Chp 9 Dr. Gilmore

EEOC guidelines define sexual harassment as:

"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 (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."

Affirmative defense to harassment by a supervisor

First established in Faragher and Burlington Industries, Inc. v. Ellerth If harassment was not by a top official and did not result in tangible employment action. The employer exercised reasonable care to prevent and correct promptly any harassing behavior, AND The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Harassment b co-workers and third parties

Co-workers and third parties may create a hostile work environment. Negligence theory of liability applies, i.e. 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.

Is the shift leader a supervisor?

A 15-year-old young woman was hired to work at a McDonald's restaurant. She often worked with a 21-year-old male who was a "shift leader". In his capacity as shift leader, he directly oversaw the work of crew members, assigned them to specific duties, and scheduled breaks during shifts. He was also able to authorize crew members to stay on the clock past their scheduled shifts and send employees home before the end of their shifts if the restaurant was overstaffed. Shift leaders are authorized to impose certain forms of discipline, including writing up employees or making them clock out early for misconduct. Shift leaders also have some influence in hiring, firing, and promotion decisions but lack the authority to make those decisions on their own. The shift leader asked the 15-year-old if she would be able to work an extra shift the next day and she agreed to do so if he picked her up at school. After picking up the young woman, rather than go to work, the shift leader took her to a variety of locations where he gave her drugs and alcohol. The two remained together for several days, during which they had sex on several occasions. Eventually, the shift leader was arrested on drug charges and the young woman was placed in a mental health treatment facility. Is McDonald's liable for the actions of the shift leader? Why or why not?

Harassment reported by fiance

A 17 year-old female supermarket employee was being severely harassed by a co-worker. Twice, she complained about the harassment to her fiancé, who also worked at the supermarket. Twice, the fiancé reported the harassment to the store manager. Both times the manager informed him that under company policy the woman had to report the harassment herself and make the report directly to the HR Department. The woman did not make the report to the HR Department and later sued. What should the court decide? Why? (Varner v. National Super Markets, 94 F.3d 1209 (8th Cir. 1996); cert. denied, 519 U.S. 1110 (1997), The employer arguead that it should not be held liable for the hostile environment harassment of the co-worker because the employee did not properly utilize the reporting procedures provided for under the company's harassment policy. The court rejected this argument. It held that the employer knew or should have known of the harassment and failed to take appropriate action. A supervisor was notified by her boyfriend. It made no difference that it was not the woman herself or that the procedure called for a report to someone else. An agent of the employer had the relevant information and needed to do something with it. Courts do not always adhere to this point of view, particularly when deciding whether the second prong of the affirmative defense has been established (see, e.g., the "Just the Facts" case above, Peoples v. Marjack Co.).

Meritor Savings bank v. vinson

A bank teller said that she had complied with her supervisor's sexual demands because she was afraid of losing her job. On various occasions he had fondled her in front of other employees, followed her into the women's restroom, exposed himself to her, and forcibly raped her. She had sex with him 40 or 50 times over the years. The bank's management responded that it had no way of knowing that any harassment was going on. She had never disclosed that she was being harassed, even to her co-workers or friends. A bank teller said that she had complied with her supervisor's sexual demands because she was afraid of losing her job. On various occasions he had fondled her in front of other employees, followed her into the women's restroom, exposed himself to her, and forcibly raped her. She had intercourse with him forty of fifty times over the years. The banks' management responded that it had no way of knowing that any harassment was going on. The teller had been progressing through the ranks based on merit, and she never disclosed that she was being harassed, even to her co-workers or friends. Employer's Defense Vinson voluntarily participated in the claimed sexual episodes. Court's Decision Voluntariness is not a defense. The correct inquiry is whether the sexual advances were unwelcome. A person may voluntarily participate out of fear not because the sexual behavior was welcome.

EEOC v Sage Realty Corp.

A female building lobby attendant was required to wear a uniform resembling an American flag that was worn like a poncho, with nothing underneath. The plaintiff wore the uniform for two days and received a number of sexual propositions and endured lewd comments and gestures. "I'll run it up the flag pole any time you want to." The plaintiff was fired because she refused to wear the uniform. The uniform revealed her thighs and portions of her buttocks. Court's Decision Because the dress requirement was a cause of the harassment and was unrelated to the type of business, the employer was held liable.

