LITIGATING SEXUAL HARASSMENT & SEX DISCRIMINATION CASES By Elizabeth Hubbard and Aaron B. Maduff Managing Editor: Lisa J. Dunne, Esq. Production Editor: Amanda Winkler Editor: Rebecca Aranda Contact us at (800) 440-4780 or www.jamespublishing.com
Copyright 1996-2013 James Publishing, Inc. ISBN 0-938065-99-8 This publication is intended to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher does not render legal, accounting, or other professional services. If legal advice or other expert assistance is required, seek the services of a competent professional. Persons using this publication in dealing with specific legal matters should exercise their own independent judgment and research original sources of authority and local court rules. The publisher and the author make no representations concerning the contents of this publication and disclaim any warranties of merchantability or fitness for a particular purpose. We view the publication of this work as the beginning of a dialogue with our readers. Periodic revisions to it will give us the opportunity to incorporate your suggested changes. Call us at (714) 755-5450 or send your comments to: Managing Editor James Publishing, Inc. 3505 Cadillac Ave., Suite P-101 Costa Mesa, CA 92626 First Edition, 12/96 Rev. 1, 12/97 Rev. 2, 11/98 Rev. 3, 11/99 Rev. 4, 11/00 Rev. 5, 11/01 Rev. 6, 9/02 Rev. 7, 9/03 Rev. 8, 11/04 Rev. 9, 11/05 Rev. 10, 11/06 Rev. 11, 11/07 Rev. 12, 11/08 Rev. 13, 11/09 Rev. 14, 12/10 Rev. 15, 12/11 F-2 Litigating Sexual Harassment & Sex Discrimination Cases
CURRENT AUTHOR ABOUT THE AUTHOR Aaron B. Maduff is a member of Maduff & Maduff, LLC, a national law firm dedicated to the practice of employment law. Prior to law school at the University of Iowa, Mr. Maduff had a background in rape victim advocacy, which led to an interest in practicing sexual harassment law, something he has done since his first day as a licensed attorney. Mr. Maduff is licensed in Colorado, the District of Columbia, Illinois, Minnesota, Ohio, and more than 20 federal jurisdictions, including the Supreme Court of the United States. He is Board Certified as a specialist in Labor and Employment Law by the State of Ohio. He holds an AV rating from Martindale-Hubbell. Mr. Maduff has been recognized by SuperLawyers since 2007, and is listed with the Top 100 Trial Lawyers (National Trial Lawyers). Mr. Maduff has served on the Executive Board of the National Employment Lawyers Association (NELA), as well as its Illinois Chapter. He is a past chair of the Chicago Bar Association s Labor and Employment Law Section and sits on the Section Council for the Illinois State Bar Association s Labor and Employment Law Section. Mr. Maduff has filed amicus briefs before appellate courts, including the Supreme Courts of Illinois and Indiana. He has testified on employment law to the Illinois Senate and General Assembly. He drafted portions of the Illinois Equal Pay Act of 2003, and was a leading voice in the passage of the Amendment to the Illinois Human Rights Act permitting sexual harassment and discrimination cases to proceed in state court. Mr. Maduff has taught courses on employment law at both the undergraduate and graduate level. He is a frequent speaker on employment law issues to such organizations as NELA and its 7th Circuit and Illinois chapters; the Illinois State Bar Association; the Chicago Bar Association; and the Council for Legal Education Opportunity. ACKNOWLEDGEMENT First and foremost, I must acknowledge Elizabeth (Libby) Hubbard, the prior author of this book, whom I have been fortunate to call a mentor and friend. Libby s practice has spanned nearly 40 years, and her contributions to the field of employment law are immeasurable. I am honored to continue this book where she left off. I would also like to acknowledge Lisa Dunne, my editor, whose guidance and insight make this book possible. Finally, a sexual harassment lawyer does not succeed on his or her own. The practice of law in this area, and in employment law generally, is always a team effort with the clients we represent. It is never easy for a victim of sexual harassment to fight back, and my clients have included women and men, as well as minors, who have shown resiliency and determination under the most traumatic of circumstances. Much of what I have learned from them is reflected in this book. Litigating Sexual Harassment & Sex Discrimination Cases F-3
