Ch08 Sexual Harassment.docx

Sexual Harassment Chapter Objectives: The objectives of this chapter are to introduce the students to the legal framework of sexual harassment, dispel the myths and misinformation they have gathered about it from the mass media, and replace it with the legal reality. When finished with the chapter the student should know what the law requires in order to prove sexual harassment, how an employer can minimize sexual harassment claims, and what to do should a sexual harassment claim arise. Scenarios - Points for Discussion Scenario 1: A female employee tells her supervisor that she is disturbed by the workplace display of nude pictures, calendars and cartoons. He replies that if she is bothered, she should not look. The employee suspects that this is a form of sexual harassment. Do you agree? Why or why not? The employee is correct. Courts have found that nude posters, photos, etc., can form the basis of sexual harassment actions. The nudity has been found to create a hostile environment when objected to by the employees who are uncomfortable with it. The photos, etc., are generally accompanied by off-color jokes, teasing and comments toward employees like those depicted in the nudity, thus exhibiting anti-female animus. Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991). Scenario 2: A male and female employee have engaged in a two year consensual personal relationship which ends. The male continues to attempt to get the female to go out with him on dates. When she does not, she is eventually fired by the male, who is her supervisor. She sues alleging sexual harassment. Who wins and why? The female employee wins. The fact that there had been a consensual relationship at some point does not interfere with the employee's ability to show that the ex-boyfriend's actions toward her created a hostile environment, and also quid pro quo sexual harassment. Shrout v. Black Clawson Co., 689 F. Supp. 774 (S.D. Ohio 1988). Scenario 3: An employee routinely compliments employees about their appearance, hair, and body. Is this sexual harassment? Why or why not? Not necessarily. If the employee giving the compliments does it in a suggestive way and does it continuously, such that the compliments become more, it could, conceivably become sexual harassment, but the compliments, without more, are not actionable. Morgan v. Massachusetts General Hospital, 901 F.2d 186 (1st Cir. 1990). LECTURE NOTES Since Eden...and Counting 1. There has been a great deal of attention focused on sexual harassment ever since, primarily, to the Hill/Thomas hearings and the Tailhook incident in the early 1990's. 2. In 1980 the Merit Systems Protection Board of the federal government conducted a study of sexual harassment among federal employees. It was found that over 40% of federal employees had reported incidents of sexual harassment. In 1987 the study was repeated and the results were nearly the same (42%). 3. Subsequent studies in various workplaces has also revealed a high incidence of sexual harassment. 4. Victims of sexual harassment have been deemed by the American Psychiatric Association to have an identifiable condition which is manifest in one of three ways: work performance stress, physical stress or emotional stress. 5. All of these manifestations detract greatly from the employee's ability to do his or her job as they were hired and are being paid to do. 6. Sexual harassment costs employers millions in turnover, absenteeism, low productivity, replacement costs, and sick leave costs. 7. In addition, along with the non-tangible price they pay, MSPB found that employees who are sexually harassed pay medical expenses, litigation expenses, job search expenses and the loss of valuable sick leave and annual leave. 8. Sexual harassment is not just kidding or a joke or workplace fraternization. It is illegal as a form of gender discrimination which violates Title VII of the 1964 Civil Rights Act. 9. Sexual harassment is not only illegal; given the toll it takes on the workplace, it is simply not good business. Since it is purely personal on the part of the harassee, it makes little sense for an employer not to take the necessary steps to prevent liability. 10. Sexual harassment has become even less justifiable in the face of the 1991 Civil Rights Act permitting jury trials and compensatory and punitive damages. 11. In 1980, soon after the first few significant sexual harassment cases were decided, the EEOC issued guidelines to use to help determine when activity constitutes sexual harassment. 12. The guidelines, while not law in the sense of Title VII, carry a great deal of weight when it comes to how courts will look at the issue. Where Do Sexual Harassment Considerations Leave the Employer? 1. The intent of the law is not that the workplace become either totally devoid of sexuality, or be given completely over to employees who would misuse the law. 2. Consensual relationships are not forbidden and employees may date consistent with appropriate company policy. 3. It is only when the activity directed toward an employee is unwelcome and imposes terms or conditions different for one gender than another that it becomes a problem. Sexual Harassment in General 1. There are two theories upon which an action for sexual harassment may be brought: "quid pro quo" and "hostile environment" sexual harassment. 2. The Rabidue case is a good example of the differing views of sexual harassment which even courts have held. Case Example: Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986). Issue: Whether vulgarity, and nude posters in the workplace constitute an actionable case of hostile environment sexual harassment. Facts: A female employee asserted gender discrimination and sexual harassment because of vulgarity and nude posters in the workplace in violation of Title VII. The court found for the employer. Decision: The court found for the employer. The record disclosed that Henry's obscenities, although annoying, were not so startling as to have affected seriously the psyches of the plaintiff or other female employees. The evidence did not demonstrate that Henry's vulgarity substantially affected the totality of the workplace. The sexually oriented poster displays had a negligible effect on Rabidue's work environment when considered in the context of a society that condones and publicly features and commercially exploits open displays of written and pictorial erotica at the newsstands, on prime-time television, at the cinema, and in other public places. In sum, Henry's vulgar language and the sexually oriented posters did not result in a working environment that could be considered intimidating, hostile, or offensive under the guidelines. DISSENT: Nor can I agree with the majority's notion that the effect of pin-up posters and misogynous language in the workplace can have only a minimal effect on female employees and should not be deemed hostile or offensive "when considered in the context of a society that condones and publicly features and commercially exploits open displays of erotica." "Society" in this scenario must primarily refer to the unenlightened; I hardly believe reasonable women condone the pervasive degradation and exploitation of female sexuality perpetuated in American culture. In fact, pervasive societal approval thereof and of other stereotypes stifles female potential and instills the debased sense of self worth which accompanies stigmatization. The presence of pin-ups and misogynous language in the workplace can only evoke and confirm the debilitating norms by which women are primarily and contemptuously valued as objects of male sexual fantasy. That some men would condone and wish to perpetuate such behavior is not surprising. However, the relevant inquiry at hand is what the reasonable woman would find offensive, not society, which at one point also condoned slavery. I conclude that sexual posters and anti-female language can seriously affect the psychological well-being of the reasonable woman and interfere with her ability to perform her job. Case Questions 1. Do you think the majority decision or the dissent is closer to a your view of sexual harassment? Why? Student response. 