Compile more?

Licenses – temporary invitations, permissible entries to land, revocable by owner (with exceptions)
Easements – rights to do specific kinds of acts on land owned by someone else, intended to be permanent (or for some period), not revocable by owner at will
Affirmative easement – right to do something on someone else’s land
Negative easement – agreeing to not do something on your own land
Affirmative covenant – a duty to do something on your land for benefit of others
Servitudes – various non-possessory interests one can have in land belonging to someone else, run with the land (servitude is appurtenant to ownership of dominant estate whose owner benefits from the use of the servitude on the servient estate (land burdened by the servitude))
Issues
Temporary or permanent – licenses or easements
Creation – formal or informal, express or implied
Scope of the permitted use
Relocation
Transferability
Running with the land
Termination
Interpretation and regulation
Implied easements – are created by law when the express agreement is either silent or ambiguous on the question of whether the granted intended to create easement, easement by estoppel and constructive trust, implied from prior use, necessity
Easement by estoppel – owner gives permission to someone else to use her land in some way and the licensee invest substantially in reasonable reliance on that permission and revocation of the license work be unjust (only if reliance is reasonable and the permission had the impression that it would not be revoked)

Question Presented: Can an employee successfully assert a claim for hostile or abusive work environment based on gender discrimination under Title VII when (1) her department chairperson never said or did anything offensive or blatantly sexual to the employee in the workplace except on two occasions during off-hours gatherings when the chairperson had been drinking, (2) the employee felt “uncomfortable” in the presence of the chairperson in and out of the workplace, (3) felt that her relationship with the chairperson was “unworkable” and requested to be taken off a case they had been working on together, (4)

Brief Answer: Probably not.

Facts:

Discussion:

Jennifer Green, a former employee of Adam & Fosters, likely will not succeed in asserting a hostile or abusive work environment claim based on gender discrimination against her former employer under Title VII of the Civil Rights Act of 1964. Green likely will not be able to establish that the discriminatory conduct she suffered was sufficiently severe or pervasive to create an objectively hostile or abusive work environment.

Hostile or Abusive Work Environment Claims Based on Gender Discrimination under Title VII of the Civil Rights Act of 1964

Under Title VII of the Civil Rights Act of 1964, it is unlawful for “an employer…to discriminate 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.” See Harris. The Supreme Court has interpreted Title VII broadly to make an employer’s “requiring [its employees] to work in a discriminatorily hostile or abusive environment” an actionable offense under the statute. Id. The court reasoned that Congress intended to “strike at the entire spectrum of disparate treatment of men and women in employment” such that Title VII’s scope as a “broad rule of workplace equality” should not be “limited to economic or tangible discrimination.” Id. Harris. Both the 2nd Circuit and the Eastern District of New York have also adopted the Supreme Court’s broad interpretation of Title VII. See Kaytor. See Morris.

Under the Court’s broad interpretation of Title VII, an employer may be held liable if an employee suffers discriminatory “intimidation, ridicule, and insult” that is sufficiently severe or pervasive to alter her work conditions and to create a “hostile or abusive work environment.” Harris. To constitute a violation of Title VII, an employee must show that (1) she suffered discriminatory conduct based on her gender, (2) the conduct created an environment that she, as the victim of abuse, subjectively perceived as hostile or abusive, and (3) the conduct created an environment that a reasonable person would find objectively hostile or abusive. Harris. If the conduct does not objectively create a hostile or abusive environment, or if the employee does not subjectively perceive the environment to be hostile or abusive, “there is no Title VII violation.” Harris.

To determine whether a work environment is hostile or abusive, the court will likely look at the “the totality of the circumstances,” taking into consideration relevant factors such as: (1) the frequency and (2) severity of the discriminatory conduct, (3) whether the conduct was physically threatening or humiliating, or a mere offensive utterance, and (4) whether it unreasonably interfered with the employee’s work performance. The court may consider “the nature of the workplace environment as whole” but “no single factor” is required in their analysis. Harris, Morris. Mere utterance which offends an employee’s feelings, however, will generally “not sufficiently affect the conditions of employment” to constitute a violation of Title VII. Harris. Likewise, isolated incidents will also generally not constitute a violation of Title VII “unless they are extraordinarily severe.” Kaytor.

