Chapter 9Chapter 9Sexual Harassment Sexual Harassment

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

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Learning ObjectivesLearning 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 ObjectivesLearning 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 anti-female animus in sexual harassment actions

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Learning ObjectivesLearning 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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IntroductionIntroduction 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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IntroductionIntroduction 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?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?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

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Where do Sexual Harassment Where do Sexual Harassment Considerations Leave the Employer?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 GeneralSexual 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 GeneralSexual 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 Comparison between Quid Pro Quo and Hostile Environment Sexual HarassmentHostile Environment Sexual Harassment

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Unwelcome ActivityUnwelcome 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”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 RequirementSevere 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 RequirementSevere 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 Perspective Used to Determine SeveritySeverity

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 Perspective Used to Determine SeveritySeverity

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 ExplainedSexual” 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 Employer Liability for Sexual HarassmentHarassment

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

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Employer Liability for Sexual Employer Liability for Sexual HarassmentHarassment

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 AllegationsDetermining 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

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Retaliation and Employee PrivacyRetaliation 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 ActionCorrective 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 TrialsDamages 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 LiabilityTort 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 LiabilityTort and Criminal Liability Jury trails

Unlimited compensatory or punitive damages

Basis for criminal prosecution

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Management TipsManagement 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 TipsManagement 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 TipsManagement 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