Harssment Flashcards
(35 cards)
What types of harassment are there?
QUID PRO QUO – “This for That.” Almost always in the context of “sex”
harassment because supervisor demanding sexual favors of a subordinate
with threat of negative consequences
2. HOSTILE ENVIRONMENT – Most harassment fits here – unwelcome words,
actions, conduct etc
What is the definition of quid pro quo harassment?
Harasser (supervisor) demands employee (subordinate) provide
sexual favors. Supervisor threatens negative consequences for
failure of employee to submit. Also possible that supervisor can
promise a benefit if employee complies.
What are the elements of quid pro quo harassment? - 4
Supervisor made an unwelcome demand;
2. Plaintiff rejected that demand; and
3. Adverse employment action; and
4. The rejection of the demand is the cause/motivation for adverse action.
For quid pro quo - does the employee need to show that the conduct was pervasive?
No
For quid pro quo - is the employer liable for supervisor conduct?
yes
When might a employer be liable for supervisor conduct for quid pro quo?
When the alleged supervisor has “apparent” authority over the employee
What are the 4 considerations when determining if there is a hostile work environment?
- How did the defendant define “terms, conditions and privileges of
employment”?
* 2. What degree of deference does the Meritor Court give to the EEOC
Guidelines?
* 3. Do you see room under Meritor for sex-motivated hostile
environment harassment that is not sexual in content?
* 4. What does the Meritor Court decide on the question of how trial
courts should treat evidence of the victim’s “provocative dress and
demeanor” in harassment cases?
What are the 4 considerations in Harris that led to the determination of a hostile work environment?
W]hether an environment is “hostile” or “abusive” can be determined only by
looking at all the circumstances. These may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance. The effect on the employee’s
psychological well-being is, of course, relevant to determining whether the
plaintiff actually found the environment abusive. But while psychological
harm, like any other relevant factor, may be taken into account, no single factor
is required
* “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
work environment—an environment that a reasonable person would find
hostile or abusive—is beyond Title VII’s purview. (OBJECTIVE)
* If victim does not subjectively perceive the environment to be abusive, the
conduct has not actually altered the conditions of the victim’s employment, and
there is no Title VII violation. (SUBJECTIVE)
name the 5 common elements to a hostile work environment
plaintiff belongs to a protected group;
(2) plaintiff was subjected to unwelcome harassment;
(3) the harassment was because of a protected trait;
(4) The harassment was sufficiently severe or pervasive (objectively and
subjectively); and
(5) the harassment affected a term, condition, or privilege of
employment.
What is the definition of severe or pervasive for a hostile work environment?
he frequency of the discriminatory conduct;
* its severity;
* whether it is physically threatening or humiliating, or a mere
offensive utterance; and
* whether it unreasonably interferes with employee’s work
performance
* The harassment must be so severe or pervasive that: (1) it causes the
plaintiff to find the work environment abusive (subjective standard),
and (2) it would cause a reasonable person (of P’s gender or race etc.)
to find the work environment abusive (objective standard)
Can motive to harass trump the context of the actually harassment that occurred?
Yes
Which statutes allow for individual liability for harassment?
only sec1981
When can an employer be liable for a supervisor’s harassment? 2 things
A supervisor with immediate (or successively higher) authority over
the employee; and
2. the supervisor took a tangible employment action against the
employee.
What 2 elements must an employer raise as an affirmative defence to harassment liability?
(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
When is a person a supervisor for harassment liability to be passed on to an employer?
an employee is a “supervisor” for purposes of vicarious liability
under Title VII if he or she is empowered by the employer to
take tangible employment actions against the victim (power to
hire, fire, fail to promote, reassignment with significantly
different responsibilities, or a decision causing a significant
change in benefits).
what is the difference between quid pro quo and a hostile work environment?
hostile environment requires that the acts be severe or pervasive enough to make a reasonable employee dissuaded form filing a complaint
what are the elects of a quid pro quo?
o a supervisor requested sexual favors;
the subordinate employee rejected that request;
o the supervisor took adverse action against the subordinate; and
o the subordinate’s rejection of the request caused/motivated the adverse action.
for quid pro quo, what is the constant question?
whether the supervisor had an authority to terminate the subordinate
what does quid pro quo require for the employer to have vicarious liability?
the supervisor must have had apparent authority
does title 7 cover psychological aspects of the workplace?
yes, it prohibits unwanted sexual avances
what triggers title 7 protection in a hostile enviroment?
conduct that is severe or pervasive enough to alter the conditions of work and create an absive environment. An offhand comment once will generally not be enough
can harassment include claims of same sex discrimination?
yes
what constitutes “unwelcomeness” as it relates to harassment?
that the conduct was not solicited or incited by the component, and that the complaint found it to be offencive
Is there a “paramour preference” provision for harassment claims? if a woman is advanced through “sleeping to the top” can a man claim that they have been harassed?
No
