CHAPTER 12 – AGENCY, EMPLOYMENT,
AND EQUAL OPPORTUNITY LAW
A.
Chapter Introduction
Chapter 12 introduces the subject of agency law, including the formation of the agency
relationship, contractual and tort liability of a principal for the agent’s acts, and
independent contractors. The chapter also discusses employment law and equal
opportunity law, including workers’ compensation, civil rights statutes, age
discrimination law, and the Americans with Disabilities Act.
After completion of this chapter, students should be able to:










B.
Define an agency.
Identify and define a principal-independent contractor relationship.
Describe how express, implied, and apparent agencies are created.
Describe the principal’s and agent’s liability on third-party contracts.
Identify and describe the principal’s liability for the tortious conduct of an agent.
Explain how state workers’ compensation programs work and describe the
benefits available.
Describe the protections afforded by the Occupational Safety and Health Act.
Describe the scope of coverage of Title VII of the Civil Rights of 1964.
Describe the protections afforded by the Americans with Disabilities Act.
Describe labor union law, including collective bargaining.
Instructional Ideas
1.
Explain the significance of agency law and why it is necessary for the
conducting of business that principals have agents.
2.
Distinguish between the following relationships: employer-employee,
principal-agent, and principal-independent contractor.
3.
Discuss the scope of employment doctrine, explaining why it is that
employers (or principals) are liable for the torts of their employees (or
agents) committed within the scope of employment. Have the students
think of examples of employee misconduct that would not result in the
employer being liable. Then, have the students alter the facts of those
examples so that the employer would be liable.
4.
Explain what a power of attorney is, using examples provided in the text
or on Findlaw.com, to show the types of authority a principal can give his
or her attorney-in-fact.
5.
Discuss the contract liability of principals to third parties. Distinguish
between fully disclosed, partially disclosed, and undisclosed agencies.
You might want to discuss, as an example, how the Walt Disney Co. used
straw men as agents to purchase farm land in the Orlando area in order for
Walt Disney World to be built.
C.
6.
Explain what an independent contractor is and why that status is different
from that of an employee. Discuss the exceptions to the general rule that a
principal is not liable for the torts of the independent contractor.
7.
Explain the purposes and some of the content of the Occupational Safety
and Health Act. Ask the students whether they know of those who have
been impacted by OSHA (e.g., have they worked in an unsafe work
environment?).
8.
Discuss the significance of Title VII of the Civil Rights Act of 1964, and
explain some of the basic aspects of its scope.
9.
Explain what sexual harassment is and how employers can limit their
liability for such misconduct. Ask the students for their thoughts on
whether the sexual harassment laws go far enough to protecting employees
or whether they have gone too far in creating a politically correct, sterile
work place.
10.
Explain how workers’ compensation laws work. Pull your jurisdiction’s
workers’ compensation statutes and key cases, and show your students
what workers’ compensation covers and doesn’t cover.
Video Recommendation(s)
The life and disappearance of Jimmy Hoffa is adequately displayed in Hoffa, starring
Jack Nicholson as the union organizer and Teamster boss.
Weeks v. Baker and Mackenzie: The Price of Harassment is a Court TV documentary
that excellently portrays a suit by a legal secretary against her employer, the world’s
largest law firm, for alleged sexual harassment she received by her boss, one of the firm’s
partners. The documentary shows clips from the trial and interviews of some of the key
participants and is thoughtful and provocative.
Although a risky choice, Disclosure might be the type of provocative choice for a chapter
that could be considered a sleeper by some students. Theatrical treatments of sexual
harassment are controversial enough, but throw in that the man (Michael Douglas)
accused of harassment believes he was the victim and not the harasser, and that the real
harasser is the woman (Demi Moore), who is not only his boss but a former lover, and
you have quite a barn burner.
D.
Chapter Outline
I.
The Nature of Agency
A. Definition: A fiduciary relationship that results from the manifestation
of consent by one person to act on behalf of another person with that
person’s consent.
B. Parties:
1. Principal: party who employs another person to act on his or her
behalf.