Employer’s discriminatory conduct was based on the employee’s gender

The employee likely will establish that she was discriminated against because of her gender even though her supervisory employee’s conduct was not sexual in nature. An employer’s discriminatory conduct “need not be motivated by sexual desire…so long as it was motivated by gender.” Kaytor. In Kaytor, the plaintiff’s male manager “never touched [the plaintiff] in a violent or sexual way, never asked her for sex, never asked her out on a date,” but often commented on the plaintiff’s clothes and physique, and often leered at her body. Id. The court held that a jury should be entitled to consider whether the manager’s conduct, though “not sexual in nature,” was motivated by the plaintiff’s gender. Id.

In the present case, Grey’s “attention” to Green may qualify as discrimination on the basis of her gender. Just like the manager in Kaytor, Grey never asked Green to have sex with him, never suggested that her job depended on having sex with him, and never asked her out on a date. He did, however, make comments about Green’s clothes and would sometimes stare at her in the workplace. Though perhaps not “sexual in nature,” the court may conclude that Grey’s “attention” to Green was motivated by her gender.

Employee subjectively perceived the work environment to be hostile or abusive

Doesn’t need tangible psychological injury
No single factor is required, consider all circumstances
Past courts have used the employee’s own testimony, account of circumstances, and actions to determine whether the employee subjectively viewed her work environment

The employee will likely meet the subjective standard of Harris’ holding. To satisfy the subjective standard, an employee does not need to show that she suffered “tangible psychological injury” as a result of her employer’s conduct, only that she subjectively perceived her work environment to be hostile or abusive. Harris. Additionally, courts will consider “all the circumstances” in determining if an employee subjectively perceived her environment to be hostile or abusive. Previous courts have used an employee’s psychological well-being, her testimony or account of the facts,

In Harris, the plaintiff employee worked as a manager for the defendant employer, an equipment rental company whose president, Charles Hardy, often insulted her with unwanted sexual innuendos in front of other employees and customers. Id. The plaintiff complained directly to Hardy about his conduct but he continued to sexually harass the plaintiff at work. Id. As a result, the plaintiff quit her job and filed a discriminatorily abusive work environment claim against the company under Title VII. Id.

The Court of Appeals, ruling in favor of the defendant, held that Hardy’s conduct did not “seriously affect [the plaintiff’s] psychological well-being.” Id. The Supreme Court, however, reversed the appellate court’s judgment and held that Title VII does not require the plaintiff’s work environment to be “psychologically injurious” so long as she perceives the environment to be hostile or abusive. Id. The Court explained that any discriminatorily hostile or abusive work environment, “even one that does not seriously affect employees’ psychological well-being,” offends Title VII’s “broad rule of workplace equality.” Id.

Harris. While no single factor is required, previous courts have considered factors such as (1) an employee’s psychological well-being, (2) an employee’s own testimony or self-reports, and (3) whether or not an employee complained about her work environment to gauge an employee’s subjective perception of her work environment. See also Kaytor (holding that the plaintiff “plainly” viewed her work environment as hostile or abusive because she complained repeatedly not only to her coworkers and her union but also to her manager and employer despite being “nervous” and “severely frightened”).

