Chapter 9Sexual Harassment

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Learning Objectives (1)

Discuss the background leading up to sexual harassment as a workplace issue

Distinguish quid pro quo and hostile work environment sexual harassment and give the requirements for making each type of case

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

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Learning Objectives -- 2 Understand the Ellerth and Farragher defenses,

the circumstances under which they apply, and its practical impact on the workplace

Differentiate the sex requirement and anti-female animus in sexual harassment actions

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 are rare The “white buffalo”

Cost to businesses, personal lives

If HR ever matters (and it does), then liability is preventable through standard setting, process follow-through and enforcement

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Introduction/Major Developments First U.S. Supreme Court sexual harassment

case heard in 1986 (Meritor Savings case)

Anita Hill and Clarence Thomas, live in D.C. Effect on the workplace environment

Increase in complaints after the hearings

Weeks v. Baker & McKenzie: 10% of law firm’s previous year’s profit awarded as punitive damages: sends a message to employers

Ellerth and Farragher cases in 1998: prevention

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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

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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 have been

sexually harassed

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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, procedures and follow-through are keys to nipping unnecessary liability in the bud.

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Sexual Harassment in General (1)

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 (gravamen: it makes that person’s job sig. harder to do as a result)

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Sexual Harassment in General (2)

Most sexual harassment takes place between males and females

Males bring fewer cases in part due to fear of ridicule

Sexual orientation is not covered under Title VII Harassment cases can still be brought regardless of

the gender(s) of the harasser and harassee

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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

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The Love Contract (or: Romance is dead)

How it works

What is included

What it should do

How it is useful

Is it legally defensible, based on any power differential?

Is it worth the effort – THAT is the Q. “Happy Valentine’s Day – please sign here”

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‘Unwelcome’ Requirement 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

Scenario 1

Unwelcomeness parameters

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‘Severe or Pervasive’ Requirement (1)

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 Not a civility code

Interference with reasonable expectations

Physicality and extreme behavior affects duration

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 (2)

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 – the key

Scenario 2

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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

Evolution in the case law over time: away from ‘take the workplace as you find it’ (an essentially ‘male’ standard) toward current ‘reasonable victim’ perspective (regardless of gender)

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 always be present in

hostile environment cases to constitute sexual harassment (recall that this is a form of sex discrimination)

Anti-female animus: Negative feelings about women and/or their ability to perform jobs or functions, usually manifested by negative language and actions Similar to racial harassment, seen previously

Harassment may include electronic means

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Employer Liability for Sexual Harassment (1)

Tangible employment action taken Employer is strictly liable

Presence of a paper trail which gives employers a measure of control

No tangible employment action taken Employer not strictly liable

Ellerth/Farragher defense: employer had effective prevention policy in-place; plaintiff unreasonably failed to use it Case: Burlington Industries v. Ellerth

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Employer Liability for Sexual Harassment (2)

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

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Determining the Truth of Allegations

The EEOC’s Policy Guidance on Harassment http://www.eeoc.gov/laws/types/sexual_harassment_guidance.cfm

Inherent plausibility

Demeanor

Motive to falsify

Corroboration

Past record

Employees should be involved only on a “need to know” basis

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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 necessarily move the harassee

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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 – apprehension of unwanted touching

Battery – actual unwanted touching

Sexual Assault/Rape – per statutory definitions

Intentional infliction of emotional distress

False imprisonment

Intentional interference with contractual relations

Jury trials, unlimited compensatory or punitive damages

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Management Tips (1)

Adopt an anti–sexual harassment policy

Take a top-down approach to deterring sexual harassment – lead by example

Create and disseminate information about an effective reporting mechanism for harassees Open channel for going around supervisors

Provide employees with training and/or information that helps them to recognize sexual harassment

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Management Tips (2)

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 (3)

Follow-up, times three!

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