HR 210 Bennett9e ppt ch09

1. Chapter 9
Sexual Harassment
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2. 9-2
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Learning Objectives 1
• Discuss the background leading up to sexual
harassment as a workplace issue.
• Explain quid pro quo sexual harassment and give the
requirements for making a case.
• Explain hostile environment sexual harassment and
give the requirements for making a case.
• List and explain employer defenses to sexual
harassment claims.

3. 9-3
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Learning Objectives 2
• Define 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 actions.
• Explain employer liability for various types of sexual
harassment claims.
• Describe proactive and corrective actions an
employer can take to prevent or lessen liability.

4. 9-4
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Introduction
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 lives.
Sexual harassment class action trials are rarely litigated.
• Also called “a white buffalo.”

5. 9-5
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Introduction/Major Developments
U.S. Supreme Court did not hear its first sexual
harassment case until 1986.
Anita Hill’s 1991 testimony against Clarence Thomas.
• Affected workplace environment.
• Led to increase in complaints filed with the Equal Employment
Opportunity Commission (EEOC) after the hearings.

6. 9-6
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Is It a Big Deal? 1
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.

7. 9-7
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Is It a Big Deal? 2
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 and 50 percent of
the women who worked in congressional offices on Capitol Hill
have been sexually harassed.

8. 9-8
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Where Do Sexual Harassment
Considerations Leave the Employer?
Consensual relationships are not forbidden under
the law.
Employees may date consistent with company
policy.
Becomes a problem when:
• Activity directed toward an employee is unwelcome.
• Terms or conditions different for one gender than are
imposed.

9. 9-9
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Sexual Harassment in General
Quid pro quo sexual harassment and Hostile
environment sexual harassment.
• Distinction between the two terms need not be rigid according
to the U.S. Supreme Court.
Most sexual harassment takes place between males
and females.
• Male as the harasser and the female as the harassee.
• Gender of the harasser need not be male and the gender of
the parties does not matter.
• Males can be sexually harassed also.

10. 9-10
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Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment: Harasser requests
sexual activity from the harassee in exchange for
workplace benefits.
• More obvious type of sexual harassment and is not generally
difficult to recognize.
Cases: Ball State University v. Vance, Texas Southwestern
Medical Center v. Nassar.

11. 9-11
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Hostile Environment Sexual Harassment
Hostile environment sexual harassment.
• Harasser creates an abusive, offensive, or intimidating
environment for the harassee.
• Offensive work environment to which one gender is subjected
but not the other.
Case: Meritor Savings Bank, FSB v. Vinson.

12. 9-12
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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.

13. 9-13
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Unwelcome Activity
Unwanted activity by the harasser is the basis of hostile
environment sexual harassment actions.
• Harasser’s actions can be direct or indirect.
• Evidence that the activity is unwelcome can also be direct or
indirect.
• Scenario 3.
Brings up the question of unwelcomeness parameters.

14. 9-14
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Severe 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 liability.
• The 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 decision.
• Sexual harassment claims do not require findings of severe
psychological harm to be actionable.

15. 9-15
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Perspective Used to Determine Severity 1
Reasonable person standard: Viewing the harassing
activity from the perspective of a reasonable person.
• Harassing activity includes gender-specific sociological,
cultural, and other factors.
Reasonable victim standard: Viewing the harassing
activity from the perspective of a reasonable person in
society at large.
• Generally tends to be the male view.

16. 9-16
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Perspective Used to Determine Severity 2
EEOC issued a policy statement.
• Required that the victim’s perspective also must be considered
so as not to perpetuate stereotypes.
• Notion was labeled the “reasonable woman” or reasonable
victim standard.
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.”

17. 9-17
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“Sexual” Requirement Explained
• Need not involve sex, requests for sexual activity,
sexual comments, or other similar activity.
• Antifemale animus: Negative feelings about women
and/or their ability to perform jobs or functions,
usually manifested by negative language and actions.

18. 9-18
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Employer Liability for Sexual Harassment 1
Supervisor toward Employee (Tangible Employment
Action).
• Generally quid pro quo sexual harassment.
• Employers are strictly liable for the tangible acts of their
supervisors.
• Presence of a paper trail, which gives employers a measure of
control in monitoring for actions.

19. 9-19
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Employer Liability for Sexual Harassment 2
Supervisor toward Employee (No Tangible Employment
Action).
• Employer is not strictly liable.
• Ellerth/Farragher defense: Employer had a reasonable sexual
harassment policy in place; harassed employee unreasonably
failed to use it.
• Case: Burlington Industries, Inc. v. Ellerth.

20. 9-20
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Employer Liability for Sexual Harassment 3
Coworker harassment or third-party harassment of
employee.
• 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.

21. 9-21
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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.

22. 9-22
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Retaliation and Employee Privacy
On reporting the sexual harassment, the alleged
harasser must be told of the complaint for the
employer to effectively address it.
• Retaliation will not be tolerated.
• Law has separate retaliation provisions.
In 2016, retaliation claims were the number one claim
reported.

23. 9-23
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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 have the effect of punishing the harassee.

24. 9-24
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Damages and Jury Trials
Civil Rights Act of 1991.
Employees suing for sexual harassment can:
• Ask for up to $300,000 in compensatory or punitive damages and
unlimited medical damages.
• Request a jury trial.
EEOC has institutionalized the use of alternative
dispute resolution (ADR).

25. 9-25
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Tort and Criminal Liability
Tort actions
• Assault – Intentionally putting the victim in fear or
apprehension of unwanted touching.
• Battery – Intentional unpermitted bodily touching.
• Intentional infliction of emotional distress.
• False imprisonment.
• Intentional interference with contractual relations.
Action could form the basis of criminal prosecution for criminal
assault, battery, and rape.
Case: Miller v. Washington Workplace.

26. 9-26
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Management Tips 1
• Adopt an anti-sexual harassment policy.
• Take a top-down approach to deter sexual
harassment.
• Create and disseminate information about an
effective reporting mechanism for harasses.
• Consistently remind employees of the policy.
• Provide employees with training and/or information
that helps them to recognize sexual harassment.

27. 9-27
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Management Tips 2
• Ensure that reported incidents of sexual harassment
are taken seriously.
• Ensure that the training employees receive is
effective, interactive, and engaging.
• Create an environment where sexual harassment is
not tolerated.
• Promptly investigate all sexual harassment claims.

28. 9-28
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Management Tips 3
• 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.