FORENSICS FINAL ch 15
Current Status of Harassment Law: Harris v. Forklift systems 1993 1) situation 2) what problem did this trial address? 3) what was the outcome?
- marked a turning point in sexual harassment and the law. 1) Situation: Company president made several sexually suggestive and demeaning remarks to Theresa Harris over the course of two years (asking her inpublic whether she had had sex with clients to get their accounts) She had been the rentals manager at Forklift systems in Nashville, Tennessee. Eventually she confronted him and he promised to stop -When he continued to make comments she quit. She appealed her case all the way to the US supreme court. 2) one point of disagreement of courts concerned impact: Some courts seemed to require that the victim experience some sort of "psychological injury" while other courts seemed to require only that the harassment interfere the performance of job duties. A second point of disagreement concerned perspective: some courts had used a more subjective perspective (the impact of the alleged harassment on the plaintiff in the particualr case) other courts used more objective perspective: asking whether a reasonable person woul dhave judged the work environment as hostile and offensive 3) outcome: Supreme Court ruled in favor of Theresa Harris. The decision held that it was not necessary to demonstrate psychological injury and that a reasonable person standard should be applied.
Sexual Harassment and Law suits: examples of Cases: Mitsubishi
- some men at the plant simulated masturbation in front of women and others exposed themselves to female co-workers. the harassment was frequent and physical Massive automotive assembly plant in Normal, Illinois. -Pervasive harassment •Simulated masturbation •Exposure •Fondling •Air blast •Threats that if complaints continued, that male colleagues would fabricate stories about the women in order to discredit them. -Mitsubishi company agree to pay $9.5 millions to settle a lawsuit by 27 women workers and $34 million to more than 300 female employees.
Legal boundaries of Sexual Harassment: Oncale v. Sundowner Offshore Services 1998 1) situation 2) what problem did this trial address? 3) outcome?
- the court made clear that sexual harassment law is gender-blind. 1) While in the shower room Oncale's male coworkers attacked him and shoved a bar of soap between his buttocks. Also three co-workers held him down and threatened to rape him. 2) Could males make claims of sexual harassment? a lower court held that male-on-male harassment did not qualify as discrimination unless the harasser was gay and choosing his victim because of gender. 3) Supreme court rejected that reasoning and ruled Same-sex harassment could be grounds for a lawsuit.
Sexual Harassment: Prevalence and Perceptions 1) statistics for male and female harassment 2) workplaces with most harassment for women 3) male victims of harassment 4) labels
-Difficult to truly assess how much sexual harassment occurs on the job 1) first: Females are far more likely than males to be the victims of sexual harassment.3 to four times more than men. - in a series of four large-scale surveys of federal employees in 1981, 1987, 1994, 2007 42% of women and 15% of men claimed to have experienced harassment at work during the past two years. •43% of women lawyers at large law firms reported being pinched, touched, or cornered in a sexually harassing way. •41% of female medical students reported experiencing sexual harassment. •64% of females and 17% for males in the military. •About 53% of working women had been sexually harassed by men at some time during their careers and 16% of working men. •Most likely targets are young and unmarried women. 2) Women working in jobs dominated by men are more likely to experience sexual harassment. -Workplaces where posters and calendars depict women in a sexual way are more likely to have women who report sexual harassment. -Men are more likely to interpret touch by a co-worker in a sexual way and men are more likely to mistake friendly behavior for sexual seduction. 3) Males are victims of harassment. -More likely to come from another male than from a female. -Usually takes the form of suggesting another male performs unmanly activities, behaves in an effeminate way, or is gay. 4) Labels: 99% of males and females view sexual bribery (quid pro quo) as illegal sexual harassment. -Also widespread agreement that aggressive, unwelcome physical contact—grabbing, groping, sexual touching should be defined as illegal sexual harassment. -Women tend to "moderate" harassment as more unacceptable than males. -Mild harassment not condemned by men or women. -Bottom line: most people agree on what sexual harassment is at both extremes, it's just in the middle that there is argument.
Sexual Harassment and Law suits: examples of cases: Prince Waterhouse
-Here the problem was not sexual hostility but discrimination based on gender stereotypes - Ann Hopkins was not promoted to partner despite her popularity with clients, despite having brought in millions of dollars in new accounts and despite having worked more billable hours than anyone else being considered for partner. -Traits like ambitiousness, aggressiveness, competitiveness, and being driven were viewed as being indicative of an "interpersonal skills problem". -She was advised to be more "ladylike", and talk in a more feminine way, to "wear make-up, have her hair styled, and wear jewelry," and to "take a course at charm school." -Ruled in plaintiff's favor
Sexual Harassment and Law suits: 1) characteristics that lead to a successful lawsuit 2) judges
1) -Severe harassment. -Witnesses who corroborate the plaintiff's (initiates lawsuit) charges. -Documents supporting the claims of harassment. 2) Older judges tend to favor the defendant, younger tend to favor the plaintiff. -Republican appointees favor the defendant, Democratic favor the plaintiffs. -Personal characteristics of the judge shifted the probability of a particular ruling by about 28%.