2. Agent: party who agrees to act on behalf of another person.
II.
Kinds of Employment Relationships
A. Employer-Employee: An employer hires an employee to perform
some form of physical service. An employee is not an agent unless the
principal authorizes him or her to enter into contracts on the principal’s
behalf.
B. Principal-agent relationship: An employer hires an employee and
authorizes the employee to enter into contracts on the employer’s
behalf.
C. Principal-independent contractor relationship: Principal employs a
person who is not an employee of the principal. The independent
contractor has authority only to enter into contracts authorized by the
principal.
III.
Formation of the Agency Relationship
A. Express Agency: Principal and agent expressly agree in words to
enter into an agency agreement. The agency contract may be oral or
written unless the Statute of Frauds requires it to be in writing.
B. Implied Agency: An agency is implied (inferred) from the conduct of
the parties.
C. Apparent Agency: Arises when a principal creates an appearance of
an agency that in actuality does not exist. Also called agency by
estoppel or ostensible agency.
D. Agency by Ratification: Occurs when a person misrepresents him- or
herself as another’s agent when he or she is not and the purported
principal ratifies (accepts) the unauthorized act.
IV.
Contract Liability to Third Parties
A. Fully Disclosed Agency: The third party entering into the contract
knows that the agent is acting for a principal and knows the identity of
the principal. The principal is liable on the contract; the agent is not
liable on the contract.
B. Partially Disclosed Agency: The third party knows that the agent is
acting for a principal but does not know the identity of the principal.
Both the principal and the agent are liable on the contract.
C. Undisclosed Agency: The third party does not know that the agent is
acting for a principal. Both the principal and the agent are liable on the
contract.
V.
Tort Liability to Third Parties
A. Misrepresentation: Principals are liable for intentional and innocent
misrepresentation made by an agent acting within the scope of his or
her employment.
B. Negligence: Principals are liable for the negligent conduct of agents
acting within the scope of their employment. Special negligence
doctrines include:
1. Frolic and detour: Principals are generally relieved of liability if
the agent’s negligent act occurred on a substantial frolic and detour
from the scope of employment.
2. “Coming and going” rule: Principals are not liable if the agent’s
tortious conduct occurred while on the way to or from work.
3. Dual-purpose mission: If the agent is acting on his or her own
behalf and on behalf of the principal, the principal is generally
liable for the agent’s tortious conduct.
C. Intentional Torts: States apply one of the following rules:
1. Motivation test: The principal is liable if the agent’s intentional
tort was committed to promote the principal’s business.
2. Work-related test: The principal is liable if the agent’s
intentional tort was committed within a work-related time or space.
Agents are personally liable for their own tortious conduct.
V.
Independent Contractor
A. Liability for Independent Contractor’s Torts: Generally, principals
are not liable for the tortious conduct of independent contractors.
Exceptions to the rule are for:
1. Nondelegable duties
2. Special risks
3. Negligence in selecting an independent contractor
Independent contractors are personally liable for their own torts.
VI.
Termination of an Agency and Employment Contract
A. Termination by Acts of the Parties: The following acts of the parties
terminate agency contracts:
1. Mutual agreement.
2. Lapse of time.
3. Purpose achieved.
4. Occurrence of a specified event.
B. Wrongful Termination of an Agency Contract: If an agency is for
an agreed-upon term or purpose, the unilateral termination of the
agency contract by either the principal or the agent constitutes the
wrongful termination of the agency. The breaching party is liable to
the other party for damages caused by the breach.
VII.
Workers’ Compensation
A. Workers’ Compensation Acts: State statutes that create an
administrative procedure for workers to receive payments for jobrelated injuries.
1. Worker’s compensation insurance: Most states require
employers to carry private or government-sponsored workers’
compensation insurance. Some states permit employers to selfinsure.
B. Employment-Related Injury: To be compensable under workers’
compensation, the claimant must prove that the injury arose out of and
in the course of his or her employment.
C. Exclusive Remedy: Workers’ compensation is an exclusive remedy.
Thus, workers cannot sue their employers to recover damages for jobrelated injuries.
