onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive – is beyond Title VII’s purview.”  Whether the alleged harassing conduct is severe or pervasive may vary greatly from judge to judge as severity and pervasiveness are in the “eye of the beholder.”  For example, in the recent decision Breda v. Wolf Camera, Inc., the trial judge stated that determining whether harassing conduct is sufficiently severe to constitute a hostile environment is complicated by the fact that “Title VII is not a federal civility code;” that “the modern notion of acceptable behavior . . . has been coarsening over time;” and “what courts implicitly ask the ‘Title VII victim’ to tolerate as mere ‘boorish behavior’ or ‘workplace vulgarity’ must, once placed in the contemporary context, account for any ‘Slouch Toward Gomorrah’ societal norms might take.”

Title VII provides that “[it] shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, religion, sex, or national origin . . . .”  Notably, Senator Howard W. Smith of Virginia added sex as a classification at the last minute in hopes of defeating the Title VII bill.  Instead, the bill passed with the added classification and little legislative history to aid courts in interpreting when employment discrimination on the basis of sex occurs.  Originally, courts held that Title VII did not encompass claims of sex harassment; however, the courts eventually began to recognize sex harassment as a violation of Title VII in cases of quid pro quo supervisor harassment.

Finally, in 1986, the Supreme Court recognized that a sexually harassing hostile work environment could also violate Title VII.  In Meritor Savings Bank, FSB v. Vinson, the Court held that a workplace permeated with “discriminatory intimidation, ridicule, and insult,” that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” violates Title VII.  While Meritor provided a cause of action for hostile environment claims, the standard for evaluating when conduct was severe or pervasive was far from clear, resulting in a circuit court split.

In 1993, the Supreme Court attempted to resolve this circuit split in Harris v. Forklift Systems, Inc.   In Harris, the Court provided four factors to consider in evaluating whether the harassing conduct created a hostile environment: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct was physically threatening or humiliating; and (4) whether the conduct unreasonably interfered with the plaintiff’s work performance.   Additionally, the Court held that this analysis has an objective component and a subjective component.  The alleged conduct must be objectively hostile or abusive from a reasonable person’s perspective and the plaintiff must subjectively have believed the alleged conduct to be abusive.  In performing this analysis, the totality of the circumstances should be evaluated using the non-exhaustive list of factors noted above; however, no solitary factor is required for a finding that a severe or pervasive hostile environment exists.

Five years after Harris, the Supreme Court once again attempted to refine the arena of hostile environment cases when it heard a trilogy of hostile environment cases.  In Oncale v. Sundowner Off-Shore Services, Inc.,  the Court held that same-sex sexual harassment as well as opposite-sex sexual harassment was actionable under Title VII so long as it consisted of “discrimin[ation]. . . because of . . . sex,” and did not consist merely of sexual connotations, flirtations, teasing, or roughhousing.  Moreover, the Court reiterated that, while Title VII is not a general workplace “civility code,” the analysis of whether a particular environment is hostile requires an analysis of the totality of the circumstances, including social context, in which the harassing conduct occurred. 

Finally, in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, the Court set out an affirmative defense whereby employers may avoid liability in hostile environment sexual harassment cases.  Employers may avoid liability if (1) they “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and (2) “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

There is no clear cut split between the circuits as to what constitutes severe or pervasive sexual harassment.  Rather, the differing standards for what conduct constitutes severe or pervasive harassment leads to inconsistent treatment of similar practices between circuits and even within the circuits themselves.  Many courts have set a high baseline for what constitutes sexual harassment in an attempt to discourage frivolous lawsuits.  Some commentators also opine that granting motions for summary judgment is one way for judges to reduce an increased case load, a large portion of which are employment related cases.  Because of the heavily factual nature of these cases, it is often up to the whim of the court to determine if the plaintiff has made a prima facie case.  The sources listed below include many cases in which the facts of the case could permit the court to go either way in determining whether or not the plaintiff established a prima facie case sufficient to make it past summary judgment.

II. Primary Sources

a. Statutes

42 U.S.C. § 2000e-2 (1994): “[it] shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, religion, sex, or national origin . . . .”

42 U.S.C. § 1981(a) (2001) (providing for jury trials in intentional discrimination cases).

b. Supreme Court Cases

Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). The Supreme Court provides a cause of action for hostile environment claims, holding that a workplace permeated with "discriminatory intimidation, ridicule, and insult," that is "sufficiently sever or pervasive to alter the conditions of the victim's employment and create an abusive working environment" violates Title VII.

