HFT3603 Chapter 14: EMPLOYMENT

Unwelcome Conduct

A critical factor for sexual harassment is that the activity must be unwelcome by the employee and this fact must be known by the harasser. Consent ALONE does NOT establish that the conduct is welcome. And an employee need NOT verbalize the unwelcome nature of sexually suggestive conduct; consistent demonstration through action is sufficient notification.

Sexual Harassment By Customers

The employer ultimately controls the conditions of the work environment and has a duty to protect employees from abuse. So if an employer tolerates a sexually hostile work environment created by customers may also be liable to the employee.

Employer Liability - Quid Pro Quo Sexual Harassment

The liability of an employer depends in part on the type of sexual harassment involved. (Respondeat superior)

Sexual orientation-based sexual harassment

Title VII prohibits offensive physical conduct of a sexual nature without regard to the sexual orientation - real or perceived - of the victim

Frequency of offending conduct

To qualify as sexually harassing conduct, the objectionable behavior in hostile environment cases occurs repeatedly over a period of time.

sexual harassment

a form of sexual discrimination and constitutes a violation of Title VII. Includes 2 types of illegal action: 1) unwelcome sexual advances or requests for sexual favors in return for job benefits *quid pro quo sexual harassment* 2) verbal or physical conduct of a sexual nature that creates an intimidating, hostile, or offensive work environment *hostile environment sexual harassment*

Sexual stereotyping and sexual harassment

discrimination is barred on the basis of sex stereotypes.

Same gender sexual harassment

sexual harassment can occur between two people of the same gender.

Employer Liability - Hostile Environment Sexual Harassment

the employer can escape liability if it satisfies three elements constituting the defense: (1) no adverse employment action was taken against the employee (2) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior (3) the plaintiff unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer to avoid harm.

Importance of Remedial action

An employer who fails to take appropriate and effective remedial action will face liability. An employer should promptly address all sexual harassment complaints by investigating the charges ad taking appropriate remedial action.

Policies and complaint procedures

Employers should develop a company policy clearly establishing that sexual harassment will not be tolerated. It should include a complaint procedure that authorizes employees to file complaints with a high-level employee NOT in their line of supervision. When warranted, appropriate and prompt remedial action should be taken, including the following: - In a quid pro quo case, changing the work site of the harasser, terminating the harasser, and denying him or her a promotion and raise - In a hostile environment case, mandating that the objectionable conduct stop, penalizing those who caused the hostile environment through adverse job action, and requiring employee training about sexual harassment.

FLSA

Fair Labor Standards Act

Sexual harassment by co-workers

For an employer to be liable for sexual harassment administered by nonsupervisory co-workers, the employer must be aware of the harassment, as where it is occurring openly and blatantly, or where the harassed employee reports it to a superior.

Outside scope of employment

if the sexual harassing conduct occurs outside work hours and away from the place of employment, the conduct is considered to be outside the scope of a supervisor's employment responsibilities and will not be responsible.

Quid pro quo sexual harassment

is where an employee is forced to submit to unwelcome sexual advances as a condition for receiving a job benefit - such as hiring, a promotion, a raise, or continuation as an employee.

Hostile environment sexual harassment

is where harassing conduct of a sexual nature permeates the workplace. The offending behavior could be taunting, lewd jokes, touching or brushing up against the victim, comments about a person's appearance or their sexual practices, sexually suggestive comments or noises...