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Posted On: January 9, 2009 by Peter M. LaSorsa

Sexual Harassment Issue Asked To Be Decided By Supreme Court

A sexual harassment issue may soon be decided by the United States Supreme Court in Dawn V. Martin v. Howard University, et al., and the decision, if the Court decides to hear the case, will have serious implications for sexual harassment cases in Illinois. The specific issue raised is whether someone can make a sexual harassment claim against the employer under federal-worker protections if the harasser is not an employee. In this particular case an attorney Dawn Martin was stalked by a homeless man while she was working as a law professor at Howard University School of Law in Washington, D.C.

Martin brought the sexual harassment issues to the attention of school officals and less than a month after she first reported the stalking her teaching contract was not renewed--which Martin claims was retaliation. Martin sued the university in federal court for failure to prevent sexual harassment, hostile work environment and wrongful termination. A federal jury concluded in April 2006 that Harrison's (the homeless man) actions created a "hostile work environment" and that the university failed to take adequate actions to end the workplace harassment. However the jury returned a verdict in favor of the university on the basis that the case did not qualify as sexual harassment, which would have prohibited the employer from retaliating against the employee for reporting the event.

The case appealed to the U.S. Court of Appeals for the District of Columbia which declined to question the jury's conclusion stating " the jury reasonably may have concluded that Harrison's stalking was attributable to his misidentification of Ms. Martin as his wife, not bad behavior based on Ms. Martin's gender." Ms. Martin will now ask to have her case heard by the United States Supreme Court.

Ms. Martin cited Supreme Court and additional case law arguing that the test of whether the harassment is based on sex is whether the harasser would have similarly harassed the plaintiff had she been a man. These "sex plus" other factors cases hold that if sex/gender is one of the factors used to target the victim, then the conduct constitutes gender discrimination.

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