Editor s Note: Elizabeth Hubbard wrote the second edition of Litigating Sexual Harassment & Sex Discrimination Cases in 1997. She wrote every annual supplement from 1998-2011. We proudly acknowledge her contributions to this book and her dedication and commitment to this work. F-4 Litigating Sexual Harassment & Sex Discrimination Cases
PREVIOUS AUTHOR ACKNOWLEDGMENT The National Employment Lawyers Association, a nation-wide organization of plaintiff s employment rights attorneys, has worked tirelessly for decades to advance the rights of employees, and deserves thanks for the dedication of its members. Even though members are rather in competition with each other for cases, the members work cooperatively through chat groups and meetings to advance employment rights for employees. I also wish to acknowledge and thank Lisa Dunne, the editor of this book, for her efforts to deliver a fine result for our readers. An Acknowledgment is also due to Pat Swanson, a former client of our firm, whose case of Swanson v. Elmhurst Chrysler Plymouth, Inc., was lost on appeal at the Seventh Circuit. The court could find no equitable remedy for her, despite the egregious sexual harassment she endured while credit manager for the dealership. The court implied in its opinion that the law needed to be changed. Pat was contacted by Senator Kennedy to testify before the Senate for the passage of the 1991 amendments to the Civil Rights Act. Pat did testify and returned to Congress to lobby for the passage of the Act, which was accomplished in November, 1991. She is one of the many unknown and unsung heroines in the long struggle to obtain decent and respectable working conditions for women. Elizabeth Hubbard Litigating Sexual Harassment & Sex Discrimination Cases F-5
ABOUT THE AUTHOR Elizabeth (Libby) Hubbard is the principal in Elizabeth Hubbard Law Firm LLC in Chicago, Illinois. Libby represents plaintiffs and employers in employment rights cases. (For additional information, visit www.ehubbardlaw.com.) Ms. Hubbard graduated with honors from Chicago-Kent College of Law, having served as Articles Editor of law review. She is a frequent speaker on employment discrimination issues. She was co-counsel on the case of Marek v. Chesney, 473 U.S. 1 (1985), which established the parameters of Rule 68 offers of judgment. Ms. Hubbard has tried numerous jury trials to verdict in federal courts. Ms. Hubbard has been active in the Illinois chapter of the National Employment Lawyers Association, most recently as treasurer. F-6 Litigating Sexual Harassment & Sex Discrimination Cases
ABBREVIATED TABLE OF CONTENTS THE SUBSTANTIVE LAW Chapter 1: Theories of Liability Chapter 2: Related Statutes and Other Grounds for Relief PRE-LITIGATION ACTIVITIES Chapter 3: Workplace Investigation Chapter 4: Administrative Process REPRESENTING THE EMPLOYEE Chapter 5: Preliminary Matters Chapter 6: Draft Complaint Chapter 7: Discovery Chapter 8: Experts Chapter 9: Summary Judgment Chapter 10: Trial Preparation Chapter 11: Attorney s Fees and Costs Chapter 12: Settlement & ADR REPRESENTING THE EMPLOYER Chapter 13: Preliminary Matters Chapter 14: Respond to Complaint Chapter 15: Discovery Chapter 16: Experts Chapter 17: Summary Judgment Chapter 18: Trial Preparation Chapter 19: Attorney s Fees Chapter 20: Settlement & ADR PREVENTIVE MEASURES Chapter 21: Sexual Harassment Chapter 22: Sex Discrimination TRIAL TACTICS & TECHNIQUES Chapter 23: Trial of Sexual Harassment CASE DIGEST TABLE OF CASES INDEX Litigating Sexual Harassment & Sex Discrimination Cases F-7