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). The Court provides four factors to consider in evaluating whether harassing conduct creates a hostile environment: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct was physically threatening or humiliating; and (4) whether the conduct unreasonably interfered with the plaintiff's work performance. The conduct must be objectively hostile or abusive from a reasonable person's perspective and the plaintiff must subjectively have believed the alleged conduct to be abusive. A court should look at the totality of the circumstances.

Oncale v. Sundowner Off-Shore Services, Inc., 523 U.S. 75 (1998). The Supreme Court holds that same-sex sexual harassment as well as opposite-sex sexual harassment is actionable under Title VII so long as it consists of "discrimin[ation] . . . because of . . . sex"

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). The Court provides an affirmative defense whereby employers may avoid liability in hostile environment sexual harassment cases. Employers may avoid liability if (1) they "exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and (2) "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise"

Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Companion case to Burlington with the same holding. Faragher and Burlington are almost always cited together.

c. Court of Appeals Cases

Mendoza v. Borden, Inc., 195 F.3d 1238, 1269 (11th Cir. 1999). This is one of the key 11th Circuit sexual harassment cases. The court notes that a trial court's analysis off whether sufficient evidence of a severe or pervasive hostile environment exists to create a triable issue for the jury is necessarily fact intensive. In a strong dissent, Chief Justice Barkett states that the majority usurps the jury's role when it selectively considers the facts and determines which inferences should be given to those facts.

Fitzgerald v. Henderson, 251 F.3d 345 (2nd Cir. 2001). The plaintiff alleged her supervisor touched her in an inappropriate manner and made inappropriate comments over a six month period. She rebuffed his advances and he began to criticize her, repeatedly berate her, deny her seniority rights, and physically intimidate her. The district court granted the employer's motion for summary judgment, but the Court of Appeals reversed and remanded.

Celestine v. Petroleos de Venezuella SA, No. 00-30171, 2001 U.S. App. LEXIS 20510, *, *12-*13 (5th Cir. September 18, 2001). The Court describes the continuing violation doctrine which helps provide a cause of action in hostile environment cases where the discrete occurrences of discrimination are not sufficient to constitute a harassment claim, but the cumulative effect of the pattern or practice of discrimination results in an actionable claim for sexual harassment.

Equal Employment Opportunity Commission v. R&R Ventures, 244 F.3d 334, 337 (4th Cir. 2001). The fifteen-year-old plaintiff alleged that her Taco Bell manager described his sex life to her, asked her if she "liked to be spanked" and if she had "gotten laid," commented on the plaintiff's breasts and buttocks, and inappropriately touched and brushed up against her. The conduct occurred on a daily basis, often in front of customers and other employees. The district court granted the employer's motion for summary judgment, holding that the manager's conduct, which was crude and "made the life of his subordinates miserable," was not severe or pervasive sexual harassment.

Hostetler v. Quality Dining, Inc., 218 F.3d 798 (7th Cir. 2000). The plaintiff alleged that a fellow supervisor twice "grabbed her face . . . and 'stuck his tongue down [her] throat;" once attempted to unhook her bra strap; graphically described to the plaintiff, in front of customers, the oral sex he wished to perform on her. The court granted summary judgment for the employer on the basis that these were isolated incidents that a reasonable person would not find severe. The court noted that the plaintiff subjectively found the conduct to be severe, but that the plaintiff's own comments indicated the behavior was merely inappropriate rather than severe or hostile. The court of appeals remanded for trial.

Jessen v. Babbitt, No. 98-8069, 1999 U.S. App. LEXIS 33627, *7 (10th Cir. Dec. 23, 1999) The court states that the Tenth Circuit Court of Appeals finds the severe or pervasive analysis of a hostile work environment unsuited to motions for summary judgment as the analysis involves a question of fact.

Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir. 1989) The court states that the question of “whether the ‘harassment was sufficiently severe or pervasive to create a hostile work environment is quintessentially a question of fact’ for the jury.” (Because of the age of this case, it is not available in a free on-line database. However, it can be accessed through both LEXIS and WestLaw.

