Introduction
This brief is significant because Tomkins's attorney Nadine Taub was a feminist activist who utilized court arguments and sources developed in the women's movement. Citing a wide range of sources, from Kate Millett's Sexual Politics to the Statistical Abstract of the United States Census Bureau to Amy Vanderbilt's Etiquette, Taub argued that the socialization of men and women as well as women's history of sexual abuse made women more vulnerable to sexual harassment than men. Taub argued that sexual harassment was a "reminder, a badge or indicia, of the servile status women have suffered in former societies and from which they are now trying to free themselves." Citing Susan Brownmiller's Against Our Will, she recounted men's sexual dominance over women in "primitive societies" based on physical force and in the industrial era based on economic wealth and power. While the twentieth century had brought tremendous change, she argued, "to make a woman's advancement on the job depend on her sexual acquiescence is to resurrect her former status as man's property or plaything." Taub argued that allusions to sexual availability have an especially pejorative meaning for women, noting the tremendous number of sexually derogatory words in the English language. She argued that sexual harassment "strikes a particularly painful chord for women," citing and discussing the Redbook and the Working Women's Institute surveys on sexual harassment.65
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
ADRIENNE E. TOMKINS,
Plaintiffs-Appellantv.
PUBLIC SERVICE ELECTRIC AND GAS COMPANY, et al.,
Defendant-AppelleeNo. 77-1212
(75-1673 USDC)PLAINTIFF-APPELLANT'S APPEAL BRIEF
NADINE TAUB
Women's Rights Litigation Clinic
Rutgers Law School
175 University Avenue
Newark, New Jersey 07102
ATTORNEY FOR PLAINTIFF-APPELLANT
p. i
TABLE OF CONTENTS
Page TABLE OF AUTHORITIES ii STATUTES vi STATEMENT OF JURISDICTION 1 STATEMENT OF ISSUES PRESENTED 1 STATEMENT OF THE CASE 2 Procedural History 2 Statement of Facts 5 ARGUMENT I. THE COURT BELOW ERRED IN HOLDING THAT PLAINTIFF HAS NOT STATED A CLAIM UNDER TITLE VII, 42 U.S.C. §2000e 8 A. The Acts of Defendant's Agent Discriminated Against Plaintiff on The Basis of Sex 10 B. Plaintiff Has Alleged Discrimination With Respect to Terms, Conditions and Privileges of Employment 12 C. The District Court's Error Is Particularly Egregious in View of Its Special Impact on Female Employees 18 II. THE COURT BELOW WAS CORRECT IN FINDING THAT THE DEFENDANT COMPANY IS LIABLE FOR THE DISCRIMINATORY CONDUCT OF ITS SUPERVISORY PERSONNEL 26 III. THE FEAR OF AN INCREASED CASELOAD FOR THE FEDERAL JUDICIARY DOES NOT JUSTIFY THE DENIAL OF REDRESS FOR A SIGNIFICANT BARRIER TO EQUAL EMPLOYMENT OPPORTUNITY FOR WOMEN 31 CONCLUSION 35 APPENDIX 1a
p. ii
CASES Page (s) Anderson v. Methodist Evangelical Hospital, Inc.,
464 F.2d 723 (6th Cir. 1972)26 Barnes v. Train,
Civil Action No. 1828-73 (D.D.C. 1974)33 Bowman v. Home Life Insurance Company of America,
243 F.2d 331 (3d Cir. 1957)27 Carrion v. Yeshiva University,
535 F.2d (2d Cir. 1976)32 Corne v. Bausch and Lomb, Inc.,
390 F. Supp. 161 (D. Ariz. 1975)33 Culpepper v. Reynolds Metals Corp.,
421 F.2d 888 (5th Cir. 1970) appeal
after remand 442 F.2d 1078 (5th Cir. 1971)31 Garber v. Saxon Business Products,
No. 76-1610 ____F. Supp. ____
(4th Cir. February 1997)10, 27 Gray v. Greyhound Lines, East,
No. 75-1159, ____F.2d ____
13 FEP Cases 1401 (C.A.D.C. 1976)15 Griggs v. Duke Power Co.,
401 U.S. 424 (1971)10,15,17,25 Holiday v. Belle's Restaurant,
409 F. Supp. 904 (W.D.Pa. 1976)17 King v. Laborers International Union of North America,
443 F.2d 273 (6th Cir. 1971)10 Kober v. Westinghouse Electric Corp.,
480 F.2d 240 (3d Cir. 1973)27 Massey v. Illinois Range Co.,
358 F. Supp. 1271 (N.D.Ill. 1973)15 McDonnell Douglas Corp. v. Green,
411 U.S. 792 (197310,31,32 Miller v. Bank of America,
418 F. Supp. 233 (N.D.Cal. 1976)28,33
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Ostapowicz v. Johnson Bronze Co.,
369 F. Supp. 522 (W.D. Pa. 1972)
aff'd in part. 541 F.2d 394 (3d. Cir. 1976)26 People v. Rincon-Pineda,
123 Cal. Rptr. 119
538 P.2d 247 (S. Ct. 1975)33 Phillips v. Martin Marietta Corp.,
400 U.S. 542 (1971)10,11 Rogers v. EEOC.,
454 F.2d 234 (5th Cir. 1971)
cert. denied 406 U.S. 957 (1972)14,15,16 Rosen v. Public Service Electric and Gas Co.
477 F.2d 90 (3d Cir. 1973)17 Rowe v. General Motors Corp.,
457 F.2d 348 (5th Cir. 1972)27,31 Skelton v. Balzano,
No. 75-2098, ____F. Supp. ____,
13 FEP Cases 1803 (D.D.C. 1976)11 Slack v. Havens,
No. 72-59-GT, ____F. Supp. _____,
7 FEP Cases 885 (S.D. Cal. 1973)
aff'd in part, remanded in part
522 F.2d 1091 (9th Cir. 1975)27 Sprogis v. United Airlines, Inc.,
444 F.2d 1194 (7th Cir. 1971)
cert. denied 401 U.S. 491 (1971)10,11 Stewart v. General Motors Corp.,
542 F.2d 445 (7th Cir. 1976)27 Tidwell v. American Oil Co.,
332 F. Supp. 424 (D.Utah 1971)27 United States v. Medical Society of South Carolina,
298 F. Supp. 145 (D.S.C. 1969)15 Williams v. Saxbe,
413 F. Supp. 654 (D.D.C. 1976)10,12,13 Weeks v. Southern Bell Telephone and Telegraph Company,
408 F.2d 228 (5th Cir. 196910 EEOC Decision No. 70-09,
CCH EEOC Decisions ¶ 6026 (1969)15
p. iv
EEOC Decision No. 70-683,
2 FEP Cases 606 (1970)16 EEOC Decision No. 71-909,
3 FEP Cases 269 (1970)16 EEOC Decision No. 71-969,
CCH EEOC Decisions ¶ 6193 (1970)15 EEOC Decision No. 71-2227,
3 FEP Cases 1245 (1971)13 EEOC Decision No. 72-0591,
CCH EEOC Decisions ¶ 6314,
4 FEP Cases 309 (1971)15 EEOC Decision No. 72-0679,
4 FEP Cases 441 (1971)16,17 EEOC Decision No. 72-0779,
CCH EEOC Decisions ¶ 6321,
4 FEP Cases 317 (1971)15 EEOC Decision No. 72-1114,
4 FEP Cases 842 (1972)15,17 EEOC Decision No. 72-1442,
3 FEP Cases 493 (1971)16 EEOC Decision No. 74-84,
CCH EEOC Decisions ¶ 6450 (1975)15 Other Authorities AT&T, Affirmative Action Program 29 Brownmiller, Against Our Will (1975) 22 Cavan, "Taking About Sex By Not Talking About
Sex," The Social Psychology of Sex.
