Sexual Harassment

Sexual Harassment

Sexual Harassment 25 Harassment on the basis of sex in the workplace creates unique problems for the employer. An employer is liable for harassment between coworkers (as well as nonemployees) in situ-ations in which the employer “knew or should have known” of the conduct, unless it can show that it took immediate corrective action.

Sexual harassment can take place between workers of the opposite sex as well as workers of the same sex. It can comprise conduct that includes sex in return for promotions as well as more insidi- ous conduct that creates a hostile or intimidating work environment. From an employer’s stand- point, creating an atmosphere free from harassment for all employees is a daunting task. It is, at a minimum, essential to promulgate company policies that clearly explain the type of behaviors that will not be tolerated, and then to act swiftly and decisively if the policy is violated. Companies need to set up a program in which employees receive training about how to report such incidents and keep in place a team to head up investigations.

In short, to best defend against a lawsuit, employees should be saturated in a culture of awareness about the policies. From reading the cases that follow, you will notice that businesses that estab- lished a comprehensive, thorough, and clear policy and then immediately reacted to any claims of harassment were not found liable in the ensuing legal actions. However, employers who turned the other way, ignored complaints, or made fun of complainants paid for their mistakes when their businesses incurred massive damages in court. Juries seem to have a particularly negative reaction to sexual harassment in the work environment and express their distaste by awarding monetary damages that not only make the plaintiff whole but also punish the business (i.e., punitive damages).

25.1 The Legal Underpinnings of Sexual Harassment

The statutory definition of sexual harassment is found at 29 C.F.R. § 1604: § 1604.11 Sexual harassment. (a) Harassment on the basis of sex is a violation of section 703 of title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individu- al’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) 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.

sea80373_25_c25_347-358.indd 1 10/4/12 3:28 PM

348

Section 25.1 The Legal Underpinnings of Sexual Harassment CHAPTER 25

Sexual harassment can be of two types. In quid pro quo sexual harassment, the parties exchange sex for employment benefits or advancement. In a hostile work environment lawsuit, the employer has allowed a pervasive atmosphere of abusive words or acts to develop.

To establish a prima facie case of sexual harassment, the plaintiff must show the following:

1. He or she belongs to a protected class; 2. He or she was the subject of unwelcome sexual harassment; 3. The harassment was based on sex; 4. The harassment was so pervasive that it affected a term, condition, or privilege of

employment; and 5. The employer knew or should have known of the harassment and failed to take

remedial action.

In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the U.S. Supreme Court considered whether or not the female employee alleging harassment suffered an economic loss and whether psychological impact would be enough to sustain the complaint. The evidence established that the female employee, Mechelle Vinson, and Sidney Taylor (a vice presi- dent of Meritor Savings Bank) were engaged in a long-term sexual relationship. Accord- ing to Vinson, Taylor made repeated demands upon her for sexual favors, usually at the branch, both during and after business hours; she estimated that during the next several years, she had intercourse with him some 40 or 50 times.

While the parties both agreed that sexual harassment had taken place, the employer, Meritor Bank, contended that “in prohibiting discrimination with respect to ‘compensa- tion, terms, conditions, or privileges’ of employment, Congress was concerned with what petitioner describes as ‘tangible loss’ of ‘an economic character,’ not ‘purely psychologi- cal aspects of the workplace environment.’” In short, the bank argued that psychological damage alone was not a basis for a sexual harassment lawsuit. The Supreme Court dis- agreed, as the following case excerpt shows.

sea80373_25_c25_347-358.indd 2 10/4/12 3:28 PM

349

Section 25.1 The Legal Underpinnings of Sexual Harassment CHAPTER 25

Cases to Consider: Meritor Savings Bank v. Vinson

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)

In defining “sexual harassment,” the Guidelines first describe the kinds of workplace conduct that may be actionable under Title VII. These include “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Relevant to the charges at issue in this case, the Guidelines provide that such sexual misconduct constitutes prohibited “sexual harass- ment,” whether or not it is directly linked to the grant or denial of an economic quid pro quo, where “such conduct has the purpose or effect of unreasonably interfering with an individual’s work perfor- mance or creating an intimidating, hostile, or offensive working environment.”

In concluding that so-called “hostile environment” (i.e., non quid pro quo) harassment violates Title VII, the EEOC drew upon a substantial body of judicial decisions and EEOC precedent holding that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. In Rogers, the Court of Appeals for the Fifth Circuit held that a Hispanic complain- ant could establish a Title VII violation by demonstrating that her employer created an offensive work environment for employees by giving discriminatory service to its Hispanic clientele. The court explained that an employee’s protections under Title VII extend beyond the economic aspects of employment:

[T]he phrase “terms, conditions or privileges of employment” in [Title VII] is an expan- sive concept which sweeps within its protective ambit the practice of creating a work- ing environment heavily charged with ethnic or racial discrimination. . . . One can read- ily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers. . . .

