Sexual harassment

Question 1

sexual harassment

Answer 1

occurs in the workplace when unwelcome conduct based on gender affects a person’s job.

1980 EEOC Guidelines (only employment issues)

Question 2

unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when

Answer 2

submission to each conduct is made either explicitly or implicitly a term or condition of individual employment (is the condition of employment )

submission to or rejection of the conduct by an individual is used as the basis for employment decisions affecting such individual

such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating hostile or offensive work environment. examples 3

Question 3

3 examples

Answer 3

verbal- epithets derogatory comments, vulgar words, expressions, slurs jokes, or comments

physical- unwelcome touching assault blocking impairing or otherwise physically interfering with an individual’s normal work or movement (doesnt need to be toughing, just makes your vulnerable)

visual- derogatory poster, cartoons, drawings, computer screen saver, emails. ex tire company could make a calendar with females this was disturbing to female workers

Question 4

law is a bout nonconsensual relationship meaning both sides have to agree or it is concerned by the law

Answer 4

TRUE

Question 5

TYPES

Answer 5

1. quid pro quo
2. hostile work environment

Question 6

quid pro quo

Answer 6

“means power over you”- harasser has power

you do this for me, I do this for you

a person is afraid of the political consequences of saying no

employee or applicant submission to or rejection of a sexual advance is used as the basis for an employment decision (termination, promotion, raise, hiring, wage-free)

you need to be high up in the company to sue both the harasser and the company

one person

Question 7

deep pocket

Answer 7

sue the person with the most money needs to be the harasser, can be more than 1 person

Question 8

shot gun theory

Answer 8

pellets hit many people, you can sue anybody or everyone you think contributed to harassment, then later you gather more evidence to get a certain person, but if you didn’t put them in the case to begin with time runs out then you cant sue them

Question 9

hostile work environment

Answer 9

BROADENED ON WHO CAN SUE

NOW THIS LAWSUIT CAN BE HARASSMENT BY ANYONE

*shotgun theory

courts look to the totality of the circumstances and whether a reasonable person would consider the conduct complained to be severe or pervasive to create a hostile work environment

not about hierarchy - can be customers and coworkers

bosses knew and did not do a thing, company doesnt protect you

Question 10

key factors

Answer 10

frequency of the objectionable conduct
circumstances of conduct
severity
relative positions of the persons involved
conduct physically threatening or humiliation?
does it unreasonably interfere with the employees work performance
what is the effect of the harassment on the employee

Question 11

liability of employers

Answer 11

quid pro quo- strict liability for supervisors’ actions, even if unaware of the situation and it violet the company policy

hostile work environment- liable unless the employer can show that it exercised reasonable care to prevent and promptly correct behavior or the employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer or otherwise to avoid harm

Question 12

liability of harasser

Answer 12

under both forms may be individually liable under state and local law

Question 13

harassment by coworkers

Answer 13

an employer can be liable if it knew or should have known about the offensive conduct and failed to take prompt remedial action

Question 14

3rd party

Answer 14

employer can also be responsible if harassment is done by 3rd party (vendor client-supplier)

Question 15

solutions for employers

Answer 15

act before the problem occurs- proactive
have a comprehensive detailed and written policy
distribute police to workers’ supervisors and non-employee
train the supervisors to handle claims and issues
have an effective grievance procedure
appoint a senior to oversee the implementation
enforce procedures quickly and aggressively
do not penalize the person who lodged a complaint

procedures to follow
exhaust the alternatives at the employment site
file complaint EEOC

then bring lawsuit
remedies
back pay reinstatement promotion, compensatory and punitive damage
penalities- fines for harasser and employer possible

Question 16

CRA 1991

Answer 16

additional remedies needed to deter unlawful harassment and intentional discrimination

punitive damages are allowed if the victim can establish malice or reckless indifference

this law does not cover back pay/interest (CRA 1964)

