When Prevention and
Internal Remedy Fail:
Trying the Sexual
Harassment Case to the Jury
Presented By: Lowell F. Denton
Lowell.denton@rampage-sa.com
Denton, Navarro, Rocha & Bernal
A Professional Corporation
2517 N. Main, San Antonio, Texas 78212
210.227.3243 Phone / 210.225.4481 Facsimile
Difference Between Violation of
Law and Violation of Policy
 May have a violation of policy but not a
violation of law
 Jury’s understanding of this
 Policy designed to promote efficiency in
work place, not to make conduct unlawful
City Policy
 Foster good working conditions promoting
efficiency and productivity
 Prevention of harassment
 Memorializing that harassment will not be
tolerated may go far toward defeating
liability
 Prompt response
 Policy should be communicated
 Policy should be enforced
Elements of a Good City Policy
 Definition of harassment with examples of
offensive conduct
 Statement it will not be tolerated or condoned
 Anti-retaliation statement
 Request for report of conduct asap, with a clear
and neutral procedure for making a report to
someone in a position to assist the complainant
(alternative process if it is against a person’s
supervisor)
 Distinguish violation of law from a violation of
policy
The Law
 Title VII: an employer may not
“discriminate against any individual with
respect to his compensation, terms,
conditions, or privileged of employment,
because of such individual’s race, color,
religion, sex, or national origin:
 Texas Labor Code creates the equivalent
under state law
22-Year History
Meritor Savings Bank, VSB v. Vinson,
477 U.S. 57 (1986)
 Decided by U.S. Supreme Court
 Found that sexual harassment, which
creates a “hostile or abusive work
environment” is an actionable claim
under Title VII
Prima facie case
(1)
(2)
belong to a protected class
subjected to unwelcome sexual
harassment
(3)
harassment complained based on
sex
(4)
harassment affected a term,
condition, or privilege of
employment
Prima facie case: protected class
Includes:
 Gender
 Religion
 Age
 Race
 National Origin
 Disability
Areas for Dispute
 Prima facie case: whether action was
“unwelcome”
 “unwelcome in the sense it is unsolicited or
unincited and is undesirable or offensive to
the employee”
EEOC Guidelines
Emphasize that the trier of fact must
determine the existence of sexual
harassment in light of:
“the record as a whole” and “the totality of
the circumstances, such as the nature of the
sexual advances and the context in which
the alleged incidents occurred”
29 C.F.R. Section 1604.11
Indicative of unwelcomeness
 Told to stop
 Told inappropriate
 Leave me alone
 Any response at all
 What is viewed by a third party
Prima facie case: whether action “affected
term, condition or privilege of employment”
Can be shown by:
 quid pro quo: suffered “tangible
employment action” as a result of
harassment”
 hostile environment: no “tangible
employment action”
“tangible employment action”
Significant change in employment status, such
as hiring, firing, failing to promote,
reassignment with significantly different
responsibilities, or a decision causing a
significant change in benefits
Burlington Indus. v. Ellerth, 524 U.S. 742
(1998)
Effect of proving quid pro quo:
 Employer is always held to be vicariously
liable for proven harassment by a supervisor
in a quid pro quo action
Differs from hostile environment case: to
establish employer’s vicarious liability the
employee must show that the alleged
harassment was either severe or pervasive
Actionable hostile environment
claim
Must Be:
 Objectively offensive (a reasonable person
would find it hostile or abusive)
 Subjective offensive (the employee did in
fact perceive it to be hostile or abusive)
Circumstances that determine whether severe or
pervasive
 Frequency
 Degree to which conduct is physically threatening
or humiliating
 Degree to which the conduct interferes
unreasonably with an employee’s work
performance
Note: Importance of third party testimony
Affirmative Defense
 Even if determined to be a prima facie case of
hostile environment. No liability for employer if
able to demonstrate both:
 (1) Employer exercised reasonable care to prevent
and correct promptly any sexually harassing
behavior AND (2) that the employee unreasonably
failed to take advantage of any preventative or
corrective opportunities provided by the employer
to avoid harm otherwise
Employee must comply with City’s own
policy on reporting workplace harassment
Policy is intended to enforce the goals of Title
VII “to encourage the creation of
antiharassment policies and effective
grievance mechanisms”
Williamson v. City of Houston, 148 F.3d 462,
466-67 (5th Cir. 1998)
Prompt Remedial Action
 City must comply with City’s own policy
 Must be reasonably calculated to end the
harassment--Did it stop?
 Action must be taken by one with “authority
to address the harassment problem”
Williamson, 148 F.2d at 466.
Factual Investigation as Proof for
Affirmative Defense
 Did the employer:
– Remove accuser from the situation if necessary (be
sensitive to potential retaliation complaints)
– Policy to investigate quickly, effectively and discreetly
– Cannot guarantee confidentiality (open records and
defense purposes)
– Need to consider both the accuser’s and accused’s
interests (request for any documents or witnesses from
both)
– Address harassment claims consistently
Remedial Action
 Did the employer:
– Act promptly and effectively
– Respond to any policy violations
– Restore any employment opportunities missed
due to harassment
– Ensure the harasser does not repeat the
offensive conduct
– Act consistently