Since the Guidelines were issued, courts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment. As the Court of Appeals for the Eleventh Circuit wrote in Henson v. Dundee, 682 F.2d 897, 902 (1982):

Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harass- ment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.

Read the full text of the case here: http://supreme.justia.com/cases/federal/us/477/57/case.html.

Questions to Consider

1. What argument did Meritor Bank make to the Court that it was not liable? Did the bank suc- ceed with this argument?

2. Up until this decision, what did a complainant have to show the Court to prove sexual harassment?

3. How did Meritor change the rules for sexual harassment? Why was this decision significant?

sea80373_25_c25_347-358.indd 3 10/4/12 3:28 PM

350

Section 25.1 The Legal Underpinnings of Sexual Harassment CHAPTER 25

What creates a hostile work environment? The Federal Communications Commission (FCC) offers a relatively comprehensive list of egregious behaviors (http://www.fcc.gov/ encyclopedia/understanding-workplace-harassment-fcc-staff):

• The complaining party must be a member of a statutorily protected class; • He or she was subjected to unwelcome verbal or physical conduct related to his

or her membership in that protected class; • The unwelcome conduct complained of was based on his or her membership in

that protected class; and • The unwelcome conduct affected a term or condition of employment or had the

purpose or effect of unreasonably interfering with his or her work performance or creating an intimidating, hostile, or offensive work environment.

The FCC website continues with the following examples of harassing behavior:

• Leering, i.e., staring in a sexually suggestive manner; • Making offensive remarks about looks, clothing, or body parts; • Touching in a way that may make an employee feel uncomfortable, such as pat-

ting, pinching, or intentional brushing against another’s body; • Telling sexual or lewd jokes, hanging up sexual posters, making sexual gestures,

etc.; or • Sending, forwarding, or soliciting sexually suggestive letters, notes, e-mails, or

images.

In the case Harris v. Forklift Systems, the U.S. Supreme Court considered what factors lead to an abusive work environment. The Court set a standard for what reasonably makes a sexual harassment case actionable. Read the following excerpts from the case.

Cases to Consider: Harris v. Forklift Systems

Harris v. Forklift Systems, 510 U.S. 17 (1993)

[T]hroughout Harris’ time at Forklift, Hardy often insulted her because of her gender and often made her the target of unwanted sexual innuendos. Hardy told Harris on several occasions, in the presence of other employees, “You’re a woman, what do you know” and “We need a man as the rental man- ager”; at least once, he told her she was “a dumb ass woman.” Again in front of others, he suggested that the two of them “go to the Holiday Inn to negotiate [Harris’] raise.” Hardy occasionally asked Harris and other female employees to get coins from his front pants pocket. He threw objects on the ground in front of Harris and other women, and asked them to pick the objects up. He made sexual innuendos about Harris’ and other women’s clothing. . . .

***

This standard, which we reaffirm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we pointed out in Meritor, “mere utterance of an . . . epithet which engenders offensive feelings in a employee,” does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work (continued)

sea80373_25_c25_347-358.indd 4 10/4/12 3:28 PM

351

Section 25.1 The Legal Underpinnings of Sexual Harassment CHAPTER 25

Cases to Consider: Harris v. Forklift Systems (continued) environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abu- sive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.

***

But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discrimi- natorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality. The appalling conduct alleged in Meritor, and the reference in that case to environments “so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers,” merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable.

***

Read the full text of the case here: http://supreme.justia.com/cases/federal/us/510/17/case.html.

Questions to Consider

1. Did the Supreme Court decide in Harris that a woman could bring a successful lawsuit for purely psychological damage? If so, how would you characterize the damage?

2. What did the Supreme Court mean by the statement “Title VII comes into play before the harassing conduct leads to a nervous breakdown”? So when does Title VII come into play?

In Burlington Industries v. Ellerth, the Supreme Court addressed several unresolved issues pertaining to sexual harassment: whether a woman can successfully bring a Title VII action if she suffers no tangible retaliation as a result of the harassment, and whether she has an actionable cause if she has suffered harassment but was in fact promoted.