(Wiseman, Ed. 1976)20 Collins, "A Conflict Theory of Sexual Stratification,"
19 Social Problems (Summer 1971)22,23 Hoffman-La Roche, Affirmative Action Defined 30 Johnson and Johnson, Employee Reprimand Form 29
p. v
Johnson and Johnson, Salaried Employees 29 Millet, Sexual Politics (1970) 22 President's Commission on Law Enforcement and
the Administration of Criminal Justice:
The Challenge of Crime in a Free Society (1967)32 Raphael, "Sexual Rejection: When He Says ‘I Have
a Headache …’" 5 Ms. No. 3, (1976)20 Restatement of Agency, 2d §§214, 219 (1958) 27 Rosenbaum, "Clarity of The Seduction Situation,"
The Social Psychology of Sex (Wiseman, Ed. 1976)20 Safran, "What Men Do To Women on The Job,"
148 Redbook No. 1, (November 1976)24,25 Schulz, "The Semantic Derogation of Women,"
Language and Sex (Thorne and Henley, Eds. 1975)24 Tiger, Men In Groups (1970) 20 United States Census Bureau, Statistical
Abstract of The United States,
Table 589 (96th Ed. 1975)19 United States Civil Service Commission,
Study of Women in The Federal
Government, Table II-B (1972)19 United States Department of Labor, Women's Bureau,
Fact Sheet on Changing Patterns of Women's Lives
(1967)19 United States Department of Labor,
Handbook on Women Workers (1975)19 United States, Federal Bureau of Investigation
Uniform Crime Reports (1973)32 Vanderbilt, Amy Vanderbilt's Etiquette (1972) 19,21
p. vi
STATUTES
Page (s) Title VII, Civil Rights Act of 1964
as amended, 42 U.S.C. §2000e et. seqpassim §701 (b), 42 U.S.C. §2000e (b) 9,26 §703, 42 U.S.C. §2000e-2 passim §703, (a) (1), 42 U.S.C. §2000e-2 (a) (1) 1,8 §703 (a) (2), 42 U.S.C. §2000e-2 (b) (1) 8 §704 (a), 42 U.S.C. §2000e-3 (a) 33 §706 (g), 42 U.S.C. §2000e-5 (g) 1,33 RULES
Federal Rules of Civil Procedure,
Rule 54 (b)1
p. 1
STATEMENT OF JURISDICTION
This is an appeal from a final order of the District Court in accordance with Rule 54(b), F.R.Civ.P. The District Court expressly directed entry of final judgment as to the dismissal of one of two separate claims made by plaintiff under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. §2000e et seq., and expressly found no just reason to delay appeal. Amended Order, Appendix at 45a-46a. The District Court had jurisdiction under 42 U.S.C. § 2000e-5.
STATEMENT OF ISSUES PRESENTED
Whether sexual advances and physical assaults on a female subordinate by a male supervisor under threat of job-related reprisal constitute the discriminatory imposition of a term or condition of employment within the meaning of 42 U.S.C. §2000e-2(a)(1).
Whether an employer is liable for the discriminatory acts of its supervisory personnel.
Whether the fear of an increased caseload for the federal judiciary justifies the denial of Title VII redress for a significant barrier to equal employment opportunity for women.
p. 2
STATEMENT OF THE CASES
Procedural History
On September 29, 1975, plaintiff filed a complaint in the United States District Court for the District of New Jersey in Newark, alleging that she had been subjected to employment discrimination on the basis of sex by defendant PSE&G Co. Complaint, Appendix at 6a-8a. Plaintiff's suit was assigned to Judge Frederick B.Lacey, who granted leave to proceed in forma pauperis on September 29, 1975. The suit was reassigned to Judge Herbert J. Stern on October 6, 1975. Counsel was appointed by Judge Stern on October 22, 1975.
Plaintiff's Amended Complaint was filed on October 30, 1975. The Amended Complaint alleged in detail that the failure of defendant PSE&G Co. and certain of its agents to prevent plaintiff's sexual harassment by her supervisor, its failure to take appropriate action following plaintiff's grievance to defendant's higher managerial personnel, and its treatment of plaintiff following her grievance were part of a pattern and practice of unlawful gender discrimination by PSE&G Co. in violation of Title VII. Plaintiff sought damages, injunctive relief, costs and attorney's fees. Amended Complaint, Appendix at 12a-19a.
On September 22, 1976, defendant PSE&G Co. moved before Judge Stern to dismiss plaintiff's Title VII allegations of sex discrimination against the Company. After hearing the arguments of counsel on November 8, 1976, Judge Stern ruled on defendant's
p. 3
motion in an oral opinion, supplemented by a written opinion filed on November 22, 1976. Slip Opinion, Appendix at 39a-43a. In this written opinion, Judge Stern indicated that he ruled on two distinct issues: whether the sexual harassment by plaintiff's supervisor constituted sex discrimination within the meaning of Title VII; and whether the Company's conduct following plaintiff's complaint of sexual harassment constituted sex discrimination within the meaning of Title VII. Slip Opinion at 3, Appendix at 41a. Although Judge Stern recognized that a company is liable under Title VII for the discriminatory acts of its supervisory personnel,* he nevertheless held that plaintiff's claim of sexual harassment by her supervisory was not cognizable under Title VII. This ruling on the first issue was in large part based upon the view that cognizance of such claims under Title VII would lead to an unmanageable plethora of litigation in federal court. Slip Opinion at 5, Appendix at 43a. Judge Stern then denied defendant's motion to dismiss as to the second issue, holding that plaintiff could proceed to trial regarding the conduct of PSE&G Co. subsequent to plaintiff's complaint about her supervisor's conduct. Id. Judge Stern so ordered on December 2, 1976.
* Footnote, Slip Opinion at 4, Appendix at 42a. Plaintiff will herein urge the Court to affirm this holding, Point II at 27 infra.
p. 4
An Amended Order was filed by Judge Stern on December 6, 1976, expressly directing entry of final judgment as to the dismissal of plaintiff's Title VII claim against PSE&G Co. for the actions of plaintiff's supervisor, Herbert Reppin, and finding no just reason to delay appeal of this judgment. Amended Order, Appendix at 44a-45a. Plaintiff filed Notice of Appeal on January 3, 1977. Notice of Appeal, Appendix at 46a.
p. 5
Statement of Facts
With respect to the liability of PSE&G Co. for the acts its agent and employee Herbert Reppin, plaintiff has made the following allegations:
Plaintiff Adrienne Tomkins was hired by defendant PSE&G Co. on April 22, 1971 for employment at its offices on Park Place, Newark, New Jersey. Her work was well received by her employer and she progressed to positions of greater responsibility, reaching the position of stenographer in October of 1972. In August 1973, plaintiff was offered the opportunity to do secretarial work for, and under the supervision of Herbert Reppin,* which represented further advancement, and she began working for Reppin that month. Amended Complaint ¶'s 11, 15, 16, Appendix at 14a.
On October 30, 1973, Reppin told Ms. Tomkins that work evaluations would soon be due, that he was considering her for a promotion, and that they should discuss the matter at lunch. Concerned about her future at PSE&G Co., plaintiff agreed to accompany him to a nearby restaurant for lunch. Amended Complaint ¶17, Appendix at 14a.
* On November 8, 1976, the District Court granted Mr. Reppin's motion to dismiss the claims against him due to lack of pendent jurisdiction. Slip Opinion at 5. Appendix at 43a.
p. 6
At the restaurant, Reppin began drinking heavily. When it became apparent that he did not intend to discuss her work, plaintiff expressed her desire to return to the office. Nevertheless, Reppin intentionally held her at the bar against her will for several hours, through threats of recriminations against her as an employee, threats of physicial force, and, ultimately, physical force. During the course of these incidents, Reppin expressed a desire to have sexual relations with Ms. Tomkins, indicating that this would be necessary if they were to have a satisfactory working relationship. Ms. Tomkins was greatly distressed, and when she attempted to leave, Reppin grabbed her arm and physically prevented her from leaving. At the same time, he clearly intimated that no one at PSE&G Co. would help her if she protested his actions. Fearing for her job and for her physical safety, plaintiff remained at the bar. Subsequently Reppin grabbed plaintiff a second time and kissed her on the mouth. Amended Complaint ¶'s 18, 20, 21, 22, Appendix at 15a, 16a.
Plaintiff contacted the state unemployment agency the following morning and ascertained she would be elibigle for benefits if she left her employment at PSE&G Co. On advising the Company of her intention to leave PSE&G Co. and collect unemployment benefits, she was persuaded to accept a transfer to a comparable position and another supervisor in exchange
p. 7
for her agreement to remain in the Company's employ. A comparable position was not forthcoming, however, and because plaintiff feared returning to her position under Mr. Reppin's supervision, she was placed in an inferior position with a new supervisor.* Amended Complaint ¶'s 26, 27, Appendix at 16a, 17a.
As a result of both Mr. Reppin's conduct on October 30, 1973 and plaintiff's treatment by the defendant Company and its agents following her grievance, Ms. Tomkins suffered extreme emotional upset. On manifestation of this emotional distress was repeated physical illness. Amended Complaint ¶36, Appendix at 18a. Plaintiff was ultimately terminated by PSE&G Co. on January 27, 1975, purportedly for excessive absenteeism. Amended Complaint ¶34, Appendix at 18a.
Plaintiff has alleged that defendant PSE&G Co. and certain of its agents knew or should have known the incidents such as those described about would take place and that despite such knowledge PSE&G Co. took no steps to prevent such conduct by its employees. Amended Complaint ¶'s 30, 37, Appendix at 17a, 18a. Plaintiff has also alleged that the conduct is part of a pattern and practice of discrimination by PSE&G Co. against its female employees. Amended Complaint ¶40, Appendix at 19a.
