Copyright 2019 McGrawHill Education All rights reserved No reproduction or distribution without the prior written consent of McGrawHill Education Learning Objectives Discuss the background leading up to sexual harassment as a workplace issue ID: 775597
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Chapter 9Sexual Harassment
Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.
Slide2Learning Objectives
Discuss the background leading up to sexual harassment as a workplace issueExplain quid pro quo sexual harassment and give the requirements for making a caseExplain hostile environment sexual harassment and give the requirements for making a caseList and explain employer defenses to sexual harassment claimsDefine the reasonable victim standard and how and why it is used in sexual harassment cases Differentiate the sex requirement and antifemale animus in sexual harassment actionsExplain employer liability for various types of sexual harassment claimsDescribe proactive and corrective actions an employer can take to prevent or lessen liability
Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.
Slide3Introduction
Sexual harassment in the workplace occurs more frequently than many realize Results in loss of time, productivity, and money to businesses and negative effect on personal livesSexual harassment class action trials are rareAlso called the “white buffalo”Two types of sexual harassmentQuid Pro QuoHostile Work EnvironmentStatutory basis: Civil Rights Act, Title VIICost 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
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Slide4Introduction/Major Developments
Although the Civil Rights Act has been around since 1964, sexual harassment cases are relatively newFirst 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. Affected workplace environmentLed to increase in complaints filed with the Equal Employment Opportunity Commission (EEOC) after the hearingsJones v. ClintonWeeks v. Baker & McKenzie: 10% of law firm’s previous year’s profit awarded as punitive damages: sends a message to employersBurlington Industries v. Ellerth and Farragher v. City of Boca Raton cases in 1998: prevention…IMPORTANT; it lays out Employer Defenses (more on this later)
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Slide5Is It a Big Deal?
Study by the U.S. Merit Systems Protection Board in 198742 percent of federal employees have reported sexual harassmentSurvey by Working Woman magazine of 160 of the Fortune 500 companiesNearly 40 percent had received at least one sexual harassment complaint in the previous 12 monthsNew York Times poll4 out of every 10 women have experienced sexual harassmentNational Law Journal60 percent of female attorneys have experienced sexual harassmentParade Magazine poll70 percent of women serving in the military and 50 percent of the women who worked in congressional offices on Capitol Hill have been sexually harassed
Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.
Slide6Where Do Sexual Harassment Considerations Leave the Employer?
Consensual relationships are NOT forbidden by the law Employees may date consistent with company policySexual Harassment concerns Unwelcome Activity – imposes terms and conditions that are different for one genderBecomes a problem when:Activity directed toward an employee is unwelcomeTerms or conditions different for one gender than are imposedSexual harassment policies, procedures and follow-through are keys to nipping unnecessary liability in the bud.
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Slide7Sexual 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) Distinction between the two terms need not be rigid according to the U.S. Supreme CourtMost sexual harassment takes place between males and femalesMale as the harasser and the female as the harasseeGender of the harasser need not be male and the gender of the parties does not matterMales can be sexually harassed alsoMales bring fewer cases in part due to fear of ridiculeSexual orientation is not covered under Title VIIHarassment cases can still be brought regardless of the gender(s) of the harasser and harassee (Orcale v. Sundowner Offshore Services, Inc.)
