Sexual, racial and other forms of harassment

04/08/2023 The Office of GJ Chartier 1

Sexual, Racial and Other Forms of Harassment

Fundamentals of Employment LawDr. Greg Chartier, The Office of GJ Chartier

914-548-1689, [email protected]

Introduction

Greg Chartier◦914-548-1689◦[email protected]◦www.linkedin.com/gregchartier


mailto:[email protected]

Why are we conducting this program?

Basic objectives when dealing with the issue of harassment:◦The ultimate goal is to prevent occurrences of

harassment.◦We need to encourage employees to report

incidents◦Shield the company from liability and legal

action◦Help you and your employees do a better job

providing services to the company.


• Classification of people as male or female• Biological and physiological characteristics that

define men and womenSex

• Socially constructed roles, behaviors, activities, and attributes that a given society considers appropriate for men and women

• Also, the perception by others of a person’s appearance, behavior, or physical characteristics

Gender

• If birth-assigned sex and internal sense of gender identity do not match

• Tendencies to vary from culturally conventional gender roles

Transgender

• Country of one’s birth or of one's ancestors' birth—even those that no longer exist

• May be interchanged with “ethnicity,” although an “ethnic group” can refer to religion or color as well as country of one’s ancestry

National origin

Terminology

The Office of GJ Chartier 2-4

National Origin

• Because of individual’s, or his/her ancestor’s, place of origin or because individual has physical, cultural, or linguistic characteristics of a national origin group

Race

• Because individual is of a certain race or because of personal characteristics associated with race

Color

• Because of skin color

Discrimination

Legal Framework

Title VII of the Civil Rights Act of 1964

◦ Prohibits discrimination against protected classes.◦ Makes it unlawful to deny employment opportunities,

training, or career advancement to protected classes. ◦ As amended, prohibits discrimination because of pregnancy,

childbirth, or related conditions.◦ Prohibits sexual harassment.◦ Defines harassment and discrimination


Legal Framework

Protected Characteristics:◦Race, color, creed, age, national origin,

alienage or citizenship status, gender (including gender identity), sexual orientation, disability (or perceived disability), marital status, partnership status, arrest or conviction records, genetic predisposition, military status, status as the victim of domestic violence, stalking or sex crimes.


What is Harassment?

Harassment is a wide range of offensive behaviors. It is usually intended to disturb or upset someone and it is usually repetitive.

Legally, it is intentional behavior that is threatening or disturbing.

While some kinds of harassment seems to be simple, it is all unacceptable behavior.


Types of Harassment

Bullying. Physical or psychological harassing behavior directed at one individual by one or a group of people.

Psychological harassment. Humiliating, intimidating or abusive behavior..

Racial harassment. Targeting an individual because of their race or ethnicity. Can include words, deeds and actions directed at the individual.


Types of Harassment

Stalking. Intruding on someone’s privacy by following or through surveillance when the victim fears for her safety.

Hazing. Persecute deliberately in a calculated, planned way as part of an initiation rite.

Electronic harassment or cyber stalking. Using electronics to stalk or follow.


What’s Discrimination?

Prejudicial treatment of someone due to their membership in a certain group. Actual behavior towards an individual or group through excluding or restricting them from opportunities.

You do not need to be “harmed” in order to be discriminated against.


Types of Discrimination

Disparate treatment◦Treating protected classes differently than other employees

or evaluating them by different standards. Intentional discrimination.

Adverse or disparate impact◦Applying rules that have a negative effect on protected

classes to all employees. Accidental discrimination.Perpetuating past discrimination.

◦Using employee referral programs that maintain racial inequity.


What is Sexual Harassment?

Legal Definition:◦Unwelcome sexual advances, requests for

sexual favors, verbal or physical conduct of a sexual nature, when: A term of employment Basis for employment decisions Creating a “hostile” environment

◦Sexual harassment is not about sex, it’s about power.


Sexual Harassment

Employee must give in to sexual demands and forfeit an economic benefit (job or raise).


Quid pro

quoHostile

environment

Sexual or discriminatory conduct creates a threatening or abusive work environment.


Elements of Sexual Harassment◦Quid Pro Quo (this for that)

Conditioning job benefits or employment on submission to sexual demands by a supervisor is always and everyday sexual harassment.

In all cases of quid pro quo harassment, the employer is responsible for allowing the harassment to take place, even if we didn’t know about it.


Quid Pro Quo Harassment

Faragher v. City of Boca Raton (1998)◦A female lifeguard worked for the city for 10

years. She alleged that she and other females were subject to harassment from their supervisors. There was a policy in place, but the supervisors had never seen it.