Smith v. Hy-Vee Inc., 8th Cir., No. 09-3631

A female employee alleged that she was the victim of sexual harassment by a female co-worker in the store's bakery department. The sexually charged conduct was clearly sufficiently egregious to satisfy the standards for proving workplace harassment and included allegations that the co-worker smacked her buttocks on numerous occasions, shoved male genitalia made from dough in Smith's face, "dry humped" Smith to show what it would be liked to be raped, and showed Smith Barbie dolls twisted into sexual positions, inquiring if she understood what the positions meant. However, the same employee also engaged in similarly offensive behavior with other male and female employees, including allegedly dry humping a male store manager weekly, dry humping another female employee, putting her hands into the manager's pockets, making sexual comments to other male employees and preparing sexually explicit cakes for co-workers. Smith alleged she complained numerous times without any response, much less appropriate remedial action, before she was terminated. Smith also asserted that she believed that the co-worker was bisexual, which was denied by the co-worker, who was married. The Court held: When the alleged harasser engages in identical behavior in interactions with both male and female employees, the mere fact that the behavior is vulgar and sexually offensive is insufficient. Harassment based on sex could be established by showing that the conduct was motivated by: the co-worker's sexual desire for the person a general hostility to the presence of the victim's gender in the workplace, or direct comparative evidence about how the harasser treated co-workers of different genders Same-sex sexual harassment is unlawful, but a company cannot be held liable unless the victim's gender is a contributing factor for the offensive conduct. "Here, . . . the co-worker treated all employees, regardless of gender, 'in the same vulgar and inappropriate way.' Therefore, the behavior, while unquestionably repugnant, was not sex discrimination." SHRM Professional Pointer: The company escaped liability in this case. However, some state laws have been interpreted more broadly, and such facts could have resulted in significant liability. It is crucial that employers create, publicize and enforce policies that prevent such conduct in the workplace. there was no evidence that sexual desire motivated the actions or that the co-worker harbored a general hostility to females in the workplace. Lastly, the evidence showed that

Barnes v. Costle (1977)

A female employee claimed she was retaliated against for rejecting her boss's sexual advances. Employer's Defense Barnes was not terminated because she was a woman, she was terminated because she had refused sexual advances. The District Court of D.C. had held there was no sex discrimination. The male supervisor merely solicited his subordinate because he found her "attractive" and then retaliated because he felt "rejected." The supervisor's conduct served no employer policy, was "nothing more than a personal proclivity, peculiarity or mannerism", and that he was merely "satisfying a personal urge." However, the Court of Appeals held: "But for her womanhood . . . (Barnes') participation in sexual activity would never have been solicited."

Was this harassmnet "because of sex"?

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. Lyle v. Warner Brothers, 132 P.3d 211 (Cal. 2006) The California Supreme Court affirmed the granting of summary judgment to the employer. The court concluded that "the record discloses that most of the sexually coarse and vulgar language at issue did not involve and was not aimed at plaintiff or other women in the workplace. Based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the FEHA [California's anti-discrimination statute]." The court gave considerable weight to the employer's "creative necessity" defense. "The circumstance that this was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes is significant in assessing the existence of triable issues of facts regarding whether the writers' sexual antics and coarse sexual talk were aimed at plaintiff or at women in general, whether plaintiff and other women were singled out to see and hear what happened, and whether the conduct was otherwise motivated by plaintiff's gender. Here, the record shows that the instances of sexual antics and sexual discussions identified above did not involve and were not aimed at plaintiff or any other female employee. It further confirms that such "nondirected" conduct was undertaken in group sessions with both male and female participants present, and that women writers on the Friends production also discussed their own sexual experiences to generate material for the show. That the writers commonly engaged in discussions of personal sexual experiences and preferences and used physical gesturing while brainstorming and generating script ideas for this particular show was neither surprising nor unreasonable from a creative standpoint." The court relied on the nature of the work and the active participation of both male and female writers to distinguish this case from others (e.g., Reeves) in which courts have found for plaintiffs despite the fact that the verbal harassment was not specifically directed at them.

The workplace spanking incident

A jury awarded Orlando $1.7 million. BUT a three-judge panel of the state Court of Appeals overturned that verdict, ruling that the jury had been given improper instructions. The jury was not informed that plaintiffs must show that they were exposed to disadvantageous terms or conditions of employment to which members of the other sex were not exposed. The spankings were given to both male and female workers. Orlando argued, however, that men shouted derogatory comments only when women were spanked. Furthermore, she argued that she was subject to gender-specific derogatory name-calling on other occasions.

What is a tangible employment action?

A significant change in employment status, usually inflicting direct economic harm. The means by which the supervisor brings the official power of the employer to bear on employees. Requires an official act of the employer; Usually is documented in official employer records; May be subject to review by higher level supervisors; and Often requires the formal approval of the company and use of its internal processes. Examples include: Hiring and firing; Failure to promote; Demotion; Undesirable reassignment; A decision causing a significant change in benefits; Unfavorable compensation decisions; and More onerous work assignment.