VIII. Occupational Safety and Health Act
A. Occupational Safety and Health Act: Federal statute that requires
employers to provide safe working conditions.
1. Occupational Safety and Health Administration (OSHA).
Federal administrative agency that administers and enforces the
Occupational Safety and Health Act.
B. Specific and General Standards:
1. Specific duty standards. Safety standards for specific equipment
(e.g., lathe) or industry (e.g., mining).
2. General duty standards. Impose a general duty on employers to
provide safe working conditions.
IX.
Title VII of the Civil Rights Act of 1964
A. Description: Federal statute that prohibits job discrimination based
on the (1) race, (2) color, (3) religion, (4) sex, or (5) national origin of
the job applicant.
B. Scope of Coverage of Title VII
1. Employment decisions subject to Title VII. Decisions regarding
hiring; promotion; demotion; payment of salaries, wages, and
fringe benefits; job training and apprenticeships; work rules; or any
other “term, condition, or privilege of employment.”
C. Protected Classes: Employment discrimination based on the
following protected classes is forbidden by Title VII:
1. Race: Broad class based on common physical characteristics
2. Color: Skin color
3. National origin: A person’s national heritage
4. Sex: Male or female
5. Religion: Discrimination solely because of a person’s religious
beliefs or practices. An employer has a duty to reasonably
accommodate an employee’s religious beliefs if it does not cause
an undue hardship on the employer.
D. Sexual Harassment: Lewd remarks, touching, intimidation, posting
pinups, and other verbal or physical conduct of a sexual nature that
occurs on the job. Sexual harassment that creates a hostile work
environment violates Title VII [Meritor Savings Bank v. Vinson, 477
U.S. 57 (1986)].
X.
Age Discrimination in Employment Act (ADEA)
A. Description: Federal statute that prohibits employment
discrimination against applicants and employees who are 40 years of
age and older.
XI.
Americans with Disabilities Act (ADA)
A. Description: Federal law that imposes obligations on employers and
providers of public transportation, telecommunications, and public
accommodations to accommodate individuals with disabilities.
B. Title I of ADA: Federal law that prohibits employment
discrimination against qualified individuals with disabilities.
Requires employers to make reasonable accommodations to accommodate
employees with disabilities that do not cause undue hardship to the
employer.
XII.
Labor Union Law
A. Organizing a Union:
1. Section 7 of the National Labor Relations Act (NLRA) gives
employees the right to join together and form a union.
2. Appropriate bargaining union is the group of employees that a
union is seeking to represent.
B. Collective Bargaining: Process whereby the union and employer
negotiate the terms and conditions of employment for the covered
employee union members.
1. The collective bargaining agreement is the contract resulting from
collective bargaining.
C. Strikes: A strike is a cessation of work by union members in order to
obtain economic benefits, to correct an unfair labor practice, or to
preserve their work. The NLRA gives union employees the right to
strike.
D. Picketing: Striking employees and union organizers walking around
the employer’s premises, usually carrying signs, notifying the public of
their grievance against the employer.
1. Illegal picketing. Picketing is illegal if it is accompanied by
violence or obstructs customers, nonstriking workers, or suppliers
from entering the employer’s premises.
2. Secondary boycott. Picketing conducted at a third party’s
premises. Product picketing against the products of the struck
employer is lawful. It is illegal if it is directed against the neutral
employer.
E.
Critical Legal Thinking Questions
1.
Define an agency. What purpose does an agency serve?
The Restatement (Second) of Agency defines agency as a fiduciary
relationship “which results from the manifestation of consent by one
person to another that the other shall act in his behalf and subject to his
control, and consent by the other so to act.” Agency serves the purpose of
one person (the principal) getting another (the agent) to transact business
with on behalf of the principal.
2.
Define an independent contractor. What factors does a court look at
in determining whether an independent contractor status exists?
An independent contractor is an outsider—someone who is not an
employee—hired to perform certain tasks on the hiring party’s behalf.
Examples of independent contractors include doctors, lawyers, real estate
brokers, and plumbers. The factors used to determine whether one is an
independent contractor include the method of paying the one doing the
task and the level of control exerted over the day-to-day activities of the
one doing the task.
