Transcript Sexual Harassment (Basic Points) Sex as a sex as a condition of employment or basis for employment decisions or behavior of a.

Sexual Harassment (Basic Points)
Sex as a sex as a condition of employment or basis for employment decisions
or behavior of a sexual nature that is unwelcome and that unreasonably
interferes with one’s work performance or creates an intimidating, hostile, or
repressive work environment
1) Quid Pro Quo (sex as a condition of employment or basis for
employment decisions)
2) Environmental harassment (behavior of a sexual nature that is
unwelcome and that unreasonably interferes with one’s work
performance or creates an intimidating, hostile, or repressive work
environment)
Sexual Harassment (Some Key Factors)
• Investigating the record as a whole
• Viewing the totality of the circumstances (e.g., nature of the
relationship, nature of the sexual advances, context in which the
behaviors occurred)
• Examining the evidence on a case by case basis
• Conduct is potentially illegal if the organization “knew or should
have known” of sexual behavior
Sources of harassment:
• Supervisors (company responsibility; agent of the company)
• Co-workers (corrective action)
• Clients (extent of company control)
Meritor Savings Bank v. Vinson
On June 19, 1986 the Supreme Court decided its 1st sexual
harassment case. The plaintiff, Michelle Vinson, alleged that her
supervisor had made sexual advances toward her throughout her
fours of employment. Vinson testified that she had ultimately relented
to her supervisor’s advances for fear of loss of employment. The
supervisor, Sidney Taylor, claimed that Vinson wore provocative attire
and openly discussed her sex life and sexual fantasies. Furthermore,
he claimed that the sexual harassment charge has been filed in
retaliation to a business-related dispute. Evidence was also
presented that Vinson had turned down promotions to other branch
offices away from Taylor during the period in which the harassment
alleged to be taking place. The employer argued that it should not be
held liable for the offense since the proscribed behavior had gone on
without its knowledge, approval, or consent (and that Vinson had not
used the companies procedures to make the alleged behaviors known
to the organization). The company also presented that sexual
harassment was against its own policy statement.
Summary of Vinson Findings
1) Sexual harassment is a form of sex discrimination and thus a violation of
Title VII of the Civil Rights Act
2) Both “tangible job benefit” (Quid Pro Quo) and “environmental” harassment
are violations of Title VII. That is, it can exist under conditions where it
creates a hostile or repressive work environment.
3) A company is not immune from legal liability when it had a grievance
procedure and policy against sexual harassment.
4) Even if sexual behavior is “voluntary” the key is that it is “unwelcome.”
5) The plaintiff’s “provocative” behavior and dress are admissible as evidence.
6) A company is not automatically liable for “environmental” sexual
harassment
Some Key Quotes From Vinson
For sexual harassment to be actionable, it must be sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.
The gravamen of any sexual harassment claim is that the alleged sexual
advances be unwelcome.
The correct inquiry is whether respondent by her conduct indicated that the
alleged sexual advances were unwelcome, not whether her actual participation
in sexual intercourse was voluntary
While the District Court must carefully weigh the applicable considerations in
deciding whether to admit evidence of this kind {provocative behavior and
dress}, there is no per se rule against its admissibility. The District Court did not
err in admitting testimony about respondents sexually provocative behavior and
dress.
… Court of Appeals was wrong to entirely disregard agency principles and
impose absolute liability on employers for the acts of their supervisors,
regardless of the circumstances of a particular case.
Plaintiff: Teresa Harris
Charge: Alleged that the President of Forklift Systems, Inc., Charles Hardy, was
guilty of sex discrimination by creating an "abusive work environment“
Evidence (Statements made by Hardy):
• "You're a woman, what do you know"
• "We need a man as the rental manager“
• Told her she was "a dumb ass woman."
• Suggested that the two of them "go to the Holiday Inn to negotiate a raise."
• Asked Harris and other female employees to get coins from his front pants
pocket.