In the present case, the court will likely consider “all the circumstances” in determining if Green subjectively perceived her work environment to be hostile or abusive. See Harris (holding that no single factor is required in determining “whether the plaintiff actually found the environment abusive”). Unlike the plaintiff in Harris who confronted her harasser directly and unlike the plaintiff in

Objectively

In present case, Grey’s “attention” to Green stopped after she complained to Tam and asked to be taken off the case. Although he wrote a scathing review,

Moreover, unlike the manager in Kaytor, Grey never made comments about Green’s physique or leered at her body.

in determining if the manager discriminated against the plaintiff on the basis of gender. Id. In sexual harassment claims, the court reasoned, discriminatory conduct should not be viewed in “piecemeal fashion” as the harasser’s “state of mind and intent…may often be inferred from the totality of the relevant facts.” Id.

In sexual harassment claims, the court reasoned, discriminatory conduct should not be viewed in “piecemeal fashion” as the harasser’s “state of mind and intent…may often be inferred from the totality of the relevant facts.” Id. See also Morris (the defendant employer made comments about “women’s role in the workplace” and asked a male employee to purchase “clothes and high-heeled shoes” for the plaintiff).

After the plaintiff rejected her manager’s “advances,” he began insulting the plaintiff’s body and genitalia in front of other employees and threatened the plaintiff with physical violence and harm. Id.

The Court of Appeals vacated the district court’s grant of summary judgment for the defendant employer, holding that the district court incorrectly disregarded the manager’s conduct that was “not sexual in nature.”

Even though the manager’s conduct was not “sexual in nature” the Kaytor court held that such c

The court will likely look at “the totality of the relevant facts” in determining whether the conduct was gender-based as sexual harassment claims require “an assessment of individuals’ motivations and state of mind”. Id.

The male supervisory employee’s conduct – commenting on Green’s clothes, occasionally staring at her, sharing and asking for personal information at lunch –

See also Harris (the defendant employer sexually harassed not only the plaintiff but other female employees as well). See also Morris (the defendant employer made comments about “women’s role in the workplace” and asked a male employee to purchase “clothes and high-heeled shoes” for the plaintiff).

It is unclear whether Grey paid other female employees similar attention,

Versus Harris where Hardy targeted not only the plaintiff but other female employees
Versus Morris where the employer made comments about “women’s role in the workplace” and made another employee purchase “clothes and high-heeled shoes” for the plaintiff

Employee subjectively perceived her work environment to be hostile or abusive

The employee will likely meet the subjective standard of Harris’ holding given that her male supervisor’s attention, comments, and behavior made her feel “uncomfortable” on multiple occasions and she eventually requested to be taken off the case they had been working on together. To meet the subjective standard, the employee must establish that she personally perceived the work environment to be hostile or abusive. Harris. See Kaytor.

In Kaytor, for example, the plaintiff employee alleged that the defendant employer maintained a hostile work environment by discriminating against her on the basis of her gender. Id. The plaintiff’s manager made

While the employee does not need to prove that she suffered “tangible psychological injury” as a result her employer’s discriminatory conduct, the employee must prove that she personally perceived the work environment to be hostile or abusive.
“It is axiomatic that to prevail on a hostile work environment based on gender discrimination, the plaintiff must establish that the abuse was based on her gender.”

The discriminatory conduct was based on the employee’s gender

The employee will likely establish that the supervisor’s discriminatory conduct was based on her gender. “It is axiomatic that to prevail on a hostile work environment based on gender discrimination, the plaintiff must establish that the abuse was based on her gender.” See Kaytor. To constitute gender-based discriminatory conduct, the conduct “need not be motivated by sexual desire…so long as it was motivated by gender.” Id. Moreover, “facially neutral incidents” may also be considered among the “totality of relevant facts” if there is “circumstantial or other basis” for inferring that the incidents were based on the employee’s gender. See Kaytor.

The employee subjectively perceived the work environment to be hostile or abusive

The employee will likely establish that she subjectively viewed her work environment as hostile or abusive given that Grey’s attention, comments, and behavior made her feel “uncomfortable” on multiple occasions and she eventually requested to be taken off the case she and Grey had been working on together. In order for an employer’s discriminatory conduct to alter an employee’s working conditions, the employee must personally consider her work environment to be hostile or abusive. Harris.