3.
Explain the tort liability of a principal and agent. Explain the tort
liability of a principal and an independent contractor.
The principal and the agent are each personally liable for their own
tortious conduct, while the principal is liable for the tortious conduct of an
agent who is acting within the scope of his or her authority. Generally, a
principal is not liable for the torts of its independent contractors because
independent contractors are personally liable for their own torts. But,
there are exceptions, including when there are nondelegable duties, special
risks, or negligence in the selection of an independent contractor.
4.
Describe workers’ compensation laws. What are the public purposes
for this law?
Workers’ compensations laws create an administrative procedure for
workers to receive compensation for employment-related injuries, and the
benefits are paid according to preset limits established by statute or
regulation. In exchange for workers’ compensation, employees may not
sue their employers for negligence (since fault isn’t an issue). Workers’
compensation laws were enacted in response to the unfairness resulting
from many injured and dead employees being uncompensated in the legal
system.
5.
Describe occupational safety laws. What are the public purposes for
this law?
OSHA created OSHA (the agency, not the statute) to administer work
place safety laws. OSHA has created thousands of regulations to enforce
the safety standards established by the act, which include Specific Duty
Standards and General Duty Standards. OSHA is empowered to inspect
work places for hazards and safety violations, and can issue a written
citation for violations.
6.
What are the protected classes under Title VII of the Civil Rights Act
of 1964?
The protected classes under Title VII are race, color, religion, sex, or
national origin.
7.
Describe the protections afforded by the Family and Medical Leave
Act. Why did Congress pass this act?
The FMLA guarantees unpaid time off from work for medical
emergencies. Covered employers are required to provide up to 12 weeks
of unpaid leave during any 12-month period due to occurrence of certain
family related events, such as birth or adoption. Why did Congress pass
this act? Perhaps it is on a slow march to socialism.
F.
8.
Define sexual harassment. Give some examples of sexual harassment.
Sexual harassment includes refusing to hire or promote someone unless he
or she has sex with the manager or supervisor, as well as lewd remarks,
touching, intimidation, posting pinups, and other verbal or physical
conduct of a sexual nature. An example of sexual harassment would be if
a governor asks a state employee for sexual favors in return for a
promotion or pay raise.
9.
Describe the protections afforded by the Americans with Disabilities
Act (ADA).
The ADA imposes obligations on employers and providers of public
transportation, telecommunications, and public accommodations to
accommodate individuals with disabilities. Title I of the ADA prohibits
employment discrimination against qualified individuals with disabilities
in regard to job application procedures, hiring, compensation, training,
promotion, and termination. It requires employers to make reasonable
accommodations to individuals with disabilities that do not cause undue
hardship to employers.
10.
What functions are served by federal labor union laws?
Section 7 of the NLRA gives employees the right to join together and form
a union. Once a union has been elected, the employer and the union
discuss the terms of employment of union members through collective
bargaining. Employers and unions are required to negotiate in good faith.
The NLRA gives union management the right to recommend that the
union call a strike if a collective bargaining agreement cannot be reached.
The right to picket is implied from the NLRA and is lawful, unless it is
accompanied by violence, obstructs customers from entering the
employer’s place of business, prevents nonstriking employees from
entering the employer’s premises, or prevents pickups and deliveries at the
employer’s place of business. An employer may seek an injunction
against unlawful picketing.
Cases for Discussion
Edgewater Motels, Inc. v. Gatzke and Walgreen Co., 277 N.W.2d 11 (Minn. 1979),
concerned the question of whether Walgreen was vicariously liable for the fire damage to
the Edgewater Motel that Walgreen’s employee, Gatzke, caused by the lit cigarette he left
near a waste basket in his hotel room. Gatzke was staying at the Edgewater because he,
as Walgreen district manager, was in Duluth supervising the opening of a new store.
