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(1)
 Discuss the background leading up to sexual harassment as a workplace issue
 Distinguish quid pro quo and hostile work environment sexual harassment and give the requirements for making each type of case
 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
9-2

 Understand the Ellerth and Farragher defenses, the circumstances under which they apply, and its practical impact on the workplace
 Differentiate the sex requirement and antifemale animus in sexual harassment actions
 Describe proactive and corrective actions an employer can take to prevent or lessen liability
9-3

 Sexual harassment in the workplace occurs more frequently than many realize
 Sexual harassment class action trials are rare
 The “white buffalo”
 Cost to businesses, personal lives
 If HR ever matters (and it does), then liability is preventable through standard setting, process follow-through and enforcement
9-4

 First U.S. Supreme Court sexual harassment case heard in 1986 ( Meritor Savings case)
 Anita Hill and Clarence Thomas, live in D.C.
 Effect on the workplace environment
 Increase in complaints after the hearings
 Weeks v. Baker & McKenzie: 10% of law firm’s previous year’s profit awarded as punitive damages: sends a message to employers
 Ellerth and Farragher cases in 1998: prevention
9-5

(1)
 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
9-6

(2)
 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
9-7

 Consensual relationships are not forbidden by the law
 Unwelcome activity – imposes terms and conditions that are different for one gender
 Sexual harassment policies, procedures and follow-through are keys to nipping unnecessary liability in the bud.
9-8

(1)
 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 (gravamen: it makes that person’s job sig. harder to do as a result)
9-9

(2)
 Most sexual harassment takes place between males and females
 Males bring fewer cases in part due to fear of ridicule
 Sexual orientation is not covered under Title VII
 Harassment cases can still be brought regardless of the gender(s) of the harasser and harassee
9-10

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
9-11

(or: Romance is dead)
 How it works
 What is included
 What it should do
 How it is useful
 Is it legally defensible, based on any power differential?
 Is it worth the effort – THAT is the Q.
 “Happy Valentine’s Day – please sign here”
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
 Scenario 1
 Unwelcomeness parameters
9-13

(1)
 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
 Not a civility code
 Interference with reasonable expectations
 Physicality and extreme behavior affects duration
 U.S. Supreme court decision
 Sexual harassment claims do not require findings of severe psychological harm to be actionable
9-14

(2)
 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 – the key
 Scenario 2
9-15

 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
9-16

 Evolution in the case law over time: away from
‘take the workplace as you find it’ (an essentially
‘male’ standard) toward current ‘reasonable victim’ perspective (regardless of gender)
 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.
”
9-17

 ‘Sexual’ element need not always be present in hostile environment cases to constitute sexual harassment (recall that this is a form of sex discrimination)
 Anti-female animus : Negative feelings about women and/or their ability to perform jobs or functions, usually manifested by negative language and actions
 Similar to racial harassment, seen previously
 Harassment may include electronic means
9-18

(1)
 Tangible employment action taken
 Employer is strictly liable
 Presence of a paper trail which gives employers a measure of control
 No tangible employment action taken
 Employer not strictly liable
 Ellerth/Farragher defense: employer had effective prevention policy in-place; plaintiff unreasonably failed to use it
 Case: Burlington Industries v. Ellerth
9-19

(2)
 Coworker harassment or 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
 Case: Farragher v. City of Boca Raton
9-20

 The EEOC’s Policy Guidance on Harassment http://www.eeoc.gov/laws/types/sexual_harassment_guidance.cfm
 Inherent plausibility
 Demeanor
 Motive to falsify
 Corroboration
 Past record
 Employees should be involved only on a “need to know” basis
9-21

 Employers must take “immediate and appropriate corrective action”
 The remedy should
 Stop the harassment
 Not be out of proportion to the act
 Not necessarily move the harassee
9-22

 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)
9-23

 Tort actions
 Assault – apprehension of unwanted touching
 Battery – actual unwanted touching
 Sexual Assault/Rape – per statutory definitions
 Intentional infliction of emotional distress
 False imprisonment
 Intentional interference with contractual relations
 Jury trials, unlimited compensatory or punitive damages
9-24

(1)
 Adopt an anti –sexual harassment policy
 Take a top-down approach to deterring sexual harassment – lead by example
 Create and disseminate information about an effective reporting mechanism for harassees
 Open channel for going around supervisors
 Provide employees with training and/or information that helps them to recognize sexual harassment
9-25

(2)
 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
9-26

(3)
 Follow-up, times three!
 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
9-27