2. Do you agree that the dissent's factors about how Rabidue had been treated by management is a basis for hostile environment? Student response. 3. If you were management and needed Henry's expertise, what would you have done about his actions? Student response. LECTURE NOTES 1. Most sexual harassment takes place between males and females with the male as perpetrator and female as the victim, but the gender of the harasser need not be different from that of the harassee and males can be the victims of sexual harassment just as females. Case Example: Showalter v. Allison Reed Group, Inc., 767 F. Supp. 1205 1991 (DC RI 1991). Issue: Whether males could be the victims of sexual harassment. Facts: Male employees allege sexual harassment in violation of Title VII of the Civil Rights Act of 1964 because their manager forced them to engage in sexual activities with his secretary by threatening them with the loss of their jobs if they did not comply. Decision: The court found sexual harassment. Showalter and Phetosomphone were clearly the victims of both hostile environment sexual harassment and quid pro quo sexual harassment. For the quid pro quo sexual harassment, the employees were clearly required to trade the requested sexual activity for the privilege of keeping their jobs. The hostile environment sexual harassment occurred and drastically altered the conditions of plaintiffs' employment and created a hostile and abusive work environment. The frequency and nature of the unwelcome sexual activity certainly was severe and pervasive. Sexual advances were made to plaintiffs for months and the harassment completely infected the work environment. Case Questions 1. What can an employer do to protect against liability for sexual harassment in situations such as this where the person responsible for the workplace is the perpetrator? Student response. The employer can provide for direct access to the top, around the perpetrator. When the perpetrator is the top, the employee has little choice but to go to the EEOC or otherwise outside the workplace. 2. Do you think males who complain of sexual harassment are less likely to be believed? Why or why not? Do you think they are less likely to sue? Explain. Student response. Often males are less likely to come forward because of the societal expectations regarding male sexuality. Further, once they come forward they can be the victims of that same expectation that says they should be flattered that someone "desires" them and should be willing to take sex whenever it is offered. 3. Should it make any difference that the request for sex with Showalter did not come directly from Marsella, the person who wanted to engage in the activity with him, but rather came from Smith ? Student response. It may act to make the facts even more negative than they would be originally, since it adds a feature much like procurement of one for sex for another. Rather like a prostitute's "pimp." LECTURE NOTES 1. Title VII does not protect employees from discrimination on the basis of affinity orientation. 2. This does not mean that the parties to a case have to be of the opposite gender. The U.S. Supreme Court recently decided that they can both be of the same gender and still bring a sexual harassment case, as long as the reason for the harassment was not affinity orientation. Case Example: Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). Issue: Whether a male who is sexually harassed by another male can bring a cause of action for sexual harassment under Title VII. Facts: A male who was employed as a roustabout on an oil platform in the Gulf of Mexico was constantly harassed by his fellow male employees. On several occasions he was forcibly subjected to sex-related, humiliating actions by his co-workers, some with supervisory authority. Oncale was also physically assaulted in a sexual manner and threatened with rape. The supervisor did not take any remedial action. Oncale eventually quit, fearing that if he didn’t, he would be raped or forced to have sex. The district court and 5th Circuit held that Oncale had no cause of action because he was harassed by male co-workers. Decision: Yes, a male sexually harassed by another male has a cause of action for sexual harassment under Title VII.. The Court held that Title VII protects men as well as women. The Court said that “the critical issue...is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Case Questions 1. Do you understand why the Court allowed Oncale to prevail here, despite the fact that the sexual harassment was between males? Explain. Student response. 2. What about the idea of men “roughhousing” and otherwise interacting with each other in ways that may cause claims to arise: as the employer, what would you do to lessen liability exposure? Student response. 3. As an employer, how would you be able to distinguish between activity directed at an employee because he or she was gay or lesbian, which is not protected by Title VII, and activity which is not, which is protected by Title VII? Student response. LECTURE NOTES Quid Pro Quo Sexual Harassment 1. In quid pro quo sexual harassment the employee is required to engage in sexual activity in exchange for workplace entitlements or benefits such as promotions, raises, or continued employment. 2. Quid pro quo is the more obvious type of sexual harassment and is not generally difficult to recognize. In the following case, the D.C. Circuit was one of the first jurisdictions to recognize sexual harassment under Title VII. Three years later, and in large part based on Barnes, the EEOC issued its guidelines on sexual harassment which we use today. Case Example: Bryson v. Chicago State University, 96 F. 3d 912 (1996). Issue: Whether depriving someone of building blocks to a promotion because of rejection of sexual advances meets the requirements of loss of a tangible job benefit necessary for quid pro quo sexual harassment of appointment to academic committees and job title after rejecting sexual advances can be deemed quid pro quo sexual harassment if the job title may have been only honorary or in-house, and the committee assignments were not important to outsiders to academia. Facts: After rejecting sexual advances from her supervisor, and being told that “she had better do what I say or [she’ll] be sorry, employee lost her job title and was no longer appointed to academic committees which resulted in important exposure for her career building. The supervisor argued that the job title had no independent meaning and the committee work was nothing she could expect to do. Decision: The court determined that even though the employee had not yet applied for the promotion depriving someone of the building blocks for such a promotion is just as serious as depriving her of the job itself. Case Questions 1. If you were the university president, what would you have done about this situation? Student response. 