Transcript Preventing Harassment in the Academic Setting/Workplace An on-line training. Outline Pre-test I. What is Harassment? I. II. I. II.

Preventing Harassment
in the
Academic Setting/Workplace
An on-line training.
Outline
Pre-test
I. What is Harassment?
I.
II.
I.
II. Liability
III.
I.
Individual; Sources; Categories; Hostile
Environment
III. Preventing Harassment
IV.
I.
V.
Quid Pro Quo; Hostile Environment
Avoiding Harassment; Corrective Actions;
Investigation; Factors; Remedies; Discipline;
Resolution
Post-test
Pre-Test

Pre-test Question 1

While at work, Janet frequently makes personal phone
calls to her friends. Her conversations are loud and
generously sprinkled with sexually explicit language. Her
co-workers in nearby cubicles cannot help but overhear
her conversations.

Janets behavior cannot be interpreted as sexually
harassing, because she is not addressing her language
directly toward her co-workers.

True or False?
Pre-Test
Pre-test Question 1
 False.
 Harassment in the workplace does not
have to be directed at a particular
individual. Janet’s co-workers may find her
behavior offensive, unwelcome and
contributing to a hostile work environment,
even though she is not speaking directly to
them.

Pre-test Question 2

Tony persists in asking his co-worker, Mary, out
to dinner, even though she turns him down each
and every time he requests a date. She has told
him several times to stop asking.

Tony's behavior is not at risk for sexual
harassment, because sexual harassment may only
occur between a male boss and a female
subordinate.

True or False?
Pre-test Question 2

False.

Although harassment frequently involves power
relationships, sexual harassment may occur between
any individuals at work, regardless of reporting
relationships.

If Mary finds Tony's requests unwelcome and if
he persists in asking her out despite her clearly
stating that she does not want to date him, his
behavior is at risk for sexual harassment.
Pre-test Question 3

Bob frequently tells sexually-explicit
jokes during team meetings. Marcia is
very offended. She doesn't think Bob's
jokes are so funny. Bob's behavior is
not at risk because his jokes are all in
fun and he does not intend to sexually
harass anyone.

True or False?
Pre-test Question 3

False.

Sexual harassment does not depend on intent; it
depends on the impact of the behavior on the work
environment. Bob may not intend to offend or harass
any of his co-workers, but the impact of his behavior
is what counts.

While one joke will probably not result in a sexual
harassment claim, if this type of behavior pervades
the working environment, chances are some workers
will find it offensive and unwelcome.

The management of Bob’s company is obligated to
keep the workplace free of offensive behavior of a
sexual nature.
Pre-test Question 4

Joan and Steve enjoy a great working relationship
and just recently have started dating. They can't
seem to get enough of each other outside of the
workplace. At work, however, they usually only
interact during breaks and lunch, which they take
together. They are clearly infatuated with each other
but do not engage in public displays of affection.

Romance of any kind has no place at work. This
couple's relationship is clearly at risk for sexual
harassment.
True or False?
Pre-test Question 4
False.

The law on sexual harassment refers only to nonconsensual behavior of a sexual nature. This means
that at least one of the parties is not willing, does
not consent, and does not find the behavior
welcome.

Joan and Steve have a consensual relationship, and
they don't engage in publicly offensive behaviors, so
their conduct cannot be construed as sexual
harassment.

However, romances may go sour and lead to
harassment situations. That's why some
organizations have made policies regarding office
romances.
Pre-test Question 5

John and Lois, advertising sales executives, travel
together on a week-long business trip. In the taxi
ride from the airport to the hotel, John snuggles up
to Lois and tries to hold her hand. Lois strongly
objects, and John backs off.

While Lois finds John's behavior offensive and
unwelcome, the regulations regarding sexual
harassment in the work place are not relevant,
since John and Lois were not at their usual
workplace when the incident happened.

True or False?
Pre-test Question 5

False.