• Threw objects on the ground in front of Harris and other women, and asked them
to pick the objects up.
• Made innuendos about Harris’ and other females employee’s clothing
Harris complained to Hardy and he was surprised she was offended by his
behavior. But, he promised to stop. However, a few weeks later as Harris was
working on a deal with a client, Hardy commented: “What did you do, promise
the guy . . . some [sex] Saturday night?" Harris quit.
Findings: The United States District Court in Tennessee held that Hardy's
conduct did not create an abusive environment.
No evidence of serious psychological harm to Harris
Some of Hardy’s behavior was found to offend Harris and would be offensive
to a “reasonable woman” but they were not:
"so severe as to be expected to seriously affect [Harris'] psychological
well being. A reasonable woman manager under like circumstances would
have been offended by Hardy, but his conduct would not have risen to the
level of interfering with that person's work performance.
Supreme Court
No requirement that the behavior results in serious psychological injury
We therefore believe the District Court erred in relying on whether the conduct
"seriously affect[ed] plaintiff's psychological wellbeing" or led her to "suffer”
injury." Such an inquiry may needlessly focus the fact finder's attention on
concrete psychological harm, an element Title VII does not require. Certainly
Title VII bars conduct that would seriously affect a reasonable person's
psychological wellbeing, but the statute is not limited to such conduct. So long
as the environment would reasonably be perceived, and is perceived, as hostile
or abusive, Meritor, supra, at 67, there is no need for it also to be
psychologically injurious.
UNWELCOME SEXUAL BEHAVIOR
A.
A COMPLAINT AT TIME OF OFFENSE STRENGTHENS CLAIM OF SEXUAL
HARASSMENT, BUT IS NOT NECESSARY (E.G., MAY FEAR RETALIATION)
B.
VICTIM’S CONDUCT MY DEMONSTRATE THAT BEHAVIOR WAS UNWELCOME (VERBAL
COMPLAINT NOT REQUIRED)
C.
EVIDENCE OF SEXUAL HARASSMENT CAN COME SOLELY FROM THE EMPLOYEE, BUT
MUCHMORE DIFFICULT TO PROVE (CREDIBILITY); CORROBORATION IS VERY USEFUL
(E.G., EYEWITNESS, TOLD OTHERS OF HARASSING BEHAVIOR, OTHERS SAW
VICTIM’S REACTION SOON AFTER A HARASSING INCIDENT)
D.
EVIDENCE OF A VICTIM’S BEHAVIOR AND ATTIRE IS ADMISSIBLE IN COURT TO
DETERMINE IF BEHAVIOR WAS WELCOME
E.
IF PARTICIPATION IN CONDUCT OF A SEXUAL NATURE (INCLUDING A SEXUAL
RELATIONSHIP) CHANGES FROM CONSENSUAL TO DISINTEREST, AND THIS IS
COMMUICATED, SUBSEQUENT SEXUAL BEHAVIOR OR ADVANCES MAY BE VIEWED AS
SEXUAL HARASSMENT.
LIABILITY
A.
IN CASE OF “QUID PRO QUO” HARASSMENT, THE COMPANY IS ALWAYS LIABLE FOR
DAMAGES
B.
EXISTENCE OF A COMPANY POLICY PROHIBITING SEXUAL HARASSMENT AND/OR A
COMPLAINT PROCEDURE HELPS, BUT DOES NOT INSULATE THE COMPANY FROM
LIABILITY.
C.
THE COMPANY IS NOT AUTOMATICALLY LIABLE FOR ACTIONS OF ITS SUPERVISORS.
THE CITCUMSTANCES OF EACH PARTICULAR CASE NEEDS TO BE EXAMINED.
D.
THE LACK OF NOTICE (E.G., BY EMPLOYEE) OF THE EXISTENCE OF SEXUAL
HARASSMENT DOES NOT INSULATE THE COMPANY FROM LIABILITY (COMPANY
RESPONSIBLE WHETHER THEY KNEW OR SHOULD HAVE KNOWN OF ITS
OCCURRENCE).