* In the months that followed, plaintiff's new supervisor repeatedly harassed her with threats of demotion and a cut in salary, pressure to accept a cut in salary, and charges of inability to perform the functions of her then current position. Additionally, unfavorable material was solicited and placed in plaintiff's personnel file by her new supervisor with cooperation of other agents of defendant PSE&G Co. Amended Complaint ¶'s 29, 30, 31, 32, 33, Appendix at 17a, 18a.
p. 8
I. THE COURT BELOW ERRED IN HOLDING THAT PLAINTIFF HAS NOT STATED A CLAIM UNDER TITLE VII, 42 U.S. C. §2000(e).
Section 703(a)(1) of Title VII, 42 U.S.C. $2000e-2(a)(1), provides in pertinent part that it is "an unlawful employment practice for an employer … to discriminate against any individual with respect to his … terms, conditions or privileges of employment, because of … such an individual's sex …." Thus, to come within this statute a plaintiff must show (1) that the treatment complained of was on account of or because of sex and (2) that such treatment constituted discrimination in a term, condition or privilege of employment. In essence, Adrienne Tomkins has alleged that her supervisor, armed with the position and power the Company conferred upon him, attempted to coerce her acquiescence in sexual relations and in fact detained and assaulted her. Further, as a result of her treatment, she was unable to continue to function in the position she held with the defendant Company. Because such allegations satisfy both elements required by Section 703, plaintiff has stated a claim under that provision,* and it was error for the trial court
* Plaintiff has also stated a claim under Section 703(a)(2), 42 U.S.C. §2000e-2(a)(2), which provides:
It shall be an unlawful employment practice for an employer to limit, … or classify his employees … in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's … sex …."
The arguments set forth below apply with equal force to liability under Section 703(a)(2).
p. 9
to hold otherwise.*
The opinion below is less than explicit with respect to the manner in which plaintiff's allegations fell short of those required under the statute. Although the opinion deplores "the abuse of authority by supervisors" as "an unhappy and recurrent feature of our social experience," the Court nevertheless concludes that such abuse "is not, however, sex discrimination within the meaning of Title VII even when its purpose is sexual." Slip Opinion at 4, Appendix 42a. Presumably, then, the lower court recognized that such conduct directly affects an employee's work envioronment and imposes additional conditions and burdens on her employment, bringing it within the terms and conditions language of Section 703. It is rather the question of sex discrimination which appears to trouble the lower court.** For this reason, that question will be considered first, followed by a discussion of the proper scope to be accorded "terms, conditions and privileges of employment."
* Of course, the District Court's construction of Title VII is freely reviewable by this Court.
** This reading of the lower court's opinion is reinforced by the footnote making clear that the conduct of the supervisor can be imputed to the employer for the purpose of a violation of Title VII. The Court there wrote: If a supervisor is acting within the purview of his authority, the doctrine of respondent superior may be employed whether he is driving a company car or victimizing a female. See Title 42 United States Code, $2000(e)(b) which expressly includes any agent of an employer within the meaning of "employer." But if the underlying wrong does not constitute sex discrimination, sex discrimination cannot be imputed to the employer. Slip opinion at 4, Appendix at 42a.
p. 10
A. The Acts of Defendant's Agent Discriminated Against Plaintiff on the Basis of Sex.
The purpose of Congress in enacting Title VII of the Civil Rights Act of 1964 was "the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification." Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). Such barriers may consist either of discrete acts of discrimination against an individual, or of patterns and practices of discrimination which impact on large numbers of employees. See Section 703 which expressly prohibits discrimination against any individual. Compare McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) with Griggs, supra. See also King v. Laborers International Union of North America, 443 F.2d 273 (6th Cir. 1971). In either case, the crucial question is whether an artificial barrier to employment is placed before one gender and not the other. Williams v. Saxbe, 413 F. Supp. 654, (D.D.C. 1976); Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971); Sprogis v. United Airlines, Inc., 444 F.2d 1194 (7th Cir. 1971) cert. denied 401 U.S.491 (1971); Weeks v. Southern Bell Telephone and Telegraph Company, 408 F.2d 228 (5th Cir. 1969). Thus, in Garber v. Saxon Business Products, Inc. No. 76-1610, ____F. Supp. ____ (4th Cir. February 1977), the Court of Appeals for the Fourth Circuit ruled that a female employee who alleged that she was discharged for rebuffing the sexual advances of her male supervisor had stated a claim under Title VII.
p. 11
There is no question in the instant case that Adrienne Tomkins' sex was the determinative factor motivating her supervisor. No male subordinate was told that sexual relations with Mr. Reppin were necessary to a satisfactory working relationship. No male subordinate was expected to submit to sexually motivated physical assaults in order to obtain a favorable work evaluation or maintain his position. Yet because she was a woman,* plaintiff was expected to tolerate and overcome such demands, despite the fact that they were both extremely distressing and irrelevant to any proper definition of her responsibilities.
Given the fact that in this instance Adrienne Tomkins was subjected to differential and less favorable treatment by her supervisor, it is irrelevant whether a hypothetical female supervisor might similarly abuse the authority conferred upon her by the Company so as to require sexual cooperation of a male subordinate, while leaving female subordinates free of such impositions. It is similarly irrelevant that a homosexual
* Presumably, Mr. Reppin subjected plaintiff to such differential treatment because he found her to be an attractive woman. But the presence of other factors in addition to sex does not cure the conduct of its discriminatory character. See Phillips v. Martin Marietta Corp., supra; Sprogis v. United Airlines Inc., supra; Skelton v. Balzano, No. 75-2098; — -F. Supp. — -, 13 FEP cases 1803 (D.D.C. 1976).
p. 12
supervisor might make like demands on subordinates of one sex and not the other. While findings of sex discrimination, in plaintiff's view would be appropriate in both hypothetical situations,* neither case is before this Court. Where, as here, an individual has actually been subjected to differential treatment because of her gender — a characteristic wholly unrelated to her ability to perform her job — she is entitled to redress under Title VII.
B. Plaintiff Has Alleged Discrimination With Respect to Terms, Conditions and Privileges of Employment.
That the discriminatory conduct which plaintiff complains of respects the terms, conditions, and privileges of her employment is immediately apparent from the face of her allegations. Adrienne Tomkins' complaint is that her supervisor — who was empowered by the Company both to assign her work to her and to evaluate that work and make recommendations for her promotion — sough to impose an additional condition on her continued employment and advancement. Not only did Mr. Reppin link his sexual advances with Ms. Tomkins' impending work evaluations and
* Plaintiff subscribes to Judge Richey's view of the applicable law were such hypothetical situations to occur:
(Footnote Continued On Next Page)[s]ince the statute prohibits discrimination against men as well as women, a finding of discrimination could be made where a female supervisor imposed the criteria of the instant case upon only the male employees in her office. So could a finding of discrimination be made if the supervisor were a homosexual. And, the fact that a finding of discrimination could not be made if the supervisor were a bisexual and applied this criteria to both genders should not lead to a conclusion that sex discrimination could not occur in other situations outlined above.
Williams v. Saxbe, supra fn. 6 at 659.
Likewise, plaintiff would see double discrimination in the hypothetical proposed by the trial court involving a subordinate who advanced by acquiescing in the sexual demands of her supervisor. Both the subordinate coerced into complying with additional condition for advancement, and the similarly situated employee of the opposite sex who did not have the same opportunity to advance, have been subject to discrimination on the basis of sex. But plaintiff suggests once again that it is unnecessary to reach such speculative concerns in the context of the instant case.
p. 13
possible promotion, but he also made clear that sexual cooperation was necessary for her to maintain her ratings in her present position. In short, he expanded Ms. Tomkins' job definiton to include an additional term — sexual relations with her boss. And because this expansion of her duties turned on Ms. Tomkins' sex, it constituted an impermissible discrimination in the terms, conditions and privileges of her employment.* It should be noted that the personal nature of the condition imposed upon plaintiff in no way diminishes its actuality and in no way relieves the employer of liability. See EEOC Decision No. 71-2227, FEP Cases 1245 (1971) (Selection of two black female employees to do housework at private home of employer constitutes imposition of a term and condition of employment upon employees because of their race and sex).
