HR 5117 ELL Chapt 7 173-187

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HR 5117 ELL Chapt 7 173-187
2014-09-08 15:17:59
HR 5117 ELL Chapt 173 187

HR 5117 ELL Chapt 7 173-187
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  1. Title VII
    prohibits gender discriminationAlso prohibits harassment based on race, color, religion, or national origin
  2. Sexual Harassment
    • 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.
  3. 2 General Categories of sexual harassment
    • quid pro quo Harassment
    • Hostile Environment Harassment
  4. quid pro quo Harassment
    Harassment where the employee's response to the harassment is considered in granting employment benefits
  5. 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
  6. 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
  7. 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
  8. 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?
  9. 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
  10. 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
  11. 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
  12. Agency Relationships
    • 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.
  13. 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
  14. 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
  15. Individual Liability
    • Courts have held that individual employees are not liable for damages under Title VII
    • However
    • Could be held personally liable under various state EEO laws or under common-law tort claims
  16. Public Employees and personal liability
    could not only be held for personal liability but subject to suit for damages and criminal prosecution
  17. Employers - tools to deter claims of sexual harassment
    • Prevention
    • Defense
  18. 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
  19. 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
  20. 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
  21. Unwelcome
    Conduct of a sexual nature must be unwelcome to be sexual harassment; the target of the harassment must indicate that it is unwelcome
  22. Provocation
    • 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?
  23. 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
  24. Same-Sex Harassment
    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
  25. 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
  26. Compensatory and Punitive Damages under state EEOC laws and tort laws
    have NO statutory limitation on such damages