Chapter 9

Harassment

Harassment

• Harassment is a major obstacle to realizing equal employment opportunity.

• It is not limited to sexual harassment, though that is the most common type.

• Harassment may be based on national origin, age, disability or religious beliefs.

• The liability of the employer is the same no matter the type of harassment.

Elements of a Claim - Harassment• The employee was subjected to

harassment based on a protected class characteristic.

• The harassment resulted in a tangible employment action or was severe or pervasive enough to create a hostile working environment.

• The harassment was unwelcome.• There is a basis for attributing liability to

the employer.

Defining Sexual Harassment

Sexual Harassment is a form of sexual discrimination that is prohibited by state and federal law.

• Gender discrimination can be difficult to recognize• Although gender discrimination covers both males

and females, most claims are filed by women• From 1997-2000 gender suits accounted for the

highest percentage of cases brought under Title VII• Many women report job discrimination as their

biggest problem• Nearly half the workforce is female

– Females represent two-thirds of all poor adults

• Only 15 percent of women work in jobs typically held by men

• Women earn about 77 percent of men’s pay

Does Gender Discrimination Really Exist?

• Laws cover full scope of employment process, unless there is a BFOQ– Advertising for available positions– Asking gender specific questions on

applications or interviews– Requiring one gender to work different

hours or positions– Disciplining one gender but not the other

for the same act– Not providing training for one gender

Gender Discriminationin General

– Establishing different seniority systems– Paying different wages – Providing different benefits – Providing differing terms or conditions

of employment– Terminating employment for different

reasons

• Decisions are made on a case-by-case basis

• Employers should first look for obviously discriminatory policies

• Other cases may be more difficult to recognize– For example, height and weight

requirements may exclude women

Recognizing GenderDiscrimination

Defining Sexual Harassment• EEOC Definition:

– Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

• 1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic advancement;

Defining Sexual Harassment

• 2. Submission to or rejection of such conduct by an individual is used as the basis for employment or academic decisions affecting such individual; or

• 3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work or academic performance or creating an intimidating, hostile, or offensive working or learning environment.

• Title VII prohibits discrimination in employment based on gender

• EEOC Sexual Harassment Guidelines defines sexual harassment

• Civil Rights Act of 1991 permits jury trials and compensatory and punitive damages

Statutory Basis

• Although sexual harassment is not new, it has come into the limelight in recent years

• It is still new in the legal sense

• Sexual harassment is illegal, expensive, unnecessary and bad business

• EEOC established guidelines on sexual harassment in 1980

Problems• Does the conduct in the following examples

constitute sexual harassment?– Patty goes bowling every Thursday night with friends,

and she comes to work on Friday with a new supply of jokes that she emails to everyone in her department. Many of the jokes are off-colored or sexual in nature, and some of the employees, mostly women, begin to complain. Also, a number of the jokes might be described as “male bashing” with titles such as, “Why is having a cat better than having a man?” and “Why is a candy bar better than a man?”

– Would it matter that Patty claims she had no idea that anyone would take offense nor did she have an intention of harassing anyone?

• Sexual harassment actions can be brought under two theories– Quid pro quo – requests for sexual activity in

exchange for workplace benefits– Hostile environment – creation of an

offensive work environment for one gender but not the other

• Harassers and harassees can be of either gender

Sexual Harassmentin General

Quid Pro Quo Sexual Harassment

• Most obvious type of sexual harassment• Generally easy to recognize (sometimes hard to

prove)• Employers should select supervisory employees

carefully• Systems should be in place to check and monitor

environment• Occurs when a supervisor makes acquiescence to

requests for sexual favors a basis for an employment decision.

• The demands may result in punishment or rewards.

Sexual Harassment –Quid Pro Quo

• Harassment results in tangible employment actions:– The harasser must possess authority

to influence of determine employment outcomes (or reasonably be perceived as having such authority).• If the harasser threatens, but does not

take action, there is no tangible employment action (but there may be a hostile environment).

• Hostile Environment harassment involves

– an atmosphere or climate that unreasonably interferes with an employee’s ability to work.

Sexual Harassment • Hostile environment harassment can

result from: – A wide range of verbal conduct (insults,

epithets, profanity) and requests for sexual favors.

– Physical conduct (touching, exposure, staring, stalking, sexual assault and rape).

– Displays of images (pictures, posters, emails).

– Actions of managers, co-workers, third parties.