Gregory v. Daly, 243 F.3d 687 (2d Cir. 2001). The plaintiff alleged harassing conduct including demeaning comments about women, unwanted touching, explainations in detail of how easy it is to rape a woman, and detailed descriptions of anal intercourse with boys. The trial court granted the employer's motion for summary judgment because the complaint alleged nothing more than demeaning comments. Moreover, the trial court attempted to explain away the comments regarding sexual abuse of children as relevant to the plaintiff's and defendant's roles as caregivers. The Court of Appeals reversed the trial court's holding, admonishing it for looking at the alleged incidents in isolation, and noting that the trial court's speculation as to the appropriateness of the defendant's discussion of child abuse in the context of the parties' jobs as caregivers was a "totally inappropriate basis for dismissal at this stage in the litigation.

Conner v. Schrader-Bridgeport International, Inc.,227 F.3d 179 (4th Cir. 2000). The alleged harasser repeatedly asked the plaintiff if she "was on the rag," and if she "got any last night" Furthermore, the harasser required the plaintiff to perform additional duties, such as mopping the entire plant floor several times a week while her supervisor and co-workers mocked and belittled her. Approximately ten times, the supervisor required the plaintiff to show him, in view of the entire factory floor and all her co-workers, the blood stains on her pants from uterine hemorrhaging before he would permit her to leave work. This was done instead of sending the plaintiff to the employer's on-site nurse. A jury found that the defendant subjected the plaintiff to a sexually harassing hostile environment. However, the trial court vacated the jury's holding. The trial court examined each incident in isolation, rather than as a totality of the circumstances, and held that only the comments were borderline harassing. The court of appeals reversed, finding that the record amply supported the jury's finding of a hostile environment. Moreover, the court stated that "whether the harassment was sufficiently severe or pervasive to create a hostile work environment is 'quintessentially a question of fact' for the jury."

Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001). The plaintiff alleged years of sexually harassing conduct which included derogatory remarks, disproportionately burdensome work assignments, co-worker's sabotaging her work, threats of physical harm, and false accusations of misconduct. The district court granted the defendant's motion for judgment as a matter of law, holding that the defendants focused their harassing conduct on the plaintiff because they did not like her as an individual, not because of her gender. The Second Circuit Court of Appeals reversed without commenting on the fact that the district court analyzed the severity of the conduct based in part on the atmosphere of the work environment, a police station.

Baskerville v. Culligan International Co, 50 F.3d 428 (7th Cir. 1995).  Written by Judge Posner, Baskerville is still cited extensively today despite pre-dating many of the Supreme Court decisions in this area.  In Baskerville, Judge Posner wrote that given “contemporary American popular culture in all its sex-saturated vulgarity” a modern woman should not be offended by the silliness of a boss who made grunting noises, made gestures simulating masturbation, exclaimed that the plaintiff made the room “hot,” and told the plaintiff that a public announcement was code for “all pretty girls run around naked.”

Riley v. Buckner, No. 00-1048, 2001 U.S. App. LEXIS 240 (4th Cir. January 8, 2001) A 2001 Title VII sexually harassing hostile environment case brought against a judge. 

Williams v. General Motors Corp., 187 F.3d 553 (6th Cir. 1999). Williams is a key case when analyzing sexual harassment in the blue-collar environment. The district court granted the defendant's motion for summary judgment after analyzing the conduct within the context of a blue-collar environment. The court of appeals explicitly rejected this analysis, stating "We do not believe that a woman who chooses to work in the male-dominated trades relinquishes her right to be free from sexual harassment; indeed, we find this reasoning to be illogical, because it means that the more hostile the environment, and the more prevalent the sexism, the more difficult it is for a Title VII plaintiff to prove that sex-based conduct is sufficiently severe or pervasive to constitute a hostile work environment"

Smith v. Sheahan, 189 F.3d 529 (7th Cir. 1999). The district court granted the employer's motion for summary judgment on the basis of an assumption of the risk theory. The court discounted the seriousness of the harassing conduct because the plaintiff, by voluntarily entering an aggressive workplace like a prison, should expect to be exposed to some harassing conduct. The Seventh Circuit Court of Appeals reversed, refusing to recognize an assumption-of-the-risk defense to charges of workplace discrimination because this defense would allow employers to shield themselves from liability under Title VII based on their past discriminatory practices.