*The fact that Adrienne Tomkins was compelled to seek a transfer to avoid such distasteful additional duties in no way negates the reality of this imposition. Rather, it goes to the reality of her injury.
p. 14
Nor is it even necessary for plaintiff to point so explicitly to an additional condition placed on her employment, to come within the "terms, conditions and privileges" language of Section 703. "This language evinces a Congressional intent to define discrimination in the broadest possible terms." Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971) cert. denied 406 U.S. 957 (1972). Thus, it was recognized in Rogers v. EEOC, supra, that the equality of opportunity mandated by the Act includes the obligation of employers to provide a working environment in which employees belonging to protected classes can function and prosper on equal footing with previously favored employee groups. This finding was based on a review of the broad purposes of Title VII and the recognition that employment discrimination can no longer be viewed as a series of isolated and distinguishable events manifesting itself in hiring, firing, and promotion practices, but is rather a far more complex and pervasive phenomenon. The court therefore concluded "that employees' psychological as well as economic fringes are statutorily entitled to protection from employer abuse, and that the phrase 'terms, conditions, or privileges of employment' in Section 703 is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination." Rogers v. EEOC, supra at 238.*
* Specifically, the court held that a discriminatory environment in which patients were ethnically classified could completely destroy the psychological and emotional stability of minority employees, thus depriving them of the equal opportunity to functic in their jobs that is required by Title VII.
p. 15
The principle that Title VII includes a protectab right to a work environment free from the psychological harm flowing from an atmosphere of discrimination was enunciated once again in a recent decision from the District of Columbia Circuit. In Gray v. Greyhound Lines, East No. 75-1159 ____F. 2d, _____ 13 FEP Cases 1101 (D.C. Cir. 1976), allegations of psychological harm resulting from isolation on the job due to race were held sufficient to confer standing. In so ruling, the court wrote:
EEOC, whose interpretation of Title VII is entitled to great weight, Griggs v. Duke Power Co., 401 U.S. 424, 433-434 (1971) has consistently held that the statute grants an employee the right to ‘a working environment free of racial intimidation.’ EEOC Decision No. 74-84, CCH EEOC Decisions ¶6450 (1975); EEOC Decision No. 72-0779, CCH EEOC Decisions ¶6321, 4 FEP Cases 317 (1971); EEOC Decisions No. 72-0591, CCH EEOC Decisions ¶6314, 4 FEP Cases 309 (1971); EEOC Decision No. 71-969 CCH EEOC Decisions ¶6193 (1970); EEOC Decision No. 70-09, CCH EEOC Decisions ¶6026 (1969). The courts, too, have recognized in Title VII a congressional purpose 'to eliminate the inconvenience, unfairness, and humiliation of ethnic discrimination.' See, e.g., Rogers v. EEOC, 454 F.2d 234, 238-239, 4 FEP Cases 92, 94 (5th Cir.) (opinion of Goldberg, J.) cert. denied, 406 U.S. 957, 4 FEP Cases 771 (1972); Massey v. Illinois Range Co., 358 F. Supp. 1271, 5 FEP Cases 1200 (N.D. Ill. 1973); United States v. Medical Society of South Carolina, 298 F. Supp. 145, 1 FEP Cases 725, 71 LRRM 2057 (D. S.C. 1969).
Nor is sexual intimidation any more acceptable under the statute, for Title VII also embodies a congressional purpose to eliminate the inconvenience, unfairness and humiliation of sex discrimination. See EEOC Decision No. 72-1114, 4 FEP Cases 842, 843 (1972), indicating that the EEOC "has consistently ruled that Title VII obligates an employer to maintain a working
p. 16
atmosphere free of intimidation based upon race, color, sex, or national origin."
As the Rogers court recognized, since the advent of Title VII, discrimination has grown increasingly more subtle, and "the nuances and subtleties of discriminatory employment practices are no longer confined to bread-and-butter issues." Rogers v. EEOC, supra at 238. Discrimination in employment increasingly occurs through employers' practices so offensive to the sensibilities of employees that they create a discriminatory work environment, depriving minority employees of equal opportunity to function effectively in their jobs. Id. It is clear from Rogers v. EEOC, supra, that a discriminatory working environment can so debilitate a minority employee's psychological and emotional well-being as to result in a barrier to employment.
Where, as here, the employee was compelled to seek a transfer from her position so as to avoid her supervisor's sexual harassment and sexually motivated assault, it cannot be doubted that his conduct was so debilitating to her as to result in a barrier to her employment.
Indeed, a supervisor's sexual advances coupled with threats of job reprisals give rise to a far more debilitating and intimidating work environment than does a supervisor's use of racial epithets or derogatory ethnic jokes. Yet the EEOC has regularly held such conduct by supervisors to be violative of Section 703. See EEOC Decision No. 70-683, 2 FEP Cases 606 (1970); EEOC Decision No. 71-909, 3 FEP Cases 269 (1970); EEOC Decision No. 71-1442, 3 FEP cases 493 (1971); EEOC Decision No. 72-0679, 4 FEP Cases 441 (1971). In the case perhaps most closely
p. 17
analogous to that at bar, it was held that an employer's referring to his adult female employees as ‘girls’ constituted both racial and gender discrimination. EEOC Decision No. 72-0679, supra. Regarding the racial discrimination, the Commission found that use of the word ‘girl’ had a disparate effect on black female employees "because of the repellant historical images the term understandably evokes." EEOC Decision 72-0679, supra at 442. The finding of gender-based discrimination was based on the Commission's recognition of the "historical pattern of referring to male employees as men, while referring to female employees as ‘girls.’ Inherent in the historically disparate treatment is an implication of female inferiority as well as a reminder of the historical pattern of classification of jobs as ‘male’ or ‘female’ with females precluded from virtually all more challenging and higher-paying jobs." Id. See also EEOC Decision No. 72-1114, 4 FEP Cases 842 (1972) (Supervisor's preaching on the job violative of Section 703, even though conduct not as disturbing to employees other than the charging parties*.
There are, therefore, two ways in which the discrimination at issue here falls within the scope of Section 703: first, the sex-based conduct of plaintiff's supervisor served to add an extra (and wholly improper) duty to her job description; and second,
* Like the D.C. Circuit, the courts of the Third Circuit have followed Griggs, supra, with respect to EEOC guidelines in Rosen v. Public Service Electric and Gas Company, 477 F.2d 90 (3d Cir. 1973 and most recently with respect to EEOC decisions in Holiday v. Belle's Restaurant, 409 F. Supp. 904 (W.D. Pa. 1976).
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by virtue of the same sex-based conduct of her supervisor, plaintiff was plunged into a work environment permeated by sexual intimidation. Plaintiff is not complaining about a physical attack which just happened to take place in a corporate corridor, as the court below seemed to believe. Slip opinion at 3, Appendix at 41a. Rather, she is complaining about the use of job-related threats and coercion which impact directly on her job definition and her work situation. In sum, she is complaining about her terms, conditions and privileges of employment, and it is for such complaints that Title VII provides redress.
C. The District Court's Error Is Particularly Egregious In View of Its Special Impact on Female Employees.
While it is theoretically possible that both men and women may be subjected to sexual harassment, the failure to provide Title VII protection against such conduct will harm women workers in particular. This is so both because more women than men are likely to be vulnerable to sexual exploitation by their supervisors, and because, for understandable historical reasons, sexual harassment is likely to have a far more deleterious impact on women.
The most obvious reason why the failure to offer redress for sexual harassment on the job will impact adversely on working women is that female employees are more frequently in positions where they can be subjected to the sexual demands of male supervisors.* National statistal patterns of employment indicate
* The predominantly heterosexual character of sexual relationships in our society needs hardly be mentioned.
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that over 75% of workers in clerical positions are female, while close to 82% of managerial positions are held by males*. United States Department of Labor, Handbook on Women Workers, 96-98 (1975). See also United States Census Bureau, Statistal Abstract of the United States, Table 589 at 361-364 (96th Ed. 1975). The pattern evinced by these statistics is borne out by a recent survey in Harvard Business Review which stated that "there are so few women in management positions that there is scarcely anything to study." U.S. Department of Labor, Women's Bureau, Fact Sheet on Changing Patterns of Women's Lives, 6 (1967).
Employment statistics in the Federal Government exhibit this same pattern: 96.5% of all while collar employees in the Federal Government in positions graded GS-14 and above are male; 90.6% of all such employees with grades of 10 through 13 are also male. In contrast, lower-grade federal jobs have a disproportionately large number of females: 67% of all employees at grade level 5 and below are female. United States Civil Service Commission, Study of Women in The Federal Government, Table II-B at 163 (1972).
* Clerical positions include bank tellers, billing clerks, book keepers, cashiers, counter clerks, estimators, file clerks, equipment operators, payroll clerks, postal clerks, stock clerks, teacher aides, telephone operators, and typists. Managerial positions include bank officers, financial managers, purchasing agents, restaurant managers, department heads, and school administrators. Handbook on Women Workers, supra at 89-90. Common experience indicates that a majority of the managerial duties, by definition, incorporate supervision of subordinate employees. On the other hand, common experience with respect to clerical positions shows that such jobs rarely include the supervision of others.