She received unwanted comments and attention from her supervisor which made her “uncomfortable” and Grey’s conduct and behavior eventually made their workplace relationship “unworkable.”

and made their workplace relationship “unworkable.” After Green asked to be taken off the case Green also asked to be transferred off his case, and after being transferred she stopped receiving good assignments and received her first negative review.

Unless the employee subjectively perceives the environment to be hostile or abusive, the discriminatory conduct

The work environment was not objectively hostile or abusive

The discriminatory conduct was not severe or pervasive

Whereas in Kaytor, McCarthy began making sexually inappropriate comments and engaging in sexually aggressive behavior

An employer may be liable for requiring an employee to work in an objectively hostile or abusive environment even if the employer takes no “tangible employments actions…by formally altering a worker’s employment status.” Morris. So long as the discriminatory conduct subjectively and objective

Going along with Congress’s intent to “strike at the entire spectrum of disparate treatment of men and women in employment,” the court adopted a broad interpretation of the statute to include “requiring people to work in a discriminatorily hostile or abuse environment.” Harris. The phrase “terms, conditions, or privileges of employment” is not limited to “‘economic’ or ‘tangible’ discrimination.” Harris.

may be able to establish that she suffered discriminatory conduct because of her gender and that she subjectively perceived such conduct as creating a hostile or abusive work environment, she likely will not be able to establish that sufficiently severe or pervasive to create an objectively hostile or abusive work environment.

Under Title VII of the Civil Rights Act of 1964, will an employee’s hostile or abusive work environment claim based on gender discrimination succeed against her former employer succeed under Title 7 of the Civil Rights Act of 1964 if her department chairperson commented about her clothing and stared at her, possibly propositioned her once and touched her once during off-hours gatherings, repeatedly asked her out to lunch and made one arguably sexual remark to her during that lunch, wrote the employee’s first negative work evaluation after she requested to no longer work with him, but never said or did anything overtly or blatantly offensive or sexual to her in the workplace and she never reported or complained at his conduct to coworkers or superiors?

1) Parties – State – Welch (government, criminal)
2) Place
a) Jurisdiction – Federal, 2nd Circuit, District courts of the 2nd Circuit
b) Location – Welch’s apartment in Morningside Heights
3) Facts
a) June 18, 2014 – three individuals robbed the New York Federal Reserve Bank in Lower Manhattan, armed with assault rifles, taking dozens of gold bars
b) September, 2014 (3 months later) – FBI informant gave information that Bob Welch participated in the bank heist and still had the gold bars stashed in his apartment because the robbers could not sell them
c) Warrant was issued limiting scope of search to the gold and weapons used in robbery
d) September 17, 2014 – Three FBI agents searched Welch’s apartment when no one was present
i) Living room – Perfect fond a film canister with “33” on the label, canister looks just like a regular film canister for high-end cameras
(1) Perfect has 10 years of experience and knows that blueprints for robberies are contained on microfiche, which are stored in film canisters to protect from light, the NY Fed Reserve is located at 33 Liberty Street
(2) Another agent later opened the canister, pursuant to valid warrant, and found blueprints inside
ii) Kitchen – Fleetwood saw a piece of paper under a bucket with its content mostly obscured by the bucket, curious, he pulled the paper from beneath the bucket and found that it was a list of gold prices and signed by “Robert Lawrence Welch”
iii) Bathroom – Nicks noticed a medicine bottle on the shelf in the sink, tinted with pills inside. Bottle opened later, another agent found illegal amphetamines.
4) Claims
a) Welch – the items from his apartment were seized illegally, constitutional rights
b) State – there was a valid search warrant and the items seized fall under that search warrant
5) Relief
6) Question Presented
a) Is the evidence seized from a suspect’s apartment pursuant to a warrant limiting scope of the search to gold stolen from and weapons used in the robbery of the New York Federal Reserve seized legally if the agent knew from experience that robbers tend to store microfiche in film canister and the label on the canister corresponded to the address number of the Federal Reserve and turned out to contain blueprints, the agent was “curious” as to why a piece of paper was “hidden” beneath a bucket in the kitchen which contained list of gold prices and the suspect’s name, the agent saw a tinted, unlabeled medicine bottle on the shelf and seized it which later turned out to contain illegal amphetamines?
7) Search terms
a) Evidence, search and seizure, illegal, search warrant, scope of search warrant, search of home or resident or dwelling
b) Seizures, evidence
c) Bank robbery, heist, robbery, armed robbery
d) Gold, stolen property
8) Criminal law treatise, constitutional law treatise
The employee will likely meet the subjective standard of Harris’ holding. To satisfy the subjective standard, an employee does not need to show that she suffered “tangible psychological injury” as a result of her employer’s conduct, only that she subjectively perceived her work environment to be hostile or abusive. Harris. The court will likely consider “all the circumstances” in determining if an employee perceived her work environment to be hostile or abusive. Harris. While no single factor is required, previous courts have taken into consideration factors such as (1) an employee’s psychological well-being, (2) an employee’s own testimony or self-reports, and (3) whether or not an employee complained about her work environment in assessing an employee’s subjective perception of her work environment. See Harris (holding that no single factor is required in determining “whether the plaintiff actually found the environment abusive.”) See also Kaytor (holding that the plaintiff “plainly” viewed her work environment as hostile or abusive because she complained repeatedly not only to her coworkers and her union but also to her manager and employer despite being “nervous” and “severely frightened”). There is, however, no “mathematically precise test.” Harris.

