1. Seminar #9 Tom Piotrowski

2.  In this seminar we will discuss the different court cases that have addressed this very important issue. Court cases such as Meritor Savings Bank v. Vinson (1986), and many others. In addition we will revisit the Civil Rights Act of 1964.

3.  to fail or refuse to hire an individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. (42 U.S.C. section 2000e-2(a) (1988)  Not originally designed to address sexual harassment.

4.  Previous cases where the courts indicated that the Civil Rights Act was not violated:  Tomkins v. Public Service Electric & Gas Co., 1976;  Miller v. Bank of America, 1976;  Corne v. Bausch and Lomb, Inc., 1975;  Barnes v. Train, 1974

5.  In 1980, the EEOC, the government agency created to enforce Title VII, issued guidelines defining sexual harassment and establishing parameters for unacceptable behavior in the workplace.

6.  Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:  1. submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;  2. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or

7.  3. such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment (EEOC Guidelines on Discrimination Because of Sex, 29 C.F.R. Sec. 1604.11 (a) 1981).

8.  The Civil Rights Act of 1964 prohibits Sexual Harassment: For an employee to get, keep or improve their work status by being forced to give sexual favors to a supervisor or management member, is called Quid Pro Quo Sexual Harassment  literally means “something for something.”

9.  In a typical hostile environment case, a victim suffers a number of sex-related inquiries, jokes, slurs, propositions, touching, or other forms of abuse.  it must be so severe or pervasive that it alters the conditions of the victim’s employment and creates a hostile or abusive work environment, in order to violate Title VII.

10.  For Both Men and Women  After the EEOC guidelines regarding sexual harassment were created all federal courts began to recognize sexual harassment as a bona fide legal claim.  Bank Teller Michelle Vinson  First US Supreme Court Ruling for Sexual Harassment

11.  Forced sexual encounters with her supervisor.  Dinner and time at a motel  Needed to take sick leave in 1978  Terminated for excessive sick leave.  Filed claim of sexual harassment  District court finds no violation  Court of Appeals overturns  Employer is liable for actions of a supervisor.

12.  The Court, citing EEOC guidelines, ruled that Title VII does cover both quid pro quo and hostile environment sexual harassment. The Court said that Title VII provides an employee with the right “to work in an environment free from discriminatory intimidation, ridicule and insult.”

13.  A troubling aspect of the Court’s decision in Meritor is Chief Justice Rehnquist’s suggestion that a plaintiff’s speech and dress is “obviously relevant” to the issue of whether the defendant’s conduct was welcome. The problem with this approach is that it focuses upon the behavior of the plaintiff and not the defendant, which is reminiscent of defense tactics in rape cases before rape shield laws were created to protect victims.

14.  speech and dress in most sexual harassment cases would be of little relevance, highly prejudicial, and therefore inadmissible. Finally, the Court did not decide whether a victim of sexual harassment must suffer “psychologically” as some lower courts held.

15.  Harris and Boss Hardy  “You’re a woman, what do you know?”  “We need a man as a rental manager.”  “dumb ass woman”  go with him “to the Holiday Inn to negotiate a raise.”  women to get coins from his pants pockets.  “What did you do, promise the guy... some [sex] Saturday night?”

16.  Justice O’Connor, writing for a unanimous Court, reversed the lower courts and held that a victim of sexual harassment does not have to demonstrate “psychological injury” to recover under a claim for sexual harassment. The Court said that for a plaintiff to state a sexual harassment claim the “sexually objectionable environment must be both objectively and subjectively offensive... to a reasonable person.”

17.  The objective standard appears to limit sexual harassment claims by protecting the employer from very sensitive employees.  The subjective test provides for the perceptions of the harassment victim.

18.  In Harris the Court said that there is no “mathematically precise test” to tell when an environment is hostile or abusive. The Court also said that one must look at the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”

19.  Can a man be harassed from another man?  Does it have to be a member of the opposite sex to make a claim?  there was nothing in the statutory language of Title VII to preclude a claim of same-sex sexual harassment.  one does not have to be of the opposite sex to engage in sexually harassing conduct.  sexual desire does not have to be the motivation for sexual harassment.

20.  “sexually hostile atmosphere” for lifeguard.  “would never promote a woman to the rank of Lieutenant,”  “Date me or clean the toilets for a year.”  “female lifeguards have sex with their male counterparts... [will you]... do the same.”  the city “had knowledge or constructive knowledge” so they are liable.  Court’s decision makes it clear that possession of incomplete anti-harassment policy in a book in the main office will not shield an employer from liability.

21.  two categories of sexual harassment claims: “(1) those alleging a tangible employment action (official act, e.g., no promotion, a dismissal, reassignment, etc.) for which employers may be held strictly liable and (2) those alleging no tangible employment action, in which case the employers may assert an affirmative defense.” The defense comprises two necessary elements:

22.  (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (b) the employee unreasonably failed to take advantage of any preventive corrective opportunities provided by the employer.  employers become very proactive in the work environment if they want to lessen their exposure to liability for sexual harassment.

23.  A comprehensive anti-harassment policy promulgated to all employees is critical. It is also vital that the policy be effective and that it not be a policy in name only. The employer must continually and effectively monitor the work environment.

24.  Constructive discharge means an employee feels compelled to quit a job because the working conditions have become intolerable.  Removed tests from locker room told the supervisors that she was resigning and the handcuffs were removed and the barracks commander let her leave and never filed larceny charges against her.

25.  The U.S. Supreme Court (8-1) decided that an employer may be liable for an employee’s constructive discharge. The plaintiff must simply demonstrate that the abusive working environment became so intolerable that resignation qualified as a fitting response.

26.  BURLINGTON NORTHERN & SANTA FE RAILWAY CO. V. WHITE (2006)  GEBSER V. LAGO VISTA INDEPENDENT SCHOOL DISTRICT (1998)  AURELIA DAVIS V. MONROE COUNTY BOARD OF EDUCATION ET AL. (1999)

27.  For your final exam, you are to prepare a 3-5 page paper on a topic of your choice. You can work with your instructor to be sure you have a workable topic, however, the topic must come from your reading in this course.  We have covered a lot of material, so you should be able to retrieve some good thoughts

28.  Once you have selected your topic, you need to find at least 2 outside sources (in addition to your text) to provide support and research for your topic. (Note: Your 3-5 pages do not include your title or reference page.)  Please think outside the box and do not reuse a paper from earlier in the course

29.  Any Questions about the seminar?  Any Questions about the course?  Make sure to submit all missing assignments.  Have a great week.  Please email me with any questions. I am here to help you succeed.  Thank you for all of your attention and participation throughout the course.