How to escape liability

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 with multiple channels. A requirement that employees with knowledge of harassment report it to the appropriate people. Assurance of protection against retaliation for reporting harassment or providing information to investigators.

Legal Challenges to harassment

Are covered under anti-discrimination laws There is no law specifically prohibiting harassment To be actionable, the harassment must be based on a protected class characteristic, such as sex

Christopher v. national education association

Background According to the female plaintiffs, their male supervisor frequently behaved abusively toward them, including yelling at them loudly and publicly, and berating them for perceived performance or attendance problems, including using the "f-word" for emphasis. The district court determined even though the supervisor was "rude, overbearing, obnoxious, loud, vulgar, and generally unpleasant," his behavior could not be deemed "because of sex." The 9th U.S. Circuit Court of Appeals reversed, citing evidence that Harvey tended to treat female subordinates more harshly than men and his actions had a greater negative impact on women than men. The court also noted evidence that his occasional abusive behavior toward male subordinates was at least partially mitigated by other occasions when he would banter back and forth and laugh and joke with them—behaviors he did not engage in with his female employees. Court's Decision: Even without overtly sexual content, abuse of women in the workplace can establish a sex-based hostile environment under Title VII of the Civil Rights Act of 1964. Conclusion: Obnoxious, abusive or intimidating workplace behavior should not be tolerated regardless of whether it has sexual or gender content.

Faragher v. City of Boca Raton, Florida

Beth Faragher and seven other female lifeguards were sexually harassed by two supervisors. received requests for sexual favors were grabbed by the breasts and butt supervisors tried to break into the women's showers Faragher says she didn't report the problem to higher‑ups because she feared retaliation. Beth Faragher claimed she and seven other female lifeguards who worked for two men, Bill Terry and David Silverman, received requests for sexual favors. These men would also grab them by the breasts and buttocks and try to break into their showers. Employer's Defense The city shouldn't be held liable because it had a clear policy against sexual harassment since 1986. The male supervisors were acting on their own, not as representatives of the city. Court's Decision The Supreme Court held that an employer is potentially liable for its supervisors' misconduct, whether the company was aware of the harassment or not. Why? "the City had entirely failed to disseminate its policy against sexual harassment among the beach employees" "the City's policy did not include any assurance that the harassing supervisors could be bypassed in registering complaints" . . . "a supervisor's harassment of a subordinate is more apt to rise to the level of intentional infliction of emotional distress than comparable harassment by a co-employee."

Bundy v. Jackson (1981)

Bundy received propositions from two of her supervisors, Arthur Burton and James Gainey. Bundy complained about these advances to Lawrence Swain, who supervised both Burton and Gainey. "Any man in his right mind would want to rape you." He then requested she begin a sexual relationship with him. Bundy rejected his request. Bundy received propositions from two of her supervisors, Arthur Burton and James Gainey. Burton, harassed Bundy by continually calling her into his office to request that she spend the workday afternoon with him at his apartment and to question her about her sexual proclivities. Gainey made sexual advances to Bundy, asking her to join him at a motel and on a trip to the Bahamas. Bundy complained about these advances to Lawrence Swain, who supervised both Burton and Gainey. Swain casually dismissed Bundy's complaints, telling her that "any man in his right mind would want to rape you," and then proceeded himself to request that she begin a sexual relationship with him in his apartment. Bundy rejected his request. Employer's Defense The harassment did not result in any loss of tangible benefits (i.e., she had continued to advance in the company), so no proof of a Title VII violation. Court's Response It is unlawful to discriminate because of sex with respect to a person's "terms, conditions, or privileges of employment." The word "conditions" should be interpreted to "include the psychological and emotional work environment . . . the sexually stereotyped insults and demeaning propositions to which she was indisputably subjected and which caused her anxiety and debilitation."

What about cocktail waitresses?

Cocktail waitresses at a Ramada Inn were required to dress according to the evening theme including: "Bikini night" "PJ night" "Whips and chains night" The waitresses were subject to unwelcome sexual proposals and both verbal and physical abuse of a sexual nature. "The waitresses were subject to unwelcome sexual proposals and both verbal and physical abuse of a sexual nature." According to the EEOC, even when the employee seeks employment that involves dressing in sexually provocative clothing, the employer is liable for the resulting sexual harassment. In other words, there's no "assumption of the risk."

