harassment

Question 1

how did courts traditionally divide sexual harassment claims

Answer 1

Quid-pro-quo: Claim brought where a supervisor would use “sex” as a tool for either reward or punishment.

Hostile work environment: Claim brought where plaintiff alleges she suffered a hostile atmosphere in the workplace, though not necessarily one that has had a direct economic impact.

Question 2

when does harassment usually take place

Answer 2

It often takes place where the employer has a policy against it and would take action if they knew about it

The harasser picks someone they know won’t complain

Question 3

which title vii protected status does harassment cover

Answer 3

all of them, although its usually associated with sex/gender

Question 4

what is the key takeaway from shaver

Answer 4

A plaintiff may bring a hostile-work-environment claim under the Americans with Disabilities Act.

Question 5

what do the elements a harrasement cause of action depend on?

what is the common thread no matter what

Answer 5

The elements of a harassment cause of action vary depending upon whether a tangible employment action or hostile work environment claim have been alleged.

all claims of harassment have a single common thread – the action taken must be “because of” the protected characteristic

Question 6

what is the key takeaway from Oncale

The p was subjected to sex related humiliating actions against him by other male employees

Whether workplace harassment can violate title vii’s prohibition against discrimination because of sex when the harasser and the harassed employee are of the same sex

Answer 6

Nothing in title vii bars a claim of discrimination because of sex just because the p and the d are of the same sex

Question 7

what were the because of sex circumstances established in Oncale (the same sex harrasment)

Answer 7

1. By showing that the harassment was sexual in nature;
2. By establishing that the company treated on sex with hostility;
3. Or through comparative evidence showing that one sex was treated better than another

Question 8

what is the key takeaway from Ochletree (because of sex/protected class)

P was the only woman working at the job, and she was subjected to crass comments and gestures by her male counterparts, making her uncomfortable and causing emotional tolls

Did P prove that the harassment was because of her sex

Answer 8

The Fourth Circuit concluded that not only was there evidence sufficient to prove a hostile environment, but this hostility was specifically targeted at the plaintiff.

Question 9

what are the elements of a title vii cliam for sexual harassment

Answer 9

plaintiff must prove that the offending conduct:
1.Was unwelcome;
2.Was based on her sex;
3.Was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment; and
4.Was imputable to her employer.

Question 10

what does proving that conduct was ‘because of sex’ mean in the harrasment context

Answer 10

whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.

Question 11

what is the key takeaway from Mertior (ie proving the unwelcome OR severe or pervasive)

Vinson brought an action against Taylor and the bank, claiming that during her four years at the bank she had constantly been subjected to sexual harassment by Taylor in violation of Title VII.

At a bench trial, Vinson testified that she and Taylor had sex 40-50 times, he made repeated demands for sexual favors, he fondled her in front of other employees, followed her into the restroom, exposed himself to her, and even forcibly raped her.

Whether Title VII prohibits the creation of a hostile work environment, or is it limited to tangible economic discrimination in the workplace?

Answer 11

Title VII is not limited to economic or tangible discrimination but that it also provides protection from hostile or abusive work environments.

Question 12

what is the key takeaway from Harris

Teresa Harris sued Forklift Systems, alleging that the company’s president, Charles Hardy, created a hostile work environment through gender-driven verbal insults and sexual harassment, violating Title VII of the Civil Rights Act of 1964.

Answer 12

The Supreme Court held that psychological harm is not necessary to establish a hostile work environment.

Question 13

when is the three step hostile work enviornment test applied

Answer 13

only when there is no tangible employment action

Question 14

what is the key takeaway from ellerth (how to get an employer on the hook for employee)

Ellerth worked as a salesperson in one of Burlington’s stores. During her employment, she alleged she was subjected to constant sexual harassment by her supervisor, Slowik.

During her employment, Ellerth did not inform anyone in authority about Slowik’s conduct, despite knowing that Burlington had a policy against sexual harassment.

ISSUE: Whether, under Title VII, an employee who refuses the unwelcome and threatening sexual advances of a superior, yet suffers no adverse, tangible job consequences, can recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor’s actions?