Kimberly Ellerth quit her job after 15 months as a salesperson in one of petitioner Burling- ton Industries’ many divisions, allegedly because she had been subjected to constant sex- ual harassment by one of her supervisors, Ted Slowik. Slowik was a mid-level manager who had authority to hire and promote employees, subject to higher approval, but was not considered a policymaker. Against a background of repeated boorish and offensive remarks and gestures allegedly made by Slowik, Ellerth places particular emphasis on three incidents where Slowik’s comments could be construed as threats to deny her tan- gible job benefits. Ellerth refused all of Slowik’s advances, yet suffered no tangible retali- ation and was, in fact, promoted once. Moreover, she never informed anyone in authority about Slowik’s conduct, despite knowing Burlington had a policy against sexual harass- ment. In filing this lawsuit, Ellerth alleged Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII. Read the following excerpts from the case.

sea80373_25_c25_347-358.indd 5 10/4/12 3:28 PM

352

Section 25.1 The Legal Underpinnings of Sexual Harassment CHAPTER 25

Cases to Consider: Burlington Industries v. Ellerth

Burlington Industries v. Ellerth, 524 U.S. 742 (1998)

We must decide, then, whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate’s terms or conditions of employment, based on sex, but does not fulfill the threat. . . . [emphasis author’s]

At the outset, we can identify a class of cases where, beyond question, more than the mere existence of the employment relation aids in commission of the harassment: when a supervisor takes a tan- gible employment action against the subordinate. Every Federal Court of Appeals to have considered the question has found vicarious liability when a discriminatory act results in a tangible employment action. (“[T]he courts have consistently held employers liable for the discriminatory discharges of employees by supervisory personnel, whether or not the employer knew, or should have known, or approved of the supervisor’s actions.” . . .)

In the context of this case, a tangible employment action would have taken the form of a denial of a raise or a promotion. The concept of a tangible employment action appears in numerous cases in the Courts of Appeals discussing claims involving race, age, and national origin discrimination, as well as sex discrimination. Without endorsing the specific results of those decisions, we think it prudent to import the concept of a tangible employment action for resolution of the vicarious liability issue we consider here. A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. . . .

Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors. . . .

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. When no tangible employment action is taken, a defending employer may raise an affir- mative defense to liability or damages. . . .

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.

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first ele- ment of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any com- plaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense. No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. (continued)

sea80373_25_c25_347-358.indd 6 10/4/12 3:28 PM

353

Section 25.1 The Legal Underpinnings of Sexual Harassment CHAPTER 25

Cases to Consider: Burlington Industries v. Ellerth (continued) (The court sent the case back down (remanded it) to the lower court to determine whether the employer had any of the defenses outlined in a and b, above.)

Read the full text of the case here: http://supreme.justia.com/cases/federal/us/524/742/case.html.

Questions to Consider

1. At the outset of this case, the Court stated, “We must decide, then, whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate’s terms or conditions of employment, based on sex, but does not fulfill the threat.” How did the Court decide this statement? Can an employer be liable if there is not a fulfilled threat?

2. If you answered “yes” to question 1, what factors will the Court consider when determining whether or not the employer will be liable?

Cases to Consider: Kohler v. Inter-Tel Technologies

Kohler v. Inter-Tel Technologies, 244 F.3d 1167, 1176 (9th Cir. 2001)

The legally relevant inquiry is not whether Kohler ever experienced an employment action at Inter- Tel, but whether Herrera’s harassment culminated in a tangible employment action. Kohler can- not connect any of the alleged employment actions she experienced to her rejection of Herrera’s advances. Therefore, Kohler has failed to demonstrate a disputed factual issue as to whether she suffered a tangible employment action.

When no tangible employment action is taken, a defending employer may “raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.” In the present case, the undisputed facts make clear that Inter-Tel has satisfied the affirmative defense as a matter of law. The first prong of the defense requires Inter-Tel to show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” “While proof that an employer had promulgated an anti-harassment policy with a complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. . . .”

Inter-Tel’s policy (1) provides a definition of sexual harassment, (2) identifies whom employees should contact if they are subjected to sexual harassment, (3) ensures that harassing supervisors can be bypassed in registering complaints, (4) describes the disciplinary measures that the company may use in a harass- ment case, and (5) provides a statement that retaliation will not be tolerated. Inter-Tel distributed the policy to its employees on their first day of work. Kohler acknowledged having

An employer should strive to successfully create an atmosphere that is free from sexual harassment. The contents of the employee handbook regarding harassment need to be carefully chosen. When an allegation of harassment is brought, the employer should be familiar with what steps to take to comply with the law. The following case, Kohler v. Inter- Tel Technologies, is an example of an employer who had sound guidelines in place and who responded to complaints appropriately and in a timely manner.