Having worked 17 hours that day and spending time in a bar drinking with other
Walgreen’s employees, Gatzke went back to his room to fill out his expense account—
and smoke. The Minnesota Supreme Court ruled that Walgreen was vicariously liable for
Gatzke’s negligence because it concluded that his smoking in his hotel room was within
the “scope of employment.” The court concluded that there was ample evidence from
which a jury could reasonably find that Gatzke resumed his employment activities after
he returned from the bar to his motel room and filled out his expense account.
QUESTIONS
1.
Should smoking cigarettes be held to be within an employee’s “scope of
employment”? Why or why not?
This is an opinion question designed to promote class discussion. Here is a more
interesting question: if smoking is within the scope of Gatzke’s employment and
he contracts lung cancer, can he sue his employer for negligently causing his
injury, or can he apply for workers’ compensation? One supposes the court
concluded as it did because the smoking accompanied the completion of the
expense account.
2.
Do employers owe a duty to police the personal habits of their employers?
To some extent, they do owe such a duty, but this question is more of an opinion
question on how much policing should be done. It might not have been the
smoking that caused the fire so much as the drinking that led to the careless
smoking. Should Walgreen refuse to hire anyone who smokes or drinks?
3.
Because of the dangers of smoking, would employers be justified in hiring only
nonsmokers as employees?
This was discussed above, but it is certainly an interesting opinion question.
Smith v. Workers’ Compensation Appeals Board, 236 Cal.Rptr. 248 (1987), concerned
whether the death of a temporary teacher at a school outing was covered by workers’
compensation. Smith was a temporary math teacher and sports coach whose employment
contract made his annual evaluation based upon his teaching and “sponsorship or the
supervision of out-of-classroom student activities.” The school’s math club held a picnic
at a reservoir and invited Smith, who attended with his family. A student brought a
windsurfer and Smith tried using it, but he fell and died shortly thereafter. His wife
sought workers’ compensation benefits, to which the school objected and the workers’
compensation judge and appeals board denied. The California Court of Appeals
reversed, concluding that Smith was engaged in employment-related activities when the
accident occurred. Smith’s status as a temporary teacher was clearly dependent upon his
participation in school-related activities, and the math club picnic was clearly such an
activity. The injury was causally related to his employment, since his attendance at the
picnic was an implied requirement of Smith’s employment.
QUESTIONS
1.
Should workers’ compensation benefits be awarded only for accidents that occur
at the job site? Why or why not?
This is an opinion question focusing on how far from the job site an employee
still remains an employee for workers’ compensation purposes.
2.
Did the employer act ethically in objecting to the payment of benefits in this case?
Although this is another opinion question, one could make the argument that it
was cold-hearted of the school to object to benefits to this man’s family when the
school made his attendance at such activities an implied requirement for rehiring
him.
3.
How costly is workers’ compensation for business? Do you think that many
fraudulent workers’ compensation claims are filed?
Workers’ compensation payments are extremely expensive for businesses, but
perhaps less than having to settle or defend employees’ claims in the absence of a
workers’ compensation scheme. Fraudulent claims are filed quite frequently.
National Association for the Advancement of Colored People, Newark Branch v. Town
of Harrison, New Jersey, 907 F.2d 1408 (3rd Cir. 1990), concerned whether Harrison’s
ordinance requiring town employees to be Harrison residents violated the Civil Rights
Act. Harrison enacted this ordinance after New Jersey passed a statute authorizing such a
law. Prior to that, Harrison followed such an informal policy. The NAACP sued
Harrison, claiming that the ordinance violated the Civil Rights Act because it illegally
discriminated against blacks after several NAACP members who lived near, but not in,
Harrison were denied employment because of failing the residency requirement. The
federal district court concluded that the Harrison residency requirement violated the Civil
Rights Act by effectively excluding blacks from municipality employment The evidence
showed that O.2 percent of Harrison’s population was black, while none of its town
employees were black. However, the nearby areas such as the city of Newark and the
counties of Essex, Bergen, and Union have black populations as high as 60%. Private
employers in Harrison had a black hiring rate of 22%. So, although the residency
requirement was facially neutral, it has had a disproportionate impact upon blacks.
1.
Would the same residency requirement rule cause disparate impact
discrimination if it were adopted by New York City or Los Angeles?