Legal boundaries of sexual Harassment: Faragher v Boca Raton 1998 1) situation 2) what problem did this trial address? 3) outcome?
1) Faragher, a lifeguard, alleged that her employers had created a hostile environment with derogatory comments, quid pro quo suggestions, and unwanted sexual touching. 2) What are the limits of sexual harassment-when does joking cross into harassment? 3) The court declared that although sexual harassment had occurred in this specific case, in general gender-related jokes, teasing, and occasional use of abusive language do not qualify as illegal conduct. -Helped to establish the "totality of the circumstances test" to gauge whether conduct in question created an unlawful hostile environment. »The context of the conduct as well as its frequency and severity must all be evaluated in regards to determining if sexual harassment has occurred.
In 1979 Yale Law professor Catharine Mackinnon published her influential book Sexual harassment of working women her argument being that sexual harassment was a form of discrimination. She defined two types of sexual harassment what were they and what are the definitions ?
1) Quid pr quo: involves a "more or less explicit exhange: the woman must comply sexually or forfeit an employment benefit" For example: a woman might be told that if she fails to submit to a sexual request she will not be given a coveted job or promotion. This is a stronger form of harassment because it involves direct sexual barter or coercion 2) Hostile Environment: describes a situation where life is made so difficult for the victim that she cannot carry out her job responsibilities. MacKinnon described it this way: "less clear, and undoubtedly more pervasive is the situation in which sexual harassment simply makes the work environment unbearable" a hostile envirnment exists where an employee is subjected to unwelcome sexual conduct that interferes with the performance of work activities or creates an intimidating, hostile, abusive or offensive work environment. *these two basic forms of sexual harassment identifed by MacKinnon are now enshrined in law.
Broader look at workplace Discrimination: 1) racial discrimination 2) four conditions for reducing stereotyping and prejudice (pg 336) need to look at book
1) Racial Discrimination -Intentional workplace discrimination based on race prohibited. -40 years indicate a steady decline in a reported prejudice toward blacks. -People who know they are prejudiced are reluctant to admit it. -Brown v. Board of Education •Unequal=Unconstitutional •Interestingly, 53% of studies found that desegregation led to an increase in prejudice of whites towards blacks, 34% reported no change, and only 13% found a decrease. 2) Four Conditions for reducing stereotyping and prejudice: 1) Equal status contact between groups. bringing members of a disfavored group and placing them in low status jobs may only reinforce stereotypes that such people are undeserving of and unsuited for higher status positions -Organization must promote one to one interaction (rather than allowing two groups to avoid each other). -Superordinate goals. -Social norms must favor intergroup contact and equal treatment.
Broader look at workplace Discrimination: limits on employer to hire/ fire at will 1) Title VII 1964 2) age discrimination in employment act 1967 3) american with disabilities act 1990
1) Title VII 1964 •Prohibits discrimination based on race, color, national origin, religion, and gender. 2) Age Discrimination in Employment Act (ADEA) 1967 •Protects people over 40. 3) American with Disabilities Act (ADA) 1990 •Protect those with mental/physical disabilities * purpose of these laws is to provide clear legal protection for the free expresion of political and religious beliefs and prevent disparate treatment of employees on the bases of immutable personal characteristics such as race, national orgin, gender, age, and disability. In the eyes of the law these employee characteristics are legally protected categories
Psychology of Sexual Harassment: Effects: 1) complex negative effects 2) internally focused coping 3) externally focused coping 4) meta-analysis of 40 studies
1) complex negative effects: The targets of harassment experience a variety of complex negative effects. For example, an analysis of the reactions of 72 plaintiffs in sexual harassment lawsuits revealed four distinct emotional consequences: -Demoralization -Anxious arousal -Fear -Self-blame 2) internally focused coping: involved attempts to manage cognitive and emotional reactions to the harassment. For example: a victim may ignore the behavior and do nothing, tell herself that the behavior is not having an effect on her, or tell herself she simply does not care that much. she also may blame herself for misleading the harasser or attribute his behavior to benign causes such as loneliness or lack of social sills 3) externally focused coping: involves practical efforts to manage or modify the harassing environment. Examples include attempts to avoid contact with the harasser, attempts to appease the harasser and attempts to avoid direct confrontation through the use of humor or excuses. 4) data from nearly 70,000 people shows that being the Target of harassment is associated with a variety of harms including negative physical systems, emotional distress, withdrawal from work and even some aspects of PTSD. - despite such findings under current law plaintiffs must not only prove that sexual harassment occurred but also that the harassment produced harm. this "proof" can be established by the plaintiffs own testimony combined with the circumstances of the case but is more commonly established by having the plaintiff submit to psychological evaluation. •If it is proven that harassment occurred there ought to be a presumption of harm.
