CASE NO IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. SANDRA CLARK and RHONDA KNOOP,

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1 CASE NO IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SANDRA CLARK and RHONDA KNOOP, v. Plaintiffs-Appellants, UNITED PARCEL SERVICE, INC. and ELI BROCK, Defendants-Appellees. On Appeal from the United States District Court for the Western District of Kentucky Louisville Division John G. Heyburn II, Chief Judge Case No. 3:01CV H BRIEF AMICUS CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL IN SUPPORT OF DEFENDANT APPELLEE S COMBINED PETITION FOR PANEL REHEARING AND FOR REHEARING EN BANC March 22, 2005 Ann Elizabeth Reesman McGuiness Norris & Williams, LLP Suite Fifteenth Street, N.W. Washington, D.C (202)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES...ii INTEREST OF THE AMICUS CURIAE...1 STATEMENT OF THE CASE...3 REASON FOR GRANTING THE PETITION...5 THE DECISION BELOW CONFLICTS WITH THE SUPREME COURT S DECISIONS IN BURLINGTON INDUSTRIES V. ELLERTH AND FARAGHER V. CITY OF BOCA RATON BY DISCOURAGING EMPLOYERS FROM ADOPTING BROAD POLICIES REQUIRING EMPLOYEES TO REPORT OBJECTIONABLE BEHAVIOR...5 CONCLUSION...8 CERTIFICATE OF SERVICE

3 TABLE OF AUTHORITIES FEDERAL CASES Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)... 2, 5, 6 Faragher v. City of Boca Raton, 524 U.S. 775 (1998)... 2, 4, 5, 6 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)...7 FEDERAL STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq... 1, 5, 7 STATE STATUTES Kentucky Civil Rights Act ii -

4 The Equal Employment Advisory Council (EEAC) respectfully submits this brief as amicus curiae in support of Defendant-Appellee United Parcel Service, Inc. s Combined Petition for Panel Rehearing and Rehearing En Banc contingent on the granting of the accompanying motion for leave. The brief urges this Court to grant the petition, vacate the panel decision, and affirm the decision below. INTEREST OF THE AMICUS CURIAE The Equal Employment Advisory Council ( EEAC ) is a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of employment discrimination. Its membership includes over 320 major U.S. corporations. EEAC s directors and officers include many of industry s leading experts in the field of equal employment opportunity. Their combined experience gives EEAC a unique depth of understanding of the practical, as well as legal, considerations relevant to the proper interpretation and application of equal employment policies and requirements. EEAC s members are firmly committed to the principles of nondiscrimination and equal employment opportunity. All of EEAC s members are employers subject to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e et seq., as well as other equal employment laws and regulations. As employers, EEAC s members

5 have a strong interest in maintaining workplaces that are free from sexual harassment. In particular, many EEAC member companies have adopted proactive policies much like the United Parcel Service policy at issue in this case, requiring employees to report incidents of objectionable behavior up the management chain. These policies set the threshold for potentially reportable conduct well below the level of actionable sexual harassment under Title VII, in an effort to root out and eliminate potential harassment well before it reaches that level. Thus, the issue presented in this case is extremely important to the nationwide employer constituency that EEAC represents. The panel ruled that the fact that two lower-level UPS supervisors witnessed incidents of inappropriate behavior and did not report them to upper level management was sufficient to create a jury question as to whether or not UPS had exercised reasonable care sufficient to satisfy prong one of the affirmative defense created by the U.S. Supreme Court in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The panel s ruling thus creates a significant legal Catch-22 for any employer that is attempting to combat workplace sexual harassment by articulating a broad policy requiring employees to report potentially unlawful conduct. Under the panel s decision, any time any - 2 -

6 supervisor fails to report any incident of inappropriate behavior, even one so minimal that the supervisor understandably did not perceive it as objectionable, the incident could be deemed sufficient to potentially charge the employer with notice and preclude the affirmative defense. Given this obvious trap, employers would be better served from a liability perspective by not encouraging employees to report harassing conduct they witness. EEAC seeks to assist the Court by highlighting the impact its decision in this case will have on the business community and the significance of this case to employers. STATEMENT OF THE CASE United Parcel Service, Inc. (UPS) has a policy prohibiting sexual harassment, and describing sexual harassment as including repeated sexual innuendoes, and off color jokes as well as gestures and other visual or nonverbal conduct. Clark v. UPS, F.3d, 2005 WL , at *4 (6th Cir. Mar. 9, 2005). The policy requires any employee who has witnessed or experienced such conduct to report it to management. Id. UPS employee Sandra Clark, 1 an administrative assistant in the UPS Air Cargo Resolution Group, alleges a number of instances of inappropriate behavior by the 1 The panel rejected the claim of co-plaintiff Rhonda Knoop, and that ruling is not at issue in the petition

7 department manager, Eli Brock. Id. When she finally reported Brock s conduct to UPS management, UPS conducted an immediate investigation, as a result of which Brock was allowed to resign in lieu of discharge. Id. at *5. When Clark sued UPS for sexual harassment, the district court granted UPS s motion for summary judgment. Id. A panel of this court reversed, however, holding that because UPS s policy required employees to report inappropriate behavior, and two lower-level supervisors each witnessed one of the ten alleged incidents that made up Clark s complaint, there existed a jury question as to whether UPS was on notice of Brock s behavior, and thus as to whether UPS could show that it exercised reasonable care as required by the first prong of the affirmative defense adopted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, (1998). UPS has petitioned for rehearing