Scusa v. Nestle, U.S.A. Company, Inc., 181 F.3d 958,966-67 (8th Cir. 1999) The court of appeals affirmed the district court’s grant of summary judgment to the employer without a discussion of the acceptable level of coarse conduct in the blue-collar environment because the plaintiff engaged in similar behavior as her alleged harassers. 

d. District Court Cases

Dinkins v. Charoen Pokphand U.S.A., Inc., 133 F. Supp. 2d 1254, 1263 (M.D. Al. 2001) The female plaintiffs were subjected to a "continual, sustained barrage of unwelcome comments and touchings, including requests for sex and unwelcome grabbing of their hips, buttocks, breasts, and genitalia" by their male co-workers and supervisors. The court analyzed the harassing conduct at a chicken processing plant without engaging in an evaluation of the acceptable level of coarseness within the blue-collar environment and found for the plaintiffs on the defendant's motion for summary judgment.

Cruz v. Radtec, Inc., 70 F. Supp. 2d 77, 83 (D.P.R. 1999). A female plaintiff complained of a single inappropriate comment in eight years of employment. The court granted the defendant's motion for summary judgment, stating that an isolated comment, while deplorable, does not constitute severe or pervasive harassment.

Breda v. Wolf Camera, Inc., 148 F. Supp. 2d. 1371, No. CR497-366,  2001 U.S. Dist. LEXIS 9328, *, *23-*26 (S.D. Ga. June 25, 2001) On a daily basis, the female plaintiff's co-workers made vulgar comments, ogled women through binoculars, pressed up against the plaintiff in a male "sandwich," and showed her nude photographs. The court granted the employer's motion for summary judgment, stating that "the modern notion of acceptable behavior . . . has been coarsening over time;" and "what courts implicitly ask the 'Title VII victim' to tolerate as mere 'boorish behavior' or 'workplace vulgarity' must, once placed in the contemporary context, account for any 'Slouch Toward Gomorrah' societal norms might take"

Hull v. Board of Trustees of the University of Illinois at Chicago,  2001 U.S. Dist. LEXIS 9905, at *1 (July 16, 2001) The plaintiff alleged she was touched twice in a non-sexual manner, suggestive posters, calendars, magazines and pin-ups were in the office, and co-workers used off-color language and made dirty jokes. The court denied the employer's motion for summary judgment, stating “. . . a reasonable jury could conclude that the physical assaults may have been part of a workplace that, on the whole, would make a reasonable woman feel so uncomfortable or so threatened as to constitute a hostile work environment.”

Walker v. Werner Enterprises, Inc., 8:98CV374, 2000 U.S. Dist. LEXIS 20539, *1 at *16-17 (D. Neb. March 14, 2000). The district court granted the employer's motion for summary judgment despite the plaintiff's allegations that she received harassing e-mail messages, a male employee attempted to kiss her twice, and her supervisor made repeated inappropriate comments and suggestions regarding the plaintiff's past experience as an exotic dancer.

Saidu-Kamara v. Parkway Corporation, No. 00-CV-2572, 2001 U.S. Dist. LEXIS 12032 (E.D. Pa. August, 13 2001). Over a one and a half year period, the plaintiff alleged her supervisor: (1) touched her breast while saying that she looked "fresh" and propositioning her; (2) offered financial assistance if the plaintiff would date him; (3) removed a bottle of wine from his pants, offered the plaintiff a drink and asked her to join him at a hotel later for a "good time"; and (4) patted the plaintiff on her breast and buttocks. The court granted the employer's motion for summary judgment holding that, while the alleged conduct was "loathsome and inappropriate," the plaintiff at most alleged only isolated and sporadic instances of harassment that could not be considered severe or pervasive by a reasonable person.

Baker v. Starwood Hotel and Resort Worldwide, Inc., No. 98-2076 Section “G,” 1999 U.S. Dist. LEXIS 9414, * (E.D. La. June 15, 1999). The plaintiff alleged that during her six weeks of employment her supervisor repeatedly made unwelcome sexual advances, commented on her physique and twice touched her in an inappropriate manner. The district court held that, because the inappropriate physical contacts only occurred twice and the comments only occurred over a 14 day period, the conduct could not be considered severe or pervasive by a reasonable person.

