Sexual Harassment

1. Sexual Harassment A Guide to Prevention and Correction Fall 2009

2. Personal Liability • Effective January 1, 2001, employees at all levels who sexually harass a fellow employee can be sued individually. • If the University concludes that you engaged in sexual harassment, it will not defend you or pay the damages. • If your own insurance does not pay, you could lose your property.

3. UC Policy Definition Sexual harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to or rejection of this conduct explicitly or implicitly affects a person’s employment or education, unreasonably interferes with a person’s work or educational performance, or creates an intimidating, hostile or offensive working or learning environment.

4. UC Policy also provides: • The University will respond to all reports of such conduct, whether or not a complaint is filed. • Retaliation is prohibited. • Supervisors who know of harassment and fail to stop it or report it are subject to discipline. • Harassing and retaliatory conduct are outside the course and scope of employment. • Intentionally false reports may result in discipline. • First Amendment rights are recognized.

5. Necessary Showings • The conduct must be unwelcome, and • Either result in a tangible employment action, (Quid pro quo), or • Be sufficiently severe or pervasive “to alter the conditions of employment and create an abusive working environment.” (Hostile environment)

6. Krell v. The Regents and “Jones”

7. Krell’s testimony • Dr. Jones talked about her appearance “involving cleavage/neckline,” her skirts, and her boots. • Dr. Jones enjoyed her company “as a woman.” • Dr. Jones touched her shoulder, arm, back, and knee and sat too close to her in his office. • When she was unresponsive, Dr. Jones removed her from desirable assignments.

8. Jury Instructions “You must follow the law exactly as I give it to you, even if you disagree with it.”

9. The elements of the claim • Dr. Krell claims that UCLA and Dr. Jones subjected her to harassment based on her gender, causing a hostile or abusive work environment. To establish this claim, Dr. Krell must prove all of the following: • That Dr. Krell was subjected to unwanted harassing conduct because she is female; • That the harassing conduct was severe or pervasive; • That a reasonable woman in Dr. Krell’s circumstances would have considered the work environment to be hostile or abusive; • That Dr. Krell considered the work environment to be hostile or abusive; • That Dr. Jones engaged in the harassing conduct; • That Dr. Krell was harmed; and • That the conduct was a substantial factor in causing Dr. Krell harm.

10. Harassing conduct may include any of the following: • Verbal harassment, such as obscene language, demeaning comments, slurs, threats or other comments of a sexual nature; • Physical harassment, such as unwanted touching, assault, or physical interference with normal work or movement; or • Visual harassment, such as leering in a sexual way or staring in a sexual way; or • Unwanted sexual advances.

11. “Severe or pervasive” means conduct that alters the conditions of employment and creates a hostile or abusive work environment. In determining whether the conduct was severe or pervasive, you should consider all the circumstances. You may consider any or all of the following:

12. The nature of the conduct; • How often, and over what period of time, the conduct occurred; • The circumstances under which the conduct occurred; • Whether the conduct was physically threatening or humiliating; • The extent to which the conduct unreasonably interfered with an employee’s work performance.

13. Social Context Determining whether a reasonable person would consider behavior to be severe requires “careful consideration of the social context in which the particular behavior occurs and is experienced by its target.” “The real social impact of workplace behavior often depends on a constellation of surrounding circumstance, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Oncale v. Sundowner Offshore Services

14. Example • Is a football player’s environment severely or pervasively abusive if the coach smacks him on the buttocks as he heads onto the field? • Would the same behavior reasonably be experienced as abusive by the coach’s secretary back at the office?

15. The influence of context • Testimony reflected that doctors joked about one another’s appearance in meetings, including the frayed cuffs and unfashionable ties of male doctors. It was at one of these meetings that Dr. Jones allegedly joked about Dr. Krell’s boots. • Testimony reflected that Dr. Krell, who was quite young, wore relatively revealing clothing compared to the other doctors and that Dr. Jones in private suggested that she may want to dress more professionally by forgoing short skirts and lower cut tops.

16. Contested context • Dr. Jones denied ever enjoying Krell’s company “as a woman.” • He denied touching her sexually or in any way out of the ordinary. He denied invading her space. • What is a supervisor’s obligation when facing a contested context? • What is UCLA’s obligation?

17. How was Krell harmed? • She asked the jury to award $6.3 million in lost front and back pay. • She asked for $1 million in emotional distress damages. • She asked for punitive damages against Dr. Jones.

18. Quid Pro QuoTo establish this claim Dr. Krell must prove: • That Dr. Jones made unwanted sexual advances to Dr. Krell or engaged in other unwanted verbal or physical conduct of a sexual nature; • That job benefits were conditioned, by words or conduct, on Dr. Krell’s acceptance or rejection of Dr. Jones’s sexual advances or conduct or • That employment decisions affecting Dr. Krell were made based on her acceptance or rejection of Dr. Jones’s sexual advances or conduct; • That Dr. Jones. . .was a supervisor.