Courts have ruled that sexual
harassment can occur both on and off
regular work premises, including on
business trips, at conventions and at
holiday office parties.
I. What is Harassment?
• Conduct: Behavior, acts and
perceptions
• Quid Pro Quo
• Environment: Visual, physical and
verbal
• Hostile
• Abusive
Sexually Harassing Conduct

Can consist of:
VISUAL
Posters
Cartoons
Elevator Eyes
Leering
PHYSICAL
Hugs
Massage
Gifts
Touching
Blocking Paths
VERBAL
Sexual
 Comments: Girl,
Hunk, Babe
Jokes
Cat Calls
Whistling
Forms of Unlawful
Harassment
•
•
•
•
•
•
•

Sex
Race/National Origin/Color
Disability
Religion
Marital Status
Age
Sexual Orientation
Types of Harassment:
Quid Pro Quo

• Quid Pro Quo: Explicit or implicit
conditions for successful participation in
an education program or employment.
Includes submission to unwelcome
sexual advances, requests for sexual
favors, or other verbal, nonverbal, or
physical conduct of a sexual nature, in
exchange for grades or advancement.
Quid Pro Quo
(Something for something)

Adverse action: Benefits promised in
exchange for sexual favors or denied if
sexual favors are not given.
Quid Pro Quo

Factors:
 • Was sexual conduct unwelcome?
 • Objectively harassing, i.e., would a reasonable
person in the accuser’s position believe s/he was
the victim of quid pro quo harassment?

• Did the alleged harasser intend to subject the
accuser to quid pro quo harassment?

• Is there a nexus between a discussion about
academic or job benefits and a request for sexual
favors?
Hostile Environment

Sexually harassing conduct (which can
include unwelcome sexual advances,
requests for sexual favors, and other verbal,
nonverbal, or physical conduct of a sexual
nature) by an employee, by another student,
or by a third party that is sufficiently
severe, persistent, or pervasive to limit a
person's ability to participate in or benefit
from an education program or activity, or to
create a hostile or abusive educational or
working environment.
Is Environment Hostile or
Abusive?
•
•
•
•
•

Totality of the Circumstances
Frequency
Severity
Physically threatening or humiliating
Unwelcome
Hostile Environment in the
Education Context

Sufficiently severe, persistent, or
pervasive to:
• Limit ability to participate in or benefit
from an education program or activity, or
 • Create a hostile or abusive educational
environment

Effects of Harassment
•Creates divisiveness
 • Impedes education
 • Promotes loss of respect
 • Perpetuates fear
 • Enhances interpersonal conflict
 • Destroys morale
 • Increases absenteeism & turnover
 • Creates costly and unnecessary
litigation
II. Liability
• Individual Responsibility
 • Sources of Liability: The Law

• Title VII
 • California Fair Employment and
Housing Act (FEHA)
 • Title IX
 • California Education Code 212.5
 • Tort Law
 • Case Law

(II. Liability)
Categories:
 • Supervisors
 • Between Employees
 • Student Employees
 • Peer Harassment
 • Hostile Environment

Employees May Face Personal
Liability
Actual
Damages
Attorney’s Fees
A Civil Penalty
Up To $25,000
All Employees Are Personally
Responsible

Since January 1, 2001 California law has provided that
individual employees at all levels within an organizationnot just supervisors and managers-are personally liable
for any sexual harassment in which they engage.

In addition, if the employer concludes, based on its
own investigation, that an employee engaged in sexual
harassment it does not provide legal representation for any
lawsuit filed against that employee.

This means that you would need to rely on your own
assets to cover the costs of an attorney and to pay any
judgment.
2004 Supreme Court Decision:
Employer Liability

In June 2004, the U.S. Supreme Court held that
an employer has no legal defense when its
supervisor's unlawful harassment includes an official
act that causes an employee to quit (constructive
discharge).

Examples of such an official act may include a
humiliating demotion, extreme cut in pay, or transfer
to a position in which the employee would face
unbearable working conditions.

(Supreme Court: Employer Liability)

However, if the hostile work environment did not
include an official act on the part of the supervisor,
the employer can assert the defense that it is not
liable for the supervisor's conduct because s/he
exercised reasonable care to prevent a hostile work
environment, and promptly corrected any wrongful
behavior, and that the employee unreasonably failed
to take advantage of complaint procedures or other
preventive opportunities provided by the employer.
Impact of Liability
Monetary
Damages
Loss of
Federal Funding
Injunctive
Relief
Sources of Liability: The Law
•Title VII
 • California Fair Employment and
Housing Act (FEHA)
 • Title IX
 • California Education Code 212.5
 • Tort Law
 • Case Law

Title VII

Title VII does not explicitly mention sexual
harassment. The Supreme Court made
clear, however, in its landmark 1986
decision in Meritor Savings Bank v. Vinson
that Title VII prohibits sexual harassment,
for it is a form of illegal sex discrimination.
Meritor Savings Bank v. Vinson

