Chapter 9

Chapter 9 Sexual Harassment

McGraw-Hill/Irwin

Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

Learning Objectives  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

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Learning Objectives  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  Differentiate the sex requirement and antifemale animus in sexual harassment actions

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Learning Objectives  Explain employer liability for various types of sexual harassment claims  Describe proactive and corrective actions an employer can take to prevent or lessen liability

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Introduction  Sexual harassment in the workplace occurs more frequently than many realize  Sexual harassment class action trials  The “white buffalo”

 Cost to businesses  Liability is avoidable through a few simple steps

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Introduction  Anita Hill and Clarence Thomas  Effect on the workplace environment  Increase in complaints after the hearings

 First U.S. Supreme Court sexual harassment case heard in 1986  Difficulty in recognizing sexual harassment when it occurs

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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

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Is It a Big Deal?  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 9-8

Where do Sexual Harassment Considerations Leave the Employer?  Consensual relationships are not forbidden by the law  Unwelcome activity – imposes terms and conditions that are different for one gender  Sexual harassment policies in the workplace

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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  Hostile environment sexual harassment: Sexual harassment in which the harasser creates an abusive, offensive, or intimidating environment for the harassee

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Sexual Harassment in General  Most sexual harassment takes place between males and females  Males bring fewer cases due to fear of ridicule

 Affinity orientation is not covered under Title VII  Harassment cases can still be brought regardless of the gender of the harasser and harassee

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Comparison between Quid Pro Quo and Hostile Environment Sexual Harassment QUID PRO QUO SEXUAL HARASSMENT

HOSTILE ENVIRONMENT SEXUAL

• Workplace benefit promised, given to, or withheld from harasser by harasser • In exchange for sexual activity by harassee • Generally accompanied by a paper trail

• 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

HARASSMENT

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Unwelcome Activity  It is the basis of hostile environment sexual harassment actions  Harasser actions can be direct or indirect  Evidence that the activity is unwelcome can also be direct or indirect

 Unwelcomeness parameters

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“Love Contracts”  How they work  What is included  What it should do  How it is useful  Is it legally defensible

 Is it worth the effort

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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  U.S. Supreme court decision  Sexual harassment claims do not require findings of severe psychological harm to be actionable

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Severe and Pervasive Requirement  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

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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: Viewing the harassing activity from the perspective of a reasonable person experiencing the harassing activity including gender-specific sociological, cultural, and other factors

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Perspective Used to Determine Severity  Viewing severity and pervasiveness from different perspectives renders different results  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”

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“Sexual” Requirement Explained  Sexual element need not be present in order to constitute sexual harassment  Anti-female animus: Negative feelings about women and/or their ability to perform jobs or functions, usually manifested by negative language and actions  Harassment by electronic means

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Employer Liability for Sexual Harassment  Supervisor toward employee (tangible employment action)  Employer is strictly liable  Presence of a paper trail which gives employers a measure of control

 Supervisor toward employee (no tangible employment action)  Employer not strictly liable  Also true for constructive discharge 9-20

Employer Liability for Sexual Harassment  Coworker harassment 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

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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 on a “need to know” basis 9-22

Retaliation and Employee Privacy  Harassee’s fear of retaliation  Requests employers to provide relief without informing the harasser

 Harasser must be informed to properly handle the issue  EEOC – dramatic increase in reatliation claims

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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

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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)

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Tort and Criminal Liability  Tort actions  Assault  Battery

 Intentional infliction of emotional distress:  False imprisonment  Intentional interference with contractual relations

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Tort and Criminal Liability  Jury trails  Unlimited compensatory or punitive damages

 Basis for criminal prosecution

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Management Tips  Adopt an anti–sexual harassment policy  Take a top-down approach to deterring sexual harassment

 Create and disseminate information about an effective reporting mechanism for harassees  Provide employees with training and/or information that helps them to recognize sexual harassment

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Management Tips  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

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Management Tips  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

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