Amy L. Lieberman, Esq.
© 2014 Insight Employment Mediation
(480) 246-3366
What is Sexual Harassment to You?
Objectives
 Identify potential Sexual Harassment and
Discrimination
 Know your Internal company policy
 Understand your duties as managers under law and
policy
 Realize how to prevent claims
 Learn what to do if a complaint is made
 Appreciate other types of illegal discrimination and
harassment
5 minute overview
Understanding the Law –
Title VII of the Civil Rights Act
 Sexual Harassment = Gender Discrimination
 Sexual behavior that is “severe” or “pervasive”
 Must be “unwelcome”
 Objective & Subjective standard (reasonableness)
 Must “affect terms and conditions of employment”
 The role of intent….
 If you did not intend to offend – that is not a defense!
Discrimination & Harassment
 “Quid pro quo” (this for that)
 “Hostile work environment” that is severe and
pervasive
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Objectively offensive to reasonable person (woman)
Subjectively offensive to the recipient
Alters the terms and conditions of the work environment
“Quid Pro Quo”
 Latin for “this for that”
 If you go out with me, you can get that promotion
 If you don’t go out with me, you won’t get that
promotion
Hostile Work Environment
 “Severe or pervasive” sexually offensive conduct
 “Unwelcome” under both objective and subjective
standard
 Affects “terms and conditions of employment” –
 Let’s talk about….
Generational Differences?“
 “Honey”
 “Sweetie”
 Terms of Endearment
 “You look nice today!”
Discrimination & Harassment
 Sexual harassment
 Verbal or physical conduct of a sexual nature that
influences a condition of employment
 Must be unwelcome
 Advances, gestures, touches, requests for dates,
comments, remarks, threats
 Display of sexually suggestive/offensive objects,
books, photos, cartoons
Legally Blonde
“We were just joking”
The risks of mutual banter…
The risks of consensual workplace romance
Sexual harassment or not?
What is covered?
 Comments, jokes, teasing, flirtation
 Hugs, stares, silent treatment
 Rumors, gossip
 Social media
 After-hours, off-premises behavior, texts, emails
Major Case Law
 The law requires you to be knowledgeable!
U.S. Supreme Court decisions, Farragher v. City of Boca
Raton and Ellerth v. Burlington Industries (1998)
require employers to:
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Have a policy prohibiting sexual harassment and
discrimination
Ensure the policy is communicated to all
Train management
Facts of the Cases
Farragher:
A male lifeguard harassed a female lifeguard that he
supervised…lewd remarks, propositions, touching,
grabbing…”hostile work environment” – After
complaining to a manager who did nothing, she quit,
and sued.
Facts of the cases, cont.
Ellerth:
A male manager harassed female who
reported to him; threats of “quid pro quo”,
but not carried out…she did not give in
and later was promoted. She quit, and
sued.
Facts, cont.
 What about policies against sexual harassment?
 Farragher: City had policy but failed to ensure it was
communicated to all managers and employees;
involved persons were not aware
 Ellerth: Company had policy, employee was aware of
it but still chose not to complain to anyone
What did the Supreme Court hold?
 Look to whether there is a “tangible job detriment”
(financial)
 Look to who is causing the harm – supervisor or coworker
 If a supervisor is causing the harm, and there is a
tangible job detriment –
STRICT LIABILITY ON THE PART OF THE
EMPLOYER!!
The Supreme Court, cont.
 If no “tangible job detriment”, (i.e. a hostile work
environment where the employee is still working in
the same position)….the employer can raise an
“affirmative defense”:
 Had a policy, which was communicated
 Employee unreasonably failed to follow policy and
complain
Supreme Court, cont.
 Focus is on “reasonableness” of actions:
 Employer – had policy, communicated, trained,
investigated, took “prompt and appropriate remedial
action”
 Employee – unreasonably failed to follow policy and
complain; any fear of retaliation is unreasonable in
light of policy that prohibits such conduct.
The Rationale
 Employers have a heightened responsibility when it
comes to supervisors, due to power and authority
 Screen – train – communicate – monitor - remedy
Fox News sexual harassment
Sexual harassment or not?
Workplace harassment
What if it’s a co-worker?
 Negligence is the standard: Did you know of the
problem and failed to take any action? Should you
have known about the problem?
 Again, reasonableness is the focus.
 Same would be true for a customer’s harassing
behavior.
Why are these rules so important?
 Sexual harassment and discrimination is still
prevalent in the workplace today!
