Download Sexual Harassment

Sexual Harassment
John O. Cates
[email protected]
Office of Counsel
January 6, 2010
- Title VII –
Civil Rights Act of 1964
It shall be an unlawful employment
practice for an employer to fail or refuse to
hire or to discharge any individual, or
otherwise to discriminate against any
individual with respect to his compensation,
terms,
conditions,
or
privileges
of
employment, because of such individual's
race, color, religion, sex, or national origin…
Other Statutes
Title IX & Title VI of the Civil Rights Act of 1964 protects
students from being denied the benefits of an education
program or activity on the basis of gender (Title IX) or race
or national origin (Title VI).
Section 504 of the Americans with Disabilities Act protects
employees and students from being subjected to a hostile
work or learning environment on the basis of his or her
qualifying disability.
EEOC Guidelines
Sexual harassment is a form of sex discrimination that violates Title VII of
the Civil Rights Act of 1964. Title VII applies to employers with 15 or
more employees, including state and local governments. It also applies to
employment agencies and to labor organizations, as well as to the federal
government.
Unwelcome sexual advances, requests for sexual favors, and other verbal
or physical conduct of a sexual nature constitute sexual harassment when
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/types/sexual_harassment.html
Prohibited Discrimination and
Harassment – What Is It?
Unwelcome conduct
based on a protected category
(under law or UAHuntsville policy)
that is a term or condition of
employment or
participation in education programs.
“Unwelcome”
To be "unwelcome" the conduct must not be
solicited or invited, and the complainant must have
regarded the conduct as undesirable or offensive.
Voluntary participation/lack of coercion is not
dispositive; neither is a contemporaneous complaint
or protest necessary.
What Categories Are Protected
by Law or UAH Policy?
Federal law prohibits harassment or other discrimination
on the basis of any of the following categories: sex,
race, national or ethnic origin, religion, disability, age,
and veteran’s status.
UAHuntsville has gone beyond the legally mandated
protected categories to include other categories, such as
sexual orientation, in its prohibited discrimination and
harassment policy.
What Type of Conduct is SexBased?
Conduct of a sexual nature (sexual advances,
request for sexual favors, and other visual,
verbal, or physical conduct of a sexual
nature); OR
Conduct directed toward an individual
because of that individual's sex (e.g., gender
humiliation).
What about Same-Sex Conduct?
Harassing conduct can be, but need not be, motivated by
sexual desire to support an inference of discrimination
"on the basis of sex.
E.g., female victim being harassed in such sex-specific
and derogatory terms by another woman to make it clear
that the harasser had a general hostility to women in the
workplace.
Same-sex cases require careful consideration of the
social context in which the behavior occurred.
Conduct That Could Be Sexual
Harassment If Unwelcome:
Lewd remarks or whistles
Persistent physical contact/romantic pursuit
Humor or insult of a sexual nature
Obscene messages and sexual discussions
Rating sexual attributes and attractiveness
Sexually suggestive gestures
Sexual misuse or abuse of power
Subtle or overt pressure for sexual favors
Deliberate gender humiliation or intimidation
Stalking
Sexual assault
“Term or Condition” of
Employment or Education
In this first step of a liability analysis, whether
protected discrimination or harassment took
place, two forms of judicially recognized
harassment are relevant.
Quid Pro Quo Harassment
Involves submission to unwelcome conduct as an
expressed or implied condition for receiving an
academic or employment benefit or evidence that
refusal to submit to such unwelcome conduct
resulted in a tangible academic or employment
detriment (not simply threat of detriment).
E.g., impact on grades or graduation, hiring, firing,
promotion, compensation, or reassignment to a
substantially different, inferior position.
Hostile Environment Harassment
Situation presented when unwelcome conduct
unreasonably interferes with an individual's academic or
work performance or creates an intimidating or hostile
academic or work environment, even without tangible or
economic consequences.
The critical inquiry in a hostile environment case is
whether the conduct was sufficiently "severe or
pervasive" to create an abusive academic or work
environment.
Look at the Totality of
Circumstances
Relevant Factors:
Age and relationship of parties
Location of conduct
Frequency/severity/duration of conduct
Nature and context of incident(s)
Verbal or physical threats involved
Trivial or patently offensive comments?
Number of individuals involved
Specific impact on work/education
Relationship of subject matter to course
(if classroom conduct)
Severe or Pervasive Standard
Unless conduct is egregious, a single or isolated
incident of offensive conduct generally does not create
a hostile environment. Generally requires a pattern of
offensive conduct. Federal law does not attempt to
purge the work or academic environment of all
offensive language or conduct.
In contrast, in quid pro quo cases, a single incident
will constitute harassment if it is linked to the granting
or denial of academic or employment benefits.
Two-Part Viewpoint Test
Consider the perspective of the complainant and the
perspective of a reasonable person. Would a
reasonable person in the complainant's position have
felt harassed and did the complainant feel harassed?
Psychological injury not required.
Some Harassment Myths
Harassment requires a bad intent on the part of the
harasser.
If parties have been involved consensually, subsequent
conduct cannot be considered sexual harassment.
Liability is limited to conduct by supervisors and
managers, not visitor or student-to-student harassment,
because the University cannot control those
relationships.
How Serious is the Legal Risk?
Potential for significant damages to the University
under civil rights laws for employee or student
discrimination, harassment, or retaliation, including
compensatory and punitive damages. Potential for
numerous state law damages claims, as well, against
university and individual harasser.
When Is University Liable for
Discrimination/Harassment?
Harassment of a student by another student:
University liable if officials actually knew of severe
and pervasive harassment but were deliberately
indifferent to it.
Precisely what type of official must have knowledge in
order to trigger liability is in question. Knowledge by
faculty, staff, or administrators with significant
responsibility for student affairs likely would trigger
liability if deliberately indifferent.
When Is University Liable for
Discrimination/Harassment?
Harassment of a student by faculty or other
university employee: University liable if an
official with authority to address and correct
the alleged harassment actually knew of the
situation, failed to respond to it, and showed
deliberate indifference.
Can Harasser be Individually
Liable?
Even though the federal courts have ruled that
individual harassers are not individually liable for
their harassment under the relevant federal laws,
these individuals remain subject to potential
individual liability under state law (e.g., assault,
battery, infliction of emotional distress, etc.) in each
of the above scenarios.
Faragher/Ellerth
In 1998, the United States Supreme Court handed down two landmark
decisions on the liability standards for sexual harassment. Together these
two decisions announced a new standard for making employers liable for
a supervisor's sexual harassment of a subordinate under his or her
authority.
In both cases, neither of the women had complained to their employer and
neither had suffered any adverse employment action. Both had quit their
jobs and filed sexual harassment lawsuits.
Taken together these Supreme Court decisions make employers
responsible for their supervisors' sexually harassing behaviors in the
workplace, but they also make employees responsible for reporting
offensive behavior in accordance with the employer's policy and
complaint procedure if the policy and procedures have been well
publicized and fairly and consistently enforced by the employer.
Burlington Northern v. White
United States Supreme Court - 2006
The Supreme Court held that the anti-retaliation provisions
are not limited to actions that are related to employment or
occur at the workplace.
The anti-retaliation provisions cover those (and only those)
employer actions that would have been materially adverse to
a reasonable employee or job applicant.
The employer’s actions must be harmful to the point that they
could well dissuade a reasonable worker from making or
supporting a charge of discrimination.