class 8 - the law of harassment/retaliation Flashcards
Harassment Continued
The EEOC states that harassment in the form workplace is a form of sex discrimination and is prohibited by Title VII (USSC did too)
The court held that illegal harassment occurs when unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature creates a hostile or abusive work environment
In 1993, the USSC made it clear that a harassed employee is entitled to legal relief even without proof that the offending behavior has injured the employee psychologically
If an employer or manager makes unwelcome sexual advances or demands sexual favors in return for job benefits, promotions, or continued employment, that’s harassment. But harassment in the workplace can consist of a wide variety of other behaviors, including:
…posting sexually explicit photos that offend employees
sending sexually suggestive text messages or photos to a coworker
telling sex-related jokes or jokes that demean people because of their gender
commenting inappropriately on an employee’s appearance
refusing to call a transgender person by their preferred gender pronouns
repeatedly requesting dates from a person who clearly isn’t interested
having strippers perform at a company gathering, or
stating that people of one gender are inferior to people of the other gender or can’t perform their jobs as well
Harassment based on other characteristics
There are other forms of harassment that include other protected classes– race, color, religion, national origin, disability, genetic information or age
Here are some examples of activities that are not sexual in nature, but can amount to illegal harassment:
…using racially derogatory words or epithets
making gestures or displaying pictures that would offend a particular racial or ethnic group
commenting on a person’s skin color or other racial or ethnic characteristics
making disparaging remarks about a person’s gender transition
commenting negatively about a person’s religious beliefs (or lack of such beliefs)
expressing negative stereotypes about an employee’s birthplace or ancestry
making negative comments about a person’s age when referring to employees who are 40 years old or older, or
making derogatory or intimidating remarks about an employee’s mental or physical impairment.
Your company will be liable for harassment committed by its managerial employees if
the harassment results in a “tangible employment action” – a negative action that changes the harassed employee’s job status, like getting fired, reassigned, transferred or demoted
However, in cases of harassment by coworkers or harassment by a manager that doesn’t result in negative action against the harassed employee, your company won’t be legally responsible as long as both of the following apply:
1) You exercised reasonable care to prevent and quickly correct harassment (by adopting a policy prohibiting harassment that includes a complaint procedure and by investigating all complaints of harassment promptly and fairly).
2) The employee unreasonably failed to take advantage of the opportunities you offered to correct the harassment (for example, by failing to make a complaint or otherwise make the company aware of the situation)
Retaliation
It’s illegal for you to retaliate against an employee for opposing illegal discrimination, for filing a complaint under Title VII, or for cooperating in the investigation for such a complaint
- This includes actions other than termination and suspension
- Reassigning them to harder duties is illegal too
An adverse action is retaliation only if it is done because the employee complained. You can take adverse action against an employee for other reasons, even if that employee has complained about discrimination or some other unlawful workplace situation
For example:
- If the employee performs poorly on the job, you can give the employee a negative performance evaluation.
- If the employee is habitually late for work, you can discipline the employee for tardiness.
- If the employee brings a gun to work, you can fire the employee
Article: An employer must take corrective action when a customer sexually harasses an employee
Pharmaceutical giant Astrazeneca takes the prevention of sexual harassment in its workplace seriously. The company provides mandatory sexual harassment training to all of its employees. It has a written sexual harassment policy that defines sexual harassment.
But when a Fresno-area sales representative made a routine sales call at the office of a family doctor to whom she was assigned, the doctor allegedly sexually assaulted her by forcibly kissing her and rubbing himself against her body. The assault resulted in the sales rep, according to her complaint, suffering from post-traumatic stress disorder and ultimately losing her job.
In 2004, California made employers liable for unlawful harassment committed by a third party of which the employee was aware or should have been aware if the employer fails to take appropriate corrective action
What the company should have done, and what other companies faced with these kinds of employee claims should consider doing upon learning of an employee’s complaint of third-party unlawful harassment, was to:
(1) question the harasser (in this case, the doctor) about the incident;
(2) admonish him to change his behavior;
(3) at least consider discontinuing any business relationship with the harasser; and
(4) stop requiring its employees to deal with the harasser, at least in person
The drug company’s apparent failure to do any of that kept the company from getting the sales representative’s case dismissed
Article: Motivational workplace music may motivate lawsuit
Earlier this month in Sharp v. S&S Activewear, LLC, the U.S. Court of Appeals for the 9th Circuit addressed “whether music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment and thus constitute discrimination because of sex,” a violation of Title VII, the federal workplace discrimination law
In an opinion written by San Diego-based Circuit Judge M. Margaret McKeown, the court concluded that persistently played denigrating music, as with other “auditory offenses,” may constitute an unlawful hostile work environment.
Court of appeals reverses dismissal, saying must may unlawfully pollute workplace
- The court held only that “the sort of repeated and prolonged exposure to sexually foul and abusive music that Sharp alleges” falls within the broad category of audible harassment that can violate Title VII.
- That the music was played throughout the warehouse did not neutralize its effect, contrary to the lower court’s order.
