Harassment

Affirmative Defense

Employers can avoid liability for hostile environment harassment by establishing both "prongs" of the following defense: 1) The employer exercised reasonable care to prevent and correct promptly any harassment. 2) The plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Vicarious liability

If an illegal act occurs, legal responsibility for damages is unconditionally placed with the employing organization Top officials -- vicarious liability always exists Managers & supervisors -- Quid pro quo? Yes. Hostile environment? liability subject to affirmative defense. Third parties & co-workers -- when employer was negligent in not protecting from harassment.

Sexual harassment is NOT occurring when (2)

(1) Harasser is an "equal opportunity harasser" (2) the harassment is based on personal animus (not because of sex).

Harassment

Mistreatment that is discriminatory, harmful, unwelcome, and attributable to the employer -Brought under general anti-discrimination laws -Plaintiff's *must* link harassment to a protected class characteristic

Meritor Savings Bank v. Vinson et el. (1986)

*Can a claim be brought forward under a HWE?* -Formally recognized hostile work environment, where no tangible economic loss occurred, as a form of illegal sexual harassment -Made distinction between "welcome" and "voluntary" -Main focus in harassment cases = objective existence of harassment viewed through the eyes of a reasonable person. -Plaintiffs must also show that they subjectively perceived the treatment as unwelcome

Faragher v. City of Boca Raton (1998)

*To what extent would the employer be liable with respect to a hostile work environment?* -An employer should have the opportunity to present an affirmative defense -Affirmative defense is subject to a preponderance of evidence

Quid pro quo

-A supervisor links "tangible employment action" to acceptance/rejection of advances -If you have a supervisor who is an agent, they are acting on behalf of the employer, engage in QPQ, you will be liable - no matter what

Hostile Work Environment

-An employee's work performance or psychological well-being is unreasonably affected by intimidating or offensive working conditions -Employers can avoid liability for HWE by establishing both prong of a affirmative defense

Affirmative Defense Prong 2

-Did employee unreasonably delay in reporting harassment? -Was the report made to someone with responsibility for handling EEO discrimination complaints? Or to the point person specified by the written policy? *Hardage v. CBS (2006)*: Application of affirmative defense... Hardage failed to take advantage of opportunities.

Harassment by co-workers and third parties

-Employers are liable under the negligence standard (negligence standard= burden on plaintiff, affirmative defense= burden on employer) -Plaintiff can establish both of the following: 1) Employer knew or should have known about the harassment 2) Employer failed to take prompt and appropriate action to stop the harassment

Severe or pervasive

-Environment must be sufficiently *severe* or *pervasive* to be actionable -Law does not mandate that treatment be nice or civil; law does not prohibit behavior that is "merely offensive" -Trade-off exists between severity and pervasiveness

Sexual Harassment

-Form of sex discrimination -Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment -Quid pro quo & Hostile work environment

Quid pro quo (cont.)

-Harasser must have sufficient authority to influence employment outcomes (or be reasonably perceived as having such authority) -What if a supervisor threatens an employment consequence but does not take any action?-- still harassment -Plaintiff must show that the employment action is causally linked to the rejection of or submission to harassment A linkage by "time" is not enough

Hostile Work Environment (cont.)

-Key issue is whether employee is subject to unwelcome, offensive treatment because of his/her sex; need not be sexual conduct involved

U.S. Supreme Court test for determining if sexual harassment has occurred

Whether comments or behavior in a work environment "would reasonably be perceived, and is perceived, as hostile or abusive"

Policies and procedures for harassment

-Strong prohibition of harassment -Clear definition/explanation -Outline of clear and accessible procedure -Multiple accessible parties to whom to report harassment, during all hours of operation -Requirement that harassment is reported -State that policy covers acts at all work-related events -Assurance of protection against retaliation -Promise of confidentiality to extent possible -Outline of process for handling and investigating complaints -Assurance of appropriate corrective action -Possible disciplinary actions -Assurance that rights of those accused will be respected

Responding to reports

-Take all reports seriously; be sensitive and considerate -Promise discretion, but not absolute confidentiality -Keep in mind the possibility for a claim of defamation -Remain neutral and resist pressure to draw quick conclusions -Act promptly - begin a reasonable investigation immediately -Provide reasonable remedial options that correspond to the severity of the harassment -Don't make an example out of anyone -Monitor the effectiveness of the remedy

Constructive discharge

-When an employee resigns as the result of a intolerable working conditions; because the resignation is not truly voluntary, it is, in effect, a termination For quid pro quo harassment to exist, an official managerial act must prompt the quit.

Four most likely methods for proving same-sex harassment was because of sex

1) Harasser is gay or lesbian and motivated by sexual desire for people of the same sex 2) That the victim is harassed in such sex-specific and derogatory terms that it's clear the harasser is motivated by general hostility to the presence of people of the same sex in the workplace 3) Harasser in a mixed-sex workplace treated people differently based on their sex 4) Harassment is based on sex stereotyping (nonconformity to sex roles)

Elements of a claim of harassment

1) Was subjected to harassment based on a protected class characteristic ("because of my ___, I was harassed."); 2) The harassment resulted in a tangible employment action (quid pro quo) or was sufficiently severe or pervasive to alter working conditions and create a hostile work environment. 3) The harassment was unwelcome; and 4) There is a basis for attributing liability to the employer.

Constructive Knowledge

A person is presumed by law to have certain knowledge, regardless of whether he or she actually does, when such knowledge is obtainable by the exercise of reasonable care ---When the facts or circumstances are such that any reasonable person would have known that harassment was occurring

Same-sex harassment cases

Can be brought under Title VII, plaintiffs are responsible for showing that the harassment was "because of sex"

Affirmative Defense Prong 1

Harassment policy: -Established, disseminated, and enforced -Applies to ALL employees, managers, etc. -Provides protection from retaliation Complaint procedure: -Specific instructions on how to make complaints -Including multiple alternatives for reporting harassment -Training and instruction for supervisors on how to document, investigate, and resolve complaints -Prompt and effective investigations -Reasonable steps to remedy harassment and prevent future incidents *EEOC v. Hospitality Management of Racine (2012)*: Application of affirmative defense... HMR failed to provide reasonable care