Answer 14

SCOTUS held that employers are vicariously liable for supervisors who create hostile working conditions for those over whom they have authority.

Question 15

what happens if your supervisor takes tangible employment action

Answer 15

vicarious liability puts employment on the hook

The employer has cloaked the supervisor with authority to make those tangible employment actions so youre liable

Question 16

how are harrasment cases analysized

Answer 16

on whehter there was a tangible employment action or hostile work enviorment invovlved

Question 17

whqt does a tangible employmnet action look like

Answer 17

A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, etc.
Where there is a tangible employment action, vicarious liability attaches

Question 18

when does an employer have an affirmative denfse in hostile work envoriment

Answer 18

where no tangibke employment action is invovled an a supervisor is invovled

Question 19

what is the two part affirmative defnese

Answer 19

(d has burden of persuasion)
1. Employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and
2. That the P unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm

Question 20

what is the policy reason behind allowing the affirmative defense

Answer 20

Develop and write anti harassment policy and distribute it and act according to it

Question 21

what is the eeoc guidance on an effective anti harrasment policty

six in all

Answer 21

1.A clear explanation of the prohibited conduct;
2.Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;
3.A clearly described complaint process that provides accessible avenues of complaint;
4.Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
5.A complaint process that provides a prompt, thorough, and impartial investigation; and
6.Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

Question 22

what is the key takeaway from faragher

Under what circumstances may an employer be held liable under Title VII for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination?

Answer 22

SCOTUS held that an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of the plaintiff victim.

Question 23

what is co worker harrassement

Answer 23

sperate from supervisor harrasment;occurs where a fellow employee is perpetrating the adverse conduct.

Question 24

when is an employer liable for co-worker harrasment

Answer 24

if the complainant proves that the employer was negligent – i.e., the employer knew or should have known of the offensive conduct but failed to take appropriate corrective action

Question 25

what is the important diff between the supervisor and co-worker harrasment test

Answer 25

Where supervisor harassment is present, the employer will be able to avoid liability if it can carry its burden of proof of establishing the two components of the affirmative defense

Where co worker harassment is implicated, a negligence standard applies, and the p carries the burden of persuasion of showing that the employer knew or should have known of the conduct but failed to act

Question 26

what is the key takeaway from vance (who is considered a supervisor)

Answer 26

Whether you’re a supervisor depends on if you can take a tangible employment action against P
Jobs names don’t define supervisor status

Question 27

what is the key takeaway from suders (constructive discharge)

The three supervisors of p subjected her to sexual harassment that forced her to quit
One of her supervisors accused her of taking a missing accident file home with her
She was arrested for theft by her supervisor and she resigned

Whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and therefore precludes assertion of the affirmative defense

Answer 27

where an employee resigns as a result of sexual harassment, the employee may assert a Title VII constructive discharge claim where the employee can show that the “working condition became so intolerable that a reasonable person in the employee’s position would have felt compelled to resign

The employer will thus have the opportunity to avoid liability through the use of the affirmative defense.

Question 28

what are some best practice considerations when it comes to investigation of harrasment claims

five in all

Answer 28

1.It is critical that the person performing the investigation is a neutral party that has no bias in the matter.
2.It is important for the company not to have a “knee jerk” reaction against the alleged harasser.
3.Documentation is key at every step of the investigation.
4.Confidentiality can simply not be guaranteed to witnesses in these matters.
5 If an outside third party investigates the harassment claim, it may technically be considered a “credit report” under the Fair Credit Reporting Act.

Question 29

what is the key takeaway from the warner bros case

Whether the use of sexually coarse and vulgar language in the workplace can constitute harassment based on sex

Answer 29

doged the first ammedment argument, holding that because The jokes were not directed at p or other women in the workplace , There is no reason that a reasonable trier of fact could conclude such language constitutes harassment

Question 30

create flow chart for harrasment/hostile work enviorment claim

Answer 30

check

Question 31

is the severe or pervasive element measured subjective or objective

Answer 31

both

Question 32

when someone high enough up is harassing you, can you impute liability to company (ie like prez)

Answer 32

yes via proxy liability