Sexual Harassment (Basic Points)

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)

What determines

unwelcome

sexual behavior

?

• • • A

complaint

at the time of the offense strengthens a claim, but it is NOT required Victim's

non-verbal conduct

may indicate that the behavior is unwelcome (e.g., being visibly upset, angry)

Corroboration

from the victim is helpful (e.g., testimony from eyewitnesses, victim told others of the harassing behavior); but evidence can come solely

How is a

hostile

work environment established?

• Reasonable person/victim standard • Repeated offenses • Behavior of supervisors are more likely to be viewed as creating a hostile environment. [Seen as an "agent" of the company]

Is it sexual harassment if a female employee engages in

consensual

sex with a male superior?

Does an employee have to follow a company’s sexual harassment complaint policy before filing a suit?

Are companies

automatically

liable for "environmental" sexual harassment of its supervisors?

Can a company be held liable for harassment that occurs

outside

of the work environment?

Is an organization responsible for sexual harassment by its employees if it

did not know

the behaviors were being committed?

Does having a company

policy

against sexual harassment

protect companies from liability?

Meritor Savings Bank v. Vinson (1986)

Basic Facts: Plaintiff

: • Alleged that her supervisor had made sexual advances toward her throughout her four years of employment • Vinson relented to her supervisor’s advances for fear of loss of employment (behavior was unwelcome)

Company Defense

:  Argued that it should not be held liable for the offense since the proscribed behavior had gone on without its knowledge, approval, or consent  Vinson had not used the companies procedures to make the alleged behaviors known to the organization  The company stated that sexual harassment was against its own policy.

Also -- Supervisor claimed that Vinson wore provocative attire and openly discussed her sex life and sexual fantasies He stated the sexual harassment charge was filed in retaliation to a business-related dispute Evidence presented that Vinson had turned down promotions to other branch offices away from her supervisor during the period in which the harassment was alleged to be taking place

~ Summary of Supreme Court Decision in Vinson ~

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 “ hostile or repressive work environment and

environmental liability

can exist ” harassment are violations of Title VII. That is, it can exist under conditions where it creates a

whether the company knew or should have known

of the harassing behavior.

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

Extent of Harm

: 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

Unwelcome

: 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 Evidence:

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 Liability

: … 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.

~ Harris v. Forklift Systems ~

Charge

: Alleged that the President of Forklift Systems, Inc., Charles Hardy, was guilty of sex discrimination by creating an "abusive work environment“ Comments and behavior from Harris' supervisor: "You're a woman, what do you know?" "We need a man as the rental manager." Called her "a dumb ass woman." Suggested that the two of them "go to the Holiday Inn to negotiate [Harris'] raise" Asked Harris (and other female employees) to take coins out of his pants pocket Threw objects on the floor and asked female employees to pick them up >>> Harris complained to her supervisor, he was surprised, and said he would stop.

Alas, a month later: When arranging the signing of a deal with a customer Harris' supervisor said "What did you do, promise the guy --- some [sex] Saturday night? She quit and sued the company

~ Harris v. Forklift Systems (cont.) ~

Findings

: District court found this to be

"a close case."

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 Decision in Harris

No requirement that the behavior results in serious psychological injury We therefore believe the District Court attention on

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

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 such conduct. So long as the environment would reasonably be perceived, and is perceived, as

hostile or abusive

, Meritor, supra, at 67,

not limited

to

there is no need for it also to be psychologically injurious .

Middle Ground Approach in Harris v. Forklift Systems

Low

Merely offensive conduct (simple utterances that are offensive but do not sufficiently affect conditions of employment and create a hostile work environment)

Moderate

Supreme Court decision in Harris [no need to demonstrate concrete harm ]

High

Conduct causing psychological injury [District Court decision in Harris]

"So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychological injurious"

--- Supreme Court in Harris

Summary of Key Issues in Vinson

Can males be guilty of sexual harassment against other males?