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But even if supervisory and subordinate positions were allocated more equally, women workers would still be more vulnerable to sexual coercion by their bosses. For the fact remains that males in our society have the exclusive social right to initiate sexual interaction with others. Thus, "[it] is relatively ‘normal’ for males to seek sexual access to females who are their subordinates." Tiger, Men In Groups, 271 (1970). Indeed the assumption of male initiative is so prevalent that researchers of male-female sexual interaction uniformly divide their samples along gender lines, defining males as initiators or "passmakers" and females as the passive "pass receivers." See for example Rosenbaum, "Clarity of the Seduction Situation," and Cavan, "Talking About Sex By Not Talking About Sex," in The Social Psychology of Sex, (Wiseman, Ed. 1976).*
A standard treatise on social etiquette clearly confirms what is common knowledge: that in the realm of purely social interaction, males are invariably the initiators and females are the recipients. See Amy Vandervilt's Etiquette (1972). Compare for example the rules for men which deal with such things as asking women to dance, and the corresponding rules for women which concern such things as refusing a dance. Amy Vanderbilt's Etiquette, supra at 218, 319. See also the similar pattern evident with respect to teaching adolescent males to ask for dates and teaching adolescent females to accept or reject
* Instances of females instigating sexual interactions with males are so rare that they present unique problems for assertive women as discussed in a recent issue of Ms. See Raphael, "Sexual Rejection: When He Says, ‘I Have a Headache …’" 5 Ms., No. 3, 77 (Sept. 1976).
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engagements gracefully. Amy Vanderbilt's Etiquette, supra at 703, 707. Thus the fact that males rather than females in our society have the social right to initiate sexual relationships ensures that women will bear the brunt of any limitation on the scope of Title VII.
Moreover, tolerance of sex harassment on the job will inevitably have adverse effect on women's attempts to gain more equal opportunity throughout the work world. Because the refusal to afford Title VII protection to victims of such conduct leaves the disproportionately large number of female employees with the choice of either acceding to the demands, being dismissed or leaving their employment before they can advance, or remaining in their jobs with now-decreased chances of future advancement, it imposes a barrier to employment and advancement that many women cannot overcome. Women who comply may be faced with the same barrier if the sexual liason between subordinate and supervisor later becomes untonable. The result is that women do not advance, thereby perpetuating the past discrimination that relegated women to the inferior positions that many women still hold today.
In addition to its disproportionate numerical impact, sexual harassment is likely to have a disproportionate emotional impact on women, which makes it particularly difficult for them to function effectively in the face of such treatment. The situation in which a person is asked to exchange sexual services for continued employment is uniquely disturbing to women. It is
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a reminder, a badge or indicia, of the servile status women have suffered in former societies and from which they are now trying to free themselves. In the most primitive societies, males, as the physically superior sex, had a monopoly on physical force. Women had no choice but to submit. Their legal status was little more than that of a chattel or slave. Man's ownership of women conferred upon him the right to use her as a sexual object*. As society progressed into the industrial era, the use of brute force to subdue women diminished somewhat, but men still controlled economic wealth and power. Nearly all occupations were closed to women. Their only means of survival was to barter personal attractiveness and sexuality for the very means to live, usually through the institution of marriage**.
* Brownmiller, Against Our Will, 16, 17 (1975). See also Collins, "A Conflict Theory of Sexual Stratification," 19 Social Problems 11, 12 (Summer 1971).
** Collins, supra at 13. "[In the emerging industrial era,] men remain heads of households and control its property; they monopolize all desirable occupations in state and economy as well. Women become at least potentially free to negotiate their own sexual relationships, but since their main resource is their sexuality, the emerging free marriage market is organized around male trades of economic and status resources for possession of women." See also Millett, Sexual Politics, 54 (1970), "A female is continually obliged to seek survival or advancement through the approval of males as those who hold power. She may do this through appeasement or through the exchange of her sexuality for support and status."
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The twentieth century has brought an enormous change in the status of women. Women now have access to the labor market to earn their own living, and theoretically no longer need depend upon their sexuality for survival*. Hopefully, women are also recognized as a persons in their own right, valued according to individual capacility and achievement. But to make a woman's advancement on the job depend on her sexual acquiescence is to resurrect her former status as man's property or plaything. And to suggest that a female employee is of worth only in terms of her gender is to say once again that she is not entitled to equal opportunity on the job. To tolerate women being subjected to such conditions is to make a mockery of all the progress women have made in the last fifty years toward a fully human status.
That allusions to sexual availability have an especially pejorative meaning for women is also apparent from our language. In the context of gender discrimination, epithets equivalent to the racial epithets held violative of Title VII in the EEOC decisions cited above would be such terms as "cunt," "bitch,"
* Collins, supra at 16, "A further shift in bargaining resources occurs with the attainment of a high level of affluence and the rise of widespread employment opportunities for women … [This] gives women additional bargaining resources. To the extent that women have their own incomes, they are free to strike their bargains without economic compulsion; and their income may become a bargaining resource of their own."
Collins notes, however, that to the extent women remain in an inferior position in the labor market, the older system "in which female attractiveness tends to be graded for male economic prospects continues to operate." Id. at 16.
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"broad" or "tart." An examination of the derivation of these and other vulgarisms referring to women indicates that they are all references to females in solely sexual terms, i.e., as the objects of sexual desires*. Moreover, as a scholar of language has observed, this is not a gender-neutral phenomenon:
Words indicating the station, relationship or occupation of men have remained untainted over the years. Those identifying women have repeatedly suffered the indignity of degeneration, many of them becoming sexually abusive. It is clearly not the women themseleves who have coined and used these terms as epithets for each other. One sees today that it is men who describe women in sexual terms and insult them with sexual slurs, and the wealth of derogatory terms for women reveals something of their hostility …. [T]he largest category of words designating humans in sexual terms are those for women — especially for loose women. I have located roughly a thousand words and phrases describing women in sexually derogatory ways. There is nothing approaching this multitude for describing men.
Schulz, supra at 67, 71.
Thus the imposition of sexual conditions for continued employment and advancement strikes a particularly painful chord for women. It is no wonder then that the most recent and comprehensive data on this subject indicate that the great majority of women find the unsolicited sexual attention of male co-workers and supervisors to be "embarassing," "demeaning," or "intimidating.' Only 15% of 9,000 women polled described these advances as "flattering." Safran, "What Men Do to Women On The Job, 148
* See, for example, Schulz, "The Semantic Derogation of Women," Language and Sex, (Thorne and Henley Eds. 1975).
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Redbook No. 1 149, 217 (November 1976). Likewise in an unpublished survey developed by the Women's Section of the Human Affairs Program at Cornell University, only 3% of the 155 respondents reported that they were flattered by the unwanted sexual advances of supervisors and co-employees. More than 50% of the women said they were angered or upset by these incidents.
This is not to say that removing barriers to equal employment opportunities for women will require the imposition of a Victorian code of conduct*. It is, however, to say that the failure to offer Title VII redress for job-coerced sexual subjugation will significantly undercut any effort to remove "arbitrary, artificial and unnecessary barriers to employment [which] operate to discriminate on the basis of [sex]." Griggs, supra at 431. And most particularly, it will significantly undercut any effort to remove those barriers affecting women.
* As the Redbook article states:
There is nothing so terribly wrong with the normal attraction between men and women or with the often pleasurable sexual tensions that can exist when we work together — if we learn to value each other as workers apart from the sexual quotient, if we are free to accept or reject sexual advances and are allowed to choose or refuse the people with whom we have sexual interplay — with no hard feelings and no strings attached.
Safran, supra at 220 (emphasis in original).
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II. THE COURT BELOW WAS CORRECT IN FINDING THAT THE DEFENDANT COMPANY IS LIABLE FOR THE DISCRIMINATORY CONDUCT OF ITS SUPERVISORY PERSONNEL.
As noted above, the trial court made clear its view that a company is liable for the discriminatory conduct of an individual supervisor for the purpose of finding a Title VII violation. Slip opinion at 4, Appendix at 42a. Plaintiff submits that this result is in keeping with the relevant statutory and judicial authority and is eminently correct. As the trial court pointed out, Title 42 U.S.C. §2000e(b) expressly includes any agent of an employer within the meaning of "employer". Thus the courts have consistently held that where a managerial or supervisory agent of an employer takes any action which violates Section 703 (a), the employer is liable for such action. In Ostapowicz v. Johnson Bronze Company, 369 F. Supp. 522, 537 (W.D. Pa. 1973), affirmed in pertinent part by this Court, 541 F.2d 394 (3d Cir. 1976), the rule was expressed unequivocally:
It is true that the defendant is not necessarily responsible for actions of all its employees in expressing or actively carrying out feelings of hostility towards women, but the defendant is responsible for acts of supervisory personnel.