2. Do you agree with the lower court that there was not sufficient evidence of a connection between what the provost did and what happened to Bryson’s job or with the court of appeals, which said there was sufficient evidence of the connection? Explain. Student response. 3. How could this situation have been avoided or liability lessened? Student response. Discuss the importance of a top-down message that sexual harassment will not be tolerated at all in the workplace; the importance of employees being able to circumvent harassing supervisors; and the importance of taking employee complaints seriously. LECTURE NOTES Hostile Environment Sexual Harassment 1. The more difficult sexual harassment issues have been in the area of hostile environment because employers are confused as to what activity constitutes the offense. 2. Part of the difficulty lies in the fact that many of the causes which may serve as a basis for liability have until now gone unchallenged. 3. A closer look at what courts have held to constitute a hostile environment lend more predictability. 4. In order to sustain a finding of hostile environment sexual harassment, it has generally been required that: ? the harassment be unwelcome by plaintiff ? the harassment be based on gender ? the harassment be sufficiently severe or pervasive to ? create an abusive working environment ? the harassment affected a term, condition or privilege of employment, and ? the employer had actual or constructive knowledge of the sexually hostile working environment and took no prompt or adequate remedial action 5. In light of these requirements it becomes clear why simply giving polite compliments or calling a female "dear," without more, is not sexual harassment, as many fear. It involves much more. 6. Meritor is the first sexual harassment case to reach the U.S. Supreme Court. Case Example: Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). Issue: Whether an employee could be a victim of sexual harassment if there had been no loss of tangible job benefits. Facts: A female employee alleged sexual harassment even though she lost no tangible job benefits. The Court determined that quid pro quo was not the only type of sexual harassment. These facts constituted hostile environment sexual harassment. Decision: Courts have applied Title VII protection to racial harassment and nothing in Title VII suggests that a hostile environment based on discriminatory sexual harassment should not be likewise prohibited. The Guidelines thus appropriately drew from, and were fully consistent with, the existing case law. 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. Vinson's allegations in this case--which include not only pervasive harassment, but also criminal conduct of the most serious nature--are plainly sufficient to state a claim for hostile environment sexual harassment. Case Questions 1. As a manager, what would you have done if Vinson had come to you with her story? Student response. 2. Under the circumstances, should it matter that Vinson "voluntarily" had sex with Taylor? That she received her regular promotions? Student response. 3. How would you determine whom to believe? Student response. LECTURE NOTES 1. In some instances, even courts themselves have differing views about the requirements being met in a particular case. 2. One of the more famous of these cases which articulates two distinct views of whether conduct constitutes a hostile environment is Rabidue, and its dissent below. The differing opinions demonstrate that there are frequently occasions for "judgment calls" when employees come to the manager or supervisor and allege they are the victim of sexual harassment. While all complaints should be taken seriously, as you will see, there are different ways to look at the same facts. LECTURE NOTES 1. There were courts which both followed the majority in Rabidue, and those which preferred the dissent. Those preferring the dissent were more prevalent. 2. Those preferring the dissent ultimately prevailed when the U.S. Supreme Court decided its second sexual harassment case, Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). Harris was also a 6th Circuit decision with facts similar to Rabidue. A female managerial employee was subjected to several embarrassing and demeaning actions by Charles Hardy, President of Forklift, who admitted to the acts, but considered it "joking." Women were requested to retrieve coins from his front pockets; he threw objects on the ground in front of Harris and other females and asked them to pick them up; he made sexual innuendoes about Harris and other women's clothing; in front of others suggested that Harris negotiate her raise at the Holiday Inn; told Harris on several occasions "You're a woman, what do you know?," "We need a man as the rental manager," and that she was a "dumb ass woman." After Harris requested that Hardy curtail his activities because she was offended, he promised to stop, then resumed. Harris quit after Hardy asked her, again, in front of others, while she was arranging a deal with a customer, "What did you do, promise the guy...some [sex] Saturday night?" The Court rejected the notion that such activity in the workplace does not violate Title VII. Unwelcome Activity 1. The basis of hostile environment sexual harassment actions is unwanted activity by the perpetrator. 2. If the activity is wanted or welcome by the complainant, there is no sexual harassment. 3. In making the determination of whether the harasser's activity was welcome, the actions used as a basis for the determination can be direct or indirect. Case Example: McLean v. Satellite Technology Services, Inc., 673 F. Supp. 1458 (E.D. Mo. 1987). Issue: Whether evidence of a plaintiff's indicating she was sexually available or interested in a perpetrator will be permitted to rebut her allegation that the activity was wanted. Facts: A female employee contends she was wrongfully terminated by her employer after she spurned romantic advances by her supervisor. Decision: The court found no sexual harassment because it held the activity by the supervisor was not unwelcome. The court specifically finds that there was no sexual harassment of McLean by her supervisor. From McLean's character, it is apparent that she would have welcomed rather than rejected Manning's advance, if he did indeed do so. But the court finds that Manning made no sexual advance. McLean was not subjected to any unwelcome sexual harassment. Indeed, it is McLean who bears the responsibility for whatever sexually suggestive conduct is involved in this case. It is undisputed that McLean was anything but demure, that she possessed a lusty libido and was no paragon of virtue. From the beginning of her short term of employment with Satellite in November of 1985, to its end in February 1986, she displayed a remarkable lust for those of the opposite sex. She displayed her body through semi-nude photos or by lifting her skirt to show her supervisor an absence of undergarments. Also, during work hours, she made offers of sexual gratification or highly salacious comments to employees, customers and competitors alike, though warned by Manning not to do so. There was uncontroverted evidence of acceptance of her offers. Though specifically ordered by her supervisor, Manning, to refrain from an obviously flirtatious telephone relationship with an employee of a customer, McLean flouted the order and carried on the dalliance. Satellite has stated nonpretextual, legitimate and absolutely nondiscriminatory reasons for its discharge of McLean. She was insubordinate, and displayed total disrespect for her supervisor, which would serve as a legitimate basis for termination. It is also abundantly clear that McLean was terminated because of her poor work performance, attitudes, and habits, e.g., excessively long lunch hours, personal phone calls, entertaining nonbusiness visitors during working hours, and being inattentive to her work, particularly at the Las Vegas trade show. As such, her termination was proper. Case Questions 1. Do you agree with the court's assessment of the evidence? Why or why not? Student response. 