Preventing Sexual
Harassment In The
Workplace/Education Setting
Academic Business Officers Group
THERESE M. LEONE, ESQ.
OFFICE OF THE GENERAL COUNSEL
April 26, 2004
The Event Triggering Awareness
Clarence Thomas
/ Law Professor Anita Hill
The Event Triggering Awareness
Although, Some Didn’t “Get It”
The Event Triggering Awareness
Although, Some Didn’t “Get It”
Is Sexual Harassment A
Current Issue?
 Jury verdict for $576,000 upheld to an employee for
claims of unrelenting workplace sexual harassment and afterhours "shadowing" by a co-worker (Parker v. Automobile
Club of Southern California, Cal. Ct. App., Jan. 10, 2003).
 Five former Seattle area employees of Krispy Kreme
Doughnuts Inc. sued the company for alleged sexual and
racial harassment and wrongful termination (The Vancouver
Sun May 21, 2003).
 Dial Corp., maker of Dial soap and Purex detergent, will
pay $10 million to settle a sexual-harassment lawsuit brought
by the EEOC to avoid a trial (Los Angeles Times April 30,
2003).
Is Sexual Harassment A
Current Issue?
 “Judge has ordered Costco Wholesale Inc. to pay
$508,000 in a sexual harassment case” (The News
Tribune, May 24, 2003)
College pays $75,000 to settle lawsuit by
a former (male) vice-president who accused college
president of sexual harassment –(NY Times May 25,
2003).
 Jury awards former Maui police officer $80,000 in
racial/sexual harassment lawsuit. (The Honolulu
Advertiser May 21, 2003).
Is Sexual Harassment A
Current Issue?
 “Berkeley Law Dean Quits in Scandal” (SF
Chronicle)
 Lawyer in the Yuma County Attorney's Office filed a
sexual harassment and discrimination lawsuit against
her boss and two other attorneys in the office. (AP July
10, 2003)
How Prevalent is It?


Merit Systems Protection Board Survey
 44% of women
 19% of men
1992 survey of UCSF interns and residents [New
England Journal of Medicine]
75% of women
 20% of men
1991 nationwide survey of second-year interns


[Journal of the American Medical Association]
63% of females
 15% of males

How do people respond?







57.2% ignored it
36.5% confronted the harasser privately
26.0% joked about it
13.7% reported it to a supervisor
4.9% left their job to avoid harassment
0.4% filed a complaint with govt or lawsuit
7.4% other
Being Propositioned in the Workplace
Is “Offensive”
100%
80%
60%
40%
20%
0%
Women
Men
Employment Claims by Type
Year
1996-2001
1996-2001
% of Total
50%
18%
1996-2001
Type of Claim
Discrimination
Wrongful
Termination
Sexual
Harassment
Contract Breach
1996-2001
1996-2001
ADA
Defamation
4%
4%
1996-2001
Other
6%
1996-2001
7%
11%
Employment Claims by Cost
Year
1996-2001
1996-2001
% of Total
53%
22%
1996-2001
Type of Claim
Discrimination
Wrongful
Termination
Sexual
Harassment
Contract Breach
1996-2001
1996-2001
ADA
Defamation
4%
3%
1996-2001
Other
4%
1996-2001
9%
5%
University’s Systemwide
Employment Liability Program:
Number of claims filed
NUMBER OF EMPLOYMENT CLAIMS SERVED ON THE REGENTS
CLAIMS PER YEAR
120
100
80
60
40
20
0
93-94 94-95 95-96 96-97 97-98 98-99 99-00 00-01 01-02 02-03
University’s Employment
Liability Program Costs
FY 2003 shows a decrease in costs for employment
liability claims.
Univ. risk management says they are seeing fewer
employment-related lawsuits brought against the
University.
Harassment lawsuits represent the smallest portion of
employment liability claims (after discrimination and
administrative claims).
73% of total amount paid in employment liability claims
are related to claim expenses (primarily legal) – only 27%
represent indemnity expenses.
Employment Expenses
EMPLOYMENT LIABILITY CLAIMS OCCURRING
DURING 1998-2003
Indemnity
27%
Expense
73%
A Legal Definition
Sexual harassment is any
unwelcome sexual advances,
requests for sexual favors and
other verbal or physical conduct
of a sexual nature when:
Definition of Harassment

Submission to the conduct is made either
explicitly or implicitly a term or condition of
employment,

Submission to or rejection of such conduct by
an individual is used as a basis for making
personnel decisions, or

When unwelcome sexual conduct is severe
and pervasive enough to create an abusive
working environment
You got
the
job!
Economic Harassment
Threat or promise of a benefit linked
to sex
Always involves a supervisor
 Why?
 It’s an abuse
of power
Environmental Harassment
1.
2.
3.
4.
Unwelcome
Sexual conduct or
directed at gender
Offensive to the
recipient and to a
“reasonable person”
Severe or pervasive to
create an intimidating
or abusive environment
Environmental Harassment