Hostetler v. Quality Dining, Inc., No. 3:97-cv-160RP, 1998 U.S. Dist. LEXIS 12110, * (N.D. Ill. April 23, 1998). The plaintiff alleged that a fellow supervisor twice "grabbed her face . . . and 'stuck his tongue down [her] throat;" once attempted to unhook her bra strap; graphically described to the plaintiff, in front of customers, the oral sex he wished to perform on her. The court granted summary judgment for the employer on the basis that these were isolated incidents that a reasonable person would not find severe. The court noted that the plaintiff subjectively found the conduct to be severe, but that the plaintiff's own comments indicated the behavior was merely inappropriate rather than severe or hostile.

Wildman v. Burke Marketing Corporation, 120 F. Supp. 2d 1182, 1185 (S.D. Iowa 2000) The court states that the Eight Circuit Court of Appeals cautions against granting motions for summary judgment in employment actions because these actions are inherently fact based.

Crowley v. L.L. Bean, Inc., No. 00-183-P-C, 2001 U.S. Dist. LEXIS 11039 (D. Me. May 8, 2001). The court denied the employer's motion for summary judgment where the plaintiff alleged that, over two years, a co-worker stalked her both at work and home, touched her and gave her gifts, made a habit of being physically close to her and staring at her, followed the plaintiff throughout the office, waited for her by the bathroom, stand near her work station, and was generally present wherever the plaintiff appeared. The court noted that evaluating the severity and pervasiveness of harassing conduct in a work environment is often difficult and inappropriate on a motion for summary judgment.

Finn-Verburg v. New York State Department of Labor , 122 F. Supp. 2d 329 (N.D.N.Y. 2000). The court denied the employer's motion for summary judgment where the plaintiff alleged her supervisor glared at her, verbally abused her on a continual basis, falsely accused her of numerous things, "attacked her character," acted in a physically aggressive manner, "used profane and obscene language," and "stalked her" outside of work.

Brown v. Henderson , 155 F. Supp. 2d 502, No. 1:99CV00798, 2000 U.S. Dist. LEXIS 21178, * (M.D.N.C. December 14, 2000). The plaintiff alleged that her supervisor made inappropriate comments of a sexual nature, twice attempted to kiss the plaintiff and put his tongue in her mouth, repeatedly stated that he "wanted a better kiss," and used "a potentially threatening situation to try to convince the plaintiff not to report [his harassing conduct]." Stating that it "hesitate[d] to declare as a matter of law that the allegations do not rise to the level of severe or pervasive harassment," the trial court denied the employer's motion for summary judgment.

Gaspard v. J&H Marsh & McLennan, 105 F. Supp. 2d 537 ( E.D. La.2000). The court denied the employer's motion for summary judgment where the plaintiff alleged two corporate vice-presidents harassed her over an eight-month period. The alleged conduct included: (1) grabbing the plaintiff's buttocks twice; (2) making inappropriate comments of a sexual nature; (3) walking behind the plaintiff while making the sound "um, um, um, um, um;" (4) blowing kisses at the plaintiff; (5) simulating oral sex; and (6) while the plaintiff was kneeling by her desk, grabbing her head, pulling it towards his crotch, and saying, "Oh, perfect position."

Still v. Roberts,  No. 00-0150-CB-C, 2001 U.S. Dist. LEXIS 8751, * (S.D. Al. May 9, 2001). The district court denied the employer's motion for summary judgment where the plaintiff alleged her harasser forced the plaintiff to carry his tea, including holding it while he drank from the cup, berated her in front of patient's and co-workers, made inappropriatea sexual comments to her, undermined her position, gave her the "silent treatment," and referred to female nurses as his "handmaidens", giving them derogatory nicknames based on portions of their anatomy.

Green v. The Administrators of the Tulane Educational Fund, No. 97-1869 Section “K”(1), 2000 U.S. Dist. LEXIS 4349, *1 at *6-*7 (E.D. La. March 30, 2000) A jury held that a severe and hostile environment existed where the plaintiff established that the harasser humiliated her, gave many of her job duties to a less qualified person, and unfairly disciplined her in an effort to get the plaintiff to quit her job after the two ended a personal relationship. The employer had attempted to argue that the harassment was not based on sex, but rather that the primary motivation for the harassing conduct was the hiring of the harasser's previous girlfriend at the time of the disintegration of the personal relationship between the plaintiff and the harasser.

