintiffs, is a expansion of the time period for bringing a claim in those states for which the state statute of limitations is shorter. It should be noted that Section 1. Title VII actions, and not to Section 1. B. Sections 1. 98. Sections 1. 98. 5(3) and 1. Section 1. 98. 6 reaches those who had notice of the conspiracy and were able to prevent it, but did not do so. Section 1. 98. 5(3) provides, in relevant part, that: If two or more persons in any State or Territory conspire . The companion statute, Section 1. Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1. A claim under Section 1. Title VIITitle VII was enacted through the Civil Rights Act of 1. Fourteenth Amendment, and applies to employers with . Thus, employees of certain small or seasonal businesses are not protected by Title VII, although they may be able to obtain recourse for employment discrimination through 4 Section 1. Title VII's Scope and Procedural Issues. Section 7. 03 of Title VII, as amended, provides in relevant part, that: (a) It shall be an unlawful employment practice for an employer - (1) . The statute of limitations for private- sector Title VII actions is governed by 4. U. S. C. See Delaware State College v. Ricks, 4. 49 U. S. C. F. R. In contrast, federal- sector employees must inform their agency's designated EEO office within 4. If these mechanisms are unsuccessful, the federal employee can then file an EEO complaint with the agency, but has only 1. See 2. 9 C. F. R. Title VII's . Nordberg, 9. F. 3d 6. 80, 6. 82- 8. Cir. 1. 99. 6), and does not apply to Section 1. United Food & Commercial Workers Local Union No. F. 3d 1. 35. 7, 1. Cir. The Supreme Court held that, in a mixed motives case, a plaintiff can rely on circumstantial evidence of discriminatory conduct, and does not have to present direct evidence. Desert Palace, Inc. Costa, 5. 39 U. S. Title VII's Coverage and Employer Size. In 2. 00. 3, the Supreme Court ruled upon an appeal from the Ninth Circuit which raised the question of whether shareholder- employees (here, physicians) in a professional corporation were . Clackamas Gastroenterology Assocs., P. C. Wells, 5. 38 U. S. 1. 67. 3 (2. 00. The Court held that the EEOC's six- factor analysis would be particularly useful in making this determination: 5 We are persuaded by the EEOC's focus on the common- law touchstone of control, see Skidmore v. Swift & Co., 3. U. S. 1. 34, 1. 40 (1. Wells, 5. 38 U. S. The Supreme Court discussed the implications of these factors: As the EEOC's standard reflects, an employer is the person, or group of persons, who owns and manages the enterprise. The employer can hire and fire employees, can assign tasks to employees and supervise their performance, and can decide how the profits and losses of the business are to be distributed. The mere fact that a person has a particular title - such as partner, director, or vice president - should not necessarily be used to determine whether he or she is an employee or a proprietor. Nor should the mere existence of a document styled . Darden, 5. 03 U. S. The Court seemed to lean towards finding that these shareholder- employees would not be statutory employees, but remanded to the district court for further fact finding. The parties are currently engaged in discovery, which is scheduled to close on July 2. Title VII's Coverage of Law Firm Partners. The Supreme Court's Wells decision, by focusing on the EEOC's six factor test, and by recognizing that no one factor is outcome determinative, may provide better guidance to the lower courts in resolving the difficult and fact- specific question of whether partners in a professional corporation, such as accounting and law firms, are employees and hence protected 6 under the employment discrimination statutes. See, e. g., EEOC v. Sidley Austin Brown & Wood, 3. F. 3d 6. 96, 7. 03- 0. Cir. 2. 00. 2) (collecting cases). Traditionally, persons who were partners had both an equity interest and the full ability to participate in the management and control of the partnership. In more recent years, large partnerships have found it unwieldy to allow all partners vote on managerial and personnel decisions, so that these firms have typically created a separate management committee comprised of a small number of partners who make these decisions on behalf of the partnership. Further, an increasing number of partners are now . These two trends - rule by management committee and non- equity salaried partners - mean that many professionals who are denominated as . See also Hishon v. King & Spalding, 4. U. S. 6. 9, 7. 9 n. Powell, J., concurring) (. The courts have consistently drawn a line between . Only the former are excluded from the definition of employee under the employment discrimination statutes. See, e. g., Wheeler v. Main Hurdman, 8. 25 F. Cir. 1. 98. 7) (plaintiff was a general equity partner in an accounting firm, was entitled to compensation as a share of firm profits, contributed to capital, had unlimited personal liability, and had the right to vote on nearly all matters affecting the partnership). In contrast, where the employee, although denominated a partner, received a regular salary, lacked equity, lacked any meaningful opportunity to exercise management or control over the partnership, and was not liable for the partnership's debts, then the circuit courts have held that such persons are employees. See, e. g., Simpson v. Ernst & Young, 1. F. 3d 4. 36, 4. 43- 4. Cir. 1. 99. 6); Strother v. Southern Cal. Permanente Med. Group, 7. 9 F. 3d 8. Cir. See, e. g., Rosenblatt v. Bivona & Cohen, P. C., 9. 69 F. 2. 07, 2. S. D. N. Y. 1. 99. Peat, Marwick, Mitchell & Co., 6. F. 1. 44, 1. 47- 5. S. D. N. Y. 1. 98. Baskin, Flaherty, Elliot & Mannino, P. C., 6. 70 F. 5. 97, 6. W. D. 1. 98. 7) (salaried attorney . WORKPLACE HARASSMENTA. Definition. During the 1. This distinction was . Ellerth, 5. 24 U. S. 7. 42, 7. 51 (1. The case law had developed to recognize that . Bank, FSB v. Vinson, 4. U. S. 5. 7, 6. 5 (1. However, the Court recognized that this dichotomy was of . Therefore, the Court decided that, to determine whether the employer should be held vicariously liable, as opposed to . The result is that practitioners should focus on the presence or absence of a tangible employment action, and not the categories of . See also Hurley v. Atlantic City Police Dep't, 1. F. 3d 9. 5, 1. 20 (3d Cir. B& S of Fort Wayne, Inc., 3. F. 2d 1. 07. 9, 1. N. D. Although long antedating the Supreme Court's 1. EEOC promulgated, in 1. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. The first and second prongs correspond to . Elements of the Claim. The Supreme Court first recognized the validity of . Meritor Sav. Bank, FSB v. Vinson, 4. 77 U. S.
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