The language of Title VII is not limited to
economic or tangible discrimination. Equal
Employment Opportunity Commission
Guidelines fully support the view that sexual
harassment leading to [477 U.S. 57,
58] non-economic injury can violate Title
VII. Here, respondent's allegations were
sufficient to state a claim for hostile
environment sexual harassment. Pp. 63-67.
Fair Employment and Housing
Act (FEHA)
•Unwanted sexual advances
 • Offering employment benefits in exchange
for sexual favors
 • Making or threatening reprisals after a
negative response to sexual advances
 • Visual conduct: leering, making sexual
gestures, displaying of suggestive objects
or pictures, cartoon or posters
 • Verbal conduct: making or using
derogatory comments, epithets, slurs,
and jokes

FEHA
•
Verbal sexual advances or
propositions
 • Verbal abuse of a sexual nature,
graphic verbal commentaries about
an individual's body, sexually
degrading words used to describe
an individual, suggestive or obscene
letters, notes or invitations
 • Physical conduct: touching, assault,
impeding or blocking movements
Title IX

Title IX of the Education Amendments
of 1972 (Title IX) and its implementing
regulations: No individual may be
discriminated against on the basis of
sex in any education program or
activity receiving Federal financial
assistance. Sexual harassment of
students is a form of prohibited sex
discrimination.
Education Code 212.5 et. Seq.
2.1 Sexual harassment means unwelcome
sexual advances, requests for sexual favors,
and other verbal, visual, or physical
conduct of a sexual nature, made by
someone from or in the work or educational
setting, under any of the following
conditions:
 2.1.1 Submission to the conduct is
explicitly or implicitly made a term or a
condition of an individual's employment,
academic status, or progress.

(Ed Code 212.5)
2.1.2 Submission to, or rejection of, the
conduct by the individual is used as the
basis of employment or an academic
decision affecting the individual.
 2.1.3 The conduct has the purpose or effect
of having a negative impact upon the
individual's work or academic performance,
or of creating an intimidating, hostile, or
offensive work or educational environment.

(Ed Code 212.5)

2.2.5 Offering favors or educational or
employment benefits, such as grades or
promotions, favorable performance
evaluations, favorable assignments,
favorable duties or shifts,
recommendations, reclassifications, etc., in
exchange for sexual favors.
Tort Law

Torts are civil wrongs recognized by law as
grounds for a lawsuit. These wrongs result
in an injury or harm constituting the basis
for a claim by the injured party. Among the
types of damages the injured party may
recover are: loss of earnings capacity, pain
and suffering, and reasonable medical
expenses. They include both present and
future expected losses.
Case Law

Case law is court made law, as opposed to
legislation. Case law results from lawsuits
and court opinions. Case law, or “common
law” makes up a great portion of our
national and state laws. Faragher v. City of
Boca Ratan and Burlington Industries v.
Ellerth
Common Law

In Faragher v. City of Boca Ratan and Burlington
Industries v. Ellerth, the U.S. Supreme Court
explained how the Title VII affirmative defense
works. Suppose a supervisor is the harasser. And
suppose the type of harassment is hostile
environment harassment. Then the employer can
avoid paying damages if it makes two showings.
First, it must show that it took reasonable care to
prevent and correct harassment. Second, it must
show that the victim unreasonably failed to take
advantage of corrective opportunities
Categories of Liability
•
•
•
•

Supervisors
Between Employees
Student Employees
Peer Harassment
Employer Liability for Supervisors

Doctrine of avoidable consequences
• Employer took reasonable steps to
correct
 • Employee unreasonably failed to use
preventive/corrective measures
 • Reasonable use of employer’s
procedures would have mitigated harm

Employer Liability for Supervisors

• Quid Pro Quo:

Strict Liability
• Hostile Environment
FEHA: Strict Liability
Title VII: Allows Affirmative Defenses
Employer Liability for Harassment
Between Employees
• Employer knows or should have known
 • Failed to take reasonable steps
 • Avoid liability by taking prompt &
remedial action to end harassment
 • Action reasonably calculated to end
harassment & deter others

District Liability for EmployeeStudent
• Actual notice
 • Deliberate indifference

District Liability For Peer
Harassment
• Deliberate indifference
 • Harassment bars access to
educational opportunities

Hostile Work Environment
Harassment
•
•
•
•
•

Protected status
Physical, verbal or visual behavior
Objectively and subjectively offensive
Severe, persistent or pervasive
Unreasonably interferes with work or
education
EEOC Factors For Severe &
Pervasive
•
•
•
•
•
Physical incidents
Frequency of conduct
Hostility of the conduct
Whether the harasser is a supervisor
Whether others engage in
harassment
 • Harassment directed at others

Was Conduct Unwelcome?
•
•
•
•
•

Totality of the Circumstances
Who initiated conduct?
How did complainant respond?
Did complainant tell harasser to stop?
Did complainant tell anyone
about harassment?
Was Conduct Offensive?

