Chapter 9 Sexual Harassment McGraw-Hill/Irwin Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

9-2 Learning Objectives  Discuss the background leading up to sexual harassment as a workplace issue  Explain quid pro quo sexual harassment and give the requirements for making a case  Explain hostile environment sexual harassment and give the requirements for making a case

9-3 Learning Objectives  List and explain employer defenses to sexual harassment claims  Define the reasonable victim standard and how and why it is used in sexual harassment cases  Differentiate the sex requirement and anti- female animus in sexual harassment actions

9-4 Learning Objectives  Explain employer liability for various types of sexual harassment claims  Describe proactive and corrective actions an employer can take to prevent or lessen liability

9-5 Introduction  Sexual harassment in the workplace occurs more frequently than many realize  Sexual harassment class action trials  The “white buffalo”  Cost to businesses  Liability is avoidable through a few simple steps

9-6 Introduction  Anita Hill and Clarence Thomas  Effect on the workplace environment  Increase in complaints after the hearings  First U.S. Supreme Court sexual harassment case heard in 1986  Difficulty in recognizing sexual harassment when it occurs

9-7 Is It a Big Deal?  Study by the U.S. Merit Systems Protection Board in 1987  42 percent of federal employees have reported sexual harassment  Survey by Working Woman magazine of 160 of the Fortune 500 companies  Nearly 40 percent had received at least one sexual harassment complaint in the previous 12 months

9-8 Is It a Big Deal?  New York Times poll  4 out of every 10 women have experienced sexual harassment  National Law Journal  60 percent of female attorneys have experienced sexual harassment  Parade Magazine poll  70 percent of women serving in the military have been sexually harassed

9-9 Where do Sexual Harassment Considerations Leave the Employer?  Consensual relationships are not forbidden by the law  Unwelcome activity – imposes terms and conditions that are different for one gender  Sexual harassment policies in the workplace

9-10 Sexual Harassment in General  Quid pro quo sexual harassment: Sexual harassment in which the harasser requests sexual activity from the harassee in exchange for workplace benefits  Hostile environment sexual harassment: Sexual harassment in which the harasser creates an abusive, offensive, or intimidating environment for the harassee

9-11 Sexual Harassment in General  Most sexual harassment takes place between males and females  Males bring fewer cases due to fear of ridicule  Affinity orientation is not covered under Title VII  Harassment cases can still be brought regardless of the gender of the harasser and harassee

9-12 Comparison between Quid Pro Quo and Hostile Environment Sexual Harassment QUID PRO QUO SEXUAL HARASSMENT Workplace benefit promised, given to, or withheld from harasser by harasser In exchange for sexual activity by harassee Generally accompanied by a paper trail HOSTILE ENVIRONMENT SEXUAL HARASSMENT Activity by harasser, toward harassee that Is unwanted by the harassee Is based on harassee’s gender Creates for harassee a hostile or abusive work environment Unreasonably interferes with harassee’s ability to do his or her job Is sufficiently severe and/or pervasive Affects a term or condition of harassee’s employment

9-13 Unwelcome Activity  It is the basis of hostile environment sexual harassment actions  Harasser actions can be direct or indirect  Evidence that the activity is unwelcome can also be direct or indirect  Unwelcomeness parameters

9-14 “Love Contracts”  How they work  What is included  What it should do  How it is useful  Is it legally defensible  Is it worth the effort

9-15 Severe and Pervasive Requirement  Severe and/ or pervasive activity: Harassing activity that is more than an occasional act or is so serious that it is the basis for liability  U.S. Supreme court decision  Sexual harassment claims do not require findings of severe psychological harm to be actionable

9-16 Severe and Pervasive Requirement  Factors that determine whether an environment is hostile or abusive:  Frequency of the discriminatory conduct  Its severity  Whether it is physically threatening or humiliating or a mere offensive utterance  Whether it unreasonably interferes with an employee’s work performance

9-17 Perspective Used to Determine Severity  Reasonable person standard: Viewing the harassing activity from the perspective of a reasonable person in society at large  Reasonable victim standard: Viewing the harassing activity from the perspective of a reasonable person experiencing the harassing activity including gender-specific sociological, cultural, and other factors

9-18 Perspective Used to Determine Severity  Viewing severity and pervasiveness from different perspectives renders different results  U.S. Supreme Court decision on Oncale v. Sundowner Offshore Services Inc.  “The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff ’s position”

9-19 “Sexual” Requirement Explained  Sexual element need not be present in order to constitute sexual harassment  Anti-female animus: Negative feelings about women and/or their ability to perform jobs or functions, usually manifested by negative language and actions  Harassment by electronic means

9-20 Employer Liability for Sexual Harassment  Supervisor toward employee (tangible employment action)  Employer is strictly liable  Presence of a paper trail which gives employers a measure of control  Supervisor toward employee (no tangible employment action)  Employer not strictly liable  Also true for constructive discharge

9-21 Employer Liability for Sexual Harassment  Coworker harassment third-party harassment of employee  The harasser and harassee are on the same level  Harasser is not employed by the employer (e.g. a client)  Employer is liable if the acts of harassment were known yet no corrective action was taken

9-22 Determining the Truth of Allegations  The EEOC’s Policy Guidance on Harassment  Inherent plausibility  Demeanor  Motive to falsify  Corroboration  Past record  Employees should be involved on a “need to know” basis

9-23 Retaliation and Employee Privacy  Harassee’s fear of retaliation  Requests employers to provide relief without informing the harasser  Harasser must be informed to properly handle the issue  EEOC – dramatic increase in reatliation claims

9-24 Corrective Action  Employers must take “immediate and appropriate corrective action”  The remedy should  Stop the harassment  Not be out of proportion to the act

9-25 Damages and Jury Trials  Civil Rights Act of 1991  Employees suing for sexual harassment can  Get up to $300,000 in compensatory or punitive damages  Request for jury trials  EEOC has institutionalized alternative dispute resolution (ADR)

9-26 Tort and Criminal Liability  Tort actions  Assault  Battery  Intentional infliction of emotional distress:  False imprisonment  Intentional interference with contractual relations

9-27 Tort and Criminal Liability  Jury trails  Unlimited compensatory or punitive damages  Basis for criminal prosecution

9-28 Management Tips  Adopt an anti–sexual harassment policy  Take a top-down approach to deterring sexual harassment  Create and disseminate information about an effective reporting mechanism for harassees  Provide employees with training and/or information that helps them to recognize sexual harassment

9-29 Management Tips  Ensure that reported incidents of sexual harassment are taken seriously  Create an environment where sexual harassment is not tolerated  Promptly investigate all sexual harassment claims  Circulate information only on a need-to-know basis

9-30 Management Tips  Keep an eye out for anti-female animus  Make sure the corrective action is commensurate with the policy violation  Work to keep the workplace friendly and open