Jottings By An Employer's Lawyer

Sunday, July 30, 2006

Statutory Rape and Title VII -- But Much More from the 7th Circuit

In a case which will no doubt garner wider attention than some because of its salacious (although not explicit) fact pattern, Jane Doe v. Oberweis Dairy (7th Cir. 7/28/06) [pdf], Judge Posner, as he often does, covers a lot of ground. First, he holds that for Title VII purposes courts should look to the applicable state law on statutory rape to determine whether an underage minor could consent to sex; one aspect that led to the reversal of a district court's summary judgment for an ice cream store charged with sexual harassment because of a 25 year old employee's intercourse with a 16 year old employee.

A hat tip to Ross Runkel for his post, Statutory rape is never "welcome" sexual harassment."

That does not seem likely to be a common question, but Judge Posner's discussion about how close questions of supervisory status for purposes of determining the availability of the Faragher/Ellerth affirmative defense should be determined no doubt will impact more cases. While noting that if forced to choose whether the shift leader here was a supervisor or co-employee, he would likely be a supervisor -- since his recommendation on termination would have been given great deference -- Judge Posner declined to find the law limited to such a binary choice. Instead, he holds such "in-between" questions for the most part should be left to the jury.

The case also strongly affirms the right of defendants to obtain psychiatric records: "If a plaintiff by seeking damages for emotional distress places his or her psychological state in issue, the defendant is entitled to discover any records of that state."

Finally, the first part of decision takes pains to show why a "confessedly adventurous" decision of the 10th Circuit that a plaintiff's failure to cooperate with the EEOC in its investigation could be a bar to their claim is wrong. Although, there are other reasons, the practical view of the decision's impact is what seems to be the strongest argument to him:
The decisive objection to the Tenth Circuit’s position is that if widely adopted it would protract and complicate Title VII litigation, and with little or no offsetting benefit if we are right in thinking that the problem of complainants who by failing to cooperate with the Commission thwart the conciliation process and as a result thrust additional cases on the federal courts is a slight one. In Shikles the complaintant’s lack of cooperation could be established with unusual ease: he refused to be interviewed, failed to provide the EEOC with the documents that it requested, failed to explain why he could not provide them, and his lawyer failed to respond to several of the EEOC’s efforts to reach him. In the next case, however, the complainant might sit for the interview but refuse to answer questions. In the case after that he would answer questions but do so cryptically. And in a subsequent case he would answer questions fully but fail to bargain in good faith over the employer’s offer of a settlement.
For some reason, having a court articulate a clear understanding of what their words will do in the real world of litigation is somehow comforting. It may be because too often it seems courts really are not aware of the future course they are setting in motion when they lay down their pen.

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