Likewise, in Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723, 725 (6th Cir. 1972), the court made plain that even if the upper levels of management maintain an exemplary
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record with respect to non-discrimination, "where a discharge by a person in authority at a lower level of management is racially motivated, Title VII provides the aggrieved party with a remedy." See also Kober v. Westinghouse Electric Corp., 480 F.2d 240, 246 (3d Cir. 1973); Stewart v. General Motors Corp., 542 F.2d 445, 450 (7th Cir. 1976); Rowe v. General Motors Corp., 457 F.2d 348, 355-359 (5th Cir. 1972): Slack v. Havens, No. 72-59 GT,_____F.Supp._____, 7 FEP Cases 885 (S.D. Cal. 1973), aff'd in pertinent part, 522 F.2d 1091 (9th Cir. 1975).
The underlying rationale for this rule is, of course, that "the modern corporate entity consists of the individuals who manage it, and little, if any, progress in eradicating discrimination in employment will be made if the corporate employer is able to hide behind the shield of individual employee action." Tidwell v. American Oil Co., 332 F. Supp 424, 436 (D. Utah 1971). For this reason, the employer is properly held responsible for abuse of authority it has conferred on a supervisor. Here Mr. Reppin, as defendant's agent, was "armed with the means to do what he did and the excess of his activities beyond his authority is at the pricipal's risk." Bowman v. Home Life Insurance Company of America, 243 F.2d 331 (3d Cir. 1957). (Insurance Company liable in tort for nonconsensual offensive bodily contact by agent masquerading as physician). See also Restatement of Agency 2d, ¶214, 219 (1958); Garber v. Saxon Business Products, Inc., supra (Complaint alleging discharge of female subordinate employee for rebuffing the sexual advances of her male supervisor alleged an employer policy violative of Title VII).
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While it is thus clear that the employer is liable whether or not the discriminatory acts were inconsistent with its announced policy, in this case PSE&G Co. is hard put to establish a policy opposed to the type of misconduct at issue here. It is plaintiff's contention that PSE&G Co.'s failure to adopt the most minimal safeguards to advise supervisors of their obligation to refrain from harassing subordinates and to provide for the investigation and redress of harassment after the fact amounts to a policy of tolerating such harassment. Plaintiff submits further that PSE&G Co. has failed to adopt practices utilized by comparable employers in New Jersey and recommended by standard authorities on personnel management. Moreover, it is inherently incredible in view of PSE&G Co.'s size and sophistication that such practices were not options known to the Company and that the failure to adopt them was not a conscious policy determination. The general acceptance of the need for steps designed to eliminate harassment and assure fair treatment of complaining employees is obviously not gratuitous generosity, but instead, a matter of enlightened self-interest. Compare Miller v. Bank of America, 418 F. Supp. 233 (N.D. Cal. 1976), appeal pending.
Several mechanisms are available to companies wishing to maximize employee satisfaction by eliminating unfair or inhumane treatment by supervisors. At minimum, a company can make it known that all employees have a right to expect decent treatment on the job. See, for example, the brochure distributed by
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Schering-Plough*, To Our Employees, which makes it clear that the Corporation "has long operated under a policy of encouraging and fostering individual rights and privileges" and further that "[the Company] respect[s] each employee as a person and consider[s] it a vital part of our policy that employees treat each other with the courtesy and consideration all have a right to expect within our work climate."
Alternatively, a company may adopt specific rules governing employee conduct. Johnson and Johnson,** for example, prohibits its unionized employees from the "harassment of other employees" and from "any form of intimidation and coercion." Johnson and Johnson Employee Reprimand Form Rule 15. Johnson and Johnson subjects its salaried employees to dismissial for acts involving moral turpitude "which can include improper advances." Johnson and Johnson, Salaried Employees - Group 1 Rule***.
* Employing approximately 1,400 persons in its Kenilworth, New Jersey offices, and approximately 16,000 nationally.
** Employing approximately 1,500 people in its New Brunswick headquarters.
*** Specific obligations are also placed on supervisors in the context of affirmative action. For example, AT&T, employing approximately 29,970 persons, recognizes the personal responsibility of each supervisor to provide equal opportunity for all of his/her employees, and provides that supervisors responsible for discrimination on the basis of race or sex "will be subject to appropriate disciplinary action depending on the severity of the case, up to and including dismissal." AT&T Affirmative Action Program §3.g.1
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Hoffman-La Roche, Inc. of New Jersey, which employs approximately 7,000 persons in its offices and laboratories, states that it is committed to offering "full and equal employment opportunities to all employees without regard to race, creed, color, national origin, sex, or age," and holds all of its managers having administrative or directional authority "responsible for conducting their employee relations activities in a manner which ensures compliance with the [Company's] Affirmative Action Policy." Hoffman-La Roche, Affirmative Action Defined, 4.2-4.4.
As plaintiff has already suggested, it is inconceivable that the absence of such procedures is mere oversight by a company which bothers to compile a personnel guide and an administrative manual. With all due respect, plaintiff submits that PSE&G Co. has chosen to tolerate supervisory harassment, and in particular sexual harassment of subordinate employees. Not only has defendant's policy of tolerance impacted on one women, the plaintiff but it has and will continue to impact disproportionately on women, so long as the Company continues to employ predominantly male supervisors to oversee the disproportionately large number of subordinate female workers at its Newark office. In such circumstances, no court should hesitate to affirm the Company's responsibility for the discriminatory actions of its supervisory personnel.
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III. THE FEAR OF AN INCREASED CASELOAD FOR THE FEDERAL JUDICIARY DOES NOT JUSTIFY THE DENIAL OF TITLE VII REDRESS FOR A SIGNIFICANT BARRIER TO EQUAL EMPLOYMENT OPPORTUNITY FOR WOMEN.
The opinion of the trial court in this matter is particularly disturbing because it recognizes sex harassment as a serious and pervasive problem in employment relations today, and yet withholds the tools which Congress has provided to remedy such problems. The Court purports to justify its ruling by the need to protect the federal judiciary from an excess of litigation. But the possibility that large numbers of people are actually in need of the protection offered by federal civil rights legislation, and may therefore utilize the remedies Congress has offered, has not deterred a consistently liberal reading of Title VII. See e.g. Griggs, supra (Title VII directed at consequences, not intent of employment practices); McDonnell Douglas Corp. v. Green, supra (Specifying minimal case necessary to shift burden to employer); Rowe v. General Motors Corp., supra., (Civil Rights Act of 1964 prohibits all forms of racial discrimination in all aspects of employment; the degree of discrimination practiced by an employer is not important under the Act); Culpepper v. Reynolds Metals Corp., 421 F.2d 888 (5th Cir. 1970) appeal after remand 442 F.2d 1078 (5th Cir. 1971) (The intent of Congress to outlaw employment discrimination should not be hampered by a strict construction of Title VII).
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Moreover, there are several good reasons to believe that the federal courts will not be swamped, should the decision below be reversed. First, of course, it must be noted that a plaintiff carries the burden of establishing that a violation of Title VII has occurred. McDonnell Douglas Corp. v. Green, supra. Secondly, the courts have ample authority under Title VII to ensure that claims are not brought in bad faith. See Carrion v. Yeshiva University, 535 F.2d 722 (2d Cir. 1976). However, in view of the peculiar nature of sexual harassment complaints, it is far more likely that there will be under-rather than overutilization of available legal remedies.*
Nor will accepting plaintiff's theories lead to a federal lawsuit every time one employee invites another out to dinner, despite the trial court's fears. Plaintiff's claims concern only coercive sexual advances and assaults by a supervisor. Such claims are particularly strong where, as here, the employer has failed to adopt the most minimal safeguards against such abuses. Indeed, as the trial court suggests, the law — both civil and criminal — is accustomed to drawing the requisite lines between innocent and coercive behavior.** And while it is
* Compare the significant underreporting of rape complaints President's Commission on Law Enforcement and the Administration of Justice: The Challenge of Crime in a Free Society 21 (1967). The Commission found that forcible rapes occur at 3 1/2 times the reported rate. See also United States Federal Bureau of Investigation Uniform Crime Reports 15, 1973.
** The opinion below indicates that "the abuse of authority by supervisors … is frequently illegal under the penal statutes of the relevant jurisdiction [and] such conduct might well give rise to a civil action in tort." Slip Opinion at 4, Appendix at 42a. The difficulties with relegating subordinate employees to such remedies are several:
Federal responsibility for the elimination of a major barrier to equal employment opportunities is thereby disavowed;
Complainants are deprived of the administrative machinery and must obtain their own counsel;
Affirmative injunctive remedies, establishing, for example, internal complaint mechanisms available under Section 706(g),42 U.S. §2000e-5(g), are unavailable under state law;
Complainants are not protected against retaliation as they woul be under Section 704(a), 42 U.S.C. §2000e-3(a).
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easy to hypothesize that every disgruntled minority employee will charge racism each time he or she is subject to any adverse employment decision, hypotheses of this sort have never been a basis for foreclosing federal remedies.