Compensatory damages under this act for future pecuniary losses, emotional pain, suffering inconvenience, mental anguish, loss of enjoyment of life, limited by the size of the business, and number of employees, 50k, 100k, 200k

can request a jury trial

suggests the use of alternative dispute resolution

establishes Glass Ceiling Commission

brings government employees under the protection of the CRA

Question 17

ELLISON CASE 9TH CIRCUIT

Answer 17

1980s
1st case changed the perspective and looked at it from a different perspective, the behavioral perspective
not a Supreme Court lawsuit

prior to the case- used the reasonable MAN as a victim standard

after looking at position from the victim’s perspective - here it was REASONABLE WOMEN

sues sues the IRS, the boss

** has evolved to a reasonable person depending on the gender

she failed to establish a case based on a hostile work environment

the allegations in the Ellison case focused more on a hostile environment created by the professor’s unwanted sexual advances and conduct. The court’s decision emphasized the university’s responsibility to address and prevent such harassment, regardless of whether it involved explicit quid pro quo exchanges.

case settled

Question 18

Meritor Saving Bank v Vinson

Answer 18

1986

based on CRA 1964 TITLE VII

Discussed quid pro quo and hostile work environment

it began as a hostile work environment the supervisor was the harasser the supervisor, said the victim willingly consensual relationship - quid pro quo

Question 19

Harris v Forklift system

Answer 19

1993
based on the civil rights act of 1964 - Title Vii

what makes a work environment hostile look at severity and frequency.

how toxic and severe

President of company- harasser

woman gets a job and he insults her for several days because she is a woman and not a man, looks down on women, and claims he was joking and would stop so she stays on the job.

can be quid pro quo, BUT it involves more than 1 woman and man as well so it was the hostile work environment

early cases- male dominant workplace and they wanted the female to quit

Question 20

Oncale v SUNDOWNER offshore services

Answer 20

-1998
-sexual harassment by coworkers male employee
-sexual harassment protects men and women
-harasser same sex
sexual harassment is about POWER
- most employees in the oil rig company were male,
-the company said everyone was the same gender so there was no harassment

-the victim was gay
harasser was homophobic so he said he was weak and they were manly and macho

Oncale- sues for the hostile work environment. there was no action taken he told other workers and the supervisor

YES, WE can have same gender as the harasser and victim in a hostile workplace

Question 21

gebseret v lago vista school district

Answer 21

1998
-based on the education law/amendment
-what must an employer do to protect itself in harassment cases?
-where teachers are concerned officials of the district must know and be indifferent to teachers’ misconduct.

sexual harassment= means power

-teacher and student have a relationship, an outside person discovered the relationship
-the school district had no public policies
-student did not complain about the relationship

the principal knows that he has made remarks to other students and does not report to the district of the school

**The deep pocket- school district, there were no public policies in place so they could sue.

NO grievance procedure or anti-discrimination

teaching license gets revoked and he goes to the Supreme court

Question 22

case 2 -1999 monroe county board vs davis

Answer 22

education amendment case/ law
school gets sued
5th-grade elementary school
deliberate indifference - sexual harassment, based on factual assessment.
hostile school environment
goes to federal district court- says they don’t have this court under the law
then goes to the circuit court- and says that the school needs to have actual knowledge of the case and is very invasive that it affects her opportunities to be considered a case

principal was informed

the daughter’s grades dropped and he was convicted of battery assault he does it to other students
she was so concerned with the harassment affected her class performance, the court aggreed.

the school board chose not to do anything

Sue: they went after the child parents and this is if they know the case
go after the school district - if they knew and did do anything

-quid pro quo

Question 23

1998 Faragher v Boca Raton

Answer 23

can an employer be vicariously liable for discrimination by a supervisor? Do they have constructive knowledge?

yes but they also have defense, the reasonableness of their conduct, and the victims

military lifeguard, mainly males

but we start seeing females
males thought they just stood there pretty

city= deep pocket
women face sexual harassment
sue the city and the bosses/ supervisors
said that the supervisor created a hostile work environment
- severe and frequent
the court decided - the supervsior had unchecked authority and women had no contact or recourse
- a military hierarchy existed
there were no female locker rooms/changing
- the city had neglected the females needs

