1. Chapter 8 Sexual Harassment Employment Law for BUSINESSsixth edition Dawn D. BENNETT-ALEXANDER and Laura P. HARTMAN McGraw-Hill/Irwin Copyright © 2009 by The McGraw-Hill Companies, Inc. All rights reserved.

2. Statutory Basis It shall be unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex [gender]. . . . Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. 2000e2(a). Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) 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. Section 1604.11 (a) (EEOC Sexual Harassment Guidelines). 8 – 2

3. Sexual Harassment (S.H.) in General It wasn’t until the late 1970’s that courts first held sexual harassment was a form of sex discrimination under Title VII of the CRA of 1964. In 1980 the EEOC published guidelines and defined the term “sexual harassment” for Title VII purposes, making it clearly illegal. First U.S. Supreme Court sexual harassment case heard in 1986. 8 – 3

4. Sexual Harassment in General Generally speaking…. S.H. is any unwelcome words or actions of a sexual nature. “Unwelcome” in that the harasser was told it wasn’t welcome OR the actions were so offensive the harasser should have known it wasn’t welcome. Most S.H. instances involve a man sexually harassing a woman, but S.H. can also be: A woman harassing a man A woman harassing a woman A man harassing a man 8 – 4

5. Sexual Harassment in General S.H. can come from anyone: A supervisor A co-worker A customer A supplier Two types of S.H. defined by the EEOC and the courts: Quid pro quo Hostile environment 8 – 5

6. Quid Pro Quo Sexual Harassment “Quid Pro Quo” means “something for something.” This usually involves supervisors who use: Threats – firing, blocking promotion, transferring, or giving a bad evaluation – if a person does not accept sexual advances; or Rewards – hiring, promoting, giving a raise – if a person does accept sexual advances. Quid Pro Quo harassment exists when the harassment is a condition of employment. An employer can limit a supervisor’s ability to abuse power by: Choosing supervisory employees carefully Having in place a system with adequate monitors and checks 8 – 6

7. Hostile Environment Sexual Harassment Hostile Environment S.H. involves repeated actions, comments, or objects that “unreasonably interfere” with work performance or that create an “intimidating, hostile, or offensive” work environment for one gender and not another. This may include: Commonly displaying sexual pictures, calendars, graffiti, or sexual objects Regular use of offensive language, jokes, gestures, or comments. Read Harris v. Forklift Systems, Inc. 510 U.S. 17 (1993) 8 – 7

8. Severe and Pervasive Requirement Does the harassing activity unreasonably interfere with an employee’s ability to perform? Claims do not require findings of severe psychologicalharm Circumstances that can determine whether an environment is hostile or abusive: Frequency of the discriminatory conduct If activity an isolated occurrence, was it severe? Whether it is physically threatening or humiliating or a mere offensive utterance Whether it unreasonably interferes with an employee’s work performance Severe and pervasive activity Harassing activity that is more than an occasional act or is so serious that it is the basis for liability. 8 – 8

9. Perspective Used to Determine Severe & Pervasive Requirement Until recently, “reasonable person” standard used, i.e.,. offensiveness of activity judged on whether activity would offend a reasonable person under the circumstances. “Reasonable woman” or “reasonable victim” standard is now being increasingly used by courts when evaluating harassing activity. 8 – 9

10. Hostile Environment Sexual Harassment To sustain a finding of hostile environment sexual harassment, it is generally required that: The harassment be unwelcome The harassment be based on gender The harassment be sufficiently severe or pervasive to create an abusive working environment The harassment affect a term, condition, or privilege of employment The employer had actual or constructive knowledge of the sexually hostile working environment and took no prompt or adequate remedial action Read Meritor Savings Bank, FSB v. Vinson Text p. 442. 8 – 10

11. Comparison Quid pro quo sexual harassment Workplace benefit promised, given to, or withheld from harassee by harasser In exchange for sexual activity by harassee Often 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 8 – 11

12. Employer Liability for Sexual Harassment Employer liability for S.H. depends on who the alleged offender is: If committed by Supervisory employee and it results in a tangible employment action (termination, loss of promotion, etc.), the employer is strictly liable for the supervisor’s actions, whether or not the employer knew or should have known of the sexually harassing activity. If committed by Supervisory employee and it does not result in any tangible employment action, the employer is not strictly liable. The employer may avoid liability for a supervisor’s actions under hostile environment if it can prove both elements of an affirmative defense: The employer exercised reasonable care to prevent and correct promptly any sexual harassing behavior, and That the plaintiff employee unreasonably failed to take advantage of any corrective opportunity provided by the employer or to otherwise avoid harm. 8 – 12

13. Employer Liability for Sexual Harassment (cont’d) For non-supervisor harassment (such as co-workers or customers/clients), the employer will be held liable only if it knew or should have known of the harassment and failed to take prompt and effective corrective action. In this instance, the burden of proof is on the plaintiff to show the employer’s negligence. 8 – 13

14. Other Important Considerations Determining the truth of allegations Inherent plausibility Demeanor Motive to falsify Corroboration Past record Retaliation by an employer against an employee for filing a S.H. claim is prohibited under Title VII. An employer is required to take corrective action to remedy S.H. – can range from verbal warning to termination depending on the circumstances. Damages and jury trials – Under CRA 1991, employee suing for S.H. can receive up to $300,000 in compensatory and punitive damages and request a jury trial. S.H. may form the basis of civil tort actions and give rise to criminal liability, in addition to creating liability under Title VII. 8 – 14

15. Summary Consensual activity is not a violation of Title VII. Title VII does not protect employees from discrimination on the basis of affinity orientation. Unwelcome sexual advances that cause one gender to work under conditions or terms of employment different from those of the other gender constitute sexual harassment for which the employer may be liable. Employers will be responsible only if the sexual harassment is severe and pervasive. 8 – 15

16. Summary (continued) Employers should treat all sexual harassment complaints seriously and act on them quickly. Prevention is imperative to avoid sexual harassment claims and lessen liability. Employers need a strong anti–sexual harassment policy that is vigorously enforced. 8 – 16

17. Best Employer Defense AgainstS.H. Claims Best defense is that employer has: Adopted effective measures specifically designed to eliminate workplace S. H. Have a published policy stating, at minimum: That S.H. won’t be tolerated What S. H. is and how to report it, i.e., established complaint procedure That all claims will be promptly and thoroughly investigated And that effective remedial actions will be taken if necessary to correct the complained of behavior. 8 – 17

18. Best Employer Defense against S.H. Claims (cont’d) AND that when employer became aware of harassing activities or aware of allegations of S.H., that it followed its published policy! 8 – 18

19. End of S.H. PowerPoint Outline  8 – 19

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