Sexual Harassment

A Not-So-Recent Case: 1991, Clarence Thomas nominated to Supreme Court. Accused of s.h. by Anita Hill

A Recent Case * : Dillard's agreed to pay $500,000 to settle claims that the department store ignored sexual harassment allegations against a former Westminster assistant store manager, a federal agency said Tuesday. The Equal Employment Opportunity Commission said Dillard's knew that Scot McGinness sexually harassed young female subordinates at a California store and, instead of disciplining him, transferred him to Westminster without notifying the Colorado store of his history. Soon after arriving at the Westminster Mall store, McGinness was given only a verbal warning after a female employee complained that he inappropriately touched her. He was fired 10 months later after physically and verbally harassing an 18-year-old employee, who filed a police report, the agency said. "By failing to notify the Colorado store about this man's sexual harassment in California at the time of his transfer to Colorado, Dillard's permitted its Westminster employees to go in harm's way," said Sandra Padegimas, the EEOC trial attorney who prosecuted the case, in a statement. *Rocky Mountain News, April 1, 2008.

EEOC reports 12,696 s.h. complaints in % of these charges filed by males. Avg. cost of a complaint: $200,000, including those that don’t go to court.

History: Sexual harassment law evolved out of sex discrimination law. The reasoning in some earlier cases implied same-sex s.h. not possible (e.g. Oncale v. Sundowner Services), though Courts have now reversed this.

USM Policy …. It is the policy of the university that no member of its community shall sexually harass another. Any employee or student who violates this policy is subject to disciplinary action including termination. Sexual harassment is illegal under both state and federal law. * *

EEOC df., p. 626 Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: 1) such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, 2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, 3) 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.

1) and 2) are quid pro quo harassment. Need occur only once. Usually by someone in power over victim 3) is hostile work environment harassment (Jacksonville Shipyards). Need not suffer economic loss, or psychological harm. To prove 3): a) “objective test” - must be subjected to treatment a “reasonable person” would find offensive. b) “subjective test” - offensive to victim, and, c) harassment must be severe or pervasive.

When is Employer Liable? If “tangible employment action,” employer always liable. Even if no “t.e.a.,” still liable unless, a) reasonable preventative steps taken, and, b) victim failed to take advantage of opportunities.

Preventative Measures: Effective policy. “Safe” means for reporting problems. Effective procedures for resolving complaints. Training, workshops.

Schultz article Thesis: S.H. law has helped to further Taylor’s ideal of organizational rationality (purging workplace of passion), but has done little to end sex discrimination more generally. (e.g. banning sexual jokes, while largely relegating women to low-status, low-pay positions.)

Sexual Harassment? Asking for a date hoping that a sexual relationship will develop. Asking someone for a date when those requests are always refused. Telling a joke with sexual content (e.g., Seinfeld case) (A male) hugging a female employee. A male supervisor suggesting that a female employee wear shorter skirts. Female employee asks for a raise; male supervisor responds by suggesting that they discuss it at a local motel. (Harris v. Forklift Systems)

Yelling and abusive language by male supervisor always directed at female employees. Selling Playboy at Dairy Mart Using a sexually suggestive name to refer to employees of the opposite sex. The boss hanging a sexually suggestive picture in his office. The boss hanging a sexually suggestive picture in the coffee room.

Stroh’s Brewing and the “Swedish Bikini Team” A male talking about his sexual exploits to a group of female employees. Requiring a female employee under your supervision to work late with only the two of you in the office. The sole female sales representative in a firm is regularly subjected in her work to a radio show offensive to women. (Reeves v. C.H. Robinson Worldwide)