19. Dr. Krell claimed that she reported Dr. Jones’s conduct to others. Does it matter?

20. When a supervisor harasses • The employer is strictly liable for sexual harassment by a supervisor. • However, damages do not include those that the plaintiff could have avoided with reasonable effort and without undue risk, expense, or humiliation. Department of Health Services v. Superior Court

21. Krell claimed that she told others: • Another junior faculty member who coordinated the schedule for the clinic; • A more senior faculty member whom she had met in Europe while they both were on leave volunteering with a charity organization; • Her research mentor; • The administrative assistant to the Department Chair; • The Title IX and Sexual Harassment Officer; • Her subsequent supervisor as well as Dr. Jones’s supervisor.

22. UCLA has the burden of proving: • That UCLA took reasonable steps to prevent and correct workplace harassment; • That Dr. Krell unreasonably failed to use UCLA’s harassment complaint procedures; and • That the reasonable use of UCLA’s procedure would have prevented some or all of Dr. Krell’s harm.

23. You have heard testimony about UCLA’s Sexual Harassment Policies and Procedures. As you know, you must follow the California law as I instruct you. A departure by UCLA from its Sexual Harassment Policies and Procedures does not necessarily meant that UCLA violated California law. If you find that UCLA departed from its Sexual Harassment Policies and Procedures, that is a factor you may consider in deciding whether there was a violation of the law.

24. Some questions put to supervisors at trial: • Where in your office do you keep the UCLA Sexual Harassment Policy? • Did you refer to it in deciding what to do? • What is your responsibility under the Policy? • What did you do to protect Dr. Krell? • Why didn’t you tell anyone about what Dr. Jones had done? • You did not follow the Policy, did you?

25. The Risks of Romance Can I date a fellow Bruin?

26. It’s a bad idea • No UCLA rule or policy forbids dating a fellow Bruin except that faculty may not date a current or likely future student. • Consensual relationships between a supervisor and a subordinate or between a student and a faculty member are suspect given the power difference. • Claims of harassment may also be made by other employees who believe they are treated unfairly because of the relationship. • What if the relationship sours?

27. Date at your own risk • If you date and your former love object alleges that the whole thing was sexual harassment, you are on your own. • The University will not defend you, so check your homeowner’s policy. • You might lose more than money, like your spouse and family. • Your job could also be at stake because, while dating is not against the rules, harassment is.

28. A Defense

29. Supervisors Must Take “Reasonable Care” The Supreme Court has given employers a defense in some hostile environment cases. To take advantage of the defense an employer must show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” Faragher v. City of Boca Raton

30. What Is “Reasonable Care?” • YOU MUST DO SOMETHING WHEN YOU LEARN ABOUT HARASSMENT: The Supreme Court denied the defense to the employer where the victim of harassment actually told a supervisor, Gordon, about the harassing conduct and he had done nothing. Gordon felt it was not his place to report the conduct, in part because he was not the victim’s supervisor. • YOU HAVE TO PAY ATTENTION: The Supreme Court also noted that the employer had “made no attempt to keep track of the conduct of supervisors.”

31. Report all inappropriate conduct • The University can be held to know what you know. • Your failure to report will be judged using 20-20 hindsight. • When in doubt, shout.

32. The Dissatisfied Pharmaceutical Sales Representative

33. Bernadine Casenas did very well. • She “earned many bonuses and much praise.” • The previous year she received a “highly commendable” rating and an 8% merit increase. • Then next year, she received the same rating with a 7% increase and was promoted to senior sales representative.

34. “Casenas was, however, unhappy.” • She sent a memo to her personnel manager listing accomplishments that had been overlooked and objecting to the “choice of words in minor criticisms.” • She complained that her salary increase, at 1% less than the previous increase, implied inferior performance. • In response, her language fixes were accepted but the raise was not changed. • She did not say anything about sexual harassment.

35. Casenas responded with a written complaint alleging: • Jeff Brown, her district manager told her to buy a pair of shorts and wear them during a business trip in Palm Springs. • The same day, he “grabbed and held” her hand and pulled her toward him. • He “frequently brought up the topic of penile implants and the ways in which they are implanted” (The employer sells antibiotics used in conjunction with penile implants.) • He requested her to tape X-rated movies she and her husband had available on their satellite system. • He asked her whether “she got aroused watching X-rated movies.”

36. What should you do first? • A. Meet with Brown to get his side of the events? • B. Contact Casenas to find out why she did not mention this earlier. • C. Reassign Casenas until you get to the bottom of things. • D. None of the above.

37. The investigation • Brown and all of the PSRs who reported to him were interviewed as was a former PSR who had recently resigned. • Brown persistently made offensive statements about penile implants that were not necessary to sales promotion. • He discussed X-rated movies and sexual arousal with Casenas and others. • His humor was “sexually oriented” and offensive. • He did not make overt sexual advances. • Brown acknowledged telling Casenas to wear shorts because it was hot in Palm Springs. He took her hand to keep her from losing her balance. • Casenas’ appraisal was reviewed again • Casenas had achieved 105% of her sales goal for the year ranking her in the 55th to 60th percentile among PSRs. Her territory ranked 60 out of 131 and her district finished 13th out of 14 districts nationally. • Brown recommended Casenas and one other PSR for a 7% raise, the very top of his recommendations.

38. What actions should be taken once a violation is found? • Ensure that Brown has completed training. • Instruct Brown not to contact Casenas. • Ensure that Brown does not supervise Casenas. • Write a letter of reprimand