- Whether sung, shouted, or whispered, blasted over speakers or relayed face-to-face, sexist epithets can offend and may transform a workplace into a hostile environment that violates Title VII
Quid pro quo harassment and workplace bullying
Quid pro quo harassment - “this for that” harassment:
In the example provided in class: offensive remark was made after the employee was already terminated
This is because the employee was already terminated. If they made this comment prior, and she had the choice to have sex with him to keep her job then yes, it is quid pro quo
Why is workplace bullying not illegal?
- Very subjective and hard to define– what is bullying?
- Since 2019, CA law requires workplace education programs include workplace bullying courses because bullying based on illegal characteristics is still illegal
(SKIT): The Case of Grounds for Complaint?
Context: As the scene opens, Tamara Klopfenstein, the newly hired part-time receptionist for National Sales and Supply, LLC, is sitting at her station. Off to the right working at his desk is Jason Shrager, a company vice president
Yes, Mr. Blum explained to me during my interview that I would be expected to get coffee for him and Mr. Schrager, so the first couple of times I did it were alright. But every day?
Legal question: Was Tamara unlawfully harassed on the basis of her sex in the workplace?
Initial thought: No it wasn’t harassment. Coffee was explained in the interview. The lunch thing wasn’t harassment either. Could be kinda creepy but it wasn’t repeated.
Final thought: No
Outcome: Court said getting coffee is not a gender specific act. No evidence demeaning to gender. No indication that she was asked to perform acts based on gender.
Discussion:
Wasn’t harassment
HANDOUT 1
Actionable harassment
and
Two Kinds of Sexual Harassment
(1) Actionable Harassment:
To prevail on a claim of hostile environment harassment under the FEHA, an employee must establish that (1) he or she belongs to a protected group; (2) he or she was subject to unwelcome harassment based upon a characteristic protected under the FEHA; (3) the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment, from both a subjective and an objective perspective; and (4) the employer is responsible for the harassment either because the harasser was a supervisor or because the employer knew or should have known of the harassment and failed to take immediate and appropriate action to punish and deter the conduct.
(Source: Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 608.)
(2) Two Kinds of Sexual Harassment:
The law identifies two kinds of sexual harassment: quid pro quo harassment and hostile environment harassment.
A person complaining of quid pro quo harassment must show that another individual: (1) explicitly or implicitly; (2) conditioned a job, a job benefit or the absence of a job detriment; (3) upon an employee’s acceptance of sexual conduct. (Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57.) Generally, a quid pro quo claim arises “[w]hen a plaintiff proves that a tangible employment action resulted from the refusal to submit to a supervisor’s sexual demands.” (Burlington Indus., Inc. v. Ellerth (1998) 524 U.S. 742, 753.)
A person complaining of hostile environment sexual harassment must show that he or she: (1) was subjected to verbal or physical conduct of a sexual nature or directed at him or her because of his or her gender; (2) the conduct was unwelcome; (3) the conduct was sufficiently severe or persvasive to alter the conditions of the victim’s employment and; (4) created an abusive working environment from the perspective of the complaining person and a hypothetical person with the same fundamental characteristics.
(Sources: Fuller v. City of Oakland (9th Cir. 1995) 47 F.3d 1523, 1527; Accardi v. Superior Court (1993) 17 Cal.App.4th 341.)
Whether the harassment is severe or pervasive is determined under the totality of the circumstances. The factors considered in determining whether harassment is sufficient to create a hostile work environment are: (1) the nature of the unwelcome sexual acts, with physical touching generally more offensive than verbal abuse; (2) the frequency of the offensive encounters; (3) the total number days over which the offensive conduct occurred; and (4) the context in which the sexually harassing conduct occurred.
(Source: Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 608-609.)
HANDOUT 2: Quid Pro Quo Sexual Harassment or Not?
Was Pamela subjected to quid pro quo sexual harassment?
Pamela Publicity worked at Big Company for three months as its in-house public relations director. During that time, Tommy Transaction, the Chief Marketing Officer, made sexual comments to Pamela and used unwelcome sexual innuendo in talking to her about his marketing plans for the company. On one occasion, Tommy demanded sexual intercourse from Pamela, asked Pamela to remove her clothing, touched Pamela’s inner thigh without her consent, and grabbed Pamela’s hand and forced it on his genitals. Pamela rejected Tommy’s demand for sex and rebuffed his advances. One day later, Pamela was demoted to an office assistant position and received a reduction in her salary. She later resigned.
Was Pamela subjected to quid pro quo sexual harassment?
YES
HANDOUT 3: HOSTILE ENVIRONMENT ACTIONABLE HARASSMENT OR NOT?
1) The male regional manager of a company that makes loans to mobile home dealers told a female loan processor that she had been voted the “sleekest ass” in the office and, on another occasion, had deliberately touched the loan processor’s breasts with some papers he was holding in his hands
- court said it was not actionable b/c they were isolated and discrete (???)
