SEXUAL HARASSMENT High Profile Issue: EEOC Report on 1992-1993 Cases: - Anita Hill/Clarence Thomas confrontation - $7+ million award against Baker & MacKenzie recently - recent $1.7 million suit filed against NiMo - Navy’s Tailhook Scandal EEOC Report on 1992-1993 Cases: - Sexual Harassment charges filed with EEOC increased by 112% over last three years -- from 5,623 in 1989 to 10,532 in 1992, and 11,908 in 1993 - Requests for Right to Sue notices increased from 13.3% of EEOC resolutions in 1990 to 24.4% in 1993 - 62% of sexual harassment cases filed by white women, 14.4% by black women, 14.7% by other women (SSA, etc.) and 9% by men - 31% of those filing with EEOC also claimed that employer had retaliated against them for filing - Merit Systems Protection Board study in 1987 held that sexual harassment cost federal govt $267 million from 1985 - 1987 for lost productivity, sick leave and employee replacement costs - Working Woman magazine survey - cost responding sompanies $6.7 million in low productivity, turnover and absenteeism - Employees harassed also incur medical costs, loss of sick leave and vacation leave, and litigation costs

SEXUAL HARASSMENT Definition: 29 C.F.R. 1604.11 Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. Sexual Harassment is sex discrimination under Title VII of Civil Rights Act of 1964, as amended; also violation of NYS Human Rights Law - file complaint with state Human Rights Division within 240 days of alleged harassment (1 year limitaton under NYS law) - file with EEOC within 300 days of alleged action; 60 days after filing with state agancy, unless terminate proceedings earlier - Meritor v. Vinson: issue is unwelcome, not whether voluntary - of sexual nature -- harassment based on gender but not necessarily involve sex - Provocation issue: USSC in Meritor said was relevant actions, words, clothing “blame the victim” approach - Maine state law effective 1991 requires employers to provide employees with information on harassment, its illegality, internal complaint process and process through state Human Rights Commission

QUID PRO QUO HARASSMENT submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual Early cases: advances made because of employee’s sex Tompkins v Public Service Co. -- “promote if cooperate” “Bisexual Supervisor” arguments -- early cases - King v Palmer -- promoting woman who agreed to advances over other, more qualified employee is also sex disc against more qualified person not promoted - Employer may avoid by having system to review supervisor’s promotions or raises for employees: justification, monitor and check on actions

HOSTILE ENVIRONMENT Harris v. Forklift Systems, 114 S.Ct. 367 (1993) When the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated Reasonable Person or Reasonable Woman? - Meritor Savings Bank v. Vinson: USSC recognizes hostile environment - Harris v. Forklift Systems: environment needn’t be so hostile to cause severe psychological trauma, just enough that would reasonably be perceived, and is perceived, as hostile: FACTORS TO CONSIDER: frequency of conduct; severity physically threatening; humiliating mere offensive utterance Does it interfere with employee’s work performance? - Reasonable person vs Reasonable woman standard: Ellison v. Brady used reasonable woman standard, but USSC in Harris spoke of reasonable person, although issue not specifically before them - LA County case -- reading of Playboy by male firefighters, females argued that males might be formulating degrading and abusive thoughts about them; court enjoined ban on magazines - First Amendment protects private reading or possession of magazines -- no persuasive evidence that magazines contributed to hostile environment - Rabidue v Osceola Refining Co. -- occasional display of pinups in offices of work areas -- “deminimis effect on P’s work environment when considered in context of society that condones and pubicly features open displays of written and pictorial erotica at newsstands, on prime time tv, at the cinema and other public places; criticized by dissent, not clear if same after Harris - But in Robinson v. Jacksonville Shipyards, court held that pinups, magazines and posters should have alerted management to need for thorough investigation of complaints and effective action

