Discriminatory Harassment- basically a subcategory of disparate treatment (not just general harassment, tied to a protected class

Question 1

2 types of Harassment

Answer 1

(available under Title VII, ADA, ADEA, and many state laws.
a. Employers are potentially liable for 2 types of Harassment:
* Quid Pro Quo – tangible employment action resulting from refusal of subordinate to submit to supervisor demands (sexual harassment, maybe religious in theory, but this is almost always sexual) (tanglible means a significant change in employment status such as hiring, firing, failure to promore, reassignment with significnalty different responsibility, or decision causing a significant change in benefits.)
* Hostile Work Environment – Not necessarily tangible adverse employment action. SCOTUS has made clear need not show psychological harm or HWE claim. But need harassment to be sufficiently severe or pervasive to alter conditions or terms of employment.

Question 2

Key Conceptual Challenges

Answer 2

1. When is harassment “because of” sex, race, etc. (Oncale)
2. When does it rise to the level of being “actionable”?
   a. No every joke is enough (Meritor and Harris)
3. Is “unwelcomeness” still required? (Sunbelt)
4. When can the employer be held to account for underlying harassing conduct?

Question 3

3 Elements of Hostile Work Environment

Answer 3

o Harassment must be “because of” religion, sex, age, etc.
o Severe OR Pervasive (bar is fairly high, meaning a single, minor single incident not enough, needs to effect terms of employment  but one instance COULD be enough i.e. sexual assault, threatening letter/statement)
(i) Needs to be BOTH subjective AND objective:
i. Subjective – employer actually found the environment abusive
ii. Objective – reasonable person would also find the environment abusive
iii. ** Targeted statements are more likely to meet standard **
o Imputable to Employer  for co-workers = employer negligently failed to stop it before becoming “severe or pervasive” (see framework below)
i. i.e. employer failed to have robust reporting path, finds out & does not stop it, etc.

Question 4

When can the employer be held liable?

Answer 4

o Co-worker / 3rd party harassment:
(a) HWE = Employer CAN be liable if NEGLIGENT (burden on π to show employer “knew or should have known”) in failing to prevent
(b) QPQ = Employer CANNOT be liable for co-worker (must be a supervisor)
o Supervisor harassment:
(a) HWE = Employer COULD liable (∆ has to satisfy affirmative defense to not be liable  not as hard as you think, see below)
(b) QPQ = Employer STRICTLY liable (no affirmative defense, because there WAS a tangible employment action)

Question 5

Cases

Answer 5

Oncale:
Issue: whether harassment is actionable when harassed employee and harasser are the same sex. Court says YES, it is actionable, Title VII protects both men and women from discrimination “because of sex”.
a. Court suggests that there could be a sexual harassment case where the hostile environment is caused by the worker not conforming or fitting with a traditional gender norm.
b. Same-sex harassment can constitute a claim, even where “sexual desire” is not involved, but it must actually be “because of” sex.
c. Put simply, the “gender” of the target must cause the harassment  harassing conduct of a non-sexual nature CAN still constitute sexual harassment  as long as the conduct is “because of sex/gender” it doesn’t matter if there’s a sexual desire or not.
d. Plaintiff needs to show disparate conduct motivated by race or gender. (may be difficult in all male workplace, but can succeed if plaintiff can show he was targeted because he was male.)
e. Title VII does not contain civility code. No protection for mean employers, must show the hostile environment because of sex or race or something else.

Court used to say that NO protection for sexual orientation. but BOSTOCK case now says that sexual orientation is also protected. But-for individual’s sex. Two gender-based factors play into an employer’s decision to fire someone because of sexual orientation or gender identity: (1) the employee’s gender and (2) the gender the employee identifies as personally or finds sexually attractive.

Question 6

Hostile Work Environment Framework:

Answer 6

Elements:
(1) Unwelcome. Employee did not want this language or conduct directed at him. It was uninvited and offensive.
(2) Because of… - employee sufficiently showed the harassment was linked to his protected class.
(3) Severe OR pervasive - subjective AND objective:
* Subjective: employee subjectively believed it was offensive & hostile;
* Objective: ORP would believe it was offensive & hostile
Factors: [none are dispositive]
- Frequency of conduct;
Severity;
- Merely offensive or humiliating;
Unreasonably interferes w/ employee’s work.
* High bar - must look @ the totality; must be more than personality
conflict.
(4) Imputable to the employer.

Sunbelt:
is a HWE case that focuses on the severe or pervasive element.
A discriminatorily abusive work environment—even one that does not seriously affect employees’ psychological well-being—can STILL detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers.
* Must be sufficiently severe OR pervasive to alter the terms and conditions of employment and create and abusive environment. (no adverse employment action required, and no psychological injury required, but bar is still quite high)
* How to determine if severe and pervasive?
o Look at all the circumstances, not at things in isolation.
o The inquiry is both objective and subject. Reasonable person would have found conduct abusive and person subjectively found it abusive.
o Severe OR Pervasive  a single act may be enough, or a series of acts that individual might not be enough but clumped together might be enough.
o Court was willing to consider harassing conduct that lacked a DIRECT religious nexus. Court considered other acts that implicated religion, but not directly.
o Singly joke is often not enough, but it may be if severe enough (like battery)
o More likely to be severe or pervasive when individual targeting is present, less likely with generalized offensive environment.
o Some of harassing conduct was done by co-workers and some by supervisors. Supervisors involvement likely heightens severity.

• Constructive discharge –
  o high standard (must be so intolerable that a reasonable person would have felt compelled to quit. Just hostile work environment alone not enough, must be incredibly intolerable. Might increase damages, but not necessary for liability.)

Question 7

Ellerth/Faragher Framework

Answer 7

• Ellerth/Faragher do not address employer liability for co-worker harassment* only applies to supervisors
• Ellerth/Faragher clarify employer liability for supervisor harassment:
• Automatic employer liability when a supervisor subjects P to “a tangible
  employment action, such as discharge, demotion, or undesirable reassignment.”
• Supervisor: has the power to effect significant change in status such as
  hiring, firing, failing to promote look @ circumstances & effective delegation
  powers. (Vance)
• Employer has automatic absolute liability w/ no affirmative defense.
• Pennsylvania State Police v. Suders - constructive discharge = tangible
  employment action.
• But if when the supervisor subjects P to conduct that is NOT a tangible employment
  action (e.g., contaminated work environment), employer is still liable but may raise
  an affirmative defense.

Affirmative defense: employer must establish (bears burden of persuasion
on both):
o (1) that the employer exercised reasonable care to prevent &
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 or to avoid the harm otherwise.

• Co-worker hostile work environment harassment doesn’t result in employer liability
  unless the employer is negligent (i.e., knew/should’ve known and didn’t reasonably
  address).
• Vance - “a]n employer may be vicariously liable for any employee’s unlawful
  harassment only when the employer empowered that employee to take tangible
  employment action against the victim.

Question 8

Employer Liability for discriminatroy harassment

Answer 8

Tangible Employment Action:
Supervisor Harassment = Strict Liabilty
Co-Worker Harassment = N/A

Hostile Work Environment:
Supervisor Harassment = Strict Liability; Ellerth/Faragher Affirm. Def.
Co-Worker Harassment = Employer Negligence (Plaintiff must prove)