• More difficult to identify• General requirements include:

– Harassment unwelcome to harassee– Harassment must be based on gender– Harassment must create abusive working

environment– Harassment must affect term, condition or

privilege of employment– Employer had to have knowledge and not

taken prompt or adequate action

Hostile Environment Sexual Harassment

• Unwelcome activity may be direct or indirect

• Harassees need to make it clear that activity is unwelcome

• Severe and pervasive requirement requires harassment be serious enough to unreasonably interfere with employee’s ability to perform

• Perspective used to determine severity– Reasonable person standard

• views activity from perspective of a reasonable person in society at large

– Reasonable victim standard • views activity from perspective of a

reasonable person in the victim’s position

• “Sexual” requirement does not mean that activity must involve sex

• Rather, the harassment must be based on gender

• Antifemale animus refers to acting in a derogatory way to women and can constitute sexual harassment

• Employers should be aware of electronic harassment

• A single incident may constitute sexual harassment if it is linked to an employment benefit, or if it is unusually severe.

• A sexual harassment charge might apply in a constructive discharge case.

Sexual Harassment 5

• The law does not impose “political correctness” in the workplace or expunge all humor, flirting, joking, and the like.

• The law does NOT mandate that employees be treated in ways that are “nice” or even “civil.”

• But when workplaces become abusive and hostile and interfere with employees’ abilities to do their work, discrimination results.

“Severe” or “Pervasive”

• The U.S. Supreme Court has in several cases stated that a hostile environment must be sufficiently severe or pervasive in order to violate Title VII.

• The victim need not suffer psychological harm.

• A trade-off exists between severity and pervasiveness.– The more severe, the less pervasive the

conduct must be to constitute a hostile environment.

“Unwelcome” Harassment• Plaintiffs must also show that they

perceived their treatment as unwelcome harassment.

• Harassment is unwelcome when the person complaining of the conduct did not solicit or provoke it and regarded it as offensive and unwanted.

• Some contemporaneous indication of unwelcomeness must be shown.

• If the person participated in the conduct, the conduct may not meet the required proof that it was “unwelcome.”

Examples of Possible Sexual Harassment • The constant or frequent touching of

someone on their back, breasts or buttocks.

• Unwanted, constant or frequent attempts to kiss a person.

• Sexually suggestive sounds or gestures. Ogling or leering.

Examples of Possible Sexual Harassment • Sexually suggestive or demeaning

name-calling. Letters, telephone calls or e-mail messages of a sexual nature.

• A employee is promised a better performance review or a promotion if s/he goes to bed with a supervisor.

Examples of Possible Sexual Harassment

• Frequent jokes about sex or about one gender or the other.

• Stalking

• Attempted or actual assault.

• Degrading, insulting or suggestive comments that are sexual in nature or directed toward a particular sex

• Employer is liable for harassment by a supervisory employee whether or not the employer was aware of the harassment

• Employer is liable for harassment by a non-supervisory employee if the employer knew or should have know and took no remedial action

• Employers can also be liable for harassment by non-employees

Employer Liability for Sexual Harassment

• Determining the truth of allegations– Employer must thoroughly investigate

all allegations

• Retaliation and employee privacy– Although alleged harasser must be

notified, retaliation should not be tolerated

Other Important Considerations

• Corrective action– Action should be immediate and appropriate

• Damages and jury trials– Employees can ask for up to $300,000 in

compensatory and punitive damages– May also receive unlimited medical damages– This greatly increases potential liability to

employers

• Tort and criminal liability– Harassees may also bring civil actions– Tort actions may include:

• Assault• Battery• Intentional infliction of emotional distress• False imprisonment• Intentional interference with contractual

relations

Harassment by Co-Workers, Others• Co-workers and third parties may

create a hostile work environment.

• The employer is liable for this harassment if:– The employer knew or should have

known about the harassment.– The employer failed to take prompt and

effective action to stop it.

Problems

– Mr. Witherspoon’s secretary was bringing him some coffee when she tripped and the coffee went flying and landed on the papers on his desk. The secretary was mortified and apologetic. Mr. Witherspoon realized that this was only an accident, and gave her a playful slap on the buttock saying that she needed to be spanked for such carelessness.

– Would it matter that Mr. Witherspoon claimed that he only meant this as a joke?

