Simulation: Sexual harassment lawsuit

This simulation involves a hearing at the trial court level on a motion
for summary judgment in a case involving the employer’s liability for
alleged sexual harassment.


Before a case goes to trial, the parties use various motions to refine
and define the issues. One such motion is the Motion for Summary
Judgment. In this case, the employer’s Motion for Summary judgment
claims that the employee has failed to state sufficient facts for a
jury to be able to decide that a) the conduct complained of constitutes
sexual harassment and b) the employee who allegedly is guilty of
harassment is a “supervisor”, and c) that the company maintained a
“hostile workplace.”


Motions for Summary Judgment are submitted in writing and are supported
by written arguments, called Briefs. Judges will look at the motions,
the briefs, and any other sworn statements that parties have made, such
as oral depositions or sworn answers to discovery (see page 171 in your
text) and will also hear oral argument from the parties’ attorneys on
the issues raised in the motion.

The Facts

The moving party, in this case Big Car Company, is attempting to
convince the judge that its employee, Clarence, did not sexually harass
Maybelle Darcy, and that Clarence is not a supervisor. To win its point,
Big Car must convince the judge the facts stated by Ms Darcy are not
sufficient at law to constitute sexual harassment, are not sufficient at
law to show that there was a “hostile work environment” and are not
sufficient at law to show that Clarence is a supervisor.

Ms Darcy, in order to get her case to a jury, must convince the judge of the opposite.

Supervisors and middle managers are routinely named as defendants in
sexual harassment cases. The awards can be quite large. The cases
themselves can take many years to resolve. The case upon which this
simulation is based was in litigation for three full years.

Before Watching

Before you watch the simulation, review the material that follows. Watch the simulation, then complete the assignment below.
In Faragher v. City of Boca Raton, 524 U.S. 775 and Harris v.
Forklift Systems, 510 U.S. 17, the Supreme Court set out tests for
“hostile workplace.” The full opinions can be found in Doc Sharing We directed courts to determine whether an
environment is sufficiently hostile or abusive by “looking at all the
circumstances,” including the “frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.”. Most recently, we explained that Title
VII does not prohibit “genuine but innocuous differences in the ways men
and women routinely interact with members of the same sex and of the
opposite sex.”…”simple teasing,” offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory
changes in the “terms and conditions of employment.”(It is not) “the ordinary tribulations of the
workplace, such as the sporadic use of abusive language, gender-related
jokes, and occasional teasing.” Faragher”…in assessing a hostile environment claim,
the totality of the circumstances must be examined, including “the
frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work
performance.” Harris v. ForkliftConduct must be objectively offensive to a
“reasonable person” and seen as subjectively offensive by the person
claiming sexual harassment.EEOC Enforcement Guidance Bulletin on Vicarious Employer Liability
for Unlawful Harassment by Supervisors (the full text can be found in
Doc Sharing) states the Supreme Court has made clear that employers are
subject to vicarious liability for unlawful harassment by supervisors.
The bulletin gives the following information on who is a “supervisor”.
(The entire bulletin can be found in Doc Sharing)

An individual qualifies as an employee’s “supervisor” if:the individual has authority to undertake or recommend tangible employment decisions affecting the employee; orthe individual has authority to direct the employee’s daily work activities.

Authority to Undertake or Recommend Tangible Employment Actions

“Tangible employment decisions” are decisions that significantly change
another employee’s employment status. Such actions include, but are not
limited to, hiring, firing, promoting, demoting, and reassigning the
employee. An individual whose job responsibilities include the authority
to recommend tangible job decisions affecting an employee qualifies as
his or her supervisor even if the individual does not have the final
say. As long as the individual’s recommendation is given substantial
weight by the final decision maker(s), that individual meets the
definition of supervisor.

Authority to Direct Employee’s Daily Work Activities

An individual who is authorized to direct another employee’s day-to-day
work activities qualifies as his or her supervisor even if that
individual does not have the authority to undertake or recommend
tangible job decisions.

On the other hand, someone who merely relays other officials’
instructions regarding work assignments and reports back to those
officials does not have true supervisory authority. Furthermore, someone
who directs only a limited number of tasks or assignments would not
qualify as a “supervisor.”


After listening to the simulation and considering the points
discussed in the introduction, write a 300-500 word paper in which you

1. State whether you agree with the Judge’s decision; give reasoning for your answer
2. State how, if you were a juror on this case, you would decide; i.e., would you find that
Clarence was a supervisor Clarence’s conduct constituted sexual harassment and there was a hostile workplace environment.

Give reasons for your decision.

~~~For this or similar assignment papers~~~