Sexual Harassment

Question 1

What are the elements of a sexual harassment claim?

Answer 1

1) Unwelcome
2) Because of gender
3) Unreasonably interferes with victim’s ability to perform job (severe & pervasive)

Question 2

Of what significance is the intention of the “offensive” conduct?

Answer 2

How the conduct was intended is irrelevant; what matters is how it was received. Defense will try to look at the conduct of the victim, but that is mostly irrelevant. What does matter is the victim’s conduct in the workplace and toward the accused; need to worry about blaming the victim and how that will be perceived by a jury.

Question 3

When is sexual harassment de facto not “because of gender”?

Answer 3

If offender is an equal-opportunity “jerk,” the conduct is not “because of gender.”

Question 4

Is one incident of alleged harassment enough?

Answer 4

Yes, some conduct need only occur once to be actionable.

Question 5

What is the standard determining liability in sexual harassment claims?

Answer 5

If the accused is a supervisor, there is a higher standard of negligence: strict liability applies unless the employer can satisfy the affirmative defense.

Question 6

Are there any affirmative defenses to claims of sexual harassment?

Answer 6

Yes, if the employer took reasonable steps to prevent and address harassment and the employee failed to avail self of protections.