McGraw-Hill/Irwin
Chapter 9
Sexual Harassment
Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

 Discuss the background leading up to sexual harassment as a workplace issue
 Explain quid pro quo sexual harassment and give the requirements for making a case
 Explain hostile environment sexual harassment and give the requirements for making a case
9-2

 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
 Differentiate the sex requirement and antifemale animus in sexual harassment actions
9-3

 Explain employer liability for various types of sexual harassment claims
 Describe proactive and corrective actions an employer can take to prevent or lessen liability
9-4

 Sexual harassment in the workplace occurs more frequently than many realize
 Sexual harassment class action trials
 The “white buffalo”
 Cost to businesses
 Liability is avoidable through a few simple steps
9-5

 Anita Hill and Clarence Thomas
 Effect on the workplace environment
 Increase in complaints after the hearings
 First U.S. Supreme Court sexual harassment case heard in 1986
 Difficulty in recognizing sexual harassment when it occurs
9-6

 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
9-7

 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
9-8

 Consensual relationships are not forbidden by the law
 Unwelcome activity – imposes terms and conditions that are different for one gender
 Sexual harassment policies in the workplace
9-9

 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
9-10

 Most sexual harassment takes place between males and females
 Males bring fewer cases due to fear of ridicule
 Affinity orientation is not covered under Title VII
 Harassment cases can still be brought regardless of the gender of the harasser and harassee
9-11

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
9-12

 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
 Unwelcomeness parameters
9-13

 How they work
 What is included
 What it should do
 How it is useful
 Is it legally defensible
 Is it worth the effort
9-14

 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
 U.S. Supreme court decision
 Sexual harassment claims do not require findings of severe psychological harm to be actionable
9-15

 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
9-16

 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
9-17

 Viewing severity and pervasiveness from different perspectives renders different results
 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”
9-18

 Sexual element need not be present in order to constitute sexual harassment
 Anti-female animus : Negative feelings about women and/or their ability to perform jobs or functions, usually manifested by negative language and actions
 Harassment by electronic means
9-19

 Supervisor toward employee (tangible employment action)
 Employer is strictly liable
 Presence of a paper trail which gives employers a measure of control
 Supervisor toward employee (no tangible employment action)
 Employer not strictly liable
 Also true for constructive discharge
9-20

 Coworker harassment 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
9-21

 The EEOC’s Policy Guidance on Harassment
 Inherent plausibility
 Demeanor
 Motive to falsify
 Corroboration
 Past record
 Employees should be involved on a “need to know” basis
9-22

 Harassee’s fear of retaliation
 Requests employers to provide relief without informing the harasser
 Harasser must be informed to properly handle the issue
 EEOC – dramatic increase in reatliation claims
9-23

 Employers must take “immediate and appropriate corrective action”
 The remedy should
 Stop the harassment
 Not be out of proportion to the act
9-24

 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)
9-25

 Tort actions
 Assault
 Battery
 Intentional infliction of emotional distress:
 False imprisonment
 Intentional interference with contractual relations
9-26

 Jury trails
 Unlimited compensatory or punitive damages
 Basis for criminal prosecution
9-27

 Adopt an anti –sexual harassment policy
 Take a top-down approach to deterring sexual harassment
 Create and disseminate information about an effective reporting mechanism for harassees
 Provide employees with training and/or information that helps them to recognize sexual harassment
9-28

 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
9-29

 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
9-30