Staples v. Hill, No. 3:97-cv-00580, 1999 U.S. Dist. LEXIS 21659, *1 (M.D. Pa. August 20, 1999). The court granted the employer's motion for summary judgment where the plaintiff, a corrections officer at a county prison, alleged her supervisor and co-workers verbally abused her, used intimidating language, wrote "pu**y" on her time card, unfairly disciplined her, and assigned her a larger proportion of unfavorable work assignments. The court noted that the unique nature of the prison environment lent itself to particularly harsh and caustic banter that must be taken into account when analyzing whether the conduct was severe or pervasive as a matter of law.

Webb v. Oregon Steel Mills, Inc. No. CV 00-0615-HA, 2001 U.S. Dist. LEXIS 9348 (D. Ore. July 1, 2001) The court denied the employer’s motion for summary judgment without evaluating the level of acceptable boorish behavior in a blue-collar environment.

District Court Opinions are not available on-line for free. However, they may be accessed via Westlaw, Lexis or in your local law library.

III.  Secondary Sources

a.  Law Review Articles

Susan W. Kline, Survey of Employment Law Developments for Indiana Practitioners, 33 Ind. L. Rev. 1233 (2000). This article examines some of the differences among Indiana judges as to what constitutes severe and pervasive harassment.

Jamie Lynn Cook, Comment, Bitch v. Whore: The Current Trend to Define the Requirements of an Actionable Hostile Environment Claim in Verbal Sexual Harassment Cases, 33 J. Marshall L. Rev. 465, 467 (2000). This Comment attempts to determine under what circumstances may verbal sexual harassment alone rise to the level of being actionable conduct.

Amie L. Vanover, Note, Williams v. General Motors Corporation: Giving Sexual Harassment Plaintiffs a Chance, 61 Ohio St. L.J. 1559, 1561. This note examines the landmark case of Williams v. General Motors Corporation and its effect on the defense that alleged conduct is not harassment given the workplace environment.

David Sherwyn et al., Don’t Train Your Employees and Cancel Your “1-800” Harassment Hotline: An Empirical Examination and Correction of the Flaws in the Affirmative Defense to Sexual Harassment Charges, 69 Fordham L. Rev. 1265, 1271 (2001). This comment examines the affirmative defense provided under Ellerth and Faragher and whether it has been successful.

Eric Schnapper, Some of Them Still Don’t Get It: Hostile Work Environment Litigation in the Lower Courts, 1999 U. Chi. Legal F. 277 (1999) This note provides a detailed discussion of the circuit split which occurred following Meritor.

Robert W. Cowan, Note, Pizza Hut Pays the Dough as the Tenth Circuit Hands Employers a Slice of the Sexual Harassment Liability Pie in Lockard v. Pizza Hut, Inc., 41 S. Tex. L. Rev. 1157 (2000) This comment examines hostile work environment sexual harassment as it pertains to a case where the Tenth Circuit held the employer liable for the sexually harassing conduct of customers to a waitress.

Philip K. Lyon and Bruce H. Phillips, Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth: Sexual Harassment Under Title VII Reaches Adolescence, 29 U. Mem. L. Rev. 601 (1999) This comment provides a history of sexual harassment under Title VII as well as an analysis of how the Ellerth and Faragher decisions will impact sexual harassment cases in the future.

David C. Yamada, The Phenomenon of “Workplace Bullying” and the Need for Status-Blind Hostile Work Environment Protection, 88 Geo. L.J. 475, 509-14 (2000) This note reviews the Supreme Court cases dealing with hostile work environments and workplace bullying.

Theresa M. Beiner, The Misuse of Summary Judgment in Hostile Environment Cases, 34 Wake Forest L. Rev. 71, 120-21 (1999). This note examines some common reasons why judges may use summary judgment inappropriately to rid themselves of hostile environment cases.

Glendora C. Hughes, Sexual Harassment: Then and Now, 33 Md. B.J. 27, 27-28 (2000). This article examines the rise in the number of harassment cases brought each year and hypothesizes that the increased media attention on sexual harassment has caused this rise.

Shylah Miles, Note & Comment, Two Wrongs Do Not Make a Defense: Eliminating the Equal Opportunity Harasser Defense, 76 Wash. L. Rev. 603 (2001) This article provides a discussion of the equal opportunity harasser defense in sexual harassment litigation .