Question 24

ellereth vs burlington industries 1998

Answer 24

can an employer for harassment of an employee by a supervisor be liable with negligence even if the employee suffers no adverse tangible job consequences

yes, but the employee has a defense against such a claim

the injury involved their compensation $

started as quid pro quo but with no injury can they still sue? yes, the employee can sue the employer even with no injury but not a quick and easy case.

this case- there were no injuries suffered

Question 25

pollard v Dupont 2001

Answer 25

coworker harassment
compensatory damages - front pay
1991 CRA in place
remedies- injunctions, reinstatement, back pay, lost benefits attorney fees
are they limited by the damages cap- NO

hostile workplace
supervisor is aware of the coworkers harassing her
the supervisor did not harass
received damages- so they can sue for money
medical leave- physiological assistance, the victim

100,000 in benefits

pollard case- the court said compensatory $ damages by the law of 1991

biggest companies - 300k

1991 act- had limits on compensatory damages did not change the CRA 1964 law

1991 does not apply, but her injuries did not relate to the restricted damages the court should have let jury decided

Question 26

national railroad passenger corp v morgan 2002

Answer 26

a new type of case- racial hostile work environment NOT sexual, you can sue still
can you use race to sue under a hostile workplace- yes
said court

Supreme Court- looked at both the old and new pattern of behavior

a long period of time harassment EEOC said it happened too long ago we can only look at the new incidents
series of incidents-can sue

how long?
some alleged incidents were outside of the time frame allowed. it is okay if actions are part of the same practice and one action took place in the time frame

Question 27

Pennsylvania State Police v Suder 2004

Answer 27

Can an employer be held liable for a supervisor’s sexual harassment resulting in the constructive discharge of his victim? (being forced to quit by their will) the answer may depend on the specific circumstances

constructive discharge - is not formally fired but the harassment was so severe that she was forced to resign.

case: The female police officer did not fit in and EEOC did not pay attention.

Suder sues to get up higher in the police department, so she takes computer skill exams to get more skills

she never took the exam for grading (Evidence)

they created a hostile work environment, she gets arrested bc she took an evidence exam, which will affect her role as a police officer

she said it was sexual harassment - a hostile workplace

they make it so unpleasant to be there she quits- constructive discharge (not getting paid)

• she quit not because she wanted to

-she was not discharged

Question 28

Burlington northern and santa fe railway vs. White

Answer 28

2006

sexual harassment case

doesn’t need to be in the workplace can be beyond this- indirect

we need to look at if the retaliation is reasonable, or reasonable person/worker/normal. that finds that what the employer did might stop them from claiming harassment it is relations. going to jury is reasonable if they think its intimidating or not

female works in maintenance in a train yard, which is male-oriented she had fort lift experience she was hired as a track laborer cleaning, then she needed to take on two jobs track labor and fortlifter (primary job now)

then she faces harassment he takes her off the job because it is better suited for male

fort lifter- was more $ money getting paid she claimed reassignment of her job was gender-based and she was under surveillance. she was insubordinate and without pay. She claimed she was not insubortidated and filed a greinance and company agree. they then gsv her back her postion and paid.

the scope of antiretaliation extends beyond the workplace retaliatory acts and harm to assure cooperation

you must show that a reasonale eompolyee would foudn the action materially adverse might have dissauded a reaosnale worker from making suorting. charge of discrimintion

the appeal court reinstates he retaliation claim made by the company. the supreme court takes the case and if the employer is trying to intimated- this is retaliation

we look at retahilation in eyes of the reasobale person

Answer 29

if there are more lawsuits means more district courts

appeal lawsuit of district court goes to the circuit of appeal or second circuit (ny or vermont)

tier of fact -is a first level appeal

if there is a different of opinion in the district court it goes to supreme court

Question 30

arbaugh v yand h corporation

Answer 30

2 owners managed the cafe and technically not 15 people with the owners,

if you can claim the law doesn’t apply to you you need to do it u front of 15 people, the owners needed to bring it up to win their case

introduced retaliation

owner and the spouses cannot be counted as 15 - determined by lower court