2. If you were McLean's supervisor and she exhibited the behavior alleged, what could you have done? Student response. 3. Do you think the court would have held the same way if the McLean had been a male exhibiting such behavior? Explain. Do you think a male employee would have been ordered by his supervisor to "abstain from promiscuity with customers? " Would it be gender discrimination to give such orders to employees of one gender and not another? Explain. Student response. LECTURE NOTES 1. There may also be a finding that the plaintiff did not welcome the activity by the defendant. Evidence can be direct, such as plaintiff telling defendant to discontinue the offending activity, or indirect, such as plaintiff using body language, eye signals, etc. to show disapproval of the harasser's actions. 2. Employees should be told to make it clear to a harasser that the activity is unwelcome, otherwise, the signals may become confused. 3. Hooters restaurants is presently involved in several cases, some of which have been dismissed, which, among other things, will test the question of unwelcomeness parameters. 4. Hooters is an Atlanta-based chain of 107 restaurants in 28 states noted for their buffalo chicken wings and scantily-clad female servers. Seven lawsuits were filed in the spring of 1993 in Minnesota and one in Florida by female servers who were allegedly fired or forced to quit. The suits allege that the environment created by management for female servers was hostile and a "corporate culture of misogyny", starting with the name Hooters, which is a slang term for breasts, and the culture was one which invites sexual harassment of female employees. In August 1993 three other suits were filed by female employees alleging unjust dismissal for refusing to sign a sexual harassment policy letter which includes an acknowledgment that "female sex appeal is an essential ingredient of the Hooters concept." The company disagrees that this is why the employees were terminated. Servers allege being required to wear uniforms of revealing shorts and tee shirts and enduring sexually offensive remarks, touching and other conduct by both management and customers. The sign upon entering Hooters read "Men: no shirts, no shoes: no service. Women: no shirt: free food". It is certain that an important part of the suit will be the issue of whether the women assumed the risk of the activity they endured by agreeing to work for the company. That is, whether the conduct was welcomed by the fact that they worked for a company whose concept encouraged such behavior. Hooters has asserted that this is not the concept of the company. This would appear to be inconsistent with its above sign, its sexual harassment policy letter, its marketing of "Hooters Girls" "cheesecake" calendars (much like Playboy calendars) and swimsuit photo magazines, and the appearance of "Hooters Girls" as the cover of the April 1994 issue of Playboy magazine, with a ten-page pictorial spread inside. A similar argument of corporate encouragement and misogyny was also alleged by eight female employees against the Stroh's Brewery. The employees' case was precedent-setting. They alleged that the hostile environment was manifested by name calling, harassment of female employees, sexual comments, graffiti, sabotage of personal and professional possessions and other activity. Further, that the hostile environment was fostered by Stroh's advertising campaigns featuring the Swedish Bikini Team, which, like the Hooters Girls, were featured on the cover and pages of Playboy magazine in January 1992. Before employers engage in certain activities promoting its product or services, the impact on its employment policies should be considered. This is particularly true since research has found that there is a link between the activity which takes place in the workplace involving women, and how women are treated on the job. Severe and Pervasive Requirement 1. One of the most troublesome problems for employers in the hostile environment situations is determining whether the harassing activity is severe and pervasive enough to unreasonably interfere with an employee's ability to perform. 2. Built into the elements of hostile environment sexual harassment is a requirement that the offending activity be sufficiently severe and pervasive. 3. That is, the activity is not an isolated occurrence which is not serious enough to warrant undue concern. 4. The more frequent the occurrences, the more likely it is that the severe and pervasive requirement will be met. 5. In Harris v. Forklift Systems the Court decided that sexual harassment claims do not require findings of severe psychological harm to be actionable. The Court said that "so long a the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious." Case Example: Ross v. Double Diamond, Inc., 672 F. Supp. 261 (N.D. Tx. 1987). Issue: Whether there is sufficient severity and pervasiveness to constitute sexual harassment when an employee has only been subjected to the offending activity for two days. Facts: Two discharged female employees, sisters, brought this action against their former employer alleging that he violated Title VII by creating a sexually harassing work environment, then constructively discharging them because they reported it and because of their gender. Hostile environment was found for acts occurring during a two-day period for one sister, but not the other. To determine severity or pervasiveness the court should consider several things. First, the nature of the unwelcome sexual acts or words. Generally unwelcome physical touching is more offensive than unwelcome verbal abuse. However, this is only a generalization and in specific situations, the type of language used may be more offensive than the type of physical touching. Second, a court should consider the frequency of the offensive encounters. It is less likely that a hostile work environment exists when, for instance, the offensive encounters occur once every year than if the encounters occur once every week. Third, the court should consider the total number of days over which all the offensive meetings occur. Lastly, the court should consider the context in which the sexually harassing conduct occurred. The court emphasizes that none of these factors should be given more weight than others. In addition, the nonexistence of one of these factors does not, in and of itself, prevent a Title VII claim. The trier of fact must consider the totality of the circumstances. Sexual harassment need not exist over a long period of time for it to be considered a pattern. If the sexual harassment is frequent and/or intensely offensive, a pattern can be established over a short period of time. The court finds that the acts and communications perpetrated against Ross at Double Diamond are sufficiently severe or pervasive to alter the conditions of Ross's employment and create an abusive work environment. This is not so with Stroudenmire. Title VII is not a shield which protects people from all sexual discrimination. The type of conduct listed above does not rise to the level of harassment which is actionable. It is not sufficiently severe and pervasive to alter the conditions of employment or create an abusive work environment. Case Questions 1. Do you agree with the court's decision about Stroudenmire? Ross? Explain. Student response. 