1. Chapter 9 Sexual Harassment
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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