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TABLE OF CONTENTS THE SUBSTANTIVE LAW Chapter 1: Theories of Liability I. Basic Points [ 1.1] A. Avoid Costly Mistakes [ 1.2] B. Create Legal Research File [ 1.3] C. Statutory and Other Grounds for Liability [ 1.4] II. Legal Theories of Sexual Harassment [ 1.13] A. Change in Analysis Under Faragher & Ellerth [ 1.14] B. Vicarious Liability With Tangible Job Action [ 1.15] C. Vicarious Liability With No Tangible Job Action [ 1.30] D. Sexual Stereotype Discrimination/Harassment [ 1.41.1] E. Same-Sex Sexual Harassment [ 1.42] F. Sexual Orientation Gender Identity, and Transgender Discrimination [1.44.1] III. Legal Theories of Sex Discrimination [ 1.45] A. Overview [ 1.46] B. Disparate Treatment Discrimination [ 1.47] C. Disparate Impact Discrimination [ 1.56] D. Pattern and Practice Discrimination [ 1.61] E. Pregnancy Discrimination [ 1.62] IV. Retaliation [ 1.71] A. Summary Overview [ 1.72] B. Standing to Sue [ 1.73] C. Prima Facie Case [ 1.74] D. Employer s Legitimate Non-Discriminatory Reason for Action [ 1.81] E. Pretext [ 1.82] F. Available Remedies [ 1.83] V. State FEP Statutes [ 1.84] VI. Constructive Discharge [ 1.85] A. Prima Facie Case [ 1.86] B. Defenses [ 1.90] C. Available Remedies [ 1.91] D. Practice Note: Be Prepared to Act Quickly [ 1.92] Chapter 2: Related Statutes and Other Grounds for Relief I. Family and Medical Leave Act [ 2.1] A. Congressional Findings and Governing Principals [ 2.2] B. Definitions [ 2.3] C. Mechanics of the Leave [ 2.11] D. Employer Posting Requirements [ 2.17] E. Prohibited Acts [ 2.18] F. Equitable Estoppel [ 2.19] G. Damages [ 2.20] H. Common Sexual Harassment Scenarios [ 2.25] Litigating Sexual Harassment & Sex Discrimination Cases F-9
II. Bisexual, Sexual Orientation and Transgendered Claims [ 2.35] A. Status of Claims [ 2.36] B. Legal Analysis [ 2.41] III. Assault, Battery [ 2.45] A. Assault [ 2.46] B. Battery [ 2.47] IV. Intentional Infliction of Emotional Distress [ 2.50] PRE-LITIGATION ACTIVITIES Chapter 3: Workplace Investigation Task: Respond to Sexual Harassment Complaint Overview [ 3.1] Task: Investigate Sexual Harassment Complaints [ 3.4] Task: Interview Employee Alleging Harassment [ 3.17] Task: Interview Alleged Harasser [ 3.38] Task: Interview Witnesses [ 3.53] Task: Review Documents [ 3.65] Task: Determine Appropriate Response [ 3.70] Task: Convey Investigation Results to Parties [ 3.92] Task: Representing Victim or Alleged Harasser [ 3.107] Chapter 4: Administrative Process Task: File Administrative Charge of Discrimination [ 4.1] Task: Draft Position Statement in Response to Charge [ 4.20] Task: Resolve Administrative Charge [ 4.33] Task: Request Notice of Right to Sue [ 4.42] REPRESENTING THE EMPLOYEE Chapter 5: Preliminary Matters Task: Interview Prospective Client [ 5.1] Task: Prepare Retainer Agreement [ 5.36.1] Task: Investigate Claims Overview [ 5.37] Task: Obtain Detailed Chronology [ 5.40] Task: Interview Third-Party Witnesses [ 5.43] Task: Obtain and Review Documents [ 5.60] Task: Review Employer s Sexual Harassment Policy and Training Procedures [ 5.76] Task: Assess Claims and Injuries [ 5.86] Task: Determine Appropriate Course of Action [ 5.96] Chapter 6: Draft Complaint Task: Determine Who to Name as Defendants [ 6.1] Task: Draft Complaint [ 6.14] Task: File Complaint [ 6.62] F-10 Litigating Sexual Harassment & Sex Discrimination Cases
Chapter 7: Discovery Task: Develop Discovery Plan [ 7.1] Task: Comply With Rule 26 Disclosures [ 7.16] Task: Propound Interrogatories [ 7.25] Task: Propound Requests for Production of Documents [ 7.33] Task: Propound Requests to Admit Facts [ 7.43] Task: Obtain Documents From Third-Party Witnesses [ 7.50] Task: Draft FRCP 35 Examination Stipulation [ 7.63] Task: Depose Alleged Harasser [ 7.82] Task: Depose Third-Party Witnesses [ 7.101] Task: Prepare Client for Deposition [ 7.123] Chapter 8: Experts Task: Determine Whether to Retain Experts [ 8.1] Task: Locate and Retain Experts [ 8.10] Task: Depose Defense Experts [ 8.16] Task: