Employment Law (Mgmt 445)

1. Employment Law (Mgmt 445) Sexual Harassment (Chapter 9); Affinity Orientation Discrimination (Chapter 10, pages 450-52 and 469-70 only) Professor Charles H. Smith Spring 2012

2. Introduction to Sexual Harassment • “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of 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” (http://www.eeoc.gov/facts/fs-sex.html).

3. Introduction cont. • “Why in the world would someone engage in such an unnecessary act that can have such wide-ranging negative consequences for the employer?” (Page 388.) • Another issue – you cannot get insurance coverage for sexual harassment since it is “willful” conduct (Cal. Ins. Code § 533). • Small group discussions – examples set forth on pages 389-91 and 402-03 as well as Exhibit 9.1 (page 391).

4. Quid Pro Quo Sexual Harassment • The employer (perpetrator) demands that the employee (victim) provide something of a sexual nature in exchange for a job-related benefit. • In other words, the employer makes something of a sexual nature (instead of merit, seniority, etc.) a condition of getting a job-related benefit. • Can be based on one incident though can also be based on a series of events.

5. Quid Pro Quo Sexual Harassment cont. • Examples of “something of a sexual nature” can include a sex act, date, disrobing, etc. • Examples of “job-related benefit” can include getting or keeping the job, getting a promotion, preference in granting requested assignments, vacation time or work conditions, etc.

6. Quid Pro Quo Sexual Harassment cont. • Case studies • Burlington Industries, Inc. v. Ellerth (pages 424-25). • Exhibit 9.7 (page 405).

7. Hostile Environment Sexual Harassment • The employer (perpetrater) creates a sexually abusive, offensive or intimidating environment for the employee (victim). • The hostile environment, in order to be actionable, is ordinarily based on a series of events as opposed to one incident.

8. Hostile Environment Sexual Harassment cont. • Examples of a hostile environment include • Display of pornographic pictures at the workplace. • Repeated comments, jokes and/or touching of a sexual nature. • Sexual favoritism – disparate treatment of an employee based on sex; case study – Miller v. Dept. of Corrections, 36 Cal.4th 446 (2005).

9. Hostile Environment Sexual Harassment cont. • Examples of not a hostile environment include • Screenwriters’ sexually-themed “brainstorming” sessions before which employee warned – Lyle v. Warner Bros., 38 Cal.4th 264 (2006) (“Friends” case). • Isolated comments, jokes and/or touching of a sexual nature (Chapter-End Questions 3, 5, 6 and 7 on pages 421-22).

10. Hostile Environment Sexual Harassment cont. • Case studies • Meritor Savings Bank, FSB v. Vinson (pages 425-26). • Ellison v. Brady (pages 427-29).

11. “Unwelcome” Conduct Element of Sexual Harassment • In order for a sexual harassment case to prevail, the employee must show that the employer’s conduct was “unwelcome” since consensual (“welcome”) conduct cannot be the basis for a sexual harassment case.

12. “Unwelcome” Conduct Element of Sexual Harassment cont. • Whether conduct is “unwelcome” can be hard to prove - what if the employee does not object or actually participates in or approve of subject conduct, such as • Employee’s participation in sexually-themed conversations. • “Consenting adults” defense. • Provocative clothing = consent? • Case studies – McLean v. Satellite Technology Services, Inc. (page 407); Chapter-End Question 4 (page 421).

13. Employer’s Liability for Another’s Sexual Harassment • In this PowerPoint presentation, generic reference has been made to “employer” as the perpetrator of sexual harassment. • However, the employer may not be the perpetrator (or may not even be a person such as a corporation). • What should be the employer’s liability for sexual harassment committed by a supervisor, co-worker, vendor or customer?

14. Employer’s Liability for Another’s Sexual Harassment cont. • One way for an employer to avoid or limit sexual harassment liability is to publish a detailed policy reflecting the law. • Example – Exhibit 9.4 (pages 398-402).

15. Employer’s Liability for Another’s Sexual Harassment cont. • Case studies • Faragher v. City of Boca Raton (pages 451-52) (employer’s liability for supervisor’s sexual harassment of employee). • Carter v. Cal. Dept. of Veterans Affairs, 38 Cal.4th 914 (2006) (employer’s liability for customer’s sexual harassment of employee – Cal. Gov’t Code § 12940(j)(1)).

16. Nontraditional Forms of Sexual Harassment • Traditionally, the scenario of a sexual harassment case was a male employer harassing a female employee; this is still the typical case today. • However, the courts have made it clear that sexual harassment can also be a woman harassing a man and same-sex harassment.

17. Nontraditional Forms of Sexual Harassment cont. • What obstacles (legal or otherwise) could an employee face while attempting to prove sexual harassment in these nontraditional situations? • Case studies – Chapter-End Question 9 (page 422); Oncale v. Sundowner Offshore Services, Inc. (page 451); Nichols v. Azteca Restaurant (pages 469-70).