Comprises the majority of sexual harassment
litigation
Courts consider a number of factors in
determining whether an environment is “hostile”
(Harris v. Forklift Systems, Inc. 510 U.S. 17
(1993))
 Nature of conduct
 Frequency of conduct
 One incident enough? EEOC says yes, if
touching involved.
Environmental Harassment

Nature of Conduct
 Verbal (derogatory comments, catcalls
offensive jokes, requests for sexual favors,
sexual innuendos, repeated propositioning)
 Non-verbal (looking person up and down,
staring, derogatory gestures, winking,
throwing kisses)
 Visual (explicit posters, cartoons, calendars,
drawings)
 Physical (unwanted touching, assault,
grabbing, blocking or impeding movement)
 Electronic (email)
Environmental Environment
Frequency of Conduct
Repeated incidents create a stronger claim of
hostile environment harassment
The Reasonable Person



Pervasiveness and severity are judged by a
reasonable person standard.
Courts look at the prospective of the reasonable
person in the plaintiff’s position considering all
the circumstances (Oncale v. Sundowner Offshore
Services, 523 U.S. 75 (1998)).
9th Cir. adopted “reasonable woman” standard
(Ellison v. Brady, 924 F.2d 871 (1991)).
Severe or Pervasive
 Pervasive
conduct is a pattern of
repeated conduct
 Severe
conduct includes rape,
sexual assault, grabbling, fondling,
forcibly kissing,
SAME SEX HARASSMENT
Actionable under Title VII (Oncale v.
Sundowner, 523 U.S. 75 (1998).
 Harasser need not be homosexual (Yeary v.
Goodwill Indust. Knoxville, 107 F.3d 443
(6th Cir. 1997).

SAME SEX HARASSMENT
Also actionable under California law
 Kovatch v. California Cas. Mmgt. Co., 65
Cal. App. 4th 1256 (1998).
 Delaney v. Superior Fast Freight, 14 Cal.
App. 4th 590 (1993).
 CA FEHA, codifying Soroka v. Dayton
Hudson Corp., 235 Cal. App. 3d 654
(1991)).
 AB 196 - gender identity/transgender
discrimination

EMPLOYER LIABILITY
 Economic harassment
 Employer is strictly liable for supervisor
harassment where tangible employment action
taken against employee (Burlington Indus. v.
Ellerth, 524 U.S. 742 (1998))

Tangible employment action constitutes a
significant change in employment status such as
hiring, firing, failing to promote, significant
reassignment of duties
EMPLOYER LIABILITY
 Environmental


Harassment
Employer also liable for supervisor harassment in
environmental harassment cases even where no
tangible employment action taken against
employee, but affirmative defense available
(Burlington Indus. v. Ellerth, 524 U.S. 742
(1998)).
Affirmative defense looks at reasonableness of
employer’s and victim’s conduct (Faragher v. City
of Boca Raton, 524 U.S. 775 (1998).
EMPLOYER LIABILITY
 Employer Affirmative
Defenses
 1) Employer exercised reasonable
care to prevent and promptly
correct any sexually harassing
behavior, and
 (2) the plaintiff employee
unreasonably failed to take
advantage of any preventive or
corrective opportunities
EMPLOYER LIABILITY
Employer Affirmative Defenses – Prompt
Response
 9th Cir. overturned six figure jury award of damages to

postal worker because employer took prompt corrective
action, including an investigation and keeping employees
permanently separated, changing shifts and offering a
transfer to another location (Swenson v. Potter, 271 F.3d
1184 (9th Cir. 2001).
Court dismissed lawsuit and found employer not liable for
circulation of picture of woman with bare breasts that
resembled female employee because supervisor
immediately began investigation and employees who had a
copy or circulated it were disciplined and required to take
anti-harassment training (Rheineck v. Hutchinson
Technology, 261 F.3d 751 (8th Cir. 2001)
EMPLOYER LIABILITY
Employer Affirmative Defenses –
Employee Delay
 Court dismissed case where university police officer

waited 7 months to file formal complaint. When notified,
University immediately investigated and took disciplinary
action and harassment ceased. Gawley v. Indiana Univ.,
2001 U.S. App. LEXIS 27353 (7th Cir. 2001).
Court dismissed lawsuit where female employee waited 9
months to report harassment. Employer immediately
conducted investigation and disciplined offending
supervisor, including rescheduling his hours. Employer also
followed up with employee to ensure that no further
harassment occurred. Jackson v. Arkansas Dept. of Educ.,
272 F.3d 1020 (8th Cir. 2001).
EMPLOYER LIABILITY
 BUT
FEHA STANDARD IS A
DEFENSE TO DAMAGES ONLY!
 State Dept. of Health Svcs v.
Superior Court, 31 Cal. 4th 1026
(2003)
 No Faragher/Ellerth affirmative
defense applicable to FEHA
harassment claims – defense to
damages only
EMPLOYER LIABILITY
 To
prevail under this damages defense,
an employer must show:
It took reasonable steps to prevent and correct
workplace harassment;
 The employee unreasonably failed to use the
preventive and corrective measures that the
employer provided; and
 Reasonable use of the employer's procedures
would have prevented at least some of the harm
that the employee suffered.