The present case is similar to Harris. Although Green

In the present case, not only did Grey’s conduct make Green feel “uncomfortable,” but she eventually regarded her relationship with him to be “unworkable” and asked to stop working with him.

Moreover, courts h

She was initially flattered but then his attention became uncomfortable, especially after they went to lunch. Like in Kaytor, the plaintiff initially tried to ignore her manager’s conduct.
After the Christmas party incident, she felt that their relationship was no longer “workable” and asked to stop working with him. But, just as in Kaytor, the work environment became unbearable and she asked to be transferred.
She thought she received “good” assignments and did receive good reviews until she asked to be taken off the case, at which point she stopped receiving good reviews and good assignments.
Grey can argue that the good assignments thing is not an issue and they let her go not because of her gender or anything

given that her male supervisory employee’s conduct made her feel “uncomfortable,” she asked to stop working with him, and after being transferred away from her supervisor she no longer received “good” assignments

See also Kaytor (holding that the plaintiff “plainly” viewed her work environment as hostile or abusive because she complained repeatedly not only to her coworkers and her union but also to her manager and employer despite being “nervous” and “severely frightened”). See also Morris (

repeated complaints to her coworkers, her union, her company, and eventually her manager himself evidenced that the plaintiff “plainly” subjectively viewed her work environment as abusive and hostile).

The present case is similar to Harris. Just as the plaintiff in Harris took steps against Hardy’s discriminatory conduct, first by confronting him directly then by quitting her job altogether, Green also tried to avoid Grey’s unwanted “attention.” She repeated

Just as the plaintiff in Harris did not suffer serious psychological injury, Green, presumably, did not have an emotional breakdown as a result of Grey’s conduct and comments. However, just as the plaintiff in Harris did not

First, this is not a case where Green suffered any tangible psychological injury as a result of Grey’s actions or comments. She, like the plaintiff in Harris, may have been uncomfortable with Grey and found her relationship with Grey to be “unworkable” or intolerable because of his conduct and comments. Just like the plaintiff in Harris, once Grey’s conduct and comments reached an intolerable level after the annual firm Christmas party, Green requested to be taken off the case.

See also Kaytor (holding that the plaintiff’s numerous complaints to coworkers, her union, and her employer about her manager’s discriminatory conduct “plainly”