EMPLOYER LIABILITY Supervisory Employees: Agency Principles Co-Workers: Did Employer Know, or Should Have Known? Non-Employees: Extent of Employer’s Control, and Did Employer Know or Should Have Known? Liability for Harassment: EEOC Guidelines and Meritor Decision 1) Acts of supervisors: agency principles; Guidelines seem to speak of strict liability, but USSC rejected in Meritor - Agency: authorized (apparent or implicit), supported, accepted, acquiesced, ratified; scope of authority? - Did employer have policy against harassment? Was if followed? - Was employer aware, or should have been aware of harassment? Needn’t have actually filed complaint if indiactions are that won’t have any effect - What was employer’s reaction -- immediate action to end harassment 2) Fellow Employees: Did management take immediate steps to end when became aware? - Were employees informed of policy against harassment? - Had it happened in the past, and what was reaction? 3) NonEmployees: Look to degree of control over nonemployee - Was employer aware, or should have been aware, of harassment? - Customer or client, sales rep calling at office, etc. 4) Most courts have rejected individual liability under Title VII-- statute speaks of employers 5) Individuals may be held liable for tort claims

EMPLOYER LIABILITY FOR SUPERVISORS’ HARASSMENT Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998) Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998) Does harassment result in tangible employment result? If so, employer automatically liable If not, employer can establish defense

EMPLOYER’S DEFENSE Employer must show : it exercised reasonable care to prevent and correct promptly sexual harassing behavior; & employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by employer Defense goes both to liability and to damages

LEGAL REMEDIES Reinstatement, Promotion as appropriate Damages: Lost Wages & Benefits Compensatory Damages: Medical or Emotional Injury, Pain & Suffering Punitive Damages: Amount Limited Based on Employer Size Legal Fees for Plaintiff Court Injunction: Cease & Desist Order Possible Tort Liability as well - Baker & MacKenzie - $7.1 million awarded under California state law - Back Pay and Legal fees -- Abermarle Paper Co. case - Hostile Environment claims -- in some casesmay be no wages or benefits, but other compensatory and punitive damages - Punitive Damages for Intentional Conduct -- limited by statute, based on size of employer 15 - 100: $50K 101-200: $100K 201-500: $200K > 500: $300K EEOC Study on Remedies for Sexual Harrasment: - Awards up 98% from 1992 to 1993 cases handled by the EEOC (doesn’t include cases handled by courts) $25.2 million for 1,546 employees back pay, remedial relief, damages, promotions, reinstatements - Number of awards up 15.4 % - Higher percentage of sexual harassment cases resolved with outcomes favorable to P than other discrimination claims Additional Legal Liability may include tort claims for assault, battery, intentional infliction of emotional distress, and possible criminal charges of assault, battery, sexual assault or rape

PREVENTION “An employer should take all steps necessary to prevent sexual harassment from occurring” -- EEOC Guidelines Educate and Sensitize all employees Develop policy for dealing with complaints and appropriate sanctions for violations Publicize policy Take immediate action on complaints EEOC and courts take position that the best thing an employer can do is to take a preventative approach -- minimize liability -- develop and implement policy: From top down, make sure all employees understand that sexual harassment will not be tolerated Sexual harassment policy should be separate from general nondisc policy -- emphasis on discouraging such activity Make sure employees are aware of policy and mechanism for reporting complaints Provide employees with training of what sexual harassment is, and of what are appropriate and inappropriate behaviors Make sure that any reported incidents are taken seriously by all involved in process Take immediate action when complaint filed -- investigate nad corrective action as appropriate Corrective Action -- what is appropriate depends on position of employees involved, duration and seriousness of activities, employer’s policy, alleged harasser’s prior involvement with complaints Need to ensure that there is no retaliation against complainant -- may need to protect identity as much as possible; but harasser must be informed of complaint to address it effectively

EMPLOYER’S SEXUAL HARASSMENT POLICY Define Sexual Harassment EEOC Guidelines Practical Examples Make It Clear Such Conduct Will Not Be Tolerated by Anyone Specify Penalties -- up to, and Including, Termination Specify Procedures for Filing Sexual Harassment Complaints Designate Person to Receive and Investigate Complaints Protect Complainant from Any Reprisals or Retaliation