MGT 391- Chapter 8 - Harassment

MGT 391 - JSU - Chapter 8 - Harassment

Harassment

A form of disparate treatment where the victim of harassment is subjected to inferior working conditions because of her sex, race, or other protected class characteristic.

Disparate treatment

Is harassment considered disparate treatment or disparate impact?

Harassment

____________ can intimidate and isolate employees, keep them from doing their best work, result in physical or psychological harm, and ultimately drive its victims from the workplace.

sexual

Although _______ harassment claims are the most common type of harassment claims, harassment also affects other protected classes.

Sexual Harassment

What is the most common type of harassment claims?

Racial

_________ harassment is a long-standing and still-prevalent problem.

harassment

There are differences in the particular ways that _________ is manifested, but the fundamental nature —and employer liability for it—is the same regardless of the protected class involved.

harassment

Eliminating ___________ is among the most pressing legal concerns facing employers today.

discrimination

Harassment is a form of ____________.

1- Discriminatory
2- Harmful
3- Unwelcome
4- Attributable to their employer

There is some variation in how courts articulate the elements of a harassment claim, but in broad terms, plaintiffs must show that the mistreatment was:

antidiscrimination

Harassment claims are brought under general _______________ laws, such as Title VII of the Civil Rights Act, rather than under laws specifically addressing harassment.

protected class characteristic

the mere fact that an employee was terminated does not result in a finding of disparate treatment if the plaintiff cannot establish that the termination was based on a ______________________ , so plaintiffs in harassment cases must link their harassment to the same.

sexual

In _________ harassment cases, the plaintiff must show that he or she was subjected to harassment because of his or her sex. Both men and women are protected from harassment.

Yes

Are both men and women are protected from harassment?

17

In recent years, roughly ___ percent of sexual harassment charges filed with the Equal Employment Opportunity Commission (EEOC) have been brought by males.

“exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”

Regardless of their sex, to be successful in making a harassment claim, plaintiffs must show that they were:

1- Subjected to harassment based on a protected class characteristic;

2- The harassment resulted in a tangible employment action or was sufficiently severe or pervasive to alter working conditions and create a hostile environment;

3- The harassment was unwelcome; and

4- There is a basis for attributing liability to the employer.

What are the elements of a harassment claim that a plaintiff (he or she) must show?

same-sex harassment

Harassment where harassers choose to harass people of the same sex.

Same-sex harassment

______________ cases can be brought under Title VII, but the plaintiffs must still prove that the harassment is “because of sex.”

“because of sex.”

Same-sex harassment cases can be brought under Title VII, but the plaintiffs must still prove that the harassment is ______________.

“because of sex”

Harassment where the victim is harassed in sex-specific and derogatory terms clearly motivated by general hostility to the presence of people of the same sex in the workplace; or the harasser in a mixed-sex workplace treated people differently based on their sex.

In harassment “because of sex,” heterosexual harassers choose to harass people of the same sex because of their sex.

What is the difference in same-sex harassment and harassment “because of sex?”

By showing that the harasser is gay or lesbian and motivated by sexual desire for people of the same sex; the victim is harassed in such sex-specific and derogatory terms that it is clear the harasser is motivated by general hostility to the presence of people of the same sex in the workplace; or the harasser in a mixed-sex workplace treated people differently based on their sex.

How can one show that they are being sexually harassed because of their sex?

“Because of sex” harassment

The following are examples used to prove what?
1- Showing that the harasser is gay or lesbian and motivated by sexual desire for people of the same sex 2- The victim is harassed in such sex-specific and derogatory terms that it is clear the harasser is motivated by general hostility to the presence of people of the same sex in the workplace; or
3- The harasser in a mixed-sex workplace treated people differently based on their sex.

sex stereotyping

Some courts have also used the theory of __________ to find evidence of a discriminatory motive in same-sex harassment cases.

equal-opportunity harassers

What is the term used by the courts when a harasser subjects both men and women to harassment?

Courts often conclude in these cases involving “equal-opportunity harassers” that because both men and women are victimized, the harassment does not disadvantage members of one sex relative to the other. So, not discriminatory based on sex.

What happens if a harasser subjects both men and women to harassment?

Title VII

Because of Sex Harassment claims are brought under general antidiscrimination laws like _______ rather than under laws specifically addressing harassment.

sex

In sexual harassment cases, plaintiff must show that he or she was the victim of harassment because of _____.

sexual harassment

In ______________ cases, plaintiff must show that he or she was the victim of harassment because of sex.

sex-specific

Courts have sometimes found discrimination to exist where equal-opportunity harassers harassed men and women in different, _________ ways.

do not

Current legal protections against harassment (do/do not) cover the full range of bullying and abuse that occurs in the workplace.

Yes

Yes or No:
If the depiction of women in offensive jokes and graphics was uniformly sexually demeaning and communicated the message that women as a group were available for sexual exploitation by men, is this considered sexual harassment?

