Sexual harassment Flashcards
sexual harassment
occurs in the workplace when unwelcome conduct based on gender affects a person’s job.
1980 EEOC Guidelines (only employment issues)
unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when
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
3 examples
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
law is a bout nonconsensual relationship meaning both sides have to agree or it is concerned by the law
TRUE
TYPES
- quid pro quo
- hostile work environment
quid pro quo
“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
deep pocket
sue the person with the most money needs to be the harasser, can be more than 1 person
shot gun theory
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
hostile work environment
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
key factors
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
liability of employers
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
liability of harasser
under both forms may be individually liable under state and local law
harassment by coworkers
an employer can be liable if it knew or should have known about the offensive conduct and failed to take prompt remedial action
3rd party
employer can also be responsible if harassment is done by 3rd party (vendor client-supplier)
solutions for employers
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
CRA 1991
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
ELLISON CASE 9TH CIRCUIT
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
Meritor Saving Bank v Vinson
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
Harris v Forklift system
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
Oncale v SUNDOWNER offshore services
-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
gebseret v lago vista school district
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
case 2 -1999 monroe county board vs davis
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
1998 Faragher v Boca Raton
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
ellereth vs burlington industries 1998
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