(continued)

sea80373_25_c25_347-358.indd 7 10/4/12 3:28 PM

354

Section 25.1 The Legal Underpinnings of Sexual Harassment CHAPTER 25

Cases to Consider: Kohler v. Inter-Tel Technologies (continued) received and read a copy of the policy and the employee handbook, which contains a separate state- ment summarizing the policy. Inter-Tel’s policy and its efforts to disseminate the policy to its employees establish that Inter-Tel exercised reasonable care to prevent sexual harassment in the workplace.

Inter-Tel’s anti-harassment policy provides, inter alia:

Sexual Harassment

Inter-Tel believes that all personnel should work in an environment free from sexual harassment. Sexual harassment by an employee, manager, supervisor, or non-employee will not be tolerated. Inter-Tel will actively investigate any allegation of sexual harass- ment, and if it is determined that sexual harassment has occurred, Inter-Tel will take appropriate disciplinary action.

Complaint Procedures

Any employee who believes he or she has been the subject of sex discrimination or sexual harassment should report the alleged act immediately to his or her supervisor or to the branch or Corporate Human Resources Department. An investigation of all complaints will be undertaken immediately. Any employee who has been found by Inter-Tel, after appropriate investigation, to have violated this policy will be subject to appropriate disci- plinary action, depending on the seriousness of the offense, from a verbal warning up to and including termination. The complainant will be informed of all such remedial action.

General

All employees shall be protected from coercion, intimidation, retaliation, interference, or discrimination for filing a complaint or assisting in the investigation of a sexual harass- ment complaint.

The employee handbook reiterates the admonition against sexual harassment as well as Inter-Tel’s complaint procedures, providing in pertinent part:

Inter-Tel does not condone discrimination or harassment of any sort on the job. If you feel discriminated against or harassed because of . . . sex . . . discuss it with your supervi- sor or contact the Human Resources Department. If the complaint involves your supervi- sor, the complaint should be filed directly with the Human Resources Department. An investigation of all complaints will be undertaken immediately.

The first prong of the affirmative defense also requires Inter-Tel to demonstrate that it exercised reasonable care to promptly correct sexually harassing behavior. The undisputed facts of this case establish that Inter-Tel was exemplary in its investigation of Kohler’s allegations. The first notice Inter- Tel received of Kohler’s sexual harassment allegations was from the EEOC. Inter-Tel responded by promptly hiring a neutral third party to investigate Kohler’s allegations. In addition, Inter-Tel immedi- ately wrote to Kohler and extended an offer for her to return to her position at Inter-Tel, with a new supervisor and under the same terms and conditions as her original employment. Finally, Inter-Tel offered Kohler back pay from the time of her resignation through her reinstatement. Kohler did not respond to Inter-Tel’s offers. (continued)

sea80373_25_c25_347-358.indd 8 10/4/12 3:28 PM

355

Section 25.2 Same-Sex Harassment CHAPTER 25

Cases to Consider: Kohler v. Inter-Tel Technologies (continued) The independent investigator, who was an employment law attorney, repeatedly sought Kohler’s participation in the investigation. Kohler never responded to these attempts because she “did not want to participate in the investigation.” The investigator interviewed six Inter-Tel employees, includ- ing Herrera and all but one of the other Project Coordinators who reported to him. The investigator determined that Herrera had forwarded an offensive Donald Duck voicemail message to a number of employees. Ultimately, however, the investigator did not confirm Kohler’s claim that she had been harassed. Inter-Tel wrote a letter to Kohler, informing her of the outcome of the investigation. Kohler never responded.

After the investigation was complete, Inter-Tel reviewed its antiharassment policy with Herrera on two occasions even though no actionable harassment had been confirmed. In addition, Inter-Tel rep- rimanded Herrera and threatened to deny his eligibility for a “supervisor” position for sending the offensive voicemail message. Inter-Tel also conducted mandatory sexual harassment training semi- nars for the entire Emeryville work force on May 1, 1998, and again on May 27 and 28, 1998.

Inter-Tel could hardly have done more to investigate Kohler’s allegations in a prompt and neutral manner. These facts present a paradigm of the “reasonable efforts” the Supreme Court sought to encourage when it established the affirmative defense. Inter-Tel clearly satisfied the first element of the affirmative defense.

Read the full text of the case here: http://openjurist.org/244/f3d/1167/leslie-v-inter-tel.