8 REASON FOR GRANTING THE PETITION THE DECISION BELOW CONFLICTS WITH THE SUPREME COURT S DECISIONS IN BURLINGTON INDUSTRIES V. ELLERTH AND FARAGHER V. CITY OF BOCA RATON BY DISCOURAGING EMPLOYERS FROM ADOPTING BROAD POLICIES REQUIRING EMPLOYEES TO REPORT OBJECTIONABLE BEHAVIOR In Faragher v. City of Boca Raton, 524 U.S. 775, (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), 2 the Supreme Court ruled that while an employer may be vicariously liable for sexual harassment by a supervisor even if no tangible employment action is taken, the employer can raise an affirmative defense by showing (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher, 524 U.S. at 807; Burlington Industries, 524 U.S. at 765. The Court explained that Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms. Were employer liability to depend in 2 Although Clark brought her claim under Kentucky law, the panel observed that sexual harassment claims under the Kentucky Civil Rights Act (KCRA) are analyzed in the same manner as those brought under Title VII of the Civil Rights Act of 1964, thus the applicability of the Supreme Court s decisions interpreting that law

9 part on an employer s effort to create such procedures, it would effect Congress intention to promote conciliation rather than litigation in the Title VII context. Id. at 764. Moreover, the Court said, [t]o the extent limiting employer liability could encourage employees to report harassing conduct before it becomes severe or pervasive, it would also serve Title VII s deterrent purpose. Id. By precluding summary judgment for an employer who encourages employees to report even minor incidents of inappropriate behavior, the decision below creates a substantial disincentive for employers to institute broad policies designed to root out and eradicate sexual harassment. Had UPS not had a broad, proactive policy requiring employees to report virtually any instance of objectionable conduct, the panel could not have found that the company might have been on notice of Brock s behavior, and given the company s prompt, effective action when Clark finally did complain, should have affirmed the grant of summary judgment below. Accordingly, UPS s efforts to encourage employees to come forward and report potential harassment worked to the company s detriment. Many employers have adopted policies similar to the one at issue in this case. The decision below effectively denies an employer the Burlington Industries/Faragher affirmative defense merely because it has such a policy, - 6 -

10 since lower-level supervisors are highly unlikely to report relatively minor incidents of workplace horseplay. The panel decision thus has two serious consequences. First, it severely discourages employers from adopting broad policies designed to cast a wide net in an effort to identify and address issues of potential workplace harassment. If having such a policy defeats the affirmative defense, then employers are far more likely to adopt more restrictive policies that target only the most obvious incidents of actionable harassment. Second, by effectively requiring employers with broad policies to require supervisors to report every incident of horseplay that might be thought of as objectionable, the panel decision turns Title VII of the Civil Rights Act of 1964 into the general civility code that the Supreme Court cautioned against in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). The panel decision effectively requires any employer with a broad policy to require employee-witnesses to report every incident of horseplay that could be viewed by someone as objectionable. Rather than attempt to manage the inevitable barrage of reports, many employers will choose instead to limit the reach of their policies, to the detriment of actual victims of harassment

11 CONCLUSION For the foregoing reasons, the Combined Petition for Rehearing and Rehearing En Banc should be granted, the panel decision vacated, and the decision below affirmed. Respectfully submitted, March 22, 2005 Ann Elizabeth Reesman McGuiness Norris & Williams, LLP Suite Fifteenth Street, N.W. Washington, D.C (202)

12 CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of March 2005, two (2) true and correct copies of the foregoing Brief Amicus Curiae of the Equal Employment Advisory Council in Support of Defendant Appellee s Combined Petition for Panel Rehearing and for Rehearing En Banc were served via Federal Express Priority Overnight, addressed as follows: Thomas E. Clay Garry R. Adams CLAY, KENEALY, WAGNER & ADAMS, PLLC 462 South Fourth Street Meidinger Tower, Suite 1730 Louisville, KY (502) Winston E. Miller Susan C. Lonowski FROST BROWN TODD LLC 400 West Market Street, 32nd Floor Louisville, KY (502) Marvin R. O Koon Kevin Adams GRAY & WEISS 500 West Jefferson Street Suite 1200 Louisville, KY (502)

13 I further certify that an original and 25 copies of the foregoing brief were filed on this day via Federal Express Priority Overnight, addressed to Leonard Green; Clerk of the Court; United States Court of Appeals for the Sixth Circuit; Potter Stewart United States Courthouse; 100 East Fifth Street, Room 532; Cincinnati, OH 45202; (513) Ann Elizabeth Reesman

No. 05- IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. CAROLYN BURLISON; JAMES EADY; JERRY FLOYD; ROBERT GUNTER; and STEPHEN REINSCH,

No. 05- IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CAROLYN BURLISON; JAMES EADY; JERRY FLOYD; ROBERT GUNTER; and STEPHEN REINSCH, v. Plaintiffs, McDONALD S CORPORATION, Defendant. On