◦The court distinguished between harassment that results in tangible employment action and harassment that does not.


Vicarious Liability

Employers are liable for discriminatory actions by their employees.

Employers must intervene and end harassment through intervention or discipline.

Employees should utilize preventive and corrective action opportunities.



Elements of Sexual Harassment◦Hostile Work Environment

Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct can create an environment that is “hostile.”

Not every sexual joke or romantic invitation will be sexual harassment. It depends on some conditions:



Unwelcomeness: A consensual relationship cannot lead to sexual harassment.

Advances must be unwelcome and this unwelcomeness must be communicated, in some way.

A supervisor’s preferential treatment of an employee does not create harassment, except in California.


Unwelcomeness

Koster v. Chase Manhattan Bank◦Employee begins consensual, sexual

relationship with boss. She is promoted and given larger increases. Her boss is transferred and her new boss realizes she is not qualified to do job she is in. She receives disciplinary action and resigns. Sues, stating sexual harassment.


Reasonable Woman Standard

Harris v. Forklift Systems (1993)Reasonable Woman Standard. What would

a “reasonable woman” find hostile in the workplace?

This means that, harassment is in the “eye of the beholder” not in the harasser.◦“I didn’t mean anything by it” doesn’t count.◦“I didn’t intend it to be harassing” doesn’t

count.


What are we responsible for?

We will always be responsible for sexual harassment that we knew about and did not take prompt and effective action.◦“I don’t want anyone to know.”

Even if we didn’t know about it, it is our responsibility to watch and report inappropriate behavior when we see it.


What are we responsible for?

Hostile environment depends on two possibilities:◦Knew or should have known. Actual knowledge

(seen, heard, told) or constructive knowledge (environmental harassment). Centerfolds.

◦Failure to take remedial action. Generally, we may not be responsible if we take prompt and appropriate remedial action.


Fairness Issues

Reverse discrimination. Temporary preference to protected classes in order to correct the inequities of the past. Often used in colleges to select applicants.

Quota vs. merit hiring. Generally not allowed as it is basically discriminatory.

Bona fide occupational qualification. Carefully scrutinized and limited in nature.



Fairness Issues

Regents of the University of California v. Bakke (1978). Colleges and universities can legitimately consider race as one of the factors in the admissions process.

Grutter v. Bollinger and Gratz v. Bollinger (2003). Justified the use of race in university admissions as long as it is “narrowly” tailored.

Taxman v. Board of Education Piscataway (1993). “A nonremedial affirmative action plan cannot form the basis for deviating from Title VII.”

Ricci v. DeStefano (2009).

Fraternization

What is Fraternization?

Behavior that crosses the line, legally, morally and professionally.

We use it to explain inappropriate, unprofessional, unethical or unacceptable behavior.


Fraternization

We keep ourselves separate in order to maintain our integrity and the ability to perform our job.

Relations and activities that are forbidden include:◦Romantic or sexual relations with our

customers◦Gambling◦Business relationships with our customers◦Excessive familiarity with our customers◦Disrespect of authority



EEOC’s Strategic Enforcement Plan

Eliminating barriers in recruitment and hiring.◦Target class-based practices that discriminate

against racial, ethnic and religious groups, older workers, women and people with disabilities.

Protecting immigrant, migrant and other vulnerable workers.◦Target disparate pay, job segregation,

harassment, trafficking and discriminatory policies affecting vulnerable workers.


EEOC’s Strategic Enforcement Plan

Addressing emerging and developing issues.◦Target emerging issues; gay, lesbian,

transgender issues, demographic changes, new legislation.

Enforcing equal pay laws.◦Target compensation systems that discriminate

based on gender.◦Lily Ledbetter Fair Pay Act (2009), creates a

rolling or open time frame for filing wage discrimination claims.


National Labor Relations Board

Banner Health System (2012).◦Using a “blanket” approach of “maintaining and

applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct” interfered with Section 7 Rights.

◦Employer’s “generalized concern with protecting the integrity of investigations is insufficient to outweigh Section 7 Rights.”

◦Can still conduct investigations “to the extent possible.”


National Labor Relations Board

Ensure references to harassment are focused on types of harassment prohibited by anti-discrimination laws.

A policy that prohibits all forms of harassing, annoying or disrespectful language and conduct is too broad.

Employees have the right to oppose employer policies but have no right to do so in a “menacing manner.”


Questions/Comments?