Chapter 9 - Harassment

BULW 3320 Spring 2010

Concepts You Must UnderstandAt the end of this unit you should be able to thoroughly answer the following questions:1. What is the definition of sexual harassment? 2. What other types of harassment are there? 3. How does the concept of adverse (or tangible) employment action figure into a sexual harassment case? 4. What is the significance of the case of Vinson v. Meritor Savings Bank? 5. What law or laws make harassment illegal? 6. When does vicarious liability attach to an employer in a sexual harassment case based on a tangible employment action? . . . when there is no tangible employment action? 7. How should an employer protect itself from harassment claims?

Harassment and MotiveAccording to the text,”harassment is a form of disparate treatment discrimination” (p. 255). Not so fast. The EEOC doesn’t think it is only disparate treatment, meaning intentional, or based on animus. Neither do I, read, “Because of Sex After Oncale . . . “ at the SALSB Web site (the Southern Law Journal, 2006).

Sexual Harassment DefinedFrom the EEOC’s “Sexual Harassment Guidelines”:

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 individual’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.

Historically, there exist two approaches to a sexual harassment case, namely quid pro quo* sexual harassment (numbers 1 and 2 in the EEOC definition) and hostile work environment sexual harassment (number 3 above). Numbers 1 and 2 in the EEOC definition are sometimes referredto as economic harassment, while number 3 is sometimes referred to as environmental harassment.

*Latin. one thing in return for another.

Quid Pro Quo versus Hostile Work Environment Sexual Harassment

MERITOR SAVINGS BANK v. VINSON, 477 U.S. 57 (1986)

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=477&invol=57

1. This was the case where the Supreme Court ratified the concept of hostile environment sexual harassment.2. “As to the bank's liability, the Court of Appeals held that an employer is absolutely liable for sexual harassment practiced by supervisory personnel, whether or not the employer knew or should have known about the misconduct. The court relied chiefly on Title VII's definition of "employer" to include "any agent of such a person,“ as well as on the EEOC Guidelines.”3. The Supreme Court disagreed with that.

How Can an Employer Defend Itself from Employee Sexual Harassment it is Unaware of?

Know 10 steps on pages 280-281.Several Supreme Court decisions

have given guidance: a) have a policy that explains and prohibits sexual harassment in the workplace; b) disseminate it to all employees; c) set up a mechanism for reporting it (and not only through the chain of command); d) investigate claims; and e) take appropriate action.

Other Types of HarassmentTitle VII, the ADEA, and the ADA did not specifically address harassment. The concept was created by the EEOC and the lower federal courts.It applies to anything prohibited by those 3 laws. There can be race harassment, age harassment, religion, etc. But quid pro quo only applies to sex.Every other type is hostile work environment.Why call it harassment, instead of discrimination?

Because of the Adverse Employment Action Requirement

From Minor v. Centocor, Inc.:“Although hundreds if not thousands of decisions say that an “adverseemployment action” is essential to the plaintiff’s prima facie case, that termdoes not appear in any employment-discrimination statute or McDonnellDouglas, and the Supreme Court has never adopted it as a legal requirement.”Hostile environment cases are not economic, thus they lack a tangible adverse employment action in the eyes of many federal courts. To get around this, the harassment suit was created.

Employer Liability for Harassment

Know Table 9.1 on Page 270!!!To analyze the case for vicarious liability:

1. Was there a tangible employment action or not?That can only come from bosses, managers and

supervisors.2. If no tangible employment action, then there is

either a) absolute liability if done by top officials, b) vicarious liability subject to the affirmative defense described in slide #7 if done by managers or supervisors, or c) vicarious liability for the actions of non-supervisors or non-employees if the company was negligent.

3. What is the practical difference between b and c above?