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SEXUAL HARASSMENT

SEXUAL HARASSMENT. SEXUAL HARASSMENT Definition: 29 C.F.R. 1604.11. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

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SEXUAL HARASSMENT

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  1. SEXUAL HARASSMENT

  2. SEXUAL HARASSMENTDefinition: 29 C.F.R. 1604.11 • Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: • submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, • submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or • such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.

  3. QUID PRO QUO HARASSMENT • submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or • submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual

  4. HOSTILE ENVIRONMENTHarris v. Forklift Systems, 114 S.Ct. 367 (1993) • When the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated • Reasonable Person or Reasonable Woman?

  5. EMPLOYER LIABILITY • Supervisory Employees: Agency Principles • Co-Workers: Did Employer Know, or Should Have Known? • Non-Employees: Extent of Employer’s Control, and Did Employer Know or Should Have Known?

  6. EMPLOYER LIABILITY FOR SUPERVISORS’ HARASSMENT • Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998) • Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998) • Does harassment result in tangible employment result? • If so, employer automatically liable • If not, employer can establish defense

  7. EMPLOYER’S DEFENSE • Employer must show : • it exercised reasonable care to prevent and correct promptly sexual harassing behavior; & • employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by employer • Defense goes both to liability and to damages

  8. LEGAL REMEDIES • Reinstatement, Promotion as appropriate • Damages: Lost Wages & Benefits • Compensatory Damages: Medical or Emotional Injury, Pain & Suffering • Punitive Damages: Amount Limited Based on Employer Size • Legal Fees for Plaintiff • Court Injunction: Cease & Desist Order • Possible Tort Liability as well

  9. PREVENTION • “An employer should take all steps necessary to prevent sexual harassment from occurring” -- EEOC Guidelines • Educate and Sensitize all employees • Develop policy for dealing with complaints and appropriate sanctions for violations • Publicize policy • Take immediate action on complaints

  10. EMPLOYER’S SEXUAL HARASSMENT POLICY • Define Sexual Harassment • EEOC Guidelines • Practical Examples • Make It Clear Such Conduct Will Not Be Tolerated by Anyone • Specify Penalties -- up to, and Including, Termination • Specify Procedures for Filing Sexual Harassment Complaints • Designate Person to Receive and Investigate Complaints • Protect Complainant from Any Reprisals or Retaliation

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