Sexual Harassment (Basic Points)

1. Sexual Harassment (Basic Points) Sex as a sex as a condition of employment or basis for employment decisions or behavior of a sexual nature that is unwelcome and that unreasonably interferes with one’s work performance or creates an intimidating, hostile, or repressive work environment • Quid Pro Quo (sex as a condition of employment or basis for employment decisions) • 2) Environmental harassment (behavior of a sexual nature that is unwelcome and that unreasonably interferes with one’s work performance or creates an intimidating, hostile, or repressive work environment)

2. Sexual Harassment (Some Key Factors) • Investigating the record as a whole • Viewing the totality of the circumstances (e.g., nature of the relationship, nature of the sexual advances, context in which the behaviors occurred) • Examining the evidence on a case by case basis • Conduct is potentially illegal if the organization “knew or should have known” of sexual behavior • Sources of harassment: • Supervisors (company responsibility; agent of the company) • Co-workers (corrective action) • Clients (extent of company control)

3. Meritor Savings Bank v. Vinson On June 19, 1986 the Supreme Court decided its 1st sexual harassment case. The plaintiff, Michelle Vinson, alleged that her supervisor had made sexual advances toward her throughout her fours of employment. Vinson testified that she had ultimately relented to her supervisor’s advances for fear of loss of employment. The supervisor, Sidney Taylor, claimed that Vinson wore provocative attire and openly discussed her sex life and sexual fantasies. Furthermore, he claimed that the sexual harassment charge has been filed in retaliation to a business-related dispute. Evidence was also presented that Vinson had turned down promotions to other branch offices away from Taylor during the period in which the harassment alleged to be taking place. The employer argued that it should not be held liable for the offense since the proscribed behavior had gone on without its knowledge, approval, or consent (and that Vinson had not used the companies procedures to make the alleged behaviors known to the organization). The company also presented that sexual harassment was against its own policy statement.

4. Summary of Vinson Findings • Sexual harassment is a form of sex discrimination and thus a violation of Title VII of the Civil Rights Act • Both “tangible job benefit” (Quid Pro Quo) and “environmental” harassment are violations of Title VII. That is, it can exist under conditions where it creates a hostile or repressive work environment. • A company is not immune from legal liability when it had a grievance procedure and policy against sexual harassment. • Even if sexual behavior is “voluntary” the key is that it is “unwelcome.” • The plaintiff’s “provocative” behavior and dress are admissible as evidence. • 6) A company is not automatically liable for “environmental” sexual harassment

5. Some Key Quotes From Vinson For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. The gravamen of any sexual harassment claim is that the alleged sexual advances be unwelcome. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary While the District Court must carefully weigh the applicable considerations in deciding whether to admit evidence of this kind {provocative behavior and dress}, there is no per se rule against its admissibility. The District Court did not err in admitting testimony about respondents sexually provocative behavior and dress. … Court of Appeals was wrong to entirely disregard agency principles and impose absolute liability on employers for the acts of their supervisors, regardless of the circumstances of a particular case.

6. Plaintiff: Teresa Harris • Charge: Alleged that the President of Forklift Systems, Inc., Charles Hardy, was guilty of sex discrimination by creating an "abusive work environment“ • Evidence (Statements made by Hardy): • "You're a woman, what do you know" • "We need a man as the rental manager“ • Told her she was "a dumb ass woman." • Suggested that the two of them "go to the Holiday Inn to negotiate a raise." • Asked Harris and other female employees to get coins from his front pants pocket. • Threw objects on the ground in front of Harris and other women, and asked them to pick the objects up. • Made innuendos about Harris’ and other females employee’s clothing Harris complained to Hardy and he was surprised she was offended by his behavior. But, he promised to stop. However, a few weeks later as Harris was working on a deal with a client, Hardy commented: “What did you do, promise the guy . . . some [sex] Saturday night?" Harris quit.

7. Findings: The United States District Court in Tennessee held that Hardy's conduct did not create an abusive environment. No evidence of serious psychological harm to Harris Some of Hardy’s behavior was found to offend Harris and would be offensive to a “reasonable woman” but they were not: "so severe as to be expected to seriously affect [Harris'] psychological well being. A reasonable woman manager under like circumstances would have been offended by Hardy, but his conduct would not have risen to the level of interfering with that person's work performance.

8. Supreme Court No requirement that the behavior results in serious psychological injury We therefore believe the District Court erred in relying on whether the conduct "seriously affect[ed] plaintiff's psychological wellbeing" or led her to "suffer” injury." Such an inquiry may needlessly focus the fact finder's attention on concrete psychological harm, an element Title VII does not require. Certainly Title VII bars conduct that would seriously affect a reasonable person's psychological wellbeing, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, Meritor, supra, at 67, there is no need for it also to be psychologically injurious.