2. As the manager, what would you have done about Womack? Student response. 3. Do you agree that there was sufficient severity and pervasiveness in the two-day period here? Specifically, what makes you reach your conclusion? Student response. LECTURE NOTES Perspective Used to Determine Severity 1. Until recently the determination as to whether activity by the harasser was sufficiently severe and pervasive was generally made based upon a reasonable person standard, which is supposed to be a gender-neutral determination. That is, the activity would be determined to be offensive or not based on whether the activity would offend a reasonable person under the circumstances. 2. EEOC issued a policy statement in 1990 in which it said that the victim's perspective must also be considered, so as not to perpetuate stereotypical notions of what behavior is acceptable to those of a given gender. This notion, hence labeled the "reasonable woman" or "reasonable victim" standard, has been used increasingly by courts and should be given serious consideration by employers when evaluating complained of activity. 3. If the victim is a male, it would be a "reasonable man" standard. 4. In Ellison v. Brady, below, the court adopted a 'reasonable victim' or 'reasonable woman' standard for analyzing whether the behavior complained of was severe and pervasive enough to create a hostile work environment, and explains why viewing severity and pervasiveness from this perspective may render different results. Case Example: Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). Issue: Whether an employee's sexual harassment claim should be judged by a reasonable person standard or a reasonable victim standard. Facts: An employee brought a sexual harassment suit because, among other things, a co-worker she barely knew kept writing very personal letters to her, even after being asked not to. The court found that viewed from the employee's perspective, the action was offensive and a violation of Title VII. Decision: For employee. The case presents the important issue of what test should be applied to determine whether conduct is sufficiently severe or pervasive to alter the conditions of employment and create a hostile working environment. We do not agree with the standard set forth in Rabidue. We believe that Gray's conduct was sufficiently severe and pervasive to alter the conditions of Ellison's employment and create an abusive working environment. We believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim. If we examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy. We therefore prefer to analyze harassment from the victim's perspective. A complete understanding of the victim's view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women. We hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Of course, where male employees allege that co-workers engage in conduct which creates a hostile environment, the appropriate victim's perspective would be that of a reasonable man. We adopt the perspective of a reasonable woman primarily because we believe that a gender-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women. The reasonable woman standard does not establish a higher level of protection for women than men. Instead, a gender-conscious examination of sexual harassment enables women to participate in the workplace on an equal footing with men. By acknowledging and not trivializing the effects of sexual harassment on reasonable women, courts can work towards ensuring that neither men nor women will have to "run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living." Case Questions: 1. Do you agree with the court's use of the "reasonable victim" standard? Explain. Student response. 2. Do you think the standard creates problems for management? If so, what are they? If not, why not? Student response. Students will probably say the problem it creates for management is the possibility of not knowing what each employee may find to be offensive behavior. The thumbnail guideline is to think about whether the activity would seem to be business-like conduct rather than personal. By this standard, obviously the harasser here would have decided the letters should not be sent to a co-worker. Other guidelines are the perpetrator asking himself or herself * Would I mind seeing my actions described on the front page of the morning newspaper? * Would I want someone to do this to my spouse/child/parent/ significant other/, etc.? * Would I mind if my spouse/significant other/etc. found out about this? 3. Do you think Ellison was being overly sensitive? What would you have done if you had been the supervisor to whom she reported the incidents? Student response. Discuss with students the importance of learning to view how society has traditionally viewed women, in particular, in a certain way which, when injected into the workplace, is totally inappropriate and can adversely effect the employee's ability to be productive and advance in the workplace. LECTURE NOTES "Sexual" Requirement Explained 1. While the harassment of the employee must be based upon gender, it need not involve sex. If a female entering a workplace with few or no other females is verbally harassed about being in the workplace or working at a traditionally male job, it could well constitute sexual harassment. Case Example: Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990). Issue: Whether there can be sexual harassment if there is little sexual content to the harassment, though the harassment is based on gender. Facts: Two female police officers filed a Title VII action against their employer and supervisors for sexual harassment. At the workplace the employees experienced, among other things, being called derogatory names, exposure to nude photos, vandalism of their files and personal property, obscene phone calls, and a caustic substance being put on the clothing they put on. Decision: The court found sufficient basis for hostile environment sexual harassment even though sex, per se, was not the basis of the activity directed toward them. To make out a case under Title VII it is only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff had been a man she would not have been treated in the same manner. To constitute impermissible discrimination, the offensive conduct is not necessarily required to include sexual overtones in every instance or that each incident be sufficiently severe to detrimentally affect a female employee. Intimidation and hostility toward women because they are women can obviously result from conduct other than explicitly sexual advances. Case Questions 1. Why do you think the employer did nothing much to remedy this situation? Student response. Add that, unfortunately, because of the discomfort many managers still feel around this issue, many take this same route. Burying one's head in the sand will only add to the potential liability. See Jacksonville Shipyards case. 2. Do you think sexual overtones should have been required here? Student response. 