SAMPLE EXCERPT: Internal legal memorandum

2002 by Lynne Rhys-Jones. All rights reserved.

 

 

Memorandum

 

 

TO:       Fred Dixon, Supervising Attorney 

FROM:     Your name here!

DATE:     June 20, 2002

RE:       Client Matter 6634-3, Smith (Sexual Harassment)[1]

 

 

 

Issue

Is our client liable for sexual harassment, where he kept Playboy magazines in the waiting room and placed male nude photographs on his female employee’s desk

 

Conclusion

If the employee can prove her allegations, our client will probably be held liable for sexual harassment. His actions were severe and pervasive enough to meet all the requisite elements of a federal sex discrimination case.

 

Facts

            Our client, Rocco Smith, owns and operates a large dry-cleaning operation. The plant employs thirty-two men and one woman, Stella Bones. Bones, who is Smith’s secretary, has been working at the plant for four years. (R.1 at 3). She alleges that two years ago, Smith began receiving Playboy Magazine at the plant. (Id.). Bones, who opens the mail, says she is required to place the magazine in the waiting room when it arrives, so she can’t avoid seeing it. (R.2 at 5). Eventually, she says, someone removes each centerfold and tapes it to the wall in the back room  a workroom that Bones enters for a brief period each day. (Id.). Bones claims that two months ago, she sent an email to Smith asking him to cancel the subscription. (R.1 at 7).

     About three weeks ago, Bones says, she found a photograph of a nude man taped to her computer screen. (Id.). Since that day, a different nude picture has been on her desk each morning when she arrives. (Id.). A coworker told Bones that Smith himself is leaving the pictures. (Id. at 8). Bones says she complained to Smith, but he told her to quit being so sensitive. According to Bones, Smith also told her that he doesn’t want any woman working there who can’t deal with a man’s environment. (R.2 at 33).

     Bones does not allege any other specific instances of harassment. However, she does allege that there is a general air of sexual bantering and innuendo at the plant. There are numerous centerfolds hanging in the back room, and she has heard Smith make vulgar remarks about women.

We met with Smith to discuss the matter, and he conceded that with one exception, everything Bones said is true in the technical sense. He says that Bones has never complained about anything at the plant, and in fact, she seems to enjoy the atmosphere. In any event, Smith says, Bones is treated no differently from any of the men there. As for his statements about women, Smith says he was just kidding around.

Bones’s attorney has written a demand letter to Smith, in which she threatens to file a complaint for sexual harassment. Smith has asked us to assess his risk of liability.

 

Analysis

 

Is Smith liable for sexual harassment, where he kept Playboy Magazine in the waiting room and placed male nude drawings on his female employee’s desk

 

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C.A.  2000e-3(a). Sex discrimination includes sexual harassment. Johnson v. Booker T. Washington Broadcasting Service, 234 F.3d 501, 507-508 (11th Cir. 2000).

There are two types of sexual harassment claims: quid pro quo, which involves a tangible employment action, and hostile work environment, which generally involves less tangible behavior. Id. at 508. Jones alleges hostile-work-environment sexual harassment.

To recover for sexual harassment under this theory, Bones must establish four elements: (1) that she belongs to a protected group; (2) that she has been subject to unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature; (3) that the harassment was based on her sex; and (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment. Id. at 508 n.7. Furthermore, she must show that Smith knew (or should have known) about the harassment but failed to take adequate action. Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298 (5th Cir. 2001).

            Smith will have to concede, of course, that Bones is a member of a protected class. The other elements, however, require a bit more analysis.

Unwelcome sexual behavior. The behavior of which Bones complains is certainly sexual in nature. Thus, this element hinges on whether or not Smith’s behavior was unwelcome.

To determine whether or not behavior is unwelcome, we must ask whether Bones indicated, by her conduct, that it was unwelcome. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986). This is a factual question that depends largely on the credibility of the parties. Id.

Here, Smith hopes to argue that the behavior couldn’t have been unwelcome if Bones voluntarily looked at the pictures or the magazines. He also argues that Bones failed to complain about his conduct.

Bones can’t recover if she didn’t mind Smith’s actions. This is true even if most people would have found it objectionable. See Nichols v. Azteca Restaurant Enters., Inc., 256 F.3d 864, 873 (9th Cir. 2001).

However, the fact that Bones voluntarily looked at the materials does not, by itself, prove that she welcomed the behavior. In Meritor, the plaintiff voluntarily engaged in sexual relations with the offending person. Not surprisingly, the defense argued that voluntary participation precluded a finding of sexual harassment. The Supreme Court reversed, holding that conduct can be unwelcome even if the employee participates voluntarily. 477 U.S. at 68.

Thus, the fact that Bones looked at the pictures on her desk would not help Smith’s case. Indeed, one might wonder how she could avoid looking at them.

The issue of whether or not Bones complained is another matter. If Bones never complained to Smith, as he claims, she would be hard-pressed to convince a jury that his actions were unwelcome. However, if Bones can provide credible evidence that she complained, that complaint is probably enough to show that Smith’s behavior was unwelcome. See Nichols, 256 F.3d at 873-874 (in complaining . . . about the verbal abuse, [the plaintiff] demonstrated a subjective belief that he was being harassed). Thus, we cannot assess this element until we have more information about available evidence.

Harassment based on sex. In order to prevail, Bones must show that the harassment took place because of her sex. Nichols, 256 F.3d at 874. Smith would like to argue that because male employees were subject to the same atmosphere, Bones was not singled out for being female.

To show that harassment is based on sex, Bones must show that she would not have been the subject of the conduct if she weren’t female. Williams v. General Motors Corp., 187 F.3d 553 (6th Cir. 1999). Bones can do this by showing an anti-female animus. Id.

Here, Smith appears to have demonstrated anti-female animus. . . .

Severity of the harassment. . . .

 

. . . .

 

Conclusion

Smith is at substantial risk of liability if Bones can prove her allegations. I recommend that we ask Bones’s attorney for documentation of her allegations. If she has credible evidence, we should then advise Smith to consider a settlement.

 

As the case proceeds, we should also examine additional issues: Has Bones met all of the EEOC’s procedural requirements? Might Bones have a claim for retaliation as well, since the nude pictures began to appear after she complained about Playboy? In any event, we should counsel Smith immediately, if possible, on strategies to avoid future liability.

 

 

 

 

 

 


[1] The names and facts in this case are completely fictitious.