Chapter 9 Flashcards
To sustain a finding of hostile environment sexual harassment, it is generally required that 417
•The harassment be unwelcomed by the harassee. •The harassment be based on gender. •The harassment be sufficiently severe or pervasive to create an abusive working environment. •The harassment affects a term, condition, or privilege of employment. •The employer had actual or constructive knowledge of the sexually hostile working environment and took no prompt or adequate remedial action.
Meritor Savings Bank, FSB v. Vinson was the first sexual harassment case to reach the U.S. Supreme Court. 417
In the case, which is provided at the conclusion of the chapter, the branch manager of a bank engaged in sexually harassing activity with the harassee, up to and including sex in the bank vault. The harassee finally took a leave of absence and was terminated for excessive leave. When she sued for sexual harassment, the employer argued that since she engaged in the sexual activity, the activity did not meet the “unwanted” requirement of the guidelines. The Supreme Court disagreed. In addition, the employer argued that since the harassee lost no raises or promotions, she lost no tangible job benefits, so it was not quid pro quo sexual harassment. Read the case and see if you can now distinguish between quid pro quo and hostile environment sexual harassment
“Comparison between Quid Pro Quo and Hostile Environment Sexual Harassment. 417
If the activity is wanted or welcome by the harassee, there is no sexual harassment. If the activity started out being consensual and one employee calls a halt to it and the other continues, it can become sexual harassment at the time the activity is no longer consensual
QUID PRO QUO SEXUAL HARASSMENT 418
•Workplace benefit promised, given to, or withheld from harassee by harasser •In exchange for sexual activity by harassee •Generally accompanied by a paper trail (for example, promotion, raise, or termination paperwork)
HOSTILE ENVIRONMENT SEXUAL HARASSMENT 418
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
Note 419
For instance, in McLean v. Satellite Technology Services, Inc.,39 based on the employee’s previous conduct, the court had no trouble in determining that the harassee welcomed the activity of the harasser, if, in
quid pro quo sexual harassment
sexual harassment in which the harasser creates an abusive, offensive, or intimidating environment for the harassee. It requires a workplace benefit promised given to or withheld from a harassee by an harasser
hostile environment sexual harassment
sexual harassment in which the harasser creates an abusive, offensive, or intimidating environment for the harassee. It represents an activity by a harasser toward a harassee that is based on the harrassee gender
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
reasonable person standard
viewing the harassing activity from the perspective of a reasonable person in society at large ( generally tends to be the male view )
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
antifemale animus
negative feelings about women and / or their ability to perform jobs or functions, usually manifested by negative language and actions
These acts, while constituting sexual harassment under Title VII, also could form the basis for the tort actions of:
Assault: Intentionally putting the victim in fear or apprehension, or both, of immediate unpermitted bodily touching. Battery: Intentional unpermitted bodily touching. Infliction of emotional distress: An intentional outrageous act that goes outside the bounds of common decency, for which the law will provide a remedy. False imprisonment: Intentionally preventing the harassee’s exit from a confined space. Interference with contractual relations: Intentionally causing the harassee to be unable to perform her employment contract as agreed upon.
employer must take “immediate and appropriate corrective action” to remedy sexual harassment. The most appropriate thing to do under the specific circumstance depends on the facts. Consideration should be given to such factors
as the employment position of the employees, the activity involved, the duration of the actions, the seriousness of the actions, the employer’s sexual harassment policy and other methods used to deter sexual harassment, the alleged harasser’s prior history of sexual harassment, and so on.
It shall be unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex [gender]. … [Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. § 2000e2(a).] Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) 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. [29 C.F.R. § 1604.11 (a) (EEOC Sexual Harassment Guidelines).]