3. What would you have done if you were the manager? Student response. LECTURE NOTES 1. A common element of hostile environment sexual harassment cases which may lack an actual sexuality factor is "anti-female animus" exhibited by the employees in the workplace toward those of plaintiff's gender. 2. Anti-female animus has been found to be displayed through the use of derogatory terms when referring to those of a given gender. For instance the Rabidue dissent said it was exhibited, among other things, by workplace references to women or female employees as "bitches", "cunts", pussy, or "whores". 3. Courts have also found it in derogatory statements to or about a given gender in the context of their jobs, such as these statements from actual cases: women " have shit for brains"; "should be barefoot and pregnant"; "should not be surgeons because it takes them too long to bathe and put on makeup"; "could never stand up to union representatives"; "are unstable when they are 'in heat' (having their menstrual cycle) (to a doctor)"; or "all she needs is a good lay." 4. Often anti-female animus is accompanied by sexually-based activity, but need not be to be considered hostile environment sexual harassment. 5. October 1, 1993, the EEOC published in the Federal Register a notice of proposed rule making (Vol. 58, No. 189, at 51266, 29 CFR Part 1609). The proposed rule would consolidate all of the Title VII harassment guidelines except those for sexual harassment. It reiterated and emphasized that harassment on any basis is unlawful. In doing so, the EEOC said "[T]hey put in guideline form the rule that sex harassment is not limited to harassment that is sexual in nature, but also includes harassment due to gender-based animus." However, sexual harassment continues to be addressed in separate guidelines because it raises issues about human interaction that are to some extent unique in comparison to other harassment, and thus, may warrant separate emphasis. 6. Employers should not dismiss an employee's sexual harassment complaint simply because it does not mention sexual activity. Employer Liability for Sexual Harassment Case Example: Blakely v. Continental Airlines, Inc., 164 N. J. 38, 751 A.2d 538 (2001) Issue: Whether an employer can be held liable for sexual harassment committed by employees in an internet chat room. Facts: Employer maintained, by an outsourcer, a web site for it pilots. A female pilot who filed a sexual harassment claim based on pornographic photos and vulgar gender-based comments directed to her, was the object of hostile comments by her coworkers and other pilots, in the internet chat room. Decision: The court determined that the harassing activity need not physically take place in the employer’s workplace in order for the employer to be held liable. Case Questions 1. Do you think the employer should be liable under these circumstances? Explain. Student response. How do you think the employer could have prevented this situation? Student response. 3. What do you thing should be included in a policy for electronic communications in the workplace Student response. Case Example: Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Issue: Whether an employer is vicariously liable for the actions of its supervisory employees who fail to exercise reasonable care in preventing sexual harassment. Facts: A lifeguard who was employed at a city beach away from the main offices was subjected to acts of sexual harassment by a supervisory employee and alleged it created a hostile work environment which discriminated against her in the terms and conditions of her employment. The city adopted a sexual harassment policy for all employees, but failed to disseminate it among the employees where employee worked. Faragher did not complain of her harassment to her supervisors, two of whom were engaging in the activity. The Court noted that since Meritor substantive contours of hostile environment had been established, courts had struggled to derive manageable standards to govern employer liability for hostile environment perpetrated by supervisory employees. The Court adopted the Restatement §219(1) approach, that “a master is subject to liability for the torts of his servant committed while acting in the scope of their employment.” The scope of employment is traditionally defined as “including conduct of the kind a servant is employed to perform, occurring substantially within the authorized time and space limits and actuated, at least in part by a purpose to serve the master but excluding an intentional use of force unexpectable by the master.” This was adopted here, in part, because “a pervasively hostile work environment of sexual harassment is never (one would hope) authorized, but the supervisor is clearly charged with maintaining a productive, safe work environment. The supervisor directs and controls the conduct of the employees, and the manner of doing so may inure to the employer’s benefit or detriment, including subjecting the employer to Title VII liability.” The Court agreed with Faragher that in implementing Title VII, it makes sense to hold an employer vicariously liable for some tortuous conduct of a supervisor made possible by abuse of his supervisory authority. When the supervisor discriminated in the terms and conditions of a subordinate’s employment, his actions necessarily draw upon his superior position over the people who report to him or those under them and an employee generally cannot check a supervisor’s abusive conduct the same way she might deal with abuse from a co-worker. When no tangible action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Decision: Yes, an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee. Case Questions 1. How could the city have avoided the outcome? Explain. Student response. 2. Do you think that it would have made sense for the city to consider the particulars of the circumstances here, such as that these were lifeguards, in a remote location, who by the nature of the job would be dressed in fairly little clothing, and who, because of the environment (the beach and recreational facilities) might need a different approach to sexual harassment than, say, office employees? Explain. Student response. 3. What do you think of the Court’s affirmative defense given to employers and employees? What are the pros and cons? Student response. LECTURE NOTES 1. On June 18, 1999, the EEOC issued a policy guidance based on the U.S. Supreme Court’s decisions in Faragher, and its companion case, Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998) decided the same day. 2. The policy guidance adopted the Court’s decision and employers are subject to liability if a supervisor’s actions result in tangible job loss to the harassee. If they do not, the employer may be able to avoid liability for sexual harassment claims by establishing the affirmative defense above. 3. There is a difference in the liability of the employer for harassment by different categories of offenders. 4. If the sexual harassment is committed by a supervisory employee, the employer is liable for the supervisor's actions whether the employer knows or should have known or even warned the employee not to commit such acts (as with an anti-sexual harassment policy). 5. The supervisor is the employer's agent and representative and the acts of the supervisor are the acts of the employer. 6. Considering the potential for holding the employer liable, employers should carefully choose supervisory employees. 