James C. Chow, Comment, Sticks, Stones, and Simple Teasing: The Jurisprudence of Non-Harassing Conduct in the Context of Title VII Hostile Work Environment Claims, 33 Loy. L.A. L. Rev. 133, 142-43 (1999) This note analyzes how courts often undervalue the harm stray remarks cause to women and finding that the differences in male experience causes men to undervalue the uncomfortable feelings caused by aggressive or sexual behavior in the workplace because they are usually the aggressor and thus have little empathy for the feelings of the woman as victim to this behavior.

Emily E. Rushing, Comment, So Much For Equality in the Workplace: The Ever-Changing Standards for Sexual Harassment Claims Under Title VII, 45 St. Louis U. L.J. 1389, 1391 (2001) This article states that courts are unwilling to accept a uniform standard in evaluating sexual harassment claims.

Rebecca Brannan, Note, When the Pig is in the Barnyard, Not the Parlor: Should Courts Apply a “Coarseness Factor” in Analyzing Blue-Collar Hostile Work Environment Claims?, 17 Ga. St. U.L. Rev. 789, 798 (2001). This note looks at the hostile environment sexual harassment claim in the context of a blue collar environment.

Ann Juliano & Stewart J. Schwab, The Sweep of Sexual Harassment Cases, 86 Cornell L. Rev. 548, 584-85 (2001) This article examines a study that analyzed sexual harassment cases filed from 1986-1995.

Leslie M. Kerns, A Feminist Perspective: Why Feminists Should Give the Reasonable Woman Standard Another Chance, 10 Colum. J. Gender & L. 195 (2001) The author argues that a reasonable woman, rather than a reasonable victim, standard is the appropriate standard for evaluating sexual harassment cases because a court utilizing the reasonable person standard does not take into account the differences in perception between men and women.

Sarah McLean, Harassment in the Workplace: When Will the Reactions of Ethnic Minorities and Women Be Considered Reasonable?, 40 Washburn L.J. 593, 594 (2001). This article raises the cultural differences in our society that need to be considered when determining if harassing conduct is actionable.

Law Review Articles may be accessed via Lexis and/or Westlaw.

b. American Law Reports

Ann K. Wooster, Title VII Sex Discrimination in Employment – Supreme Court Cases, 170 A.L.R. Fed. 219 (2001).  This annotation collects and analyzes Supreme Court cases that have discussed discrimination or harassment based on sex in employment under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 200e et seq.

Sara L. Johnson, When Is Work Environmen Intimidating, Hostile, or Offensive, So As To Constitute Sexual Harassment in Violation of Title VII of Civil Rights Act of 1964 As Amended, 78 A.L.R. Fed. 252 (1986). This annotation collects and analyzes the federal cases in which the courts have discussed or decided whether, or under what circumstances, a work environment is intimidating, hostile, or offensive, so as to constitute sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended.

American Law Reports are available in the Georgia State University College of Law Library and on Lexis and Westlaw.

c. Books

Benjamin E. Griffith, Sexual Harassment in the Public Workplace, American Bar Association, 2001. This text provides an overview of sexual harassment law, with a chapter devoted to the public workplace. Also, it includes a chapter on dating in the workplace, which many employers may find helpful.

Matthew B. Schiff and Linda C. Kramer, Litigating the Sexual Harassment Case, 2d. ed., American Bar Association, 1999. This is an excellent resource for the attorney engaged in sexual harassment litigation. It discusses strategies, insurance coverage of employers, different theories of liability, the administrative claim process as well as every stage of discovery.

Francis Achampong, Workplace Sexual Harassment Law, Quorum Books, 1999. A good, general overview of the history of sexual harassment litigation and the framework for bringing cases.

Alba Conte, Sexual Harassment in the Workplace: Law and Practice, Panel Publishers, 2000. A solid treatise on sexual harassment discrimination. Volume 2 includes a state-by-state survey of sexual harassment state laws.

All books are available in the Georgia State University College of Law Library.

D. Looseleaf Services

Paul N. Cox, Employment Discrimination, 3d. ed., Lexis Nexis - Matthew Bender, 2002.

Lex K. Larson, Employment Discrimination, 2d. ed., Lexis Nexis - Matthew Bender, 2002.

Fair Employment Practice Cases, Bureau of National Affairs.

All Looseleaf Services are available in the Georgia State University College of Law Library.

IV.  Websites

EEOC

Sexual Harassment Issues

LawGuru FAQ

Employers Publications, Sexual Harassment Resource

LettuceTrainu.com