With all due respect, plaintiff submits that the trial court's fear that the floodgates will be opened to unfounded allegations by female employees bespeaks an excessive concern for the prerogatives of supervisors (who are, of course, predominantly male). In plaintiff's view, this concern reflects the attitude which has shaped our rape laws for centuries, i.e. that charges of sexual misconduct are easy for women to make and difficult for men to disprove, regardless of innocence. See People v. Rincon-Pineda, 123 Cal. Reptr. 119, 126, 538 P.2d 247, 254 (S. Ct. 1975). Plaintiff respectfully suggests that this attitude is also implicit in the Corne, Barnes and Miller decisions cited by the trial court.* In People v. Rincon-Pineda, supra, the Supreme Court of California recognized and rejected
* Corne v. Bausch & Lomb, Inc., 390 F. Supp. 161 (D. Ariz. 1975), appeal pending, Barnes v. Train, Civil Action No. 1828-73 (D.D.C. 1974), Miller v. Bank of America, supra.
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this attitude and its consequences for the law of rape. Plaintiff would urge this Court to follow California's lead and recognize, root out and dispell such outdated attitudes wherever they are found in our law. Certainly such attitudes have no place in an action under Title VII, a statute designed to effectuate the equality of individuals in this country, without regard to race, color, sex or national origin.
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CONCLUSION
For all the foregoing reasons, plaintiff respectfully urges this Court to reverse the judgment of the District Court herein dismissing plaintiff's claim, and remand this claim for discovery and trial upon its merits.
Respectfully submitted,
/s/ Nadine Taub, Esq.Nadine Taub, Esq. Attorney for Plaintiff-Appellant
Attorney for Plaintiff-Appellant gratefully acknowledges the assistance of Sandy Abramson, Dara Klassel, Beverly Liftman and Sonia Wagner, all students in the Women's Rights Litigation Clinic of Rutgers Law School and Catherine A. MacKinnon, student at Yale Law School, in preparation of this brief.
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CAUSE
CIVIL RIGHTS; 42 USC §2000e-5; discrimination in employment-sex
ATTORNEYS
NADINE TAUB, ESQ. 175 University Ave. Jewark 07102 648 5637
90 Park Place, Newark 07101 (Public Service Elect. & Gas. (all defendants except H.D. Reppin) Lum, Biunno & Tompkins, Esqs 550 Broad St., Newark, 07102 (H.D. Reppin)
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DATE NR. PROCEEDINGS 9-30-75 Complaint, filed 9-29-75. 9-30-75 Plaintiff's affidavit for leave to proceed in forma pauperis, filed 9-29-75. 9-30-75 Plaintiff's application for appointment of counsel, filed 9-29-75. 9-30-75 Forma Pauperis Order, filed 9-29-75. (Lacey) Notice mailed. 9-30-75 Summons issued. 9-30-75 Notice of Allocation and Assignment filed. (Newark-Lacey) 9-7-75 Summons returned served on 10-2-75, filed 10-6-75 10-7-75 Order of re-assignment to Judge Stern, filed 10-6-75 (Whipple) Notice mailed. 10-15-75 Answer, filed 10-10-75 10-28-75 Order granting Plaintiff's application for appointment of counsel; appointing Nadine Taub, Esq. to serve as counsel; permitting Plaintiff to fil1e amended complaint, filed 10-22-75. (Stern) Notice mailed. 1-5-75 Amended Complaint, filed 10-30-75 1-5-75 Summons issued as to all defendants, on the amended complaint. 1-13-75 Substitution of attorney for the defendant, Public Service Electric and Gas Co., filed 11-12-75 1-14-75 Plaintiff's Request to Produce and permit the inspection and copyir of certain documents, filed 1-17-75 Notice of motion by the defendant, Public Service Electric and Gas Co., for a protective order in opposition to a Request to Produce certain documents, and affidavit of service; statement in lieu of brief, filed (ret. 12-8-75) 1-21-75 Summons on the amended complaint returned served on all the defenda on 11-18-75, filed 11-20-75 1-21-75 Answer of Public Service Electric and Gas Company to the amended complaint, filed 1-24-75 Answer to amended complaint by defendants, G.H. Barnstorf, John R. Bridgeman, J.J. Chamberlin, B.C. Reilly, Frederick W. Schneid and William A. Vanderclock, filed 2-4-75 Notice of motion by plaintiff to compel production of documents named in the Request to Produce and for an award of counsel fees, and certificate of service, filed 12-1-75 (ret. 12-8-75) (Brief submitted) 12-9-75 Hearing on motion by defendant, Public Service Electric and Gas Co for a pretective order in opposition to a Request to Produce certain Documents. Ordered motion denied. Order to be submitted. (Stern) (12-8-75) 12-9-75 Hearing on plaintiff's motion to compel production of documents named in Request to Produce. Ordered motion granted. (Stern) (12-8-75) 12-9-75 Hearing on plaintiff's motion for an award of counsel fees. Ordered motion denied. Order to be submitted. (Stern) (12-8-7 2-10-75 Notice of motion by defendant, Herbert D. Reppin to strike the amended complaint, and certificate of service, filed 12-8-75 (ret. 1-12-76) (Brief submitted)
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DATE NR. PROCEEDINGS 12-23-75 Order directing the defendants to supply plaintiff with certain documents, records and memoranda named in plaintiff's Request to Produce, etc., filed 12-22-75 (Stern) Notice mailed. 1-21-76 Notice of motion by defendants, Public Service, Electric and Gas Co G.H. Barnstorf, John R. Bridgeman, J.H. Chamberlin, B.C. Reill Frederick W. Schneider and William A. Vanderclock to strike the amended complaint, and certificate of service; brief attached thereto, filed 1-20-76 (ret. 2-9-76) 2-5-76 Plaintiff's Consent and Order to permit law student to present argument in opposition to Defendant Reppin's motion to dismiss, filed 2-3-76. (Stern) Notice mailed. 2-9-76 Deposition of Lorraine Wells taken on December 18, 1975, filed 2-4-76 2-13-76 At call for hearing on motion by defendant, Herbert D. Reppin to strike the amended complaint, counsel indicated motion moot. (Stern) (2-9-76) 2-13-76 Hearing on motion by defendants, Public Service Electric and Gas Co., G.H. Barnstoff, John R. Bridgeman, J.H. Chamberlin, B.C. Reilly, Frederick W. Schneider and William A. Vanderclock to strike the amended complaint. Ordered motion denied. Order to be submitted. (Stern) (2-9-76) 2-17-76 Answer of Herbert D. Reppin to the amended complaint, and Demand for Jury, filed 2-11-76 3-11-76 Order that motion to strike Plaintiff's claim against individual defendants under Civil Rights Act of 1964 is denied as moot; denying Defendant Reppin's motion to dismiss; permitting Defendant Reppin to file answer to Amended Complaint; directing Plainti to answer interrogatories of Defendant Reppin, etc., filed 3-8-76. (Stern) Notice mailed. 3-17-76 Deposition of Adrienne E. Tomkins taken on February 27, 1976, filed 3-16-76. 3-25-76 Notice of Motion by Plaintiff to extend time for discovery; Statement in Lieu of Brief, and Certificate of Service, filed 3-23-76. 3-25-76 Consent Order extending time for discovery with respect to all defendants except Herbert D. Reppin for ninety days from date of order, filed 3-24-76. (Stern) Notice mailed. 4-12-76 Substitution of Attorney for all defendants except Herbert D. Reppin, filed 4-9-76. 5-26-76 Stipulation of Dismissal of Action as to B. C. Reilly, etc., fil 6-15-76 Plaintiff's First Interrogatories directed to Public Service Electric and Gas Company, filed 6-11-76. 6-17-76 Plaintiff's First Interrogatories directed to Herbert Reppin, filed 6-16-76. 6-17-76 Plaintiff's First Interrogatories directed to William A. Vander clock, filed 6-16-76.
