Harassment (Hostile Work Environment)

Question 1

What are the elements of a hostile work environment claim?

Answer 1

1. The employee suffered intentional discrimination because of his/her [protected class];
2. The discrimination was severe or pervasive;
3. The discrimination detrimentally affected the plaintiff;
4. The discrimination would detrimentally affect a reasonable person in like circumstances; and
5. The existence of respondeat superior liability.

Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir 2013)

Question 2

What adverse employment action is most common with hostile work environment claims?

Answer 2

Constructive discharge

Question 3

Respondeat superior liability for non-supervisory employees exists only where …

Answer 3

The employer knew or should have known about the harassment but failed to take prompt and adequate remedial action. Jensen v. Potter, 435 F.3d 444, 453 (3d Cir. 2006)

Question 4

An employee is a supervisor for purposes of vicarious liability if he/she …

Answer 4

Is empowered by the employer to take tangible employment actions against the victim. Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013)

Question 5

In what two situations can an employer be imputed with constructive notice of harassment of an employee?

Answer 5

1. an employee provides management-level personnel with enough information to raise a probability of harassment in the mind of a reasonable employer; or
2. the harassment is so pervasive and open that a reasonable employer would have had to be aware of it.
   Kunin v. Sears Roebuck and Co., 175 F.3d 289, 294 (3d Cir. 1999)

Question 6

What are some factors that courts analyze in evaluating if a hostile work environment exists?

Answer 6

Courts look at all the circumstances, including:
1. the frequency of the discriminatory conduct;
2. its severity;
3. whether it is physically threatening or humiliating, or a mere offensive utterance; and
4. whether it unreasonably interferes with an employee’s work performance.
Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 215 (3d Cir. 2017)

Question 7

Title VII only protects against harassment based on …

Answer 7

A protected class. It is not a general civility code for the American workplace. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998).

Question 8

An employer is strictly liable for .. that culminates in …, such as …

Answer 8

supervisor harassment
a tangible employment action
discharge, demotion, or undesirable reassignment
Burlington Industries, Inc.. v. Ellerth, 524 U.S. 742 (1998)

Question 9

What types of things do not rise to the level of a hostile work environment?

Answer 9

Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the plaintiff’s terms and conditions of employment.

Question 10

When can employers use the Faragher-Ellerth affirmative defense?

Answer 10

1. No tangible adverse employment action was taken against the employee;
2. The employer exercised reasonable care to prevent and promptly correct the harassing behavior; and
3. The plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm (for example, by not taking advantage of reporting procedures in an anti-harassment policy).