Social scientists concerns about resonable woman standard
1) research finds only small differences in how males and females define harassment. those differences are usually only evident when the incidents are much less severe than those that typically end up in court. 2) the reasonable woman standard is inconsistent with legal standards in other areas of law. For example, courts would be unlikely to consider analogous separate standards for reasonable religious persons or reasonable nonreligious persons 3) instead of creating a separate standard it would be more helpful to create a consensus about sexual harassment. 4) distinguishing a resonable woman from a reasonable person may contribute to sexist attitudes by suggesting that we need to treat women as weak, fragile, oversensitive, and in need of special protection. *now for the supreme court held that a resonable person would need to find the environment hostile and that the environment must be "both objectively and subjectively offensive"
Psychology of Sexual Harassment: Prevention: 1) likelihood to sexually harass scale 2) Recommendations for reducing risk
1) to assess whether someone is predisposed to harass others, John pryor and his colleagues developed likelihood to sexually harrass (LSH) scale. Men with high scores on the LSH scale tend to describe themselves in stereotypically masculine terms, have a strong need to dominate women, endorse traditional sex roles, endores myths about rape and are more likely to have sexual fantasies involving themes of coercion. Local norms had a dramatic impact on whether or not women were harassed. 2) Recommendations for reducing risk: Clear that sexual informality and sexual joking are inappropriate. •No sexually explicit materials in the workplace. •Make sure that recruiting and promotion are gender neutral.
Legal Boundaries of Sexual Harassment: Duties, the courts have established that employers have two responsibilities what are they? What are victims responsible for?
1) to prevent harassment by establishing clear policies and training procedures and 2) to correct harassment by thoroughly investigating complaints and by taking disciplinary actions against harassers - Victims are responsible for: •Reporting harassment. •Taking advantage of complaint procedures.
Broader look at workplace Discrimination: employer liable for discrimination in 4 areas
1.Hostile workplace 2.Disparate (incomparable) treatment 3.Adverse impact 4.Reasonable accommodations
Broader look at workplace Discrimination: Adverse Impact, one of the 4 areas in employer liable for discrimination
Adverse impact: occurs when employment practices that may not look discriminatory on the surface have the clear effect of discriminating against a particular group. -Griggs v. Duke Power Company •African American employees challenged Duke Power's practice of requiring a high school diploma and a particular score on a scholastic aptitude test to decide hiring and promotions. •The Court held that those kinds of requirements could only be used unless it could be demonstrated that they were connected to job performance. -Height used to be a requirement for some police departments •The courts ruled that they were illegal because they were discriminatory towards women. •Strength, endurance, and running speed were allowed though, because they are tied to job performance.
Broader look at workplace Discrimination: Employment at will
Created in late 1800s. For employers this principle meant that employees may be fired "at will" without cause and without notice, for good reasons or bad reasons, for moral or immoral reasons, or for no reason at all -Employees may be fired/hired/quit without cause and without notice. -Most employees can be terminated for any reason unless that reason in prohibited by law.
Sexual Harassment and Law suits: For a case to go to trial several elements usually need to be in place:
Clearly harassing conduct, a plantiff who is willing to endure the strains of litigation , a lawyer who is willing to take the case, witnesses who are willing to testify that harassment occurred and an organization that failed to prevent or correct illegal conduct. At trial a jury often must weigh conflicting stories about what really happened to decide if the alleged behavior rises (or sinks) to the level of unlawful sexual harassment.
Sexual Harassment and Law suits:
Important to note that legal permissible sexual behavior at work is far more common than illegal sexual harassment. the law does not attempt to regulate behavior that is merely inappropriate, crude or offensive. Usually only severe cases of harassment that result in significant injuries end up in court
Sexual Harassment and Law suits: research on Harassment
Mock Jurors are more likely to award larger settlements when the harassment is severe than when it is mild. -Less punitive damages when the company had enforced their own harassment policies. -Researchers found clear differences between jurors who voted to convict and jurors who would vote to acquit (individuals accused of sexual harassment. •Jurors who voted to convict believed the victim was an employee of good character, that the company knew about the harassment and failed to respond, that the harassment was systemic, that the company retaliated against the victim, and the victim feared she would lose her job. •Jurors who voted to acquit believed the victim was oversensitive and exaggerated her claims, and that she encouraged or contributed to the harassment.