No

Harassment of a female employee by a supervisor who repeatedly said that he wanted to have sex with her teenage daughter, though “deplorable,” based on the supervisor’s dislike for her husband. Is this grounds for harassment under Title VII?

discrimination

The requirements of __________ law may also be met where, although members of both sexes are affected by harassment, one sex is more likely to be subjected to harassment than the other.

harassment

Questions about whether ________ was because of sex also arise when there is evidence of the harasser’s personal animus toward the plaintiff.

problems

Harassment such as continuous sexual banter or graffiti that is not directed at anyone in particular and to which both male and female employees are subjected can also present __________ for plaintiffs.

True

True or False:
Not all mistreatment and abuse of employees falls within the ambit of harassment and the protection afforded by discrimination laws.

Workplace bullying

Repeated interpersonal mistreatment that is sufficiently severe as to harm a targeted person’s health or economic status.

bosses

Research suggests that the “bullies” are often _______.

other women

Although the majority of bullies are men, women frequently bully ____________.

Bullying

________ takes a heavy toll on its victims, leading to increased use of sick time, stress-related illnesses, depression, and anxiety.

True

True or False:
Workplace bullying is not a legal claim recognized by U.S. courts.

workplace bullying

A 2008 Indiana case, in which the plaintiff prevailed on an assault charge, is often cited as a rare example of a successful lawsuit challenging_________________.

[a]ssault

___________ is effectuated when one acts intending to cause an imminent apprehension of a harmful or offensive contact with another person,” no physical contact or “battery” is required.

not related to sex

Harassment claims based on bullying conduct are often not successful because the mistreatment is seen as _________ and is considered more as trivial “horseplay,” as personally motivated grudges, or simply as the actions of “tough” bosses.

Tort

_______ claims (e.g., assault or infliction of emotional distress) can address some of the more severe instances of workplace bullying, but they provide unwieldy mechanisms, at best, for dealing with the problem.

2003

A model Healthy Workplace Bill has been drafted and versions of it have been introduced as proposed legislation in thirty states since ______.

Tennessee

What state is the only state that has enacted a workplace bullying law for its public agencies?

“abusive conduct.”

The Tennessee statute, which applies only to public agencies and does not provide a private cause of action for bullying victims, makes these agencies immune to bullying-related lawsuits if they adopt a prescribed workplace anti-bullying policy that addresses _____________.

adopt a prescribed workplace anti-bullying policy that addresses “abusive conduct”

What can public agencies in Tennessee do to become immune to bullying-related lawsuits?

1- Repeated verbal abuse;
2- Conduct of a threatening, intimidating, or humiliating nature; and
3- Sabotaging or undermining of employees’ work performance.

The Tennessee statute defines abusive conduct/bullying behavior as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . 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.

Which Behaviors Constitute Harassment?

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . 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.

The EEOC has defined sexual harassment as follows:

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

In tangible employment actions include:

harassment

A distinction can be drawn between _________ that results in tangible employment actions and harassment that alters working conditions by subjecting employees to hostile environments, but does not directly affect tangible employment outcomes.

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.

Harassment that alters working conditions by subjecting employees to hostile environments, but does not directly affect tangible employment outcomes:

liable

The distinction is important in harassment cases because the criteria for finding employers _____ differ depending on which of these two types of harassment has occurred.

Harassment

__________ sometimes results in significant changes in the employment status of individuals.

tangible

A manager tells an employee that he wants to receive sexual favors from her and that she should comply or her career will suffer. The employee resists the sexual advance and is demoted or fired shortly thereafter. Under these circumstances, the employee’s response to harassment has had a _________ effect on her employment opportunities.

Harassment that results in tangible employment action

A sexual advance or demand for sexual favors that can be “traded” for some employment outcome.

tangible employment

In a _______ _______ action claim, the harasser must possess sufficient authority to influence or determine employment outcomes (or at least be reasonably perceived as having such authority).

Is not

Is / Is Not:
If a supervisor threatens an employment consequence but does not take any action when the employee refuses his or her sexual advance, there (is / is not) a tangible employment action (although there might still be a hostile environment).

rejection

For a tangible employment action claim to succeed, it is critical that the plaintiff show that the tangible employment action is causally linked to her ________ of or submission to harassment.

tangible employment action

For a ______________________ claim to succeed, it is critical that the plaintiff show that the tangible employment action is causally linked to her rejection of or submission to harassment

True

True or False:
An employee’s tangible employment action harassment claim failed when she was denied a promotion after being told by her supervisor who had been harassing her that she “needed to do more things” and that she “already knew” what those things were.

There is no evidence that the denial of the promotion was based on her failure to comply and not on the basis of the employers reasonings that she had a history of attendance problems

An employee’s tangible employment action harassment claim failed when she was denied a promotion after being told by her supervisor who had been harassing her that she “needed to do more things” and that she “already knew” what those things were. Why?