Such a residency requirement would likely not cause disparate impact in those
cities since they have such racially diverse populations.
2.
Did the town of Harrison act ethically when it adopted the residency
requirement?
There are no facts in the case to indicate that Harrison adopted this requirement
for racially discriminatory reasons. If Harrison prevented blacks from moving to
the town, then the residency requirement would be facially unethical.
3.
Could a private business impose a residency requirement on its employees?
Private businesses wouldn’t be prevented from having a residency requirement,
but they would—with certain small business exceptions—be subject to the federal
employment discrimination laws.
Harris v. Forklift Systems, Inc., 134 S.Ct. 367 (1993), concerned whether federal law
requires that a person suffer severe psychological injury in order to bring an action
against an employer for creating an abusive work environment that is sexually harassing.
Ms. Harris was subjected to repeated abusive conduct committed by her boss, Hardy, at
Forklift Systems. The abuse ranged from insensitive to insulting remarks and innuendo
directed at her in front of other employees and customers because of her sex. After
putting up with the abuse for two years, she quit and sued Forklift, claiming that Hardy’s
conduct created an abusive work environment for her because of her sex. Both the
district court and circuit court of appeals denied her claim because of the lack of severe
psychological injury, but the U.S. Supreme Court reversed, concluding that Title VII
wasn’t limited to conduct that would seriously affect a reasonable person’s psychological
well-being. So long as the environment would reasonably be perceived, and is perceived,
as hostile or abusive, there is no need for it also to be psychologically injurious.
QUESTIONS
1.
Should an employer be held liable for sexual harassment committed by one of its
employees?
The principal’s liability for the employee’s tortious conduct committed within the
scope of employment, combined with federal law that prohibits sexual
harassment, makes the answer self-evident. However, employers aren’t liable for
every act of sexual harassment committed by one of their employees.
2.
What penalty should be assessed against Hardy for his conduct?
Although damages can be assessed against Hardy for his tortious conduct, here’s
hoping that someone in the class suggests castration.
3.
How can businesses eliminate sexual harassment on the job?
Although businesses can’t eliminate all sexual harassment, by having policies in
place, engaging in diligent hiring screenings, and responding to initial
inappropriate acts, businesses can limit both on-the-job harassment and their
exposure to liability for it.
12.1
Grinder v. Bryans Road Building & Supply Co., Inc., 432 A.2d 453 (Md.App. 1981),
concerned a sole proprietorship who did business as Grinder Construction. Mr. Grinder
owned the business and purchased materials from Bryans Road Building & Supply on
credit and later paid the invoices. Bryans was unaware that Grinder eventually
incorporated his business and owned 52% of the stock. After Bryans sued Grinder
personally for failing to pay his bills, Grinder claimed the debts were the company’s
debts, and Bryans then amended its complaint to include the company.
ISSUE: Who is liable to Bryans?
Both are liable. The court concluded that Bryans had contracted with the agent (Grinder)
for an undisclosed principal (Grinder Construction, Inc.), and could proceed against both,
but the court ruled that Bryans was limited to one satisfaction.
12.2
Largey v. Radiotelephone, Inc., 136 C.A.3d 660 (Cal.App. 1982), concerned Kranhold,
an employee of Intrastate Radiotelephone, who negligently struck Largey while Kranhold
was driving to Intrastate’s main office. The accident occurred at the intersection where
Intrastate’s main office was located. Kranhold was a consultant to Intrastate, who
worked in and out of Intrastate’s offices, and had no set hours. Largey sued Intrastate for
Kranhold’s negligence.
ISSUE: Is Intrastate liable?
Yes. Although the coming and going rule would generally bar liability against Intrastate
here, the court concluded that an exception applied: namely, that if it is an implied or
express condition of his employment that the employee use his vehicle in attending to his
duties, then the employer will be vicariously liable for any accident incurred while the
employee is driving to or from work. Since Kranhold was not a traditional employee,
worked in the field and at the offices, and was required to provide his own transportation,
the jury could have found that the comings and goings rule didn’t apply here.