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Slide8Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment: Harasser requests sexual activity from the harassee in exchange for workplace benefitsMore obvious type of sexual harassment and is not generally difficult to recognizeCases: Ball State University v. Vance, Texas Southwestern Medical Center v. Nassar
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Slide9Hostile Environment Sexual Harassment
Hostile environment sexual harassmentHarasser creates an abusive, offensive, or intimidating environment for the harasseeOffensive work environment to which one gender is subjected but not the otherCase: Meritor Savings Bank, FSB v. Vinson
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Slide10Comparison between Quid Pro Quo and Hostile Environment Sexual Harassment
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Slide11Unwelcome Activity
It is the basis of hostile environment sexual harassment actionsHarasser actions can be direct or indirectDirect – Harassee telling the harasser to discontinue the offending activityIndirect – Harassee using body language, eye signals, and the like to show disapproval of the harasser’s actionsEvidence that the activity is unwelcome can also be direct or indirectScenario 3Unwelcomeness parametersCorporate culture, type of business does not give ER right to expose EE to “unwelcome” conductEx. Strip clubs, Hooters, or businesses that exude sex, flirtation, etc. in its business does not absolve them of liability
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Slide12Severe and 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 liabilityThe more frequent or serious the occurrences, the more likely it is that the severe and/or pervasive requirement will be met U.S. Supreme Court decisionSexual harassment claims do not require findings of severe psychological harm to be actionableFactors that determine whether an environment is hostile or abusive:Frequency of the discriminatory conductIts severityWhether it is physically threatening or humiliating or a mere offensive utteranceWhether it unreasonably interferes with an employee’s work performance – the key
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Slide13Perspective Used to Determine Severity
Reasonable person standard: Viewing the harassing activity from the perspective of a reasonable personHarassing activity includes gender-specific sociological, cultural, and other factorsReasonable victim standard (also known as Reasonable Woman Standard): Viewing the harassing activity from the perspective of a reasonable person in society at largeGenerally tends to be the male viewEvolution 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) EEOC issued a policy statementRequired that the victim’s perspective also must be considered so as not to perpetuate stereotypesNotion was labeled the “reasonable woman” or reasonable victim standardU.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”
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Slide14“Sexual” Requirement Explained
Need not involve sex, requests for sexual activity, sexual comments, or other similar activity (recall that this is a form of sex discrimination)Antifemale animus: Negative feelings about women and/or their ability to perform jobs or functions, usually manifested by negative language and actionsSimilar to racial harassment, seen previouslyHarassment may include electronic means
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Slide15Employer Liability for Sexual Harassment (1)
Supervisor toward Employee (Tangible Employment Action…demotion, firing, hiring, not hiring, etc.)Generally quid pro quo sexual harassmentEmployers are strictly liable for the tangible acts of their supervisorsPresence of a paper trail, which gives employers a measure of control in monitoring for actions
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Slide16Employer Liability for Sexual Harassment (2)
Supervisor toward Employee (No Tangible Employment Action)Employer is not strictly liable…an ER may raise an affirmative defense to liability or damages subject to proof of preponderence of evidenceEllerth/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 opportunitiesCase: Burlington Industries, Inc. v. Ellerth
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Slide17Employer Liability for Sexual Harassment (3)
Coworker harassment or third-party harassment of employeeThe harasser and harassee are on the same levelHarasser 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
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Slide18Determining the Truth of Allegations
The EEOC’s Policy Guidance on HarassmentInherent plausibilityDemeanorMotive to falsifyCorroborationPast recordEmployees should be involved only on a “need to know” basis
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Slide19Retaliation and Employee Privacy
On reporting the sexual harassment, the alleged harasser must be told of the complaint for the employer to effectively address itRetaliation will not be toleratedLaw has separate retaliation provisionsIn 2016, retaliation claims were the number one claim reported
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Slide20Corrective Action
Employers must take “immediate and appropriate corrective action”The remedy should:Stop the harassmentNot be out of proportion to the actNot have the effect of punishing the harassee
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Slide21Damages and Jury Trials
Civil Rights Act of 1991Employees suing for sexual harassment can: Ask for up to $300,000 in compensatory or punitive damages and unlimited medical damagesRequest a jury trialEEOC has institutionalized the use of alternative dispute resolution (ADR)
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Slide22Tort and Criminal Liability
Tort actionsAssault – Intentionally putting the victim in fear or apprehension of unwanted touchingBattery – Intentional unpermitted bodily touching Intentional infliction of emotional distress False imprisonmentIntentional interference with contractual relationsAction could form the basis of criminal prosecution for criminal assault, battery, and rapeCase: Miller v. Washington Workplace
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Slide23Management Tips
Adopt an anti-sexual harassment policyTake a top-down approach to deter sexual harassmentCreate and disseminate information about an effective reporting mechanism for harasseesConsistently remind employees of the policyProvide employees with training and/or information that helps them to recognize sexual harassmentEnsure that reported incidents of sexual harassment are taken seriouslyEnsure that the training employees receive is effective, interactive, and engagingCreate an environment where sexual harassment is not toleratedPromptly investigate all sexual harassment claimsKeep an eye out for anti-female animusMake sure the corrective action is commensurate with the policy violationWork to keep the workplace friendly and open
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