 Courts have since expanded rules of liability to all
types of harassment and discrimination under Title
VII
Another reason – Impact to the
Workplace
 Everyone deserves a good place to work, free from
unlawful treatment.
 Fair treatment builds trust in management.
 Increases diverse workforce, with resulting benefits
 Legitimate acts may be tainted with inappropriate
comments or behavior
What are the costs?
 $$$ Remedies ...back pay, front pay, compensatory
damages, punitive damages, injunctive relief
 $$$...costs of defense = legal fees of both sides
 $$$...future claims by others
 $$$...lost productivity
 Negative PR, damage to reputation
 Low morale, jeopardizes stability of organization
More costs…
 Risk of personal liability
 Question of indemnification by employer?
Responsibilities of Managers
 Know basics about the law
 Know your policy
 Be a role model
 “Prevent and correct”
 Know when you have a “duty to act”
 Prompt investigations
 Legitimate decisions
Law Review: Title VII
 Title VII of the Civil Rights Act of 1964 (amended
1991) – prohibits discrimination in employment (for
employees and applicants) based on race – color –
national origin – religion – sex – age – disability.
 Sex includes both gender discrimination and sexual
harassment
 Applies to same-sex harassment
 Sexual orientation now covered by many other laws
and policies
Discrimination & Harassment
 An act that negatively impacts employment, motivated
by unlawful reason prohibited by Title VII and related
laws
 Can be intentional discriminatory treatment
 Can be unintentional, if the impact negatively affects a
protected person or group (“disparate impact”)
Discrimination & Harassment
 Types of actions covered:
 Hiring
 Interviewing
 Promotion
 Compensation
 Firing
 Tangible employment actions…training? Transfer?
What is sexual harassment?
No Retaliation!!
 You may not retaliate against someone for
complaining or filing a claim based on alleged violation
of his or her civil rights
 Even if the claim turns out not to be substantiated!!
 The standard is broader; it’s easier to make a claim for
retaliation than for the underlying discrimination
Summary of Rules
 Strict liability for supervisors, where there is a
tangible job detriment
 If no tangible job detriment, affirmative defense
available ( policy was communicated, not used;
employer acted reasonably and/or took prompt and
appropriate remedial action)
 Co-worker or customer: negligence standard (knew
or should have known).
Summary – When Harassment or
Discrimination can Occur
 Decisions based on sex or response to sexual
harassment
 Assumptions based on gender
 Disparate treatment of women
 Harassment / hostile work environment
and…
Retaliation for making claim
Related Claims
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Assault (no contact), Battery (contact)
Intentional Infliction of Emotional Distress
Equal Pay Act
Pregnancy Discrimination
Negligent failure to train, negligent retention,
supervision
Policy Review
 What is your organization’s policy?
Employee Obligations
 Not to engage in sexual harassment towards another
 To complain to management and/or HR
Preventing Claims
 Know when you have a “duty to act”!
 To prevent and stop sexual harassment and
discrimination
 To comply, you must know the relevant laws and
policy
Tips for Preventing Claims
 Treat employees consistently and fairly.
 Communicate and enforce policy.
 Promptly address claims of sexual harassment –
investigate and remedy.
“Prompt and appropriate remedial action”
Duty to ACT
 When does your duty arise?
 Direct observation of possible violation
 Someone reports it to you – can be a third party who is
aware, or is offended by conduct between others,
favoritism based on sex
 You experience it
 You learn of claim and must prevent retaliation
Preventing Claims
 Why is the duty to act so important?
 Your conduct is imputed to the organization!
 Ignoring a problem suggests it is not taken seriously.
 You run the risk of continued wrongful behavior, to the
employee and others.
Investigations
 Confidentiality: can you promise it?
 How much privacy can you commit to?
 Can you agree not to “do anything”?
Investigations
 Documentation
 Why document at all?
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Prove the events
Inform others
Jog memory
More accurate than memory
Bolsters credibility
Creates record if witnesses unavailable
Creates impression of fairness
Decision-Making
 “Legitimate Business Criteria”
 Without regard to personal characteristics or
subjective views
 Not based on assumptions
 Based on objective business-related criteria
 Factual, able to be measured and documented
Investigations and Decision-Making
 Making conclusions with subjective criteria can give
rise to inferences of discrimination.
 Bad management can look like harassment or
discrimination!
 Be consistent with past practice, or be able to
explain why.
Any questions?
 Thank you!