HR 5117 ELL Chapt 7 173-187
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prohibits gender discriminationAlso prohibits harassment based on race, color, religion, or national origin
- Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature that the employee is required to accept as a condition of their employment.
- The employee's response to such conduct is used as a basis for employment decisions, or such conduct create a hostile work environment.
2 General Categories of sexual harassment
- quid pro quo Harassment
- Hostile Environment Harassment
quid pro quo Harassment
Harassment where the employee's response to the harassment is considered in granting employment benefits
Hostile Environment Harassment
Harassment which may not result in economic detriment to the victim, but which subjects the victim to unwelcome conduct or comments and may interfere with the employee's work performance
To establish a case of Quid Pro Quo Harassment,
plaintiff must show 5 things
- 1. She or he belongs to a protected group
- 2. She or he was subject to unwelcome sexual harassment
- 3. The harassment was based on sex
- 4. Job Benefits were conditioned on the acceptance of the harassment, and if appropriate
- 5. There is some basis to hold the employee liable
Hostile Environment Harassment
the unwelcome harassment has the effect of interfering with the employee's work performance or creating a hostile work environment for the employee
Reasonable Person or Reasonable Victim
Cases involving hostile environment harassment - reasonable person standard (used by most courts)
would a reasonable person find the conduct to be offensive and severe enough to create a hostile environment or to interfere with the person's work performance?
EEOC issued a policy statement...
declaring courts should also consider the perspective of the victim to avoid perpetuating stereotypical notions of what behavior what behavior was acceptable to persons of a specific gender
In response to the EEOC statement, some courts....
adopted the "reasonable victim" or "reasonable woman" standard, recognizing that men and women are likely to perceive and react differently to certain behaviors
Sexual Harassment and Employer Liability
EEOC Guidelines state that employers are liable for sexual harassment by supervisory or managerial employees and may also be liable for harassment by co-workers or even non-employees under certain circumstances
- Supervisors or managerial employees acting in the course of their employment are generally held to be agents of the employer; that is, they act with the actual, or apparent authorization of the employer.
- An agency relationship can also be created by an employer's acceptance of, tolerance of, acquiescence to, or after-the-fact ratification of an employer's conduct, such as when the employer becomes aware of the harassment and fails to take action to stop it.
Employer Liability for Supervisors
- Courts have consistently held employers liable for quid pro quo sexual harassment by a manager or supervisor because such conduct is related to the manger's or supervisor's job status
- Courts have differed over employer liability with regards to hostile environment harassment held employer liable only when harassment was somehow aided by the supervisor's job status held employer liable when it knew or should have known of the harassment
Employee Liability for Co-Workers and Non-Employees
For both quid pro quo harassment and hostile environment harassment by non-supervisory or non-managerial employees, an employer will be liable if it knew of, or should have known of, the harassing conduct and failed to take reasonable steps to stop it.
An employer may even be liable for harassment by non-employees if the employer had some control over the harasser and failed to take reasonable steps to stop it
- Courts have held that individual employees are not liable for damages under Title VII
- Could be held personally liable under various state EEO laws or under common-law tort claims
Public Employees and personal liability
could not only be held for personal liability but subject to suit for damages and criminal prosecution
Employers - tools to deter claims of sexual harassment
Sexual Harassment - Prevention
According to EEOC Guidelines and court decision
The sexual harassment policy should define sexual harassment, give practical concrete examples of such conduct
Make it clear that it will not be tolerated Specify penalties up to an including terminations
Spell out procedures for filing a complaint
designate specific employees who are responsible for receiving and investigating complaints
reassurances that employees who file complaints will be protected from retaliation or reprisals
must be communicated to all employees
If the employer acts promptly to enforce the policy whenever a complaint of sexual harassment is received, it will generally avoid liability
Sexual Harassment - Defenses
Generally, courts will not consider isolated incidents or trivial comments
factors to consider
3.whether it is physically threatening or humiliating or a mere offensive utterance
4.whether it unreasonably interferes with an employee's work performance
if the harassed employee failed to file a complaint through the employer's sexual harassment complaint procedure...
- does not automatically protect the employer from liability
- The employer may still be held liable if it knew of, or had reason to know of, the harassment
Conduct of a sexual nature must be unwelcome to be sexual harassment; the target of the harassment must indicate that it is unwelcome
- employer can raise the defense provocation by the victim:
- Did the victim instigate the allegedly harassing conduct through her or his own style of dress, comment, or conduct
If the victim has encouraged the allegedly harassing conduct, is it really unwelcome?
Conduct of a Sexual Nature
In order to be sexual harassment, the conduct complained must be based on the employee's sex
A supervisor who is obnoxious and verbally abusive to all employees is not guilty of sexual harassment as long as the abuse is not based on sex
Title VII does not reach conduct tinged with offensive sexual overtones but does forbid conduct of a sexual nature that creates a hostile work environment, conduct so severe as to alter the conditions of the victim's employment
Remedies for Sexual Harassment
generally held to be intentional conduct, so such damages are generally available to successful plaintiffs; however, there are statutory limits on the amount of compensatory and punitive damages under Title VII based on the size of the employer
Compensatory and Punitive Damages under state EEOC laws and tort laws
have NO statutory limitation on such damages
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