Sexual Harassment and Law suits: example of cases: Bowing Aerospace Corporation
Plaintiff was a woman who delivered tools to several production buildings. -She was fired after claiming she could not return to her job because of the stress she experienced due to persistent harassment at work. - according to the testimony at trial the environment at Boeing included: •Suggestive posters -Dog licking woman's genitals -Inflatable doll advertisement •Sexual slang -Refer to women's restroom as "beaver pond" •Condom filled with hand lotion in her coat pocket •Propositioning -At trial, attorneys for Boeing argued that the plaintiff encouraged sexually suggestive behaviors. it was brought up that the female employee was a bodybuilder and had breast implants, and that she had a picture of herself in a bikini flexing. -She lost her case at trial.
The legal boundaries of sexual harassment: There is No precise list of sexually harassing behaviors. This makes it difficult for the courts to provide a clear precise definition of hostile environment harassment. Because of this most courts rely on Reasonable person standard. What is this?
Reasonable person standard: A standard used by some courts to help determine if harassing behavior was illegal. The behavior must be offensive to a reasonable person. because concepts such as "offensive" are inherently subjective a judgment must be made as to whether other similar people would have experienced a particular work environment as hostile. by focusing on the reasonable similar person the law attempts to prevent claims based on trivial or mildly offensive conduct and claims by unusually sensitive employees.
Civil Rights Act of 1964
Sexual discrimination law was created by a political miscalculation. During congressional debate over the Civil rights Act of 1964 (known as title VII) a conservative US representative named howard smith attached an amendment. His amendment added a ban on gender discrimination to title VII's ban on racial discrimination in employment. Smith hoped that adding sexual discrimination to title VII would cause teh entire bill to go down in defeat. During the debate he mockingly suggested taht his amendment would "protect our spinster friends". to Smiths surprise the civil rights act and his amendment to it passed. Discrimination based on race and gender became illegal.
Psychology of Sexual Harassment: Causes
Sexually harassing behaviors may arise from different motives. Some problematic behavior is motivated by a mans Genuine romantic interest in a woman and because of a lack of social skills, a man may persistently proposition the woman despite her expressions of disinterest. unable to accept the womans disinterest the frustrated man may then escalate his overtures or experience of being rebuffed may trigger hostility toward the woman. - For Women in traditionally male jobs •Success may threaten male self-esteem. •Attempts to "put women in their place". this often happens in white collar jobs such as physicians, lawyer, busniss executive • When Men significantly outnumber women -"Traditional male" ways of talking about women might influence the workplace.
Psychology of Perceived Fairness: pg 341 need to look at book
Three interrelated dimensions •Distributive Justice -Refers to how available rewards are distributed or divided among group members. •Procedural Justice -Concerns the perceived fairness of the procedures and rules used to allocate the available benefits. •Interpersonal Justice -People being treated courteously and with respect. •Research on Perceptions of Fairness -Several conclusions •Judgment of fairness is self-serving. •Males and females differ on applying principles of fairness. -Females tend to undervalue their contributions. •People compare their input/outcomes to others. •Satisfaction with rewards is dependent on procedural and interpersonal considerations. •People will take action to restore equity.
Equal employment opportunity commission (EEOC)
by 1980 the EEOC- the government agency created to enforce title VII- issued the first federal guidelines on gender discrimination. sexual harassment was defined as "unwelcome sexual advances requests for sexual favors and other verbal or physical conduct of a sexual nature" . EEOC guidelines state that employers have an obligation to maintain a workplace free from harassment, intimidation, or insult. Plaintiffs in harassment cases must show that unwelcome verbal and physical behaviors created in intimidating or offensive environment that unreasonably interfered with job performance or restricted employment opportunities. in addition it must usually be shown that the employer knew or should have known about the harassing conduct but failed to take prompt and appropriate action to remedy the situation.
Legal Boundaries of Sexual Harassment: Reasonable woman
some courts have instructed jurors to interpret evidence from the perspective of a reasonable woman. this reasonable woman standard was first proposed in 1991 in the case of Ellison v Brady. in that case the Ninth Circuit Court of appeals adopted that standard partly in response to research suggesting that males and females have different views of sexual conduct in the workplace. In that case Kerry Ellison had been harassed by a co-worker who wrote her a series of sexually suggestive love letters. The court reasoned that women would be more likely than men to view the letters as menacing and disturbing. Indeed some research has found that people define a broader range of behaviors as harassing if they are told to use a reasonable woman standard