Just the Facts• A female writer’s assistant for the TV program “Friends,” was

regularly subjected to crude and vulgar sexual language, joking, and innuendo. At meetings, writers consistently had graphic discussions about their personal sexual experiences, sexual preferences, and preferences in women; bragged about their sexual exploits, and engaged in other antics. Both male and female writers working for the show participated in the sexual banter, although this woman had not done so. None of the comments or actions were specifically directed at this woman. She sued, claiming that the workplace conditions constituted a hostile environment. The employer did not challenge her characterization, but argued that it reflected the creative process used to generate scripts for a show that featured sexual themes. Was this harassment “because of sex”?– Lyle v. Warner Brothers, 132 P.3d 211 (Cal. 2006)

Hardage v. CBS• Facts: Hardage, a local sales manager, alleged sexual

harassment by his boss’ boss, Sparks, with whom he engaged in flirting and sexual banter in the office. In several incidents, Sparks grabbed or groped Hardage’s crotch, and became angry when Hardage refused intercourse. Hardage told his boss and the HR investigator of Sparks’ inappropriate behavior in general terms, without reference to groping or requests for sex, and insisted on handling the matter himself. Because he could not resolve it, he resigned, and sued for sexual harassment.

• Issue: Whether the employer established the affirmative defense of Plaintiff’s failure to take advantage of corrective opportunities.

• Held: Yes. Hardage never told anyone the details of the harassment, and refused help to resolve it. Further, he did not suffer a lost employment opportunity as a result of the harassment, but resigned.

Just the Facts• Several women were harassed by their male supervisor, including

many instances of unwanted touching. One woman complained to a personnel manager, who said that nothing could be done unless she filed a formal complaint - even though company policy called for any report of harassment, formal or informal, to be investigated. Only after three woman went to the manager on the same day to complain about the supervisor was anything done. Managers met with him and issued a written warning to him. He refused to sign the document and continued to supervise the female employees, staring at them in a manner that they found intimidating. Following additional complaints, he was transferred to another job, but remained about 100 feet away from one of the women that he had been harassing. She sued. The company conceded that the supervisor had created a hostile environment, but argued that it was not liable for his actions. Can the company establish the affirmative defense?– Homesley v. Freightliner Corp, 61 Fed. Appx. 105 (4th Cir. 2003)

Don’t Overreact! Claims by Alleged Harassers

• §1983 claim for a violation of the alleged harasser’s civil rights– Usually based on a free speech or equal

protection claim

• Wrongful discharge• Breach of contract• Due Process violation• Defamation• Conspiracy• Discrimination

What should you include in a Harassment Policy?

Harassment Policies 1

• Employers should establish, communicate and enforce policies prohibiting harassment.

• Use of an anti-harassment policy will help demonstrate that reasonable care was used to prevent and correct harassment.

Harassment Policies 2

• Among other things, anti-harassment policies should include:– A strong prohibition of harassment, applying to

all managers and employees.– A clear explanation of the meaning of prohibited

harassment.– A clear and accessible procedure for reporting

harassment.– A requirement that employees with knowledge of

harassment report it to the appropriate person.– Assurance of protection from retaliation.

Harassment Policies 3

• (cont’d)

– A promise of confidentiality in handling complaints to the extent possible.

– A process for handling complaints promptly and thoroughly.

– Assurance that corrective action will be taken if harassment is found.

– Assurance that violators will be subject to disciplinary action.

– Assurance that the rights of the accused will be respected.

15 Suggestions for Handling Complaints

• Have a sexual harassment policy which is disseminated.

• Designate qualified individuals to investigate.• Investigate immediately.• Obtain written statement from complainant.• Reassure complainant of company’s sincerity.• Honor victim’s anonymity request (to the extent

possible), however, you must investigate.• Identify witnesses.• Conduct personal interviews.

15 Suggestions for Handling Complaints• Get written statements from witnesses.• Prepare written account.• Confidentially interview accused.• Speak to complainant’s and accused’s

supervisors.• Keep records confidential.• Take immediate corrective action,

including appropriate discipline.• Tell victim action was taken.

Remedies for Harassment

• Employers should take initial, temporary measures on receipt of a complaint, then long-term remedial measures based on the outcome of the investigation.– Transfers, reassignments, leaves of absence and closer

supervision are all possible initial measures.• In general, the alleged harasser, not the victim, should be

transferred or reassigned.

• There are conflicting views about what, if any, written records should be kept of such investigations, and whether attorney-client privilege should be claimed.– But records should be kept of harassment charges and

their dispositions.

What Would You Do?

• You are the HR manager of a high technology firm that has grown significantly in recent months. One recent hire was the breakthrough, a bio-engineer who seems to have a creative genius for manipulating living organisms to enable them to clean up toxins. But a chemist in his department has been harassing the bio-engineer, you suspect because of the bio-engineer’s sexual orientation. The chemist is a big fellow who has previously made disparaging remarks about gay people. The bio-engineer has not complained to you, but others have on his behalf. What would you do?