Ralph a 40 year old college student, married, with three kids, was hired as a waiter by Bertha, the owner of Big B's Eatery. The restaurant was mainly a family restaurant, and Ralph was impressed that the management had a progressive policy regarding sexual harassment and discrimination. The policy on page 5 of the Employee Handbook was very clear that Big B's Eatery would not tolerate harassment of any kind. If any employee feels harassed they were to report the incident to Bertha, the owner immediately.

Unknown to Ralph, on Tuesdays after 10 PM the restaurant became a strip club featuring male dancers with a female-only clientele. Though Ralph was only a waiter, he was told that on Tuesdays he should expect to stay late and be prepared to wear a costume consistent with the theme for the night. To his surprise, and humiliation, the first night Ralph was dressed in a cowboy outfit, wearing tight shorts under chaps, no shirt, a tight leather vest and cowboy boots and hat. Another night he was a police officer wearing blue shorts, a holster, toy pistol and handcuffs. When Ralph complained to Bob, the only other male waiter, he was told "to get over it - even enjoy it." "If you work it right," Bob said with a smile and a wink "the tips are great and there are other "fringe" benefits as well!" Ralph did not ask what he meant. Bob went on to say, "Besides, the restaurant was in bankruptcy until Bertha started her Tuesday night specials." In short, he said "the customers like Tuesday's more than any other night. And our jobs depend on big Tuesdays."

Bertha lavished unusual attention on Ralph. She often insisted on inspecting Ralph's outfit before work and frequently entered his, the men's, dressing room, without knocking. One time she tucked his shirt in, pulled his holster tighter and patted him on the backside. When Ralph asked her to stop and to knock first before entering the bathroom where he dressed. Bertha laughed, then became very serious and said, " Around here, Ralphie-boy, its Bertha's way or the highway. Don't forget it."

Ralph soon got over his "shyness" and figured out what it took to earn great tips. He performed for the ladies, dancing through the aisles, swiveling his hips and pointing his finger at certain ladies and acting like it was a pistol. But he always refused to participate on stage. Then one night things got out of hand and Ralph had a sexual encounter with a waitress. She told everyone and soon things soon got worse for Ralph. He kept working for 3 more months though he was miserable and felt guilty. He had to keep working. Ralph's wife lost her job and his son was in the hospital.

Ralph was consistently pinched and grabbed by drunken women, including the female bartenders, who often refused to fill his drink orders without a kiss. The female workers regularly called him "Meatdish" and "Long John". Finally, fed up Ralph told Bertha that even though he needed the money, he could not tolerate working Tuesday's anymore. Bertha, touching his holster and patting his rump, said she would take him off Tuesdays provided he would "escort" her to after-work parties on Monday nights. Ralph refused. Soon his hours were dramatically reduced.

Ralph came to you, his lawyer, for advice and redress. He tells you his story and asks what he can do. You patiently explain to Ralph there are two theories of sexual harassment to pursue. What are they? And what are the elements of each theory? What evidence supports Ralph under each theory? And what evidence hurts his claim?