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Chapter 9 Sexual Harassment

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1 Chapter 9 Sexual Harassment
Copyright  2015 McGraw-Hill Education.  All rights reserved.  No reproduction or distribution without the prior written consent of McGraw-Hill Education.

2 Learning Objectives Discuss the background leading up to sexual harassment as a workplace issue Distinguish quid pro quo and hostile work environment sexual harassment and give the requirements for making each type of case List and explain employer defenses to sexual harassment claims Define the “reasonable victim” standard and how and why it is used in sexual harassment cases Understand the Ellerth and Farragher defenses, the circumstances under which they apply, and its practical impact on the workplace Differentiate the sex requirement and anti-female animus in sexual harassment actions Describe proactive and corrective actions an employer can take to prevent or lessen liability

3 Introduction Sexual harassment in the workplace occurs more frequently than many realize Sexual harassment class action trials are rare The “white buffalo” Two types of sexual harassment Quid Pro Quo Hostile Work Environment Statutory basis: Civil Rights Act, Title VII Cost to businesses, personal lives…1991 Amendment to CRA allowed for punitive & compensatory damages and jury trials If HR ever matters (and it does), then liability is preventable through standard setting, process follow-through and enforcement

4 Introduction/Major Developments
Although the Civil Rights Act has been around since 1964, sexual harassment cases are relatively new First U.S. Supreme Court sexual harassment case heard in 1986 (Meritor Savings case…dealt with Hostile Work Environment) Anita Hill and Clarence Thomas, live in D.C. Effect on the workplace environment Increase in complaints after the hearings Jones v. Clinton Weeks v. Baker & McKenzie: 10% of law firm’s previous year’s profit awarded as punitive damages: sends a message to employers Burlington Industries v. Ellerth and Farragher v. City of Boca Raton cases in 1998: prevention…IMPORTANT; it lays out Employer Defenses (more on this later)

5 Is It a Big Deal? Study by the U.S. Merit Systems Protection Board in 1987 42 percent of federal employees have reported sexual harassment Survey by Working Woman magazine of 160 of the Fortune 500 companies Nearly 40 percent had received at least one sexual harassment complaint in the previous 12 months New York Times poll 4 out of every 10 women have experienced sexual harassment National Law Journal 60 percent of female attorneys have experienced sexual harassment Parade Magazine poll 70 percent of women serving in the military have been sexually harassed

6 Where do Sexual Harassment Considerations Leave the Employer?
Consensual relationships are NOT forbidden by the law Sexual Harassment concerns Unwelcome Activity – imposes terms and conditions that are different for one gender Sexual harassment policies, procedures and follow-through are keys to nipping unnecessary liability in the bud.

7 Sexual Harassment in General
Quid pro quo sexual harassment: Sexual harassment in which the harasser requests sexual activity from the harassee in exchange for workplace benefits (i.e. something given or received for something else) Hostile environment sexual harassment: Sexual harassment in which the harasser creates an abusive, offensive, or intimidating environment for the harassee (gravamen: it makes that person’s job sig. harder to do as a result) Most sexual harassment takes place between males and females Males bring fewer cases in part due to fear of ridicule Sexual orientation is not covered under Title VII Harassment cases can still be brought regardless of the gender(s) of the harasser and harassee (Orcale v. Sundowner Offshore Services, Inc.)

8 Comparison between Quid Pro Quo and Hostile Environment Sexual Harassment
QUID PRO QUO SEXUAL HARASSMENT Workplace benefit promised, given to, or withheld from harasser by harasser In exchange for sexual activity by harassee Generally accompanied by a paper trail HOSTILE ENVIRONMENT SEXUAL HARASSMENT Activity by harasser, toward harassee that Is unwanted by the harassee Is based on harassee’s gender Creates for harassee a hostile or abusive work environment Unreasonably interferes with harassee’s ability to do his or her job Is sufficiently severe and/or pervasive Affects a term or condition of harassee’s employment

9 Hostile Work Environment
Hostile work sexual harassment described in Meritor Savings Bank v. Vinson To sustain a finding of hostile work environment sexual harassment, it is generally required that: The harassment be UNWELCOMED by the harassee. The harassment by BASED ON GENDER. The harassment be sufficiently SEVERE or PERVASIVE to create an abusive working environment. The harassment affects a TERM, CONDITION, or PRIVILEGE of employment. The employer had ACTUAL or CONSTRUCTIVE KNOWLEDGE of the sexual hostile work environment & took NO PROMPT or ADEQUATE REMEDIAL ACTION.

