1. Chapter 9 Sexual Harassment
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2. Learning Objectives (1)
Discuss the background leading up to sexual harassment as a workplace issue
Distinguish quid pro quo and hostile work environment sexual harassment and give the requirements for making each type of case
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

3. Learning Objectives -- 2
Understand the Ellerth and Farragher defenses, the circumstances under which they apply, and its practical impact on the workplace
Differentiate the sex requirement and anti-female animus in sexual harassment actions
Describe proactive and corrective actions an employer can take to prevent or lessen liability

4. Introduction
Sexual harassment in the workplace occurs more frequently than many realize
Sexual harassment class action trials are rare
The “white buffalo”
Cost to businesses, personal lives
If HR ever matters (and it does), then liability is preventable through standard setting, process follow-through and enforcement

5. Introduction/Major Developments
First U.S. Supreme Court sexual harassment case heard in 1986 (Meritor Savings case)
Anita Hill and Clarence Thomas, live in D.C.
Effect on the workplace environment
Increase in complaints after the hearings
Weeks v. Baker & McKenzie: 10% of law firm’s previous year’s profit awarded as punitive damages: sends a message to employers
Ellerth and Farragher cases in 1998: prevention

6. Is It a Big Deal? (1)
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

7. Is It a Big Deal? (2) New York Times poll National Law Journal
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

8. 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, procedures and follow-through are keys to nipping unnecessary liability in the bud.

9. Sexual Harassment in General (1)
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 (gravamen: it makes that person’s job sig. harder to do as a result)

10. Sexual Harassment in General (2)
Most sexual harassment takes place between males and females
Males bring fewer cases in part due to fear of ridicule
Sexual orientation is not covered under Title VII
Harassment cases can still be brought regardless of the gender(s) of the harasser and harassee

11. 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

12. The Love Contract (or: Romance is dead)
How it works
What is included
What it should do
How it is useful
Is it legally defensible, based on any power differential?
Is it worth the effort – THAT is the Q.
“Happy Valentine’s Day – please sign here”

13. ‘Unwelcome’ Requirement
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
Scenario 1
Unwelcomeness parameters

14. ‘Severe or Pervasive’ Requirement (1)
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
Not a civility code
Interference with reasonable expectations
Physicality and extreme behavior affects duration
U.S. Supreme court decision
Sexual harassment claims do not require findings of severe psychological harm to be actionable

15. Severe and Pervasive Requirement (2)
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 – the key
Scenario 2

16. 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

17. Perspective Used to Determine Severity
Evolution in the case law over time: away from ‘take the workplace as you find it’ (an essentially ‘male’ standard) toward current ‘reasonable victim’ perspective (regardless of gender)
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.”

18. ‘Sexual’ Requirement Explained
‘Sexual’ element need not always be present in hostile environment cases to constitute sexual harassment (recall that this is a form of sex discrimination)
Anti-female animus: Negative feelings about women and/or their ability to perform jobs or functions, usually manifested by negative language and actions
Similar to racial harassment, seen previously
Harassment may include electronic means

19. Employer Liability for Sexual Harassment (1)
Tangible employment action taken
Employer is strictly liable
Presence of a paper trail which gives employers a measure of control
No tangible employment action taken
Employer not strictly liable
Ellerth/Farragher defense: employer had effective prevention policy in-place; plaintiff unreasonably failed to use it
Case: Burlington Industries v. Ellerth

20. Employer Liability for Sexual Harassment (2)
Coworker harassment or 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
Case: Farragher v. City of Boca Raton

21. 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 only on a “need to know” basis

22. Corrective Action
Employers must take “immediate and appropriate corrective action”
The remedy should
Stop the harassment
Not be out of proportion to the act
Not necessarily move the harassee

23. 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)

24. Tort and Criminal Liability
Tort actions
Assault – apprehension of unwanted touching
Battery – actual unwanted touching
Sexual Assault/Rape – per statutory definitions
Intentional infliction of emotional distress
False imprisonment
Intentional interference with contractual relations
Jury trials, unlimited compensatory or punitive damages

25. Management Tips (1) Adopt an anti–sexual harassment policy
Take a top-down approach to deterring sexual harassment – lead by example
Create and disseminate information about an effective reporting mechanism for harassees
Open channel for going around supervisors
Provide employees with training and/or information that helps them to recognize sexual harassment

26. Management Tips (2)
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

27. Management Tips (3) Follow-up, times three!
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