True

True or False:
A restaurant worker whose male manager would not put her on the work schedule (as was done with all of the other employees) and instead told her that “when you give me some pu**y, you get some time” had sufficient evidence that a decision about a tangible employment opportunity (i.e., work hours that directly translated to pay) was predicated on submission to an unwelcome sexual advance

“what for what”

Latin term quid pro quo means:

getting a raise.

An example of obtaining an employment opportunity would be:

keeping ones job.

An example of maintaining existing opportunities would be:

“constructive discharge”

A resignation under circumstances where a reasonable person would feel compelled to quit is termed a ___________________.

As a termination rather than a voluntary quit.

How is constructive discharge treated by the courts?

harassment

If an employee is forced to quit because of _______ , that loss of employment is clearly tangible in terms of having a significant effect on employment status.

tangible

If an employee is forced to quit because of harassment, that loss of employment is clearly _______ in terms of having a significant effect on employment status.

an official act such as a demotion or pay cut prompts the quit.

The Supreme Court has determined that a constructive discharge will be deemed a tangible employment action only if:

‘beyond question’

“[A]n official act reflected in company records . . . shows ____________ that the supervisor has used his managerial or controlling position to the employee’s disadvantage.”

Showing that the harasser is gay or lesbian and motivated by sexual desire

The victim is harassed in such sex-specific and derogatory terms that harassment is clear

The harasser in a mixed-sex workplace treated people differently based on their sex

If a harasser subjects both men and women to harassment (an equal opportunity harasser), courts often conclude that the harassment was not because of sex; both sexes were disadvantaged

The Supreme Court ruled that harassment because of sex can be proven by:

These claims often involve a sexual advance or demand for sexual favors that can be “traded for some employment outcome; (quid pro quo is used to describe these cases)

Harassment That Results in Tangible Employment Actions:

To succeed, plaintiff must show that the action is causally linked to her rejection of or submission to harassment

Harassment That Results in Tangible Employment Actions:

hostile environment

An environment resulting from a wide range of verbal conduct, including insults, epithets, tasteless jokes, profanity, and requests for sexual favors; physical conduct, including touching, exposure, staring, stalking, sexual assault, and rape; and display.

whether an employee is subjected to unwelcome, offensive treatment because of his or her sex.

The key issue in a hostile environment is:

NO: Hostile environments do not have to include sexual conduct

Does sexual conduct have to be involved in order for their to be sexual harassment? Why or why not?

words, conduct, images

Although sexual harassment claims frequently entail _____, ______, or _______ of a blatantly sexual nature, it is important to realize that sexual harassment can take other, not explicitly sexual, forms.

hostile acts

The court has observed that “there is no legal requirement that ________ be overtly sex-or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures.”

Severe or Persuasive

Pertains to the degree of harm posed by particular acts and the frequency and regularity of harassment.

severe or pervasive

The basic standard is that a hostile environment must be sufficiently ____________ to be actionable.

Severity; pervasiveness

________ gets at the degree of harm posed by particular acts, and ___________ addresses the frequency and regularity of harassment.

the degree of harm posed by particular acts.

Severity gets at/addresses:

the frequency and regularity of harassment.

Pervasiveness addresses:

psychological

Victims of harassment need not suffer __________ harm, although evidence of any such harm is relevant to a hostile environment claim.

True

True or False:
Conduct that is “physically threatening or humiliating” or that “unreasonably interferes with an employee’s work performance” reaches the threshold of a legally actionable hostile environment sooner than “mere offensive utterance[s].”

hostile environment

A trade-off exists between severity and pervasiveness, such that conduct that is more severe need not happen often (once is enough for a sexual assault), whereas less severe conduct (e.g., insults) must occur more frequently or over a long period of time to constitute a __________________.

more frequently or over a long period of time

To constitute a hostile environment claim, how often must insults occur?

once

Severe claims, like a sexual assault, can be grounds for a hostile environment case if it happens ________.

Title VII.

Requiring a person “to work in a discriminatorily hostile or abusive environment” violates _________.

1- Membership in a protected class and

2- Unwelcome sexual harassment,

3- Which was based on sex,

4- Was sufficiently severe or pervasive,

5- Was objectively and subjectively offensive, and finally

6- That some basis for employer liability has been established.

To prevail on a hostile work environment sexual harassment claim, a plaintiff must establish in essence:

The claims a plaintiff must prevail on for a hostile work environment sexual harassment claim

The following describes what:
1- Membership in a protected class and

2- Unwelcome sexual harassment,

3- Which was based on sex,

4- Was sufficiently severe or pervasive,

5- Was objectively and subjectively offensive, and finally

6- That some basis for employer liability has been established.

gender specific

For harassment to be based on sex it need not be an act motivated by sexual desire but rather the harassment must be _________________.