Depose Medical Experts [ 8.33] Chapter 9: Summary Judgment Task: Oppose Summary Judgment Motion [ 9.1] Chapter 10: Trial Preparation Task: Draft Motions in Limine [ 10.1] Task: Conduct Focus Group [ 10.24] Task: Prepare Trial Notebook [ 10.34] Task: Select Witnesses to Testify at Trial [ 10.40] Task: Draft Examination Outlines [ 10.50] Task: Prepare Plaintiff to Testify [ 10.63] Task: Prepare Witnesses to Testify [ 10.73] Task: Prepare Exhibits [ 10.82] Task: Draft Trial Brief [ 10.91] Task: Draft Jury Instructions [ 10.94] Task: Draft Verdict Forms [ 10.101] Task: Select Jury [ 10.106] Task: Draft Opening Statement [ 10.114] Task: Draft Closing Argument [ 10.120] Chapter 11: Attorney s Fees and Costs Task: Draft Petition for Attorney s Fees [ 11.1] Task: Draft Bill of Costs [ 11.25] Chapter 12: Settlement & ADR Task: Negotiate Settlement [ 12.1] Task: Mediate Dispute [ 12.20] Task: Arbitrate Dispute [ 12.31] Litigating Sexual Harassment & Sex Discrimination Cases F-11
REPRESENTING THE EMPLOYER Chapter 13: Preliminary Matters Task Assess Employer s Risks and Liabilities [ 13.1] Task: Negotiate Pre-Litigation Settlement [ 13.26] Task: Determine Whether to Present Joint Defense [ 13.39] Chapter 14: Respond to Complaint Task: Draft Rule 12 Motion [ 14.1] Task: Draft Answer to Complaint [ 14.23] Task: Remove Action to Federal Court [ 14.43] Chapter 15: Discovery Task: Develop Discovery Plan [ 15.1] Task: Comply With Rule 26 [ 15.12] Task: Propound Interrogatories [ 15.23] Task: Propound Requests for Production of Documents [ 15.30] Task: Propound Requests to Admit Facts [ 15.40] Task: Obtain Documents From Third Parties And Organizations [ 15.48] Task: Draft Motion for FRCP 35 Examination [ 15.61] Task: Depose Plaintiff [ 15.75] Task: Depose Third-Party Witnesses [ 15.97] Task: Prepare Client for Deposition [ 15.109] Chapter 16: Experts Task: Determine Whether to Retain Experts [ 16.1] Task: Locate and Retain Experts [ 16.17] Task: Depose Plaintiff s (Non-Medical) Experts [ 16.25] Task: Depose Medical Experts [ 16.40] Chapter 17: Summary Judgment Task: Draft Summary Judgment Motion [ 17.1] Chapter 18: Trial Preparation Task: Draft Motions in Limine [ 18.1] Task: Conduct Focus Group [ 18.20] Task: Prepare Trial Notebook [ 18.30] Task: Select Witnesses to Testify at Trial [ 18.36] Task: Draft Examination Outlines [ 18.45] Task: Prepare Client to Testify [ 18.58] Task: Prepare Witnesses to Testify [ 18.67] Task: Prepare Exhibits [ 18.76] Task: Draft Trial Brief [ 18.85] Task: Draft Jury Instructions [ 18.88] Task: Draft Verdict Forms [ 18.95] Task: Prepare for Jury Selection [ 18.100] Task: Draft Opening Statement [ 18.108] Task: Draft Closing Statement [ 18.114] F-12 Litigating Sexual Harassment & Sex Discrimination Cases
Chapter 19: Attorney s Fees Task: Oppose Petition for Attorney s Fees [ 19.1] Task: File for Sanctions on Behalf of Prevailing Defendant [ 19.20] Chapter 20: Settlement & ADR Task: Negotiate Settlement [ 20.1] Task: Mediate Dispute [ 20.25] Task: Arbitrate Dispute [ 20.36] PREVENTIVE MEASURES Chapter 21: Sexual Harassment Task: Learn About Company [ 21.1] Task: Educate Company Leaders [ 21.13] Task: Draft Policy Prohibiting Sexual Harassment [ 21.23] Task: Instruct Employees Regarding Company Policy [ 21.39] Task: Monitor Company s Prevention Efforts [ 21.45] Task: Conduct Annual Employee Performance Evaluations Chapter 22: Sex Discrimination Task: Prepare Company s Gender Profile [ 22.1] Task: Analyze Company s Gender Profile [ 22.8] Task: Take Steps to Cure Gender Disparities [ 22.18] Task: Best Practices in Employee Terminations [ 22.25] TRIAL TACTICS & TECHNIQUES Chapter 23: Trial of Sexual Harassment Task: Learn Basic Trial Techniques [ 23.1] Task: Draft Opening Statement [ 23.9] Task: Examine Witnesses [ 23.12] Task: Handle Judge & Jury [ 23.18] Task: Closing Argument [ 23.23] CASE DIGEST TABLE OF CASES INDEX Litigating Sexual Harassment & Sex Discrimination Cases F-13
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