Sexual Harassment Jody Blanke Professor of Computer Information Systems and Law Mercer University

Sexual Harassment  Quid Pro Quo Harassment Employee is required to engage in sexual activity in exchange for promotions, raises or continued employment  Hostile Environment Harassment The harassment is unwelcome activity The harassment is based upon gender The harassment is sufficiently severe or pervasive to create an abusive working environment The harassment affects a term or condition of employment The employer had actual or constructive notice of the hostile environment and took no prompt or adequate remedial action 2

Meritor Savings Bank v. Vinson (1986)  Supreme Court upheld sexual harassment claim despite absence of concrete economic effect on employment or loss of tangible job benefits Employee had given in to supervisor’s sexual advances and had a sexual relationship for several years. Supervisor fondled her in front of other employees, followed her into the women’s restroom and forcibly raped her on several occasions. Activities ceased after employee had a steady boyfriend. Court held that in light of the “record as a whole” and the “totality of the circumstances,” there was an actionable “hostile environment” sexual harassment claim. 3

Harris v. Forklift Systems (1993)  Supreme Court found that a hostile environment did exist for a female manager. President of company :  Said “You’re a woman, what do you know?”  Said “We need a man as the rental manager.”  Said that she was “just a dumb ass woman.”  Asked in her in front of others “What did you do, promise the guy … some [sex] Saturday night?”  Asked her if she wanted to “go to the Holiday Inn to negotiate her raise.”  Asked female employees to retrieve coins from his front pants pockets. 4

Oncale v. Sundowner Offshore Services (1988)  Supreme Court held that there could be same- sex sexual harassment under Title VII. Employee was forcibly subjected to sex-related, humiliating actions, and was physically assaulted in a sexual manner. Court held that Title VII language “because of … gender” extended to same-sex harassment, but, Title VII excludes discrimination because of affinity orientation.  e.g., Title VII would protect a female employee from harassment by a female about gender-related activity, but would not protect a lesbian from harassment from a female about her being a lesbian. 5

Employer Liability  Employers are vicariously liable under the doctrine of respondeat superior for all torts committed by employees acting within the scope of employment.  Employers may also be liable for torts committed by employees not working within the scope of employment if the employer intended the conduct, the employee’s high rank makes him the employer’s alter ego, the employer was negligent, or the employee was aided in accomplishing the tort by the existence of the agency relation. 6

Employer Liability  Employers are strictly liable for quid pro quo sexual harassment, i.e., when there are tangible employment actions taken.  Employers are not strictly liable if there is no tangible employment action. In these hostile environment cases, the employer can use the Faragher/Ellerth defense to show that it had a reasonable antidiscrimination policy in place, but that the harassed employee unreasonably failed to use it. 7

Faragher v. Boca Raton (1998)  Supreme Court found the city (employer) liable for the sexual harassment of its lifeguard supervisors.  Court held that while the city had available to it an affirmative defense to show that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, it had failed to do so as a matter of law. 8

Burlington Ind. v. Ellerth (1998)  Supreme Court held that employer might be liable for hostile work environment, but should have an opportunity to prove that employee unreasonably failed to take advantage of employer’s complaint procedure. Employee suffered no tangible employment action (and was even promoted during her employment). Employee worked for employer for about 15 months, but didn’t report the harassment until a few weeks after leaving.  Her supervisor had made remarks about her breasts, had told her top “loosen up” and warned, “you know, Kim, I could make your life very hard or very easy at Burlington.”  He told her she was not “loose enough” and reached over and rubbed her knee.  He responded to a job-related question from her, “I don’t have time for you right now, Kim – unless you want to tell me what you’re wearing.” A couple of days later, he again responded, “are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier.” 9

Policies  It is important to have a policy  It is important to inform employees about the policy  It is important to enforce the policy