Some Issues:

Sexual interest vs. teasing, roughhousing, horseplay Equal opportunity “bisexual” harasser (e.g., comparative evidence on how accuser treated both sexes

Oncale v. Sundowner:

Sexual Harassment Case Summaries

Burlington v. Ellerth Ellerth threatened with tangible employment consequences (e.g., no promotion, firing) unless she agreed to sex with her manager Threats never materialized (she was eventually promoted) She decided to quit her job alleging quid pro quo sexual harassment

S.C. decision:

This was

a hostile environment case

---

no tangible consequences

(e.g., significant change in employment status such as failure to promote, firing) Company has affirmative defense for vicarious liability (e.g., they took reasonable care to prevent and correct sexual harassment)

Faragher v. Boca Raton

• Lifeguards for the city, in supervisory positions, touched and verbally harassed beach goers (e.g., Faragher) • City had sexual harassment policy • City stated that they did not know of the actions of the guards who acted against company policy City had vicarious liability --- supervisor lifeguards are agents of the City and the city had an affirmative defense (e.g., taking quick corrective action)

Pennsylvania State v. Suders (Constructive Discharge)

After working for 4 months, Suders, a communications officer, quit alleging: 1) Daily sexual abuse by supervisors 2) Retaliation threats 3) Complaints to EEO officer were ignored 4) EEO officer gave her incorrect instructions on how to file a complaint 5) On several occasions, supervisors intentionally her requests for promotion

SC Decision in Suders

• Constructive discharge, like retaliation, applies to all laws • It exists when the harassment has reached the point where a reasonable person in the employee’s position would be compelled to quit • Strict liability only when there is an official change in the victim’s status – a constructive discharge may not always involve an official action. If not, the company has an affirmative defense

Teacher-Student (

Gebster v. Lago Vista School District

) and Student-Student Harassment (

Davis v. Monroe County Board of Education

)

>>> Appropriate law is Title IX (not Title VI)

• Decision-making must possess actual knowledge of sexual harassment • Defendant must show deliberate indifference to the harassment • Harassment must occur in context where defendant has control over the harasser • Harassment must be severe and pervasive to deny educational opportunities

~ Sexual Harassment Training ~

• • • • • • •

Establish a

written policy

prohibiting sexual harassment

Define sexual harassment Outline complaint procedures Ensure confidentiality of parties involved (& any witnesses) Guarantee protection of those who complain Outline decision-making procedures for any disciplinary action to be taken against harassers Prompt investigation of sexual harassment complaints Tie policy to mission statement of organization

~ Sexual Harassment Training (cont.) ~

Establish effective

complaint

procedures

• Educate management on the SH complaint procedure • Use of

trained

investigators (demographically diverse) in SH complaints; train investigators in “intake” and investigative interview techniques * • Require supervisors/managers to contact SH resource person (s) when a complaint is alleged • Guard against possible

retaliation

• Complaint procedure should include a written appeals and review process •

Document

all SH complaints, the investigation, and resolution

Does an employee have to follow a company’s sexual harassment complaint procedure before filing a suit of harassment?

~ Sexual Harassment Intake Interview Recommendations ~ (with complainant)

• Establish rapport and put the complainant at ease • Describe your role and the elements of the complaint process • Gather specific information about the alleged incident (s) such as:       Description of those involved The nature of the incident and the circumstances involved Complainant's

response

Existence of any

corroborating evidence

Consequences to the victim of the harassing behavior Counsel complainant on the options involved to resolve the matter • Prevent further negative consequences (e.g., separate parties involved) • Agree on the next step (including a follow-up date) • Thank the complainant and encourage ongoing communication

~ Aspects of Interview with the Accused ~

Some key questions ---

• Did the accused engage in any of the alleged SH behavior?

• Did the accused know that their behavior was unwelcome?

• Anyone else observe (or know about) the sex-based behavior?

• Anyone else engage in the same (or similar) behavior?

• Was the accused told to stop the behavior?

• Did the accused retaliate against the complainant? If so, how?

• What is the accused’s explanation of the charges/evidence?

• Does the accused have any witnesses regarding the incident (s)?

• Ask questions to clarify any inconsistencies in information

Some General Tips for Supervisors/Managers

1) Model appropriate behavior 2) Create a climate of open communication, mutual respect 3) Monitor work environment, behavior of subordinates 4) Encourage employees to express concerns/complaints 5) Immediately respond to sexual harassment allegations