10 ‘Unwelcome’ Requirement
It is the basis of hostile environment sexual harassment actions Harasser actions can be direct or indirect Direct – Harassee telling the harasser to discontinue the offending activity Indirect – Harassee using body language, eye signals, and the like to show disapproval of the harasser’s actions Evidence that the activity is unwelcome can also be direct or indirect Scenario 1 Unwelcomeness parameters Corporate culture, type of business does not give ER right to expose EE to “unwelcome” conduct Ex. Strip clubs, Hooters, or businesses that exude sex, flirtation, etc. in its business does not absolve them of liability

11 ‘Severe or Pervasive’ Requirement
Severe and/or pervasive activity: Harassing activity that is more than an occasional act or is so serious that it is the basis for liability Not a civility code Interference with reasonable expectations Physicality and extreme behavior affects duration U.S. Supreme court decision Sexual harassment claims do not require findings of severe psychological harm to be actionable Factors that determine whether an environment is hostile or abusive: Frequency of the discriminatory conduct Its severity Whether it is physically threatening or humiliating or a mere offensive utterance Whether it unreasonably interferes with an employee’s work performance – the key Scenario 2

12 Perspective Used to Determine Severity
Reasonable person standard: Viewing the harassing activity from the perspective of a reasonable person in society at large Reasonable victim standard (also known as Reasonable Woman Standard): Viewing the harassing activity from the perspective of a reasonable person experiencing the harassing activity including gender-specific sociological, cultural, and other factors Evolution in the case law over time: away from ‘take the workplace as you find it’ (an essentially ‘male’ standard) toward current ‘reasonable victim’ perspective (regardless of gender) U.S. Supreme Court decision on Oncale v. Sundowner Offshore Services Inc.: “The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff ’s position.”

13 ‘Sexual’ Requirement Explained
‘Sexual’ element need not always be present in hostile environment cases to constitute sexual harassment (recall that this is a form of sex discrimination) Anti-female animus: Negative feelings about women and/or their ability to perform jobs or functions, usually manifested by negative language and actions Similar to racial harassment, seen previously Harassment may include electronic means

14 Employer Liability for Sexual Harassment
Quid Pro Quo Sexual Harassment: Tangible employment action taken (i.e. demotion, firing, not being hired) Employer is strictly liable Presence of a paper trail which gives employers a measure of control Hosting Work Environment Sexual Harassment: No tangible employment action taken by a SUPERVISOR (i.e. no firing, demotion, etc.) but supervisor causing harm is unwelcome and severe/pervasive Employer NOT strictly liable…an ER may raise an affirmative defense to liability or damages subject to proof of preponderence of evidence How? Look to Ellerth/Farragher defense: ER exercised any reasonable care to correct and prevent PROMPTLY claims of any sexual harassment (IMPORTANT…ER needs to have an effective prevention policy in-place); EE “unreasonably” failed to take advantage of any preventive or corrective opportunities Case: Burlington Industries v. Ellerth Coworker harassment or third-party harassment of employee (HOSTILE WORK ENV) The harasser and harassee are on the same level Harasser is not employed by the employer (e.g. a client) Employer is liable if the acts of harassment were known, yet no corrective action was taken Case: Farragher v. City of Boca Raton

15 Determining the Truth of Allegations
The EEOC’s Policy Guidance on Harassment Inherent plausibility Demeanor Motive to falsify Corroboration Past record Employees should be involved only on a “need to know” basis

16 Corrective Action Employers must take “immediate and appropriate corrective action” The remedy should Stop the harassment Not be out of proportion to the act Not necessarily move the harassee

17 Damages and Jury Trials
Civil Rights Act of 1991 Employees suing for sexual harassment can Get up to $300,000 in compensatory or punitive damages Request for jury trials EEOC has institutionalized alternative dispute resolution (ADR)

18 Tort and Criminal Liability
Tort actions Assault – apprehension of unwanted touching Battery – actual unwanted touching Sexual Assault/Rape – per statutory definitions Intentional infliction of emotional distress False imprisonment Intentional interference with contractual relations Jury trials, unlimited compensatory or punitive damages

19 Management Tips Adopt an anti–sexual harassment policy
Take a top-down approach to deterring sexual harassment – lead by example Create and disseminate information about an effective reporting mechanism for harassees Open channel for going around supervisors Provide employees with training and/or information that helps them to recognize sexual harassment Ensure that reported incidents of sexual harassment are taken seriously Create an environment where sexual harassment is not tolerated Promptly investigate all sexual harassment claims Circulate information only on a need-to-know basis Follow-up, times three! Keep an eye out for anti-female animus Make sure the corrective action is commensurate with the policy violation Work to keep the workplace friendly and open


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