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 owners, managers, co-workers and third parties. Not necessarily what might be considered "bullying". "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. A balance exists between severity and pervasiveness. Need not be both! The more severe, the less pervasive the conduct must be to constitute an unlawful hostile environment.

Gerald v. University of Puerto Rico

Discuss the basis for the court's holding regarding Gerald's claims based upon: Hostile work environment (sufficiently severe or pervasive and offensive?) Quid pro quo harassment (direct threats or retribution necessary?)

Response to reports of harassment

Employers must respond promptly to stop and correct any harassment. Once it learns of harassment, it must take prompt action, even if the victim does not want action taken. Employers should launch a fair and prompt investigation, not one pre-determined to reach a certain conclusion. 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.

Clark v. United Parcel Service

Following several years of inappropriate behavior by their supervisor, two female UPS employees filed sexual harassment complaints. On several occasions lower-level supervisors witnessed the offensive behavior but failed to report the conduct or to take action to stop it. Employer's Defense: It had a sexual harassment policy that prohibited offensive conduct. Even if the supervisors had observed the conduct, they had no duty to take corrective action. The supervisors were not high in the company hierarchy, and they had no authority to control the other supervisor's actions. Court's Holding An employer may be liable for sexual harassment despite its implementation of a thorough sexual harassment policy if supervisors observe incidents of offensive behavior but do nothing to stop it.

Who is considered a supervisor?

Individuals who exercise immediate or successively higher authority over victims of harassment. With that authority they have the power to make "significant change[s] in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision making a significant change in benefits." Vance v. Ball State Univ. (2013)

Harassment and the TItle VII of the CRA of 1964---section 703 (a)

It shall be an unlawful employment practice for an employer: to fail or refuse to hire or to discharge any individual, or otherwise to 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.

Oncale v. Sundowner Offshore Services, Inc.

Joseph Oncale, a deckhand for SOS, was forcibly subjected to humiliating, sex-related actions, some in front of the rest of the crew by three members of the crew including two supervisors. Oncale reported the misconduct to the highest‑ranking supervisor on the rig, who neither investigated nor intervened. SOS later explained the supervisors' behavior as mere horseplay. (No. 96‑568) Decision date: March 4, Sundowner Offshore Services' (Houma, Louisiana).

Do you think kelly won her case?

Kelly was a production assistant at a TV station in a big city. Together with a videographer named Jim and a popular reporter named Bill, she helped produce segments for the nightly news. Kelly loved her job, but felt uncomfortable when her colleagues made derogatory remarks about women's bodies, told sexually explicit jokes, and treated her like "one of the guys." When Kelly complained and asked them to stop, they told her "get with the program" and stop whining. Bill told Kelly that she was lucky to have her job and that countless people would be happy to take her place. Kelly knew this was true and stopped complaining. Soon afterwards, Kelly found Bill and Jim watching a pornographic movie in the office. Realizing that Bill and Jim were not going to change their behavior on her account, and that she could no longer work in what she considered a hostile work environment, Kelly resigned. A few months later, she sued the station for sexual harassment.

Ellison v. Brady

Kerry Ellison, a female employee, received unwanted love letters from a coworker. The employer ignored her complaints. The EEOC failed to find unlawful harassment. Ellison filed suit on her own. Kerry Ellison, a female employee, received unwanted love letters from a coworker. She repeatedly told her admirer she was not interested and also complained to her employer. The employer ignored her complaints and the unwanted attention continued. The EEOC denied her claim on the grounds that her situation did not constitute sexual harassment. Ellison filed suit on her own. Court's Decision The point of view of a "reasonable woman" (or person) determines sexual harassment. Must be unwelcome from both subjective (reasonable woman) and objective (the plaintiff) standpoints.

Pennsylvania State Police v. Nancy Drew Suders, 2004

Nancy Drew Suders alleged she was sexually harassed by her supervisors. She never formally reported the alleged conduct and ultimately resigned. She then sued the company for sexual harassment (hostile work environment). ISSUE: Was Suders constructively discharged, amounting to a tangible employment action? The Supreme Court held that to establish a constructive discharge, a plaintiff alleging sexual harassment must show that the abusive working environment became so intolerable that resignation qualified as a fitting response. The employer may assert the Ellerth/Faragher affirmative defense unless the plaintiff quit in reasonable response to an adverse action officially changing her employment status or situation, e.g., a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions. Suders had never reported that she had been subjected to sexual harassment by her supervisors

Is conduct "unwelcome"?

