TYPES OF SEXUAL HARASSMENT Hostile Environment Harassment – Plaintiff must show: • That he/she belongs to a protected class – All employees covered by Title VII are protected • That he/she subject to unwelcome harassment • Harassment based on plaintiff’s religious practices or beliefs • Harassment affected term, condition or privilege associated with employment. • Employer knew or should have known of harassment, and failed to act.
SEXUAL DISCRIMINATION IN THE WORKPLACE UNDER TITLE VII Sexual harassment – form of sexual discrimination under Title VII • Sexual advances unwelcome • Requests, and verbal and other conduct sexually based Types of discrimination: • Quid pro quo • Hostile work environment
QUID PRO QUO SEXUAL HARASSMENT • Submission to sexual conduct can be an explicit or implicit condition of employment • Constitutes basis of employment decision Definition – When a manager or supervisor engages in unwelcome, sexual conduct in a manner that: • Expressly or implicitly, conveys the message that submission is a term or condition of employment • Uses employee’s response as a basis of an employment decision which will affect that person.
HOSTILE WORK ENVIRONMENT AS FORM OF SEXUAL HARASSMENT Definition – Conduct of a sexual nature that is for the purpose of unreasonably interfering with an individual’s work performance. • Can be created through the relationship an employee has with a supervisory authority, co-workers or even a non employee (eg. Client customer, independent contractor). To meet the hostile work environment test under Title VII: • Sexual harassment must be severe and pervasive to alter conditions of complainant’s employment.
POTENTIAL FACTORS USED IN DETERMINING SEVERITY OF SEXUAL HARASSMENT • Whether conduct was verbal, physical or both • One time or repeated occurrence • Whether alleged harasser was a co-worker or supervisor • Whether harassment was directed at more than one individual • How many participated in perpetuating the harassment
REASONABLE PERSON STANDARD IN SEXUAL HARASSMENT • Utilized to determine if sexual harassment severe or pervasive • Must be considered by a reasonable person to be hostile or abusive conduct under Title VII – otherwise not actionable • Conduct in question must be adversely affect work performance. NOTE: Serious flirtations and isolated incidents of vulgarity (eg. crude jokes) will not generally meet the Title VII standard to create an abusive work environment.
RETALIATION IN SEXUAL HARASSMENT CASES Claimant alleges that he/she suffered an adverse employment action because he/she filed a discrimination charge or complaint, or otherwise expressed opposition to a sexual harassment claim by an employer. Elements in a retaliation claim may include: • Plaintiff engaged in a protected activity under Title VII • Adverse employment action occurred • Causal connection exists between plaintiff participating in a protected activity and an adverse employment claim.
PROVING RETALIATION IN EMPLOYMENT CASES • Burden-shifting model used under McDonnell Douglas Corp. v. Green to prove that protected activity was the sole factor in motivating the employer’s action NOTE: An employer who harasses an employee of the same gender is still subject to Title VII protection. The Supreme Court has held that Title VII protects both men and women. See Oncale v. Sundowner Offshore Sew. Inc., 118 S.Ct. 998 (1998).
Employer Liability and Defenses-Sexual Harassment-Slide 1 • In Burlington Industries v. Ellerth, 524 US 742 (1998), the court said where threats are carried out, there is a case of quid pro quo sexual harassment. In a quid pro quo case, the employer is vicariously liable for the actions of a supervisor.
Employer Liability and Defenses-Slide 2 • However, Ellerth indicates that where the alleged harassment consists of a hostile work environment, the employer is liable only if it was notified about the harassment and acted with deliberate indifference. If the employer offers the employee a mechanism for obtaining redress of grievances and the employee fails to take advantage (next slide)
REMEDIAL ACTIONS FOR EMPLOYERS IN SEXUAL HARASSMENT CASES • (continued from previous slide) of that mechanism, the employer is not liable. The employer should promptly investigate the allegations and can offer accommodations such as time off, transfers or schedule adjustment. In addition, where it is warranted, the company should take disciplinary action against the harasser. • Moreover, the corporation’s personnel manual should clearly prohibit sexual harassment, and the company should offer training sessions designed to prevent sexual harassment. • Follow-up to make certain harassment is not continued
PREGNANCY DISCRIMINATION ACT OF 1978 Title VII amended to cover pregnancy • Employers cannot deny job opportunities to women based on a current or possible future pregnancy that may lead to time lost from work, or the incurrence of additional insurance payments • Women who are pregnant should be treated in the same manner as other temporary disabilities • Job must be held open on same basis that jobs are held open for sick or disabled employees (except if employee has stated that she does not want to return). NOTE: Title VII does not require pregnant employees to be granted pregnancy leave although medical leave must be given to employees under Title VII. However, pregnant employees cannot be forced to go out on pregncy leave
PROVING PREGNANCY DISCRIMINATION • Evidence of suspicious timing, behavior, comments from which an inference of discriminatory intent can be made • Evidence of employees with a similar situation (other than pregnancy) who have received better treatment • Proof that pregnant employee was better qualified for the particular job. See Troupe v. May Dept. Stores Co. 20 F.3d 734 (7th Cir. 1994).
Application of Pregnancy Discrimination Act The PDA can cover woman who have had an abortion. In one case, where a woman was discharged only three days after she told the employer that she had undergone an abortion, the timing was suspect, and the employee established a prima facie case of discrimination. Doe v. C.A.R.S. Protection Plus, 2008 U.S. App. Lexis 11519 (3d Cir.).
Health Benefits-Pregnancy-Slide 1 42 USC 2000e(k) provides that women affected by pregnancy, childbirth or similar conditions are entitled to health benefits enjoyed by other employees. However, an employer is not required to pay for health benefits for abortions, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have (next slide)
Health Benefits-Pregnancy-Slide 2 (continued) arisen from the abortion. However, the law does not prohibit employers from agreeing to provide health benefits from abortions, and many employers do so. Employers are not required to offer health insurance coverage for infertility treatments such as in vitro fertilization. Infertility is a condition that affects men and women, so non-coverage is not discriminatory. Saks v. Franklin Covey Client Sales, Inc., 316 F.3d 337 (2d Cir. 2003).