7. If the sexual harassment is committed by a non-supervisory, fellow employee, the employer is responsible if the employer knew or should have known of the harassment (through its agents--the supervisory employees) and took no steps to curtail or prevent it. This would include an employee reporting harassing activity to a supervisor and the supervisor taking no appropriate steps to handle the matter. 8. Often the supervisor receiving the report of offending behavior by a co-worker from an employee will ignore the employee's complaint or make offensive comments in jest. 9. This can be taken as notice that the employer knew of the activity and failed to take immediate appropriate corrective action and should be avoided. 10. It is now a defense to liability if an employer can show that the harassee unreasonably failed to avail him- or herself of any mechanism the employer had in place for preventing or correcting sexual harassment. 11. It is helpful if a harassee can show that the employer had unreasonable means of preventing or correcting sexual harassment (for instance, having the only one to whom claims are reported to be the harasser). 12. It is even more important now, that an employer have an anti-sexual harassment policy as well as effective training, monitoring, and reporting of sexual harassment. 13. Since EEOC has determined that harassment of any kind is the only type of discrimination by a supervisor for which an employer can avoid liability, this limitation is to be narrowly construed. Case Example: Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. Jacksonville, Div. 1991) Issue: Whether the employer will be held liable for sexual harassment which the employer knew occurred, but did little or nothing to remedy. Facts: A female employee brought this case against her employer because of the prevalence of nude photos, posters, reading material, plaques and other nude representations in the workplace. She alleged that this and the harassment of her by fellow employees constituted hostile environment sexual harassment in violation of Title VII of the Civil Rights Act of 1964. The employee reported her treatment and feelings to the employer on several occasions, but little was done. Decision: The court held for the employee and discussed the employer's handling of sexual harassment complaints. The court finds that the policies and procedures at JSI for responding to complaints of harassment are inadequate. The company has done an inadequate job of communicating with employees and supervisors regarding the nature and scope of sexually harassing behavior. This failure is compounded by a pattern of unsympathetic response to complaints by employees who perceive that they are victims of harassment. This pattern includes an unwillingness to believe the accusations, an unwillingness to take prompt and stern remedial action against admitted harassers, and an express condonation of behavior that is and encourages sexually harassing conduct (such as the posting of nude and partially nude women). In some instances, the process of registering a complaint about sexual harassment became a second episode of sexual harassment. JSI cannot stand on an "ostrich defense" that it lacked knowledge of many of the complaints, because its handling of sexual harassment complaints deterred reporting and it did not conduct adequate investigation of the complaints it did receive. JSI received reports at the supervisory level and at the line level concerning incidents of sexual harassment. Additionally, many supervisory personnel admitted that they knew of the sexually-oriented pictures throughout the workplace. JSI concedes it had reports of this and those reports should have alerted them to the need to conduct a more thorough investigation of conditions in the shipyards. Such a duty arises when reports show that the workplace may be charged with a sexually hostile atmosphere. JSI instead ignored the warning signs of a hostile environment. The evidence reveals a supervisory attitude that sexual harassment is an incident-by-incident matter; records were not maintained that would have permitted an analysis of sexual harassment complaints to determine the level of sexual hostility in the workplace. Under these circumstances, the court concludes that JSI received adequate actual knowledge of the state of the work environment, but, like an ostrich, the company elected to bury its head in the sand rather than learn more about he conditions to which female employees, Robinson in particular, were subjected. Case Questions: 1. How would you have handled this workplace if you had been manager? Student response. 2. Do you think the court imposed too heavy a burden on the employer for monitoring the workplace? Student response. 3. Should the "ostrich defense" be permitted? Student response. LECTURE NOTES 1. The employer's liability for hostile environment sexual harassment by non-employees is judged by the same standard as for co-workers. 2. The employer will be liable when the employer knows or should have known through its supervisors, or owner and failed to take appropriate corrective action. 3. It may seem unfair to hold an employer responsible for the actions of someone like a computer repairer who routinely comes to service the company's machines. However, it makes sense upon close inspection. 4. Once made aware of the situation by the harassee, the employer can speak to the repairer and request that the offending behavior be curtailed, speak to the repairer's supervisor, request that a different repairer service the computers, or may even be able to cancel the contract altogether, as appropriate. 5. The employer would also be responsible for the outsiders' harassment if the employer set up the harassing situation, such as requiring employees to dress in skimpy uniforms. Other Important Considerations 1. There are several important matters often at issue in sexual harassment cases. A. The number one problem managers have with addressing sexual harassment complaints is determining the truth of sexual harassment allegations. 1. Appropriate investigation should provide the employer a basis upon which to decide and appropriately respond. 2. Both parties, as well as any witnesses, should be questioned, but employees should be involved only on a "need to know" basis. 3. The investigator's objective is to find out the "who", "what", "when", "where", and "how" of the allegations as quickly and as discreetly as possible. 4. When all appropriate evidence is gathered, like a juror, the employer must judge based upon who seems most credible, whose version of the incidents alleged is more likely closer to the truth, what interests the parties have in telling their version of the events, and any credible corroboration presented. 5. The common problem of the employer's discomfort with making judgments should not prevent moving quickly and appropriately on complaints. 6. The EEOC’s June 1999 Policy Guidance on Harassment provided several factors to consider in determining credibility, including inherent plausibility, demeanor, motive to falsify, corroboration, witness testimony, physical evidence and a past record of similar behavior. B. Often employees report sexual harassment and out of fear of retaliation, want privacy by having the employer to provide relief without informing the alleged perpetrator of the complaint or complainant's identity. 1. Employees should be informed that the alleged harasser must be told of the complaint in order for the employer to effectively address it, but that retaliation will not be tolerated, as the law has separate retaliation provisions. C. The guidelines state that the employer must take "immediate and appropriate corrective action" to remedy sexual harassment. 