2) A male forklift driver whose job required him to deliver parts to a female assembly line worker asked her for a date three or four times. Each time she declined. The forklift driver on one occasion also told his female co-worker that he wanted “to eat her all over” and about his sexual fantasies about her. The female assembly line worker complained to management, after which the forklift driver stopped propositioning her and telling her about his fantasies. Indeed, he never said another word to her again. For the next six months, however, the driver drove by the worker’s station five or six times a day and, each time, would stare at her for several seconds without speaking. At one point during this six months, the driver drove past the assembly line worker’s station with his hand cupped on his crotch.
- the court said it is actionable. creepy
3) A female supervisor at a major pharmaceutical company forcibly kissed a male subordinate, continuing even after he protested. The following month, while on a business trip, the supervisor lunged at the same subordinate in his hotel room and groped his genitals as he protested and tried to stop her. In response to his complaints to company officials, the female supervisor was disciplined by being removed as his supervisor, demoted, and transferred at her own expense across the country. Although she was no longer the complaining subordinate’s supervisor and before she formally moved to her new post, the female left a voicemail message advising him to alert her when he left the office; asked his coworkers about his whereabouts; corrected him at meetings and sighed loudly; and walked by his office area and gave him looks that he interpreted to mean “I’m still infatuated with you.”
- actions post-discipline conduct: court said it is not actionable.
HANDOUT 4: OTHER FORM OF ACTIONABLE HOSTILE ENVIRONMENT HARASSMENT OR NOT?
Harassment based on race, national origin, disability, age, religion, medical condition, marital status, or sexual orientation is also actionable and is guided by the same general principles as hostile environment sexual harassment.
Consider the following: A shift manager at a poultry processing plant who supervised another supervisor who was a Muslim often called his supervisor “Mr. Bin Laden,” “Osama,” and “the Muhammad Man” over the company radio and intercom; over several occasions, the man’s supervisors provided the team with a meal that included pork, which the man did not eat for religious reasons, but did not provide non-pork alternatives; the man’s supervisors and others asked him about his religion and made comments about his dietary restrictions. (Mack-Muhammad v. Cagles, Inc. (M.D.Ga. 2010) 2010 WL 55912)
Was the shift manager subjected to hostile environment harassment based on religion?
Yes
Court said no.. not severe or pervasive harassment…
(SKIT): The Case of Trouble In Store
Context: It is September 20, 2002. Diana Lovan and Jenny McGroggan, of Vons’ Human Resources Department, have arrived at the office of William Tarter, one of 17 company district managers. They are there to deliver a report of an investigation they have made of a complaint of sexual harassment made to the department the previous month by James Stevens, who had been with the company since 1978 and was now an inventory control clerk at a Vons store in Simi Valley. In that role, his job is to account for all goods delivered to the store through the back door
Legal questions: Was James retaliated against for complaining about sexual harassment?
Initial thought: Yes
Final thought: No
Outcome: He won at trial. In the end, they found the ER engaged in retaliation. Jury awarded him with damages. 1.6 million dollars + 16 million dollars.
Discussion:
Clean record– first offense
Two years elapsed
He still committed theft?
The frequency of remarks
He had a great job evaluation
First time offender
EE did not know about the donation policy
HANDOUT 5:
Employer Response to Claim of Actionable Harassment
In responding to a complaint of harassment based on a protected characteristic, an employer must do more than simply make the harassment stop, for example, by securing voluntary compliance by the offending employee. If the employer has reason to believe the offending conduct occurred, the employer has an affirmative (positive) obligation to punish the conduct and deter it in the future. Not only should the offender be deterred by the discipline, but so should other would be offenders.
(Sources: Fuller v. City of Oakland (9th Cir. 1995) 47 F.3d 1522, 1528-1529; McClung v. Employment Development Department, pointing out that “[n]o California case has analyzed the [employer’s] remedial obligation in any detail. . . .”)
HANDOUT 6:
ABA’S NINE FEATURES OF A HIGHLY EFFECTIVE SEXUAL HARASSMENT POLICY
- distributes to all employees, management and directors of a clear statement that harassment, including harassment based on sex, gender, gender identity, sexual orientation, and the intersectionality of sex with race and/or ethnicity will not be tolerated;
- Confirmation that the policy applies to conduct by directors, officers, management at all levels, supervisors, employees, and third parties, at or in connection with any work related function, or against anyone protected by this policy regardless of where that conduct occurs;
- Making alternative methods available for reporting violations of the policy, including methods which do not involve any accused party and at least one anonymous reporting method (such as a hotline);
- Informing new employees of the process for reporting the conduct to a governmental agency;
- investigation of all complaints in a prompt, competent, fair, thorough and objective manner, with a report to the person who complained at the end of the investigation;
- Prohibition of retaliation against the person who complained and against witnesses;
- Taking appropriate corrective and disciplinary actions including, but not limited to, termination potentially to prevent and correct unlawful harassment or retaliation in the workplace.
- Communication regarding any settlement of claims to the highest levels of the organization, such as reporting to the Board of Directors;
- Effective training.