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DATE NR. PROCEEDINGS 6-17-76 Plaintiff's First Interrogatories directed to B. C. Reilly, filed 6-16-76. 6-17-76 Plaintiff's First Interrogatories directed to Frederick W. Schneider filed 6-16-76. 6-17-76 Plaintiff's First Interrogatories directed to G. H. Barnstorf, filed 6-16-76. 6-17-76 Plaintiff's First Interrogatories directed to J. H. Chamberlin, filed 6-16-76. 6-17-76 Plaintiff's First Interrogatories directed to John R. Bridgeman, filed 6-16-76. 7-2-76 Notice of Motion by Public Service Electric and Gas Company for Protective Order; Statement in Lieu of Brief, and Affidavit Service, filed 6-30-76. (Ret. 7-26-76) 7-6-76 Deposition of Adrienne E. Tomkins taken on May 27, 1976, filed. 7-29-76 Hearing on motion by Public Service Electric and Gas Co. for a Protective Order. Ordered motion granted in part and denied in part. Order to be submitted. (Stern) (7-26-76) 8-11-76 Order striking certain interrogatories served upon Public Servi directing Defendant to answer Interrogatories Nos. 34 and 35, etc., filed 8-10-76. (Stern) Notice mailed. 9-2-76 Affidavit of Service of copy of Order, filed. 9-22-76 Notice of Motion of Defendant Public Service Electric & Gas Co., for an Order dismissing the allegations of Plaintiff re sex discrimination by Public Service, returnable 10-12, 76. Brief and affidavit of service filed 9-21-76. 1-7-76 Notice of Motion by Herbert D. Reppin for dismissal of the complaint and Certificate of Service, filed 10-5-76. (Ret. 10-26-76) Brief submitted. 11-11-76 Hearing on motion of Herbert D. Reppin for a dismissal of complaint Ordered motion granted. Order to be submitted. (Stern) 11-8-76 11-11-76 Hearing on motion of Defendant Public Service for an Order dismi allegations of the plaintiff re sex discrimination. Ordere motion denied. Order to be submitted. (Stern) 11-8-76. participate as amicus curiae, granted. Order submitted. (Stern) filed 11-8-76. 11-11-76 Ordered motion of Equal Employment Opportunity Commission to 11-12-76 Motion of Equal Employment Opportunity Comm. to participate as an 11-12-76 Order granting motion or Equal Employment Opportunity Commission to participate as Amicus Curiá, filed 11-8-76. (Stern) Noti 11-30-76 Opinion filed 11-22-76. (Stern) (Motion of PSE&G to dismiss denied and motion of Herbert D. Reppin to dismiss granted) 12-2-76 Order Denying motion of Defendant Public Service Electric & Gas Co. to Dismiss complaint and granting motion of Defendant Herbert D. Reppin to dismiss, Without costs filed 11-24-76. (Stern) Notice Mailed.
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DATE NR. PROCEEDINGS 2-13-76 Amended Order granting motion of Defendant Public Service Electric & Gas to dismiss claim against PSE&G for actions of defendant Reppin and denying motion to dismiss claim against PSE&G; Dismissing claims against defendant Reppin; filed 12-6-76. (Stern) Notice Mailed. 12-21-76 Plaintiff's second set of interrogatories directed to defendant, Public Service and Gas Company filed 12-15-76. I hereby certify that the foregoing is a TRUE COPY of the original on file in my office.
Clerk
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UNITED STATES DISTRICT COURT
FILED
SEP 29 1975 1200 PM ANGELO W. LOCASCIO
ADRIENNE E. TOMKINS
672 BROADWAY
BAYONNE, NEW JERSEY 07002
NAME OR PLAINTIFF or PLAINTIFFSvs. CIVIL NO. 75-1673
PUBLIC SERVICE ELECTRIC & GAS CO.
80 PARK PLACE
NEWARK, NEW JERSEY 07101
NAME OF DEFENDANT or DEFENDANTSCOMPLAINT AND MOTION FOR OTHER RELIEF
1.   This action is brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, for employment discrimination. Jurisdiction is specifically conferred on this Court by 42 U.S.C. S 2000e-5. Equitable and other relief are also sought under 42 U.S.C. 2000e-5(g.).
2.   Plaintiff(s) resides at 672 BROADWAY
Street Address
BAYONNE, HUDSON, NEW JERSEY
city County State
339-0376.
Phone Number3.   Defendant(s) lives at, or its business is located at 80 PARK PLACE,
Street Address
NEWARK, ESSEX
City County
NEW JERSEY,
State4.   Please state the address at which you sought employment NEWARK,
City
ESSEX, NEW JERSEY
County State
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5. State as nearly as possible when the alleged discriminatory acts occurred: 30th, OCTOBER, 1973.
Day Month Year5a. If practice is continuing check the appropriate box: _____YES _____NO PRACTICE CONTINUED UNTIL DISMISSAL ON 1/27/7
6. State as nearly as possible when you filed charges with the alleged discriminatory conduct: 31st, OCTOBER, 1973. Day Month Year
7. State as nearly as possible when you filed charges with the Equal Employment Opportunity Commission regarding defendant's alleged discriminatory conduct: 19th, AUGUST, 1974.
Day Month Year8. The Equal Employment Opportunity Commission issued the attached Notice-of-Right-to-Sue letter which was received by you on 20th, AUGUST, Day Month 1975. Year (Note: Please attach Notice-of-Right-to-Sue letter to this Complaint.)
9. The acts complained by you, in this suit, concern:
_____Failure to employ you.
X Termination of your employment.
X Failure to promote you.
X Other acts (please specify) INITIAL INCIDENT ON 10/30/73 CONCERNED MY THEM CURRENT SUPERVISOR'S ULTIMATUM TO ENGAGE IN AN AFFAIR WITH HIM, OR LOSE MY JOB. HIS THEM CURRENT SUPERVISOR'S NEGLECT IN HANDLING THE SITUATION. COLLUSION BETWEEN THESE SUPERVISORS' AND OTHER COMPANY OFFICIALS TO COVER UP THE INCIDENT AND CAUSE MY TERMINATION, BY MEANS OF VARIOUS FORMS OF HARASSMENT. ALSO, DEFAMATION OF MY PERSONAL AND PROFESSIONAL CHARACTER WHILE STILL EMPLOYED, AND DURING INVESTIGATION, AS WELL AS, EMOTIONAL AND PHYSICAL DAMAGES DUE TO THEIR TACTICC TAKEN DURING THIS TIME.
10. Defendant's conduct is discriminatory with respect to which of the following: C. (SEX) FEMALE
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_____Your race
_____Your color
X Your sex
_____Your religion
_____Your national origin.
11. A copy of the charge to the Equal Employment Opportunity Commission is attached to this complaint and is submitted as a brief statement of the facts of your claim.
12. If relief is not granted, plaintiff will be irreparably denied rights secured by Title VII of the 1964 Civil Rights Act, as amended.
13. Plaintiff(s) has no adequate remedy at law to redress the wrongs described above.
THEREFORE,Plaintiff(s) prays (check appropriate letter(s)) as follows:
X That all fees, cost or security attendant to this litigation be hereby waived.
Y That the Court appoint legal counsel.
X That the Court grant such relief as may be appropriate, including injunctive orders, damages, cost and attorney's fees.
________________________
SIGNATURE OF PLAINTIFF________________________
SIGNATURE OF PLAINTIFF
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CHARLES A. LAMBY, JR., ESQ.
Attorney for Defendant
Public Service Electric and Gas Company
80 Park Place
Newark, New Jersey 07101UNITED STATES DISTRICT COURT
ADRIENNE E. TOMKINS,
Plaintiff
v.CIVIL NO. 75-1673 PUBLIC SERVICE ELECTRIC
AND GAS COMPANY,
Defendant.ANSWER The defendant, Public Service Electric and Gas Company, a New Jersey Corporation, having its principal office in the City of Newark, County of Essex and State of New Jersey, in answer to the plaintiff's complaint, says that:
1. It admits the allegations contained in paragraph 1.
2. It has no knowledge or information thereof sufficient to form a belief as to the allegations contained in paragraph 2.
3. It admits the allegations contained in paragraph 3.
4. It admits the allegations contained in paragraph 4.
5. It denies the allegations contained in paragraph 5.
6. It denies the allegations contained in paragraph 5a.
7. It denies the allegations contained in paragraph 6.
8. It admits the allegations contained in paragraph 7.
9. It has no knowledge or information thereof sufficient to form a belief as to the allegations contained in paragraph 8.
It denies the allegations contained in paragraph 9.
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10. It denies the allegations contained in paragraph 10.
11. It denies the allegations contained in paragraph 11.
12. It denies the allegations contained in paragraph 12.
13. It denies the allegations contained in paragraph 13.
SEPARATE DEFENSES TO COMPLAINT
FIRST SEPARATE DEFENSE
The complaint fails to state a cause of action under 42 USC §2000e-2 or 42 USC ¶2000e-5. Defendant reserves its right to move to strike or dismiss complaint at or before trial.
SECOND SEPARATE DEFENSE
The allegations of the complaint and addendum fail to state a cause of action for which relief can be granted under the statute alleged. Defendant reserves its right to move to strike or dismiss complaint at or before trial.
THIRD SEPARATE DEFENSE
Plaintiff failed to comply with Section 2000e-5c as to the alleged charges filed on August 19, 1974 in that said charges were not filed within 180 days of the action complained of.
FOURTH SEPARATE DEFENSE
Defendant did not receive notice of charges filed on August 19, 1974 and September 16, 1974 within the ten days of filing required by Section 2000e-5e.
FIFTH SEPARATE DEFENSE
Defendant was not accorded a hearing in respect to the charges filed August 19, 1974 and September 16, 1974 as required by Section 2000e-5b.
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