Sexual Harassment

1. Sexual Harassment John O. Cates catesj@uah.edu Office of Counsel January 6, 2010

2. - Title VII –Civil Rights Act of 1964 • It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin…

3. Other Statutes • Title IX & Title VI of the Civil Rights Act of 1964 protects students from being denied the benefits of an education program or activity on the basis of gender (Title IX) or race or national origin (Title VI). • Section 504 of the Americans with Disabilities Act protects employees and students from being subjected to a hostile work or learning environment on the basis of his or her qualifying disability.

4. EEOC Guidelines • Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government. • Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment. • http://www.eeoc.gov/types/sexual_harassment.html

5. Prohibited Discrimination and Harassment – What Is It? • Unwelcome conduct • based on a protected category • (under law or UAHuntsville policy) • that is a term or condition of • employment or • participation in education programs.

6. “Unwelcome” • To be "unwelcome" the conduct must not be solicited or invited, and the complainant must have regarded the conduct as undesirable or offensive. • Voluntary participation/lack of coercion is not dispositive; neither is a contemporaneous complaint or protest necessary.

7. What Categories Are Protected by Law or UAH Policy? • Federal law prohibits harassment or other discrimination on the basis of any of the following categories: sex, race, national or ethnic origin, religion, disability, age, and veteran’s status. • UAHuntsville has gone beyond the legally mandated protected categories to include other categories, such as sexual orientation, in its prohibited discrimination and harassment policy.

8. What Type of Conduct is Sex-Based? • Conduct of a sexual nature (sexual advances, request for sexual favors, and other visual, verbal, or physical conduct of a sexual nature); OR • Conduct directed toward an individual because of that individual's sex (e.g., gender humiliation).

9. What about Same-Sex Conduct? • Harassing conduct can be, but need not be, motivated by sexual desire to support an inference of discrimination "on the basis of sex. • E.g., female victim being harassed in such sex-specific and derogatory terms by another woman to make it clear that the harasser had a general hostility to women in the workplace. • Same-sex cases require careful consideration of the social context in which the behavior occurred.

10. Conduct That Could Be Sexual Harassment If Unwelcome: • Lewd remarks or whistles • Persistent physical contact/romantic pursuit • Humor or insult of a sexual nature • Obscene messages and sexual discussions • Rating sexual attributes and attractiveness • Sexually suggestive gestures • Sexual misuse or abuse of power • Subtle or overt pressure for sexual favors • Deliberate gender humiliation or intimidation • Stalking • Sexual assault

11. “Term or Condition” of Employment or Education • In this first step of a liability analysis, whether protected discrimination or harassment took place, two forms of judicially recognized harassment are relevant.

12. Quid Pro Quo Harassment • Involves submission to unwelcome conduct as an expressed or implied condition for receiving an academic or employment benefit or evidence that refusal to submit to such unwelcome conduct resulted in a tangible academic or employment detriment (not simply threat of detriment). • E.g., impact on grades or graduation, hiring, firing, promotion, compensation, or reassignment to a substantially different, inferior position.

13. Hostile Environment Harassment • Situation presented when unwelcome conduct unreasonably interferes with an individual's academic or work performance or creates an intimidating or hostile academic or work environment, even without tangible or economic consequences. • The critical inquiry in a hostile environment case is whether the conduct was sufficiently "severe or pervasive" to create an abusive academic or work environment.

14. Look at the Totality of Circumstances • Relevant Factors: • Age and relationship of parties • Location of conduct • Frequency/severity/duration of conduct • Nature and context of incident(s) • Verbal or physical threats involved • Trivial or patently offensive comments? • Number of individuals involved • Specific impact on work/education • Relationship of subject matter to course • (if classroom conduct)

15. Severe or Pervasive Standard • Unless conduct is egregious, a single or isolated incident of offensive conduct generally does not create a hostile environment. Generally requires a pattern of offensive conduct. Federal law does not attempt to purge the work or academic environment of all offensive language or conduct. • In contrast, in quid pro quo cases, a single incident will constitute harassment if it is linked to the granting or denial of academic or employment benefits.

16. Two-Part Viewpoint Test • Consider the perspective of the complainant and the perspective of a reasonable person. Would a reasonable person in the complainant's position have felt harassed and did the complainant feel harassed? • Psychological injury not required.

17. Some Harassment Myths • Harassment requires a bad intent on the part of the harasser. • If parties have been involved consensually, subsequent conduct cannot be considered sexual harassment. • Liability is limited to conduct by supervisors and managers, not visitor or student-to-student harassment, because the University cannot control those relationships.

18. How Serious is the Legal Risk? • Potential for significant damages to the University under civil rights laws for employee or student discrimination, harassment, or retaliation, including compensatory and punitive damages. Potential for numerous state law damages claims, as well, against university and individual harasser.

19. When Is University Liable for Discrimination/Harassment? • Harassment of a student by another student: University liable if officials actually knew of severe and pervasive harassment but were deliberately indifferent to it. • Precisely what type of official must have knowledge in order to trigger liability is in question. Knowledge by faculty, staff, or administrators with significant responsibility for student affairs likely would trigger liability if deliberately indifferent.

20. When Is University Liable for Discrimination/Harassment? • Harassment of a student by faculty or other university employee: University liable if an official with authority to address and correct the alleged harassment actually knew of the situation, failed to respond to it, and showed deliberate indifference.

21. Can Harasser be Individually Liable? • Even though the federal courts have ruled that individual harassers are not individually liable for their harassment under the relevant federal laws, these individuals remain subject to potential individual liability under state law (e.g., assault, battery, infliction of emotional distress, etc.) in each of the above scenarios.

22. Faragher/Ellerth • In 1998, the United States Supreme Court handed down two landmark decisions on the liability standards for sexual harassment. Together these two decisions announced a new standard for making employers liable for a supervisor's sexual harassment of a subordinate under his or her authority. • In both cases, neither of the women had complained to their employer and neither had suffered any adverse employment action. Both had quit their jobs and filed sexual harassment lawsuits. • Taken together these Supreme Court decisions make employers responsible for their supervisors' sexually harassing behaviors in the workplace, but they also make employees responsible for reporting offensive behavior in accordance with the employer's policy and complaint procedure if the policy and procedures have been well publicized and fairly and consistently enforced by the employer.

23. Burlington Northern v. WhiteUnited States Supreme Court - 2006 • The Supreme Court held that the anti-retaliation provisions are not limited to actions that are related to employment or occur at the workplace. • The anti-retaliation provisions cover those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. • The employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.