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Sexual Harassment Paper HRM320: Employment Law Professor Julie Dennis DeVry University Online

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Sexual Harassment Paper Sexual harassment can happen anywhere - in the street, at a nightclub, at an interview, in a shop, and often at workplace. It has nothing to do with mutual attraction or friendship between people, which is normal and positive. Sexual harassment, on the other hand, involves humiliation or offence to the victim. It's not fun, flattering or flirting and can happen to anyone. Men and women have different perceptions of sexual harassment. What may be a lighthearted joke to many men may be offensive to many women. In fact, the courts have said that professional and unprofessional women are more adversely affected by sexual harassment than men, and it happens in the public and private sectors.

Define sexual harassment as the term is used legally. Sexual harassment is a form if sex discrimination that violates Title VII of the Civil Rights Act of 1964. According to the Equal Rights Advocates (2012), the legal definition of sexual harassment is unwelcome verbal, visual, or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment. Sexual harassment is a very serious form of employment discrimination in all types of workplaces.

Explain how sexual harassment differs from gender discrimination. According to Moran (2011), sexual harassment is defined "(1) as sexual advance or request for sexual favors made by one employee or management to another which is unwelcome and not consented to and (2) touching, joking, commenting or disturbing material of a sexual nature to which an employee has consented and finds offensive." The most common term used for

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gender discrimination is sexual affinity or sexual orientation. Under the Title VII of the Civil Rights Act of 1964, employer cannot fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to his or her compensation, terms, or privileges of employment, because of such individual sex. There are two kinds of gender discrimination: disparate treatment (it is treating an employee in a different manner because of their gender) & disparate impact ( it is an impacts against a particular racial, ethnic or sex group).

Provide the legal definition of "quid pro quo" (also known as "vicarious liability") sexual harassment. Provide one example of a behavior which could be found to be quid pro quo sexual harassment. According to the Equal Employment Opportunity Commission (2012), quid pro quo harassment (vicarious liability) occurs when submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual. Basically, the concept of getting something of value in return for giving something of value. According to Moran (2011), an example of quid pro quo is, Clarence Conklin, a hospital administrator, who approaches a nurse's aides and tells her that he can arrange a different schedule hours for her if she is willing to sleep with him. The hospital is liable for its employee because a benefit was denied to the nurse's aide unless she agree to have sex.

Provide the legal definition of hostile environment sexual harassment. Provide one example of a behavior which could be found to be hostile environment sexual harassment. According to the Equal Employment Opportunity Commission (2012), the legal definition of hostile environment sexual harassment is when an individual is involved in hostile sexual advances, request of sexual favors and can also be verbal and physical conduct of sexual nature

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where it affects the conditions of one's employment and creates an abusive work environment. Anyone in the workplace might commit this type of harassment a management official, coworker, or non-employee, such as a contractor, vendor or guest. An example of a hostile environment sexual harassment is when a co-worker repeatedly making sexual comments, talking about one's own sexual activities in front of others, and sending sexual gestures to another co-worker without any action from management, in which causing the victim to become angry and act out in defense.

List the factors which contribute to a determination of whether behavior is sexual harassment. According to Moran (2011), there are six factors that must be satisfied for sexual harassment to exist: "(1) the victim must be from a protected class, a man or a woman. (2) the complaint must be gender related. (3) the employee must not have consented to sexual advances or participated in hostile work environment. (4) the harassment must be based on sex. (5) the conduct complained must have deleterious effect in the victim's job. (6) the harassment must have occurred during the scope of employment."

Define the standard by which "unreasonable" behavior is determined. According to Moran (2011), "the standard by which sexual harassment will be judged is a reasonable person standard. A reasonable person must believe must believe that the conduct complained of must have substantially interfered with the victim's ability to work or have created an environment that was intimidating and offensive." An employer should exercise

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reasonable care to prevent any sexually harassing behavior so the victim can take advantage of any policy set for sexual harassment by the employer.

Explain what situations are considered "severe or pervasive" and why these terms are important. According to Moran (2011), "the alleged act of sexual harassment must be severe enough to create an abusive work environment and to disrupt the victim's employment." The hostile action must be severe and pervasive so as to interfere with the performance of the employee's work. The incidents of sexual harassment must occur at the workplace and if it has no connection with work, then action against the employer is without merit.