12.3
Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900 (11th Cir. 1988), concerned
Shirley Huddleston’s ascension as the first female sales rep at Roger Dean Chevrolet.
Shortly thereafter, she was subjected to disgusting comments and actions committed by
male sales reps, many of which happened in front of customers. Huddleston complained
about this to RDC’s general manager.
ISSUE: Was Title VII violated?
Yes. Although the Circuit Court of Appeals concluded that Huddleston was not
constructively discharged due to this conduct, it did conclude that Huddleston did
establish that there was a hostile work environment, and she may be entitled to nominal
damages and attorney’s fees.
12.4
Dothard, Director, Department of Public Safety of Alabama v. Rawlinson, 433 U.S.
321 (1977), concerned Dianne Rawlinson, who brought a class action against the Director
of Alabama’s Department of Public Safety because she was denied a position as a
correctional counselor. She was denied this position because she didn’t meet the
minimum height (5'2") or weight (120 lbs) requirements. Under another regulation, she
didn’t qualify for “contact positions” in maximum-security prisons that had correctional
counselors.
ISSUE: Does either the height-weight requirement or the contact position rule constitute
a bona fide occupational qualification that justifies the sexual discrimination in this
case? Does society owe a duty of social responsibility to protect women from dangerous
job positions? Or is this “romantic paternalism”?
The U.S. Supreme Court first concluded that the height and weight requirements violated
the Civil Rights Act of 1964, but it also concluded that not hiring women as correctional
counselors in contact positions in all-male penitentiaries is a bona fide occupational
qualification reasonably necessary to the normal operation of that particular job.
G.
Case for Briefing
1.
Case Name
Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486 (1991)
2.
Key Facts
A.
Lois Robinson (Robinson) worked as a welder for Jacksonville
Shipyards (JSI) from 1977 to 1988.
B.
Robinson was one of the few female welders at JSI, and her job
assignments required her to work at different JSI shipyards.
C.
During her employment at JSI, pictures of nude and partially nude
women appeared throughout JSI in the forms of magazines,
plaques, photographs on walls, and calendars on walls.
D.
E.
F.
G.
Management condoned those displays and often had their own
similar pictures.
Additionally, Robinson was subjected to other forms of harassing
behavior committed by male coworkers and supervisors. These
included the placing of nude pictures on or around her work space,
with the men laughing at Robinson when she became upset by a
picture of a fully exposed women placed on the toolbox where
Robinson returned her tools.
Robinson was also subjected to sexual comments directed at her by
JSI employees, including comments such as, “The more you lick it,
the harder it gets,” “I’d like to have some of that,” and “Black
women taste like sardines.”
JSI instituted a sexual harassment policy in April 1987, during the
lawsuit Robinson filed against JSI. The policy had some general
statements that made it a violation for JSI employees to sexually
harass other employees. The policy also provided a skeletal
mechanism for employees who believe they’ve been harassed to
report the incidents and to have the incidents investigated. The
policy statement also announced that sanctions would result from
harassing conduct.
The policy did next to nothing to improve working conditions at
JSI, in part because management and employees lacked training
about what constituted a violation of the policy statement.
3.
Issue
Does a blanket-policy statement prohibiting sexual harassment in the
workplace, and mandating sanctions for sexual harassment qualify as an
adequate response to sexual harassment complaints?
4.
Holding
The district court concluded that the policies and procedures at JSI were
inadequate. It ordered JSI to cease and desist from the maintenance of a
female-directed hostile work environment and to remedy the work
environment through a much more specific sexual harassment policy.
5.
Court’s Reasoning
A.
The present policy of JSI didn’t adequately deal with the sexual
harassment at JSI, which created a hostile work environment for
females.
B.
The present policy’s inadequacy was evidenced by the fact that it
had little or no impact on the sexually hostile work environment.
C.
The court also found it significant that employees and management
didn’t know, nor were trained in the scope of, what types of
conduct would constitute sexual harassment.
D.
Although Robinson’s employment, pay, or promotions were not
conditioned on a quid pro quo sexual relationship with supervisors,
she was subject to a hostile work environment because of the
intimidating and offensive conduct.