EMPLOYER LIABILITY- FEHA
Defense to Damages
 Courts
will examine whether employer
has:





Appropriate anti-harassment policies and procedures that
are communicated to employees
Anti- retaliation prohibitions
Reporting and enforcement procedures that protect
confidentiality to the extent practical
Consistent and firm policy enforcement
Effective steps to encourage victims to come forward with
complaints and effective responses to complaints
EMPLOYER LIABILITY- FEHA
Defense to Damages
Courts will examine “reasonableness” of
employee’s conduct by looking at past
circumstances.
 allows a jury to determine whether a victim's
failure to file a complaint immediately was
unreasonable.
 a jury may consider a victim's fear of retaliation
and feeling of humiliation.

EMPLOYER LIABILITYPractical Implications of McGinnis
 Training/education
is key!
 Ensure FEHA-mandated environment free
of harassment
 Launch immediate, thorough investigations
by trained individuals
 Apply University policy consistently – take
remedial action designed to end harassment
if policy violations are found
EMPLOYER LIABILITYLitigation Implications of McGinnis
Plaintiffs will attack the University’s internal
procedures, experience and expertise in dealing
with sexual harassment issues
 These issues will be the subject of extensive
discovery and attack by plaintiffs when the
University asserts the “avoidable consequences”
defense.

EMPLOYER LIABILITYLitigation Implications of McGinnis
Because this defense does not preclude liability, it
will be more difficult to use it affirmatively to
dismiss a case through summary judgment
 The University may be liable for an employee’s
attorneys’ fees after a plaintiff’s verdict at trial
even if successful in proving the defense.

EMPLOYER LIABILITY
Co-worker harassment
Courts impose a “knew or should
have known” negligence
standard (Reitter v. City of Sacramento,
87 F. Supp 2d 1040 (E.D. Cal. 2000).
Liability For
Third-Party Harassment

Mackey v. Dept. of Corrections, - on review to
CA Supreme Court - Appellate court held that
female employees (non-paramours) had not
shown a concerted pattern of harassment
sufficiently pervasive to have altered the
conditions of their employment on the basis of
sex.
 AB
1229 in the legislature
Liability For
Third-Party Harassment


An employer may be responsible for sexual
harassment of non-employees where the
employer, or its agents or supervisors,
knows or should have known of the conduct
and fails to take immediate and appropriate
corrective action.
AB 76 overruled Salazar v. Diversified
Paratransit
Personal Liability for
Harassment?
 Supervisors
can be liable for sexual
harassment of a subordinate
 Employees at all levels who sexually
harass a coworker also liable (Cal.
Gov. Code § 12940(j)(3)
Workplace Romance

Can it be prevented?

Problems that can arise:


Favoritism claims – from “non-paramours”

Retaliation when a romance
breaks up
.

Ongoing pursuit by one when the other no longer wishes to
continue can lead to SH claims
May violate APM 015 (if with student for whom you
have oversight).
University Preventative
Measures – Policy Changes
 Policy
Workgroup has revised the
systemwide sexual harassment policy
There will be one systemwide policy
 Certain aspects of the procedures will be
mandatory (time limits for filing complaint),
others will be up to each campus
(responsibilities of the Title IX coordinator,
types of training programs, etc.)
 Expect the policy to be issued this year

University Preventative
Measures – Policy Changes

APM 015 – Strict prohibition against
relationships with students for whom faculty
members have instructive, evaluative or
supervisory relationship
Preventative Measures Conduct Employee Training







Ensure that all new employees are trained about the
anti-harassment policy
Conduct training for current employees
Distribute the policy annually
Discuss procedures for bringing the complaint
Ensure that complainants know their complaints will be
taken seriously and will be investigated
Assure confidentiality to the extent possible
Provide assurances of no retaliation
Preventative Measures to
Reduce Liability

Provide Effective Remedies
 Discipline should be commensurate with the
severity of the offense – reasonably
calculated to end the harassment (Ellison v.
Brady, 924 F.3d at 882).

Remedy should be targeted at the harasser
not at the victim (Intlekofer v. Turnage, 973
F.2d 773, 779 (9th Cir. 1992).
UC RESOURCES

Campus Title IX Officers

Location specific sexual harassment training

Coordinated systemwide training for new UCOP
policies

Campus counsel/OGC advice/counsel during
investigative process
QUESTIONS AND
ANSWERS
THANK YOU FOR YOUR KIND
ATTENTION!