Sexual Harassment

1
Sexual Harassment

• Jody Blanke
• Professor of Computer Information Systems and Law
• Mercer University

2
Sexual Harassment

• Quid Pro Quo Harassment
• Employee is required to engage in sexual activity
  in exchange for promotions, raises or continued
  employment
• Hostile Environment Harassment
• The harassment is unwelcome activity
• The harassment is based upon gender
• The harassment is sufficiently severe or
  pervasive to create an abusive working
  environment
• The harassment affects a term or condition of
  employment
• The employer had actual or constructive notice of
  the hostile environment and took no prompt or
  adequate remedial action

3
Meritor Savings Bank v. Vinson (1986)

• Supreme Court upheld sexual harassment claim
  despite absence of concrete economic effect on
  employment or loss of tangible job benefits
• Employee had given in to supervisors sexual
  advances and had a sexual relationship for
  several years. Supervisor fondled her in front
  of other employees, followed her into the womens
  restroom and forcibly raped her on several
  occasions. Activities ceased after employee had
  a steady boyfriend.
• Court held that in light of the record as a
  whole and the totality of the circumstances,
  there was an actionable hostile environment
  sexual harassment claim.

4
Harris v. Forklift Systems (1993)

• Supreme Court found that a hostile environment
  did exist for a female manager.
• President of company
• Said Youre a woman, what do you know?
• Said We need a man as the rental manager.
• Said that she was just a dumb ass woman.
• Asked in her in front of others What did you
  do, promise the guy some sex Saturday night?
• Asked her if she wanted to go to the Holiday Inn
  to negotiate her raise.
• Asked female employees to retrieve coins from his
  front pants pockets.

5
Oncale v. Sundowner Offshore Services (1988)

• Supreme Court held that there could be same-sex
  sexual harassment under Title VII.
• Employee was forcibly subjected to sex-related,
  humiliating actions, and was physically assaulted
  in a sexual manner.
• Court held that Title VII language because of
  gender extended to same-sex harassment, but,
  Title VII excludes discrimination because of
  affinity orientation.
• e.g., Title VII would protect a female employee
  from harassment by a female about gender-related
  activity, but would not protect a lesbian from
  harassment from a female about her being a
  lesbian.

6
Employer Liability

• Employers are vicariously liable under the
  doctrine of respondeat superior for all torts
  committed by employees acting within the scope of
  employment.
• Employers may also be liable for torts committed
  by employees not working within the scope of
  employment if
• the employer intended the conduct,
• the employees high rank makes him the employers
  alter ego,
• the employer was negligent, or
• the employee was aided in accomplishing the tort
  by the existence of the agency relation.

7
Employer Liability

• Employers are strictly liable for quid pro quo
  sexual harassment, i.e., when there are tangible
  employment actions taken.
• Employers are not strictly liable if there is no
  tangible employment action.
• In these hostile environment cases, the employer
  can use the Faragher/Ellerth defense to show that
  it had a reasonable antidiscrimination policy in
  place, but that the harassed employee
  unreasonably failed to use it.

8
Faragher v. Boca Raton (1998)

• Supreme Court found the city (employer) liable
  for the sexual harassment of its lifeguard
  supervisors.
• Court held that while the city had available to
  it an affirmative defense to show that it
  exercised reasonable care to prevent and correct
  promptly any sexually harassing behavior, it had
  failed to do so as a matter of law.

9
Burlington Ind. v. Ellerth (1998)

• Supreme Court held that employer might be liable
  for hostile work environment, but should have an
  opportunity to prove that employee unreasonably
  failed to take advantage of employers complaint
  procedure.
• Employee suffered no tangible employment action
  (and was even promoted during her employment).
• Employee worked for employer for about 15 months,
  but didnt report the harassment until a few
  weeks after leaving.
• Her supervisor had made remarks about her
  breasts, had told her top loosen up and warned,
  you know, Kim, I could make your life very hard
  or very easy at Burlington.
• He told her she was not loose enough and
  reached over and rubbed her knee.
• He responded to a job-related question from her,
  I dont have time for you right now, Kim
  unless you want to tell me what youre wearing.
  A couple of days later, he again responded, are
  you wearing shorter skirts yet, Kim, because it
  would make your job a whole heck of a lot
  easier.

10
Policies

• It is important to have a policy
• It is important to inform employees about the
  policy
• It is important to enforce the policy