harassment Flashcards
(32 cards)
how did courts traditionally divide sexual harassment claims
Quid-pro-quo: Claim brought where a supervisor would use “sex” as a tool for either reward or punishment.
Hostile work environment: Claim brought where plaintiff alleges she suffered a hostile atmosphere in the workplace, though not necessarily one that has had a direct economic impact.
when does harassment usually take place
It often takes place where the employer has a policy against it and would take action if they knew about it
The harasser picks someone they know won’t complain
which title vii protected status does harassment cover
all of them, although its usually associated with sex/gender
what is the key takeaway from shaver
A plaintiff may bring a hostile-work-environment claim under the Americans with Disabilities Act.
what do the elements a harrasement cause of action depend on?
what is the common thread no matter what
The elements of a harassment cause of action vary depending upon whether a tangible employment action or hostile work environment claim have been alleged.
all claims of harassment have a single common thread – the action taken must be “because of” the protected characteristic
what is the key takeaway from Oncale
The p was subjected to sex related humiliating actions against him by other male employees
Whether workplace harassment can violate title vii’s prohibition against discrimination because of sex when the harasser and the harassed employee are of the same sex
Nothing in title vii bars a claim of discrimination because of sex just because the p and the d are of the same sex
what were the because of sex circumstances established in Oncale (the same sex harrasment)
- By showing that the harassment was sexual in nature;
- By establishing that the company treated on sex with hostility;
- Or through comparative evidence showing that one sex was treated better than another
what is the key takeaway from Ochletree (because of sex/protected class)
P was the only woman working at the job, and she was subjected to crass comments and gestures by her male counterparts, making her uncomfortable and causing emotional tolls
Did P prove that the harassment was because of her sex
The Fourth Circuit concluded that not only was there evidence sufficient to prove a hostile environment, but this hostility was specifically targeted at the plaintiff.
what are the elements of a title vii cliam for sexual harassment
plaintiff must prove that the offending conduct:
1.Was unwelcome;
2.Was based on her sex;
3.Was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment; and
4.Was imputable to her employer.
what does proving that conduct was ‘because of sex’ mean in the harrasment context
whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.
what is the key takeaway from Mertior (ie proving the unwelcome OR severe or pervasive)
Vinson brought an action against Taylor and the bank, claiming that during her four years at the bank she had constantly been subjected to sexual harassment by Taylor in violation of Title VII.
At a bench trial, Vinson testified that she and Taylor had sex 40-50 times, he made repeated demands for sexual favors, he fondled her in front of other employees, followed her into the restroom, exposed himself to her, and even forcibly raped her.
Whether Title VII prohibits the creation of a hostile work environment, or is it limited to tangible economic discrimination in the workplace?
Title VII is not limited to economic or tangible discrimination but that it also provides protection from hostile or abusive work environments.
what is the key takeaway from Harris
Teresa Harris sued Forklift Systems, alleging that the company’s president, Charles Hardy, created a hostile work environment through gender-driven verbal insults and sexual harassment, violating Title VII of the Civil Rights Act of 1964.
The Supreme Court held that psychological harm is not necessary to establish a hostile work environment.
when is the three step hostile work enviornment test applied
only when there is no tangible employment action
what is the key takeaway from ellerth (how to get an employer on the hook for employee)
Ellerth worked as a salesperson in one of Burlington’s stores. During her employment, she alleged she was subjected to constant sexual harassment by her supervisor, Slowik.
During her employment, Ellerth did not inform anyone in authority about Slowik’s conduct, despite knowing that Burlington had a policy against sexual harassment.
ISSUE: Whether, under Title VII, an employee who refuses the unwelcome and threatening sexual advances of a superior, yet suffers no adverse, tangible job consequences, can recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor’s actions?
SCOTUS held that employers are vicariously liable for supervisors who create hostile working conditions for those over whom they have authority.
what happens if your supervisor takes tangible employment action
vicarious liability puts employment on the hook
The employer has cloaked the supervisor with authority to make those tangible employment actions so youre liable
how are harrasment cases analysized
on whehter there was a tangible employment action or hostile work enviorment invovlved
whqt does a tangible employmnet action look like
A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, etc.
Where there is a tangible employment action, vicarious liability attaches
when does an employer have an affirmative denfse in hostile work envoriment
where no tangibke employment action is invovled an a supervisor is invovled
what is the two part affirmative defnese
(d has burden of persuasion)
1. Employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and
2. That the P unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm
what is the policy reason behind allowing the affirmative defense
Develop and write anti harassment policy and distribute it and act according to it
what is the eeoc guidance on an effective anti harrasment policty
six in all
1.A clear explanation of the prohibited conduct;
2.Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;
3.A clearly described complaint process that provides accessible avenues of complaint;
4.Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
5.A complaint process that provides a prompt, thorough, and impartial investigation; and
6.Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.
what is the key takeaway from faragher
Under what circumstances may an employer be held liable under Title VII for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination?
SCOTUS held that an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of the plaintiff victim.
what is co worker harrassement
sperate from supervisor harrasment;occurs where a fellow employee is perpetrating the adverse conduct.
when is an employer liable for co-worker harrasment
if the complainant proves that the employer was negligent – i.e., the employer knew or should have known of the offensive conduct but failed to take appropriate corrective action