Give the main legal reason why every company should have a valid written policy against sexual harassment (besides the fact it is the "right" thing to do.) The burden of preventing sexual harassment rests on the employer. Employers are required by law to take steps to prevent and deal with harassment in the workplace. If the employer has not taken all reasonable steps to prevent and deal with harassment in the workplace, the employer may be liable for any harassment. Anti-harassment policies explain what harassment is, tell all employees that harassment will not be tolerated, and set out how employers and employees should respond to incidents of harassment. Having an effective policy and procedures, will assist in preventing harassment and support individuals who are being harassed to come forward and ensure that the problem is addressed quickly and effectively; and severe actions will be taken against the perpetrator.

Case Analysis: I have chosen case Meritor Savings bank v. Vinson to discuss here.

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The facts: Michelle Vinson had alleged that her supervisor constantly subjected her to sexual harassment both during and after business hours, on and off the employers premises; she alleged that he forced her to have sexual intercourse with him on numerous occasions, fondled her in front of other employees, followed her into the womens restroom and exposed himself to her, and even raped her on several occasions. She alleged that she submitted for fear of jeopardizing her employment. She testified, however, that this conduct had ceased almost a year before she first complained in any way, by filing a Title VII suit, her EEOC charge was filed later. The supervisor and the employer denied all of her allegations and claimed they were fabricated in response to a work dispute.

The issue: The issues in this case are whether hostile work environment is an actionable form of sexual harassment and whether an employer is absolutely liable for sexual harassment whether it knows about it or not. Does unwelcome sexual behavior that creates a hostile working environment constitute employment discrimination on the basis of sex. And, can a Title VII violation be shown when the district court found that any sexual relationship that existed between the plaintiff and her supervisor was a voluntary one.

The decision: After trial, the district court found the plaintiff was not the victim of sexual harassment and was not required to grant sexual favors as a condition of employment or promotion. The district court found that if a sexual relationship had existed between plaintiff and her supervisor, it was

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a voluntary one and having nothing to do with her continued employment (Meritor Savings
Bank v. Vinson, 1986). The district court went on to hold that the employer was not liable for

its supervisors actions because it had no notice of the alleged sexual harassment; although the employer had a policy against discrimination, the plaintiff had never lodged a complaint. This time, the employer appealed, and the case went to the Supreme Court of the United States. The Supreme Court agreed that the case should be remanded for consideration under the hostile environment theory and held that the proper inquiry focuses on the unwelcomeness of the conduct rather than the voluntariness of the victims participation (Harrison & Gilbert, 1992). But the Court held that the court of appeals was wrong in concluding that employers are always automatically liable for sexual harassment by their supervisory employees. The Court rejected the employers argument that Title VII prohibits o nly discrimination that causes economic injury. Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult whether based on sex, race, religion, or national origin" (Equal Employment Opportunity Commission, 2012).

I {agree or disagree} with the courts decision because I fully agree with the Court's conclusion that workplace sexual harassment is illegal, and violates Title VII. However, part of the Court's opinion leaves open the circumstances in which an employer is responsible under Title VII for such conduct. With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate action. Sexual harassment

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by a supervisor of an employee under his supervision, leading to a discriminatory work environment, should be imputed to the employer for Title VII purposes regardless of whether the employee gave "notice" of the offense.

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Appendix A good sexual harassment policy will include the following sections, and I have also explained why those sections should be included.

To help employees grasp the nature of sexual harassment, companies may want to provide their workers with examples of behavior that they consider inappropriate.

A basic policy should set forth the following: An express commitment to eradicate and prevent sexual harassment. A definition of sexual harassment including both quid pro quo and hostile environment. An explanation of penalties (including termination) the employer will impose for substantiated sexual harassment conduct. A detail outline of the grievance procedure employees should use. Additional resources or contact information available for consultation. An express commitment to keep all sexual harassment complaints and personal actions confidential.

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References Cornell University Law School. (2012). Meritor Savings Bank v. Vinson of 1986. Retrieved on December 8, 2012 from http://www.law.cornell.edu/supct/html/historics/USSC_CR_0477_0057_ZS.html Equal Employment Opportunity Commission. (2012). Sexual Harassment. Retrieved on December 8, 2012 from http://www.eeoc.gov/laws/types/sexual_harassment.cfm Equal Employment Opportunity Commission. (2012). Title VII of the Civil Rights of 1964. Retrieved on December 8, 2012 from http://www.eeoc.gov/laws/statutes/titlevii.cfm Equal Rights Advocates. (2012). Know your rights: Sexual harassment at work. Retrieved on December 8, 2012 from http://www.equalrights.org/publications/kyr/shwork.asp Harrison, M. & Gilbert, S. (1992). Landmark decisions of the United States Supreme Court III. Beverly Hills, CA: Excellent Books. Moran, J. J. 2011. Employment Law for DeVry University, 5th Edition. New Jersey: Prentice Hall.