Not all sexual conduct is unwelcome. Treatment must be unwelcome in order to be considered harassment. The person complaining of the conduct Did not solicit it Did not provoke it Regarded it as offensive and unwanted Some contemporaneous indication of unwelcomeness usually must be shown. If the person participated in the conduct, the conduct may not meet the required proof that it was "unwelcome." (e.g. Coke driver)

Is there a legal cause of action?

Sally and Jane work at Number One Computers, Inc. They both are sales representatives who sell computers and computer equipment to large businesses. Jane has been with Number One Computers, Inc. for five years and Sally for two. Jane graduated with a marketing degree from the University of Wisconsin. Sally was forced to drop out of college after her third year for personal reasons. Jane had the highest commission for the past two years selling $500,000 worth of computer equipment. Sally's commission rate has been $200,000 for the past two years. Joe is Sally and Jane's superior and is in the position to promote both Sally and Jane. Sally has been having a sexual relationship with Joe for the past six months. Jane has not been having sex with Joe, but she knows of Sally and Joe's relationship because Sally told her. Sally is promoted to be a sales manager after her second year of being with the company while Jane does not get a promotion.

Sexual favoritism

Sexual favoritism is recognized as a potentially valid claim under Title VII, however, few plaintiffs have succeeded with the claim. When a male supervisor favors his girlfriend at work, all other employees are disadvantaged - both male and female. If both sexes suffer, some will conclude the harassment was not "because of sex" as Title VII requires.

Harris v. Forklift Systems

Teresa Harris filed a suit alleging sexual harassment based upon a hostile work environment. Employer's Defense Harris had not suffered any psychological harm (i.e., the comments did not appear to bother her), therefore her case should be dismissed. Teresa Harris was subjected to frequent sexual comments from her boss. Court's Decision Proof of severe psychological injury is not a necessary element for proving sexual harassment.

Office romance favoritism may create hostile work environment

The Situation A California state prison warden had, over a period of several years, engaged in indiscreet sexual relationships with at least three female prison employees who worked for him in various capacities. The warden awarded several promotions to at least two of his girlfriends over that time. The warden's relationships also led to various workplace disruptions and complaints. On several occasions, the warden's girlfriends argued jealously with each other in their co-workers' presence about their respective relationships with him. Co-workers also complained that the warden fondled and groped one of his girlfriends at office parties. The Court's Decision The trial court and the appellate court found in favor of the DOC since the warden's favoritism for his girlfriends disadvantaged both male and female employees alike. The California Supreme Court reversed the decisions relying on the EEOC's guidance on widespread sexual favoritism. The EEOC guidance states that, although isolated instances of sexual favoritism may not violate any workplace law, widespread sexual favoritism could create a hostile environment by sending the demeaning message that managers view female employees as "sexual playthings" or that "the way for women to get ahead in the workplace is by engaging in sexual conduct" with their supervisors.

She lost...why?

The TV station successfully defended itself by demonstrating that not only did it have a strong anti-sexual harassment policy in place to prevent, investigate and correct sexual harassment, but every employee, including Kelly, attended a mandatory seminar on the policy when hired. The station also showed that Kelly's colleagues had not asked for or received sexual favors in exchange for promotions or other job benefits. Bottom line: Employees who sue for sexual harassment are less likely to win if they do not act reasonably by following their employers' anti‑harassment policies.

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.

To prevail in a sexual favoritism case

The non-preferred employee(s) must prove: Implicit "quid pro quo": when employees understand that sexual submission is expected of them as a condition of job advancement; Inequality of opportunity: when male employees claim they are deprived of the opportunity to get ahead by sleeping with the boss, because plainly the boss was only interested in female paramours; Widespread favoritism: If sexual favoritism is sufficiently widespread so as to transform the environment into a toxic one that revolves around sex, then both men and women may have a claim for sex discrimination.

affirmative defense to harassment by a supervisor

Was the affirmative defense successful in response to the claims by the two IHOP servers in EEOC v. Management Hospitality of Racine (2012)? Was it in response to the claim by the local sales manager in Hardage v. CBS (2006)?

Sexual harassment you be the judge

When Janet Orlando began working as a salesperson at Alarm One in 2003, she never imagined what a bizarre and humiliating experience it would be. Orlando says that soon after she started working with the company, she began to witness other employees being spanked at work for coming in late or speaking out of turn. In addition, during meetings that were designed to motivate sales employees, salespeople were spanked with the yard signs of rival companies, fed baby food, made to wear diapers and made fun of by other employees of the company. Orlando said that during the time that she worked with the company, she was spanked three times. Finally, when she could not take it anymore, Orlando quit and filed a lawsuit against Alarm One accusing the company of sexual harassment, assault, battery, sexual battery, and intentional infliction of emotional distress.