Questions to Consider

1. The court said that “Inter-Tel could hardly have done more to investigate Kohler’s allegations in a prompt and neutral manner.” Exactly what steps did Inter-Tel take that were “prompt” and “neutral”?

2. What is your reaction to the fact that Kohler “did not want to participate in the investigation”? What reasons can you think of that would make her not want to participate? How do you think her lack of involvement would impact the jury’s view of her?

3. This case contains excerpts from the company’s policy manual. What are your impressions of the manual? What do you think is especially effective about it? What could be improved?

25.2 Same-Sex Harassment

In 1998, the Supreme Court considered whether Title VII sexual harassment extended to same-sex harassment in the case Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998). The plaintiff was a “roustabout” working on an oil rig and was subjected to both verbal and physical threats from three male coworkers. He reported the problem to his supervisors, who took no action. In fact, the company’s safety compliance clerk, Valent Hohen, told Oncale that Lyons and Pippen “picked [on] him all the time too,” and called him a name suggesting homosexuality. Oncale eventually quit—asking that his pink slip reflect that he “voluntarily left due to sexual harassment and verbal abuse.” When asked at his deposition why he left Sundowner, Oncale stated, “I felt that if I didn’t leave my job, that I would be raped or forced to have sex.”

sea80373_25_c25_347-358.indd 9 10/4/12 3:28 PM

356

Key Terms CHAPTER 25

In its opinion, the Court said:

. . . We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

Oncale was the first U.S. Supreme Court case to recognize a cause of action for sexual harassment between members of the same sex. Do you agree with the opinion that such conduct should also be protected? In his opinion, Justice Scalia stated that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” What do you think he meant by this statement? What was the origi- nal concern of legislators when sexual harassment legislation was enacted? How has the social climate of the United States changed since that law was passed? What effect should societal changes have on legislation?

Key Terms

affirmative defense A defense raised by the defendant that, if proven, will result in dismissal of the lawsuit.

hostile work environment A workplace that is discriminatory and laden with sexual intimidation, ridicule, and insult.

quid pro quo sexual harassment The exchange of sex for employment benefits or advancement.

reasonable care The degree of caution that would be exercised by an ordinary, prudent person under the given circum- stances. A question for a jury to decide in tort cases about the defendant’s actions.

reasonable efforts In the context of work- place harassment, measures the employer can take to prevent such incidents, e.g., by formulating and distributing company pol- icies that prohibit harassment and swiftly punishing those who violate the policies.

remand When an appeals court sends a case back to a lower court from which it was appealed so that the lower court can correct an error.

sexual harassment Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature by someone of the same or opposite sex that is tied to job status or that permeates the workplace environment with sexual innuendo.

tangible employment action An official act of an enterprise or company that causes a significant change in employment status, e.g., hiring, firing, failing to promote, reas- signing with significantly different respon- sibilities, or significantly changing benefits.

vicarious liability In tort law, the plac- ing of responsibility on one party (e.g., an employer) for the actions of another (e.g., an employee in the scope of employment).

sea80373_25_c25_347-358.indd 10 10/4/12 3:28 PM

357

Critical Thinking and Discussion Questions CHAPTER 25

Critical Thinking and Discussion Questions

1. When is an employer liable for harassment in the workplace? 2. How does the Equal Employment Opportunity Commission define sexual harass-

ment in its guidelines? 3. What is the difference between quid pro quo sexual harassment and harassment

that stems from a hostile work environment? 4. Samantha, the general manager of ABC Corporation, asks Sam, her secretary, out

for drinks after work. Sam believes this to be a sexual advance on Samantha’s part and is deeply offended by it. He immediately calls the EEOC to file a sexual harassment complaint. What do you think would result?

5. Read the article “Female kicker says she was raped at CU” at http://www.thedenverchannel.com/news/2852518/detail.html. Then outline

what specific steps you would take to investigate the claim discussed in the article. 6. Read Simpson v. University of Colorado, located at http://www.aclu.org/racial-

justice-womens-rights/simpson-v-university-colorado, and the amicus briefs (legal briefs filed on behalf of a plaintiff to add favorable or expert evidence to their case) referred to at the end of the article. Then answer the questions below:

a. Do you agree with the 10th Circuit’s decision that the football program was guilty of sexual harassment? Why or why not?

b. What steps should the university have taken once it learned of the alleged harassment?

c. What steps did the university actually take? d. How can an entity such as a university keep sexual harassment like this from

taking place?

sea80373_25_c25_347-358.indd 11 10/4/12 3:28 PM

sea80373_25_c25_347-358.indd 12 10/4/12 3:28 PM


Comments are closed.