E.
CO-WORKER AND CLIENT HARASSMENT CAN LEAD TO COMPANY LIABILITY IF
EFFECTIVE AND QUICK CORRECTIVE MEASURES DID NOT TAKE PLACE. LESS
CHANCE OF COMPANY LIABILITY IF:
A)
HARASSMENT ELIMINATED BY CORRECTIVE ACTIONS
B)
ALL VICTIMS HAVE BEEN MADE WHOLE
C)
PREVENTATIVE MEASURES HAVE BEEN INSTITUTED.
HOSTILE ENVIRONMENT
A.
EVALUATE CONDUCT FROM THE STANDPOINT OF A:
“REASONABLE PERSON” (EARLIER)
“REASONABLE WOMAN” (TO TAKE THE PERSPECTIVE OF THE TYPICAL
VICTIME WHEN
ASSESSING THE FACTS OF THE
CASE)
B.
MULTIPLE OCCURRENCES OF BEHAVIOR STRENGTHEN CLAIM (NOT
NEEDED IF “QUID PRO QUO” OR SEVERE PHYSICAL MISCONDUCT IS
PRESENT)
C.
CONDUCT BY A SUPERVISOR IS EVALUATED MORE STRINGENTLY
(VERSUS CO-WORKERS AND CLIENTS)
IMPLICATIONS FOR SUPERVISORS/DECISION-MAKER
(“UNWELCOME” DEFINITION CASES)
A.
IF SOMEONE APROACHES A MANAGER WITH A CONCERN ABOUT
SEXUAL CONDUCT IN THE WORKPLACE, THIS SHOULD BE
INTERPRETED AS A SIGN THAT THE CONDUCT IS UNWELCOME
AND FURTHER INVESTIGATION SHOULD FOLLOW.
B.
IF EMPLOYEES FAIL TO COMPLAIN ABOUT SEXUAL CONDUCT IT
SHOULD NOT BE ASSUMED THAT THE CONDUCT IS WELCOME.
C.
JUST BECAUSE AN EMPLOYEE ENGAGES IN SEXUAL BANTER
DOES NOT MEAN WE SHOULD NOT BE CONCERNED ABOUT THE
BEHAVIOR AND ITS POSSIBLE IMPACT.
D.
ALL COMMENTS OF A SEXUAL NATURE OBSERVED BY A MANAGER
SHOULD BE STOPPED. [E.G., WHAT MAY HAVE BEEN WELCOME
OR CONSENSUAL MAY BECOME UNWELCOME AND DISRUPTIVE].
Vignettes
1.
A group of male sales representatives come to see you. They say they no longer want to be
sent on out-of-town assignments with female colleagues because they are afraid of sexual
harassment charges.
Do you assure the men they don’t have to travel with women?
Tell the men their fears are groundless?
Arrange for a sexual harassment training session?
Call a department meeting to discuss the matter?
2.
Barb just lost a lot of weight. She starts coming to work in very short, tight skirts and clinging
tops.
Do you ask nothing?
Call Barb in to tell her to dress more appropriately?
Send Barb a memo asking her to dress more appropriately?
3.
XYZ Company is your biggest account. The buyer has been making unwelcome sexual
advances to several women in your office.
Do you ask the women to ignore it?
Tell the buyer not to come back?
Tell the buyer to change his behavior?
Call the buyer’s boss?
Vignettes (cont.)
4.
Ann, a female supervisor, has recently complained to management about the
ongoing sexual advances and innuendo to which she is exposed on the plant floor.
The Plant Manager reminded her that she was informed about this climate before
she accepted her position. She has been told that she is going to have
to be
more assertive and learn to deal with this if she expects to keep her job.
5.
Richard and Janet have worked together for several years. Richard grabbed
Janet’s behind when she was drinking from the water fountain. When Janet
objected, Richard apologized and has never repeated this behavior again.