1. What is most appropriate depends upon the facts. 2. Consideration should be given to such factors as the position of the employees, the activity involved, the duration, the seriousness of the activities, the employer's anti-sexual harassment policy, the alleged harasser's prior experience with sexual harassment, etc. 3. The remedy must be calculated to stop the harassment and not have the effect of punishing the victim. D. Under the Civil Rights Act of 1991, an employee suing for sexual harassment can now ask for up to $300,000 in compensatory and punitive damages (and unlimited medical damages) and request a jury trial. 1. Both these factors greatly increase the employer's potential liability and make avoiding liability even more imperative. E. Tort and Criminal Liability 1. In addition to bringing an action under Title VII, victims of sexual harassment may also bring a civil action in state, or if permitted, federal court, based on state laws which may also be violated by the actions of the alleged harasser. 2. In Meritor the bank manager was alleged to have fondled plaintiff in public, followed her to and entered the ladies' restroom with her, and engaged in unwelcome sexual intercourse, including while in the bank's vault. 3. These acts, while constituting sexual harassment under Title VII, also could result in unlimited compensatory and punitive damages on the basis of tort actions for: assault - intentionally putting the victim in fear and/or apprehension of an unpermitted bodily touching battery - intentional unpermitted bodily touching intentional infliction of emotional distress - an intentional outrageous act for which the law will provide a remedy false imprisonment - intentionally blocking someone's exit from a confined space, and intentional interference with contractual relations - intentionally causing the victim to be unable to perform her employment contract as agreed upon. 4. In addition, the defendant's action could also form the basis of criminal prosecution for, at a minimum, criminal assault, battery and rape. 5. The criminal cases would be against the harasser rather than the employer and would result in punishment for the harasser rather than money damages to the harassee. Management Considerations 1. Zero tolerance should be the rule. 2. The EEOC and courts take the position that the best thing an employer can do to effectively keep sexual harassment complaints to a minimum and minimize liability for sexual harassment complaints which do occur, is to take a preventive approach. 3. This may include the employer ? making sure, from the top down, that all employees understand that sexual harassment in the workplace simply will not be tolerated ? adopting an anti-sexual harassment policy discouraging such activity. This should not be part of a general anti-discrimination policy, but should instead be separate ? creating and disseminating information about an effective reporting mechanism for those with sexual harassment complaints ? providing employees with training or information which appraises them of what sexual harassment is and what specific activities are appropriate and inappropriate to engage in ? insuring that reported incidents of sexual harassment are taken seriously by supervisors and others involved in reporting ? insuring that there is immediate appropriate corrective action taken against employees engaging in sexual harassment Chapter-End Questions 1. Dave comes into the office and says to Sue.: "Good morning! You look great today! Ooops, I'd better not say that. That's sexual harassment." Is Dave correct? Explain. No. Not without more. There is no indication if the activity is unwelcome and it does not seem, without more, to be severe or pervasive. 2. Employer, a 33 year old unmarried male, is frequently teased by the other males in his plant about being unmarried and still living at home with his mother. Is this sexual harassment? Probably not. The court said that this is not the type of situation that would unreasonably interfere with the employee's work performance and was not based upon the inherent power considerations usually involved in sexual harassment cases. 3. Employee sues employer for sexual harassment because her supervisor once touched her on her back and made an "untoward" statement to her. Will she win? Explain. No. She will not meet the requirement of the activity being severe or pervasive enough. 4. Two employees are having a relationship and it later turns sour. When Marge does not get the promotion she goes up for, she sues the employer for sexual harassment, alleging it was committed by her ex-boyfriend, who has, since their breakup, left Marge alone. Will Marge win her suit? Probably not. The relationship was originally a welcome activity, so the unwelcomeness requirement was not met. 5. Dennis comes up to his supervisor, Mae, at a Christmas party and tells Mae he wants to sue for sexual harassment. Mae asks what happened. Dennis says that Linda came over to him and tweaked his cheek and called him sweetie. Dennis pursues the case. Does he win? Why or why not? Probably not. Without more, there is no sufficient indication of severity or pervasiveness. 6. Is it possible for a subordinate to sexually harass a supervisor? Explain. Yes. If the requirements are present, it will not matter that the parties are not in the "traditional" positions. 7. A female employee has an operation on her breast and when she returns to work, a male employee "jokingly" asks to see the scar. Actionable sexual harassment? No, not without more. Not severe or persuasive enough. 8. Joan, a female supervisor asks Margaret, one of her subordinates, out on a date. When Margaret refuses, Joan becomes mean to her at work and rates Margaret’s work poorly on her next evaluation. Margaret wants to bring a sexual harassment claim, but feels she cannot do so since her boss is female. Is Margaret correct? No. The fact that Margaret and her supervisor are both female does not interfere with Margaret’s right to bring a sexual harassment claim against her supervisor. 9. At the door of church each Sunday as his church members are leaving, Rev. bill kisses the females on the cheek and calls them names like "honey" and "sweetheart." Is this sexual harassment? Since the facts involve a minister and his church members rather than an employer and employees, no, this is not sexual harassment. It is, however, the type of activity that could form the basis of sexual harassment if done in the workplace. 10. Trudy comes to Pat, her supervisor, and tells her that Jack has been sexually harassing her by making suggestive remarks, comments, and jokes, by constantly asking her for dates, and by using every available opportunity to touch her. Pat has been friends with Jack for a long time and can't imagine Jack would do such a thing. Pat is hesitant to move on Trudy's complaint. What should Pat do? Pat should immediately investigate the claim. She should call Jack in and let him know of Trudy's complaint and ask him to give his response. If necessary, Pat should then go to other employees, only on a need-to-know basis, and discreetly ask questions to see if she can gather more information. Based on the findings, Jack should then be dealt with accordingly. Treating any claim as a serious one that must be addressed in whatever way is appropriate under the circumstances is a large part of effectively dealing with sexual harassment.