EMPLOYMENT LAW FOR HUMAN RESOURCE PRACTICE, 5E David Walsh © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Harassment Chapter 9 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Chapter Outline Harassment as a Form of Discrimination Harassment as a Form of Discrimination Recognizing Harassment Recognizing Harassment Liability for Harassment Liability for Harassment Eliminating Harassment Eliminating Harassment © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Harassment as a Form of Discrimination (1 of 2) Harassment is a major obstacle to realizing equal employment opportunity It is not limited to sexual harassment, though that is the most common type Harassment may be based on national origin, age, disability or religious beliefs The liability of the employer is the same no matter the type of harassment ◦ Workplace bullying may not be legally actionable harassment © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Harassment as a Form of Discrimination (2 of 2) © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Harassment as…Discrimination - Because of Sex (1 of 2) Legal challenges to harassment come under anti-discrimination laws, and not under any law specifically banning harassment To be actionable, the harassment must be based on a protected class characteristic, such as sex Same-sex harassment is actionable if it is “because of sex,” but proof is difficult ◦ If harasser is gay or lesbian, harassment may be “because of sex” © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Harassment as…Discrimination - Because of Sex (2 of 2) ◦ Sex stereotyping may also show a discriminatory motive for harassment in same-sex cases In the case of those who harass both sexes, the harassment may not be “because of sex,” and therefore not actionable under Title VII In the case of those who harass because of personal animus, the harassment may not be “because of sex,” and therefore not actionable under Title VII © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Recognizing Harassment - What Behaviors Constitute… EEOC defines sexual harassment as: ◦ Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature…when  (1) submission is explicitly or implicitly a term of the person’s continuing employment  (2) submission or rejection of such conduct is used as the basis for employment decisions affecting the person  (3) such conduct unreasonably interferes with the person’s work performance, or creates a hostile, intimidating or offensive work environment © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Recognizing Harassment - …Tangible Employment Actions Harassment that results in tangible employment action is quid pro quo ◦ The harasser must have sufficient authority to influence or determine employment outcomes, or be perceived as having such authority ◦ Plaintiff must show that the tangible employment action is causally linked to her rejection of or submission to harassment  A resignation under circumstances where a reasonable person would feel compelled to quit is termed a constructive discharge © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Recognizing Harassment - Hostile Environment Harassment A hostile environment can result from a wide range of verbal & physical conduct by managers, supervisors, coworkers, & third parties ◦ Is the employee subjected to unwelcome, offensive treatment because of his or her sex  Treatment need not be based on overtly sex- or gender-specific, but must be sufficiently severe or pervasive to be actionable © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Recognizing Harassment - Are … behaviors unwelcome? Focus in the objective assessment by reasonable person Plaintiffs must also show they subjectively perceived their treatment as unwelcome ◦ Did the employee tell the harasser that the conduct was offensive? ◦ Some contemporaneous indication that the conduct was unwelcome is enough ◦ Did the employee participate in the conduct? ◦ Did he or she do so for fear of losing the job? © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Liability for Harassment - …by officials, managers… (1 of 3) The grounds for imposing liability on employers for harassment differ depending on the type of harassment ◦ When harassment is conducted by someone whose position allows him to speak and act for the company, the company is liable under the doctrine of vicarious liability But determining who is a “supervisor” can be tricky © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Liability for Harassment - …by officials, managers… (2 of 3) © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Liability for Harassment - …by officials, managers… (3 of 3) An affirmative defense against hostile environment claims requires proof that: ◦ 1. the employer exercised reasonable care to prevent and correct promptly any harassment ◦ 2. the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities Most firms have a harassment policy and complaint procedure © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Liability for Harassment - …by coworkers or third parties Coworkers and third parties may create a hostile work environment. Under the negligence standard, the employer is liable for this harassment if: ◦ The employer knew or should have known about the harassment. ◦ The employer failed to take prompt and effective action to stop it. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Eliminating Harassment - Harassment policies… (1 of 3) Employers should establish, communicate and enforce policies prohibiting harassment Use of an anti-harassment policy will help demonstrate that reasonable care was used to prevent and correct harassment © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Eliminating Harassment - Harassment policies… (2 of 3) Among other things, anti-harassment policies should include: ◦ A strong prohibition of harassment, applying to all managers and employees ◦ A clear explanation of the meaning of prohibited harassment ◦ A clear and accessible procedure for reporting harassment ◦ A requirement that employees with knowledge of harassment report it to the appropriate person ◦ Assurance of protection from retaliation © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Eliminating Harassment - Harassment policies… (3 of 3) Among other things, anti-harassment policies should include: (cont.) ◦ A promise of confidentiality in handling complaints to the extent possible ◦ A process for handling complaints promptly and thoroughly ◦ Assurance that corrective action will be taken if harassment is found ◦ Assurance that violators will be subject to disciplinary action ◦ Assurance that the rights of the accused will be respected © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Eliminating Harassment - Responding to harassment … (1 of 3) Employers must respond promptly to stop and correct any harassment ◦ The promptness and adequacy of an employer’s response is assessed in light of the seriousness of the alleged harassment Once it learns of harassment, it must take prompt action, even if the victim does not want action taken Employers should launch a fair and prompt investigation, not one pre-determined to reach a certain conclusion © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Eliminating Harassment - Responding to harassment … (2 of 3) Investigating reports of harassment – ◦ Questions to be asked of employees complaining of harassment include:  A detailed description of what happened, including who harassed you? What exactly did the person do? When did it happen? Is it still happening? Where did it occur? How often?  Was the conduct unwelcome? How did you react? What did you say to the harasser at the time?  How did the harassment affect you? Has there been any effect on your employment status? Did you use sick time or seek medical treatment? © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Eliminating Harassment - Responding to harassment … (3 of 3) Investigating reports of harassment – (cont.) ◦ Questions to be asked of those accused of harassment include:  What is your response to each of the allegations?  Are there any reasons why the complainant might make false allegations?  Is there any reason to believe the conduct was welcomed by the complainant?  Are there other people with relevant information?  Do you have any other evidence related to the alleged incidents? ◦ Throughout, investigators must remain neutral © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Eliminating Harassment - Responding to harassment … Remedies for Harassment Employers should take temporary measures on receiving a complaint, then long-term remedial measures based on the investigation ◦ Transfers, reassignments, leaves of absence and closer supervision are all possible initial measures Remedies should correspond to the severity of the harassment ◦ If an employee is not punished though there is strong evidence of harassment, he will be encouraged to continue the misconduct © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

What Would You Do? You are the HR manager of a high technology firm that has grown significantly in recent months. One recent hire was the breakthrough, a bio-engineer who seems to have a creative genius for manipulating living organisms to enable them to clean up toxins. But a chemist in his department has been harassing the bio-engineer, you suspect because of the bio-engineer’s sexual orientation. The chemist is a big fellow who has previously made disparaging remarks about gay people. The bio-engineer has not complained to you, but others have on his behalf. What would you do? © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Next: Chapter 10 – Reasonably Accommodating Disability and Religion ◦ What must an employer do to accommodate an employee’s religious beliefs? ◦ What must an employer do to accommodate the disability of an applicant or employee? The answers to these questions and more are next. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.