• Objective Test – The Reasonable
Person Standard:


Would a reasonable person in the same
circumstances as the victim be offended?
• Subjective Test: Was the victim in
Would I
fact offended?
be
offended?
Reasonable Person
Grey, or Borderline Areas
• Consensual relationships between
supervisors/subordinates or
faculty/students
 • Solicitation of dates, or invitations to
lunch, drinks or dinner
 • References to appearance or dress
 •Casual touching of non-intimate parts
of the body

Inappropriate Dress?
Does wearing revealing clothing
constitute harassing behavior?
 SRJC has no dress code. Dress is a
form of expression protected by the
First Amendment to the U.S.
Constitution. There are limits of
reasonableness and community
standards. These are assessed on a
case by case basis.

Same Sex Harassment
Supreme Court Ruling
• Neither party has to be gay
 • Conduct must be based on gender


The victim was singled out because of
his/her gender
• Objectively severe & offensive
 • Totality of circumstances

III. Preventing Harassment
•
•
•
•
•
•
•

Avoiding Harassment
Corrective Actions
Investigation
Factors
Remedies
Discipline
Resolution
How to Avoid Harassment
Prevention is the key!
 • Take all complaints seriously & handle
according to procedure
 • Safe environment for harassment
complaints
 • Be a good role model

• Encourage open discussions
 • Train staff how to identify & respond
 • Educate staff about rights & obligations

Appropriate Corrective Action



• Conduct prompt & thorough investigation
• Prevent harassment from recurring
• Discipline harasser






Fits the conduct
Ensures it does not continue
Deters others
• Ensure appropriate remedy
• Harassment training
• Re-publish harassment policy
Prompt & Thorough Investigation
• Encourage prompt reporting
 • Encourage promptly notifying
offender behavior is unwelcome
 • Time lines for reporting
 • Retaliation WILL NOT be tolerated

RETALIATION
Goals of Every Investigation
•
•
•
•

•
•
•
•

Identity of accused
When & where
What was said or done
Isolated incident or continuing
practice
How was complainant affected
Identity of witnesses
Were there other targets
What remedy is sought
Stop the Harassment

Consider:
•
•
•
•
Severity
Pervasiveness
Harassers overall record
Complainants employment
history/student record
 • Notice of policy
 • Prior practice
 • Rules, policies, and union contracts

Appropriate Student Discipline
• Suspension or expulsion when other
corrective measures fail/not feasible
 • Suspension or expulsion if student is
dangerous
 • Education/training

Remedies for Harassment
•
•
•
•

Counseling
Correct adverse action
Follow up and monitor
Voluntary transfer,
if requested in writing
 after other options have been offered.

Resolving the Complaint
• Communicate findings
 • Maintain records
 • Advise of appeal rights

Post Test #1

As an instructor, is it appropriate to hug
your students?

But I’m a touchy-feely kind of person!
#1: Answer
Please refrain from any physical contact
between you and your students.
Hug your significant other, your cat, dog,
horse, or goldfish, but not your
students.
Post Test #2
You have a female student who dresses
provocatively and sits in the front of
your class.
 Her manner of dress is distracting to
you and other students
 Is it harassment to ask her to dress
more appropriately?
 Is her manner of dress harassment?

#2: Answer
An employee or student may be wearing
apparel that offends other people. A
policy that would prevent this person
from expressing her/himself via clothing
is problematic and unconstitutional.
These reasons and the First
Amendment are why each case is
considered on it’s particular facts, and
why there is no SRJC policy limiting
individual rights to expression through
choice of clothing.
Post Test #3

You have a male student who wears
pants that reveal his underclothes
Is it harassment to ask this student to
dress more appropriately?
 Is his manner of dress harassment?

#3: Answer
The key here is reasonableness. It has
become fashionable to wear pants very
low and show underwear.
Revealing of body parts may be a
reasonable limitation, but in the
present climate, showing underwear is
probably acceptable.
Post Test #4

What constitutes harassment?
#4: Answer
Quid Pro Quo and Hostile Environment
 •Title VII
 • California Fair Employment and
Housing Act (FEHA)
 • Title IX
 • California Education Code 212.5
 • Tort Law
 • Case Law
Fin
What did you learn?
What questions do you still have?
How can we help you further? Contact the District
Compliance Office at 527-4303 or e-mail
[email protected]
Please make sure that you have e-mailed the District
Compliance Officer that you completed this course.
[email protected]
Thanks!