SEXUAL
HARASSMENT
SEXUAL
HARASSMENT
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Definition: 29 C.F.R. 1604.11
Unwelcome sexual advances, requests
for sexual favors, and other verbal or
physical conduct of a sexual nature
constitute sexual harassment when:
submission to such conduct is made
either explicitly or implicitly a term or
condition of an individual’s
employment,
submission to or rejection of such
conduct by an individual is used as the
basis for employment decisions affecting
such individual,
or
such conduct has the purpose or effect
of unreasonably interfering with an
individual’s work performance or
creating an intimidating, hostile or
offensive working environment.
QUID PRO QUO
HARASSMENT
• submission to such conduct is
made either explicitly or
implicitly a term or condition
of an individual’s
employment, or
• submission to or rejection of
such conduct by an individual
is used as the basis for
employment decisions
affecting such individual
HOSTILE
ENVIRONMENT
Harris v. Forklift Systems, 114 S.Ct. 367
(1993)
• When the workplace is
permeated with
discriminatory intimidation,
ridicule and insult that is
sufficiently severe or
pervasive to alter the
conditions of the victim’s
employment and create an
abusive working environment,
Title VII is violated
• Reasonable Person or
Reasonable Woman?
EMPLOYER
LIABILITY
• Supervisory Employees:
Agency Principles
• Co-Workers: Did Employer
Know, or Should Have
Known?
• Non-Employees: Extent of
Employer’s Control, and
Did Employer Know or
Should Have Known?
EMPLOYER
LIABILITY FOR
SUPERVISORS’
HARASSMENT
• Faragher v. City of Boca
Raton, 118 S.Ct. 2275 (1998)
• Burlington Industries, Inc. v.
Ellerth, 118 S.Ct. 2257 (1998)
• Does harassment result in
tangible employment result?
– If so, employer
automatically liable
– If not, employer can
establish defense
EMPLOYER’S
DEFENSE
• Employer must show :
– it exercised reasonable care to
prevent and correct promptly
sexual harassing behavior; &
– employee unreasonably failed to
take advantage of any
preventative or corrective
opportunities provided by
employer
• Defense goes both to liability
and to damages
LEGAL REMEDIES
• Reinstatement, Promotion as
appropriate
• Damages: Lost Wages & Benefits
• Compensatory Damages: Medical
or Emotional Injury, Pain &
Suffering
• Punitive Damages: Amount
Limited Based on Employer Size
• Legal Fees for Plaintiff
• Court Injunction: Cease & Desist
Order
• Possible Tort Liability as well
PREVENTION
• “An employer should take all steps
necessary to prevent sexual
harassment from occurring” -EEOC Guidelines
• Educate and Sensitize all
employees
• Develop policy for dealing with
complaints and appropriate
sanctions for violations
• Publicize policy
• Take immediate action on
complaints
EMPLOYER’S SEXUAL
HARASSMENT
POLICY
• Define Sexual Harassment
– EEOC Guidelines
– Practical Examples
• Make It Clear Such Conduct Will
Not Be Tolerated by Anyone
• Specify Penalties -- up to, and
Including, Termination
• Specify Procedures for Filing
Sexual Harassment Complaints
• Designate Person to Receive and
Investigate Complaints
• Protect Complainant from Any
Reprisals or Retaliation