SEXUAL HARASSMENTKEEPING IT ZIPPED BUL 5810 I2MBA11 Team 2
Meet The Harassers
Sexual Harassment Foundations Title VII of the Civil Right Act of 1964 prohibits discrimination in the hiring, firing, promotion, compensation, or any other aspect of employment because of a person’s race, color, religion, sex, or national origin (Title VII of the Civil Rights Act of 1964, Vol 42 U.S.C. §§2000e-2000e-17) 1
Scope of the Problem 236,078,754 employed in the US (US Census Bureau S2301 Employment Status) 12,696 harassment cases in FY 2009 11,948 resolutions 1,382 settlements (11.6%) 1,285 withdrawal with settlements (10.8%) 5,695 no reasonable cause (47.7%) 2,835 administrative closures (23.7%) 751 reasonable cause (6.3%) $51,000,000 in monetary benefits 16% of complaints filed by men (US Equal Opportunity Commission, Charges FY1997 to FY 2009)
What is Sexual Harassment? U.S. Equal Opportunity Employment Commission Guidelines state: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; submission to, or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals; or such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. (29 C.F.R. § 1604.11 )
Types of Sexual Harassment Hostile Work Environment Harris v. Forklift Systems, Inc. 510 U.S. 17 (1993). The U. S. supreme court established a “reasonableness” standard in Harris “the environment would reasonably be perceived and is perceived as hostile or abusive”
Types of Sexual Harassment Quid Pro Quo Requiring an employee to engage in sexual activity in return for keeping his/her job, receiving a raise and/or promotion, or similar consideration. A theory unique to sexual harassment claims. Can only be engaged in by supervisors (or the equivalent of).
Is Your Work Environment Hostile? EEOC Guidelines for a Hostile Work Environment2 Whether the conduct was verbal or physical, or both; How frequently it was repeated; Whether the conduct was hostile and patently offensive; Whether the alleged harasser was a co-worker or a supervisor; Whether the others joined in perpetrating the harassment; Whether the harassment was directed at more than one individual.
Sexual harassment claims must meet specific criteria: An individual’s employment depends on submission to conduct Submission or rejection of such conduct is used as a basis of employment Such conduct unreasonably interferes with an individual’s work performance or creates an intimidating, hostile, or offensive work environment A company sponsored party may be subject to claims under both worker compensation and general liability insurance. Therefore, courts in many states have found unwanted sexual advances, exhibitionism, improper sexual touching and sexual innuendos occurring at office parties to constitute sexual harassment.5
Whether or not the sex was voluntary is not the proper test. Meritor Savings Bank v. Vinson, 106 S. Ct. 2399, 40 EPD ¶ 36,159 (1986). The Supreme Court ruled that the proper inquiry focuses on the "unwelcomeness" of the conduct rather than the "voluntariness" of the victim's participation.
Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998). The Supreme Court concluded that same sex sexual harassment is actionable under Title VII. “Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable personin the plaintiff’s position would find severely hostile or abusive.”
If Jenny’s promotion is an isolated instance and not wide spread favoritism the sexual harassment claim will not be upheld. An isolated instance of favoritism on the part of a supervisor toward a female employee with whom he is having a consensual sexual affair ordinarily will not constitute sexual harassment. The California Supreme Court held in Miller v. Department of Corrections 115 P. 3d 77, 36 Cal. 4th 446, 30 Cal. Rptr. 3d - Cal: Supreme , 2005 that widespread sexual favoritism may constitute sexual harassment in violation of the FEHA.
Bad idea! A jury in Alameda County, CA awarded $1.15 million to attorney Thomas Ostly (Moreno v. Ostly et al).4 Mr. Ostly had been sued for sexual harassment by a former employee. He countersued for defamation. A 10 woman 2 man jury rejected the sexual harassment claim and found Ms. Moreno acted with malice and oppression. Mr. Ostly was awarded $100,000 in punitive damages in addition to the $1.15 million award.4
Is Your Company Immune to Sexual Harassment? An employer is responsible for the acts of sexual harassment in the workforce where the employer or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. An employer may also be responsible for the acts of non-employees, with respect of sexual harassment of employees in the workforce, where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.6
Sexual Harassment is Expensive Weeks v. Baker & McKenzie (1998) 63 CA4th 1128 Awarded $6.9 million in punitive damages from Baker & McKenzie. The award was reduced to $3.5 million by the trial court. The court awarded $1.8 million in attorney fees and expenses.
Sexual Harassment is Expensive Mitsubishi Motor Manufacturing of America, Inc. (MMMA)3 In 1998, Mitsubishi Motor agreed to pay $34 million to settle a sexual harassment lawsuit filed by the EEOC on behalf of a class of current and former MMMA employees who were subjected to an alleged pattern and practice of sexual harassment at MMMA's Normal, Illinois, manufacturing plant.
In summary, when it comes to sexual harassment, no company is immune.
So what do we do?The answer is simple: Prevention Prevention is the best tool to eliminate sexual harassment. An employer should take all steps necessary to stop it from occurring by: affirmatively raising the subject expressing strong disapproval developing appropriate sanctions informing employees of their right to raise the issue of harassment under Title VII develop methods to sensitize all concerned6
And what have we learned? If you think you are a victim of or have witnessed sexual harassment, Speak Up! If you think that your comment or behavior could constitute sexual harassment, Keep it Zipped!
Works Cited Emerson, Robert W. Business Law . Barron’s Educational Series, 5th ed. 2009 (page 550) “Policy Guidance on Current Issues of Sexual Harassment.” accessed 8/14/10 The U.S. Equal Employment Opportunity Commission http://www.eeoc.gov/policy/docs/currentissues.html “Mitsubishi Motor Manufacturing and EEOC Reach Voluntary Agreement to Settle Harassment Suit” accessed 8/16/10 The U.S. Equal Employment Opportunity Commission http://www.eeoc.gov/eeoc/newsroom/release/6-11-98.cfm
Works Cited Moser, Kate. “Paralegal Who Sued Lawyer for Sexual Harassment Hit With $100,000 in Punitives” 8/6/10. accessed 8/17/10. The Recorder http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202464333413&slreturn=1&hbxlogin=1 “Is this the end of the Christmas Party”; Gabi Thesing, Business and Finance, vol. 37, no. 20, pp. 18-19, May 24 2001 Part 1604 – Guidelines on Discrimination because of Sex, section 1604.11 Sexual harassment. Justia US Lawshttp://law.justia.com/us/cfr/title29/29-18.104.22.168.22.214.171.124.html