9. UNWELCOME SEXUAL BEHAVIOR • A COMPLAINT AT TIME OF OFFENSESTRENGTHENS CLAIM OF SEXUAL HARASSMENT, BUT IS NOT NECESSARY (E.G., MAY FEAR RETALIATION) • VICTIM’S CONDUCT MY DEMONSTRATE THAT BEHAVIOR WAS UNWELCOME (VERBAL COMPLAINT NOT REQUIRED) • EVIDENCE OF SEXUAL HARASSMENT CAN COME SOLELY FROM THE EMPLOYEE, BUT MUCHMORE DIFFICULT TO PROVE (CREDIBILITY); CORROBORATION IS VERY USEFUL (E.G., EYEWITNESS, TOLD OTHERS OF HARASSING BEHAVIOR, OTHERS SAW VICTIM’S REACTION SOON AFTER A HARASSING INCIDENT) • EVIDENCE OF A VICTIM’S BEHAVIOR AND ATTIRE IS ADMISSIBLE IN COURT TO DETERMINE IF BEHAVIOR WAS WELCOME • IF PARTICIPATION IN CONDUCT OF A SEXUAL NATURE (INCLUDING A SEXUAL RELATIONSHIP) CHANGES FROM CONSENSUAL TO DISINTEREST, AND THIS IS COMMUICATED, SUBSEQUENT SEXUAL BEHAVIOR OR ADVANCES MAY BE VIEWED AS SEXUAL HARASSMENT.

10. LIABILITY • IN CASE OF “QUID PRO QUO” HARASSMENT, THE COMPANY IS ALWAYS LIABLE FOR DAMAGES • EXISTENCE OF A COMPANY POLICY PROHIBITING SEXUAL HARASSMENT AND/OR A COMPLAINT PROCEDURE HELPS, BUT DOES NOT INSULATE THE COMPANY FROM LIABILITY. • THE COMPANY IS NOT AUTOMATICALLY LIABLE FOR ACTIONS OF ITS SUPERVISORS. THE CITCUMSTANCES OF EACH PARTICULAR CASE NEEDS TO BE EXAMINED. • THE LACK OF NOTICE (E.G., BY EMPLOYEE) OF THE EXISTENCE OF SEXUAL HARASSMENT DOES NOT INSULATE THE COMPANY FROM LIABILITY (COMPANY RESPONSIBLE WHETHER THEY KNEW OR SHOULD HAVE KNOWN OF ITS OCCURRENCE). • CO-WORKER AND CLIENT HARASSMENT CAN LEAD TO COMPANY LIABILITY IF EFFECTIVE AND QUICK CORRECTIVE MEASURES DID NOT TAKE PLACE. LESS CHANCE OF COMPANY LIABILITY IF: A) HARASSMENT ELIMINATED BY CORRECTIVE ACTIONS B) ALL VICTIMS HAVE BEEN MADE WHOLE C) PREVENTATIVE MEASURES HAVE BEEN INSTITUTED.

11. HOSTILE ENVIRONMENT • EVALUATE CONDUCT FROM THE STANDPOINT OF A: “REASONABLE PERSON” (EARLIER) “REASONABLE WOMAN” (TO TAKE THE PERSPECTIVE OF THE TYPICAL VICTIME WHEN ASSESSING THE FACTS OF THE CASE) • MULTIPLE OCCURRENCES OF BEHAVIOR STRENGTHEN CLAIM (NOT NEEDED IF “QUID PRO QUO” OR SEVERE PHYSICAL MISCONDUCT IS PRESENT) • CONDUCT BY A SUPERVISOR IS EVALUATED MORE STRINGENTLY (VERSUS CO-WORKERS AND CLIENTS)

12. IMPLICATIONS FOR SUPERVISORS/DECISION-MAKER(“UNWELCOME” DEFINITION CASES) • IF SOMEONE APROACHES A MANAGER WITH A CONCERN ABOUT SEXUAL CONDUCT IN THE WORKPLACE, THIS SHOULD BE INTERPRETED AS A SIGN THAT THE CONDUCT IS UNWELCOME AND FURTHER INVESTIGATION SHOULD FOLLOW. • IF EMPLOYEES FAIL TO COMPLAIN ABOUT SEXUAL CONDUCT IT SHOULD NOT BE ASSUMED THAT THE CONDUCT IS WELCOME. • JUST BECAUSE AN EMPLOYEE ENGAGES IN SEXUAL BANTER DOES NOT MEAN WE SHOULD NOT BE CONCERNED ABOUT THE BEHAVIOR AND ITS POSSIBLE IMPACT. • ALL COMMENTS OF A SEXUAL NATURE OBSERVED BY A MANAGER SHOULD BE STOPPED. [E.G., WHAT MAY HAVE BEEN WELCOME OR CONSENSUAL MAY BECOME UNWELCOME AND DISRUPTIVE].

13. Vignettes • A group of male sales representatives come to see you. They say they no longer want to be sent on out-of-town assignments with female colleagues because they are afraid of sexual harassment charges. Do you assure the men they don’t have to travel with women? Tell the men their fears are groundless? Arrange for a sexual harassment training session? Call a department meeting to discuss the matter? • Barb just lost a lot of weight. She starts coming to work in very short, tight skirts and clinging tops. Do you ask nothing? Call Barb in to tell her to dress more appropriately? Send Barb a memo asking her to dress more appropriately? 3. XYZ Company is your biggest account. The buyer has been making unwelcome sexual advances to several women in your office. Do you ask the women to ignore it? Tell the buyer not to come back? Tell the buyer to change his behavior? Call the buyer’s boss?

14. Vignettes (cont.) • Ann, a female supervisor, has recently complained to management about the ongoing sexual advances and innuendo to which she is exposed on the plant floor. The Plant Manager reminded her that she was informed about this climate before she accepted her position. She has been told that she is going to have to be more assertive and learn to deal with this if she expects to keep her job. • Richard and Janet have worked together for several years. Richard grabbed Janet’s behind when she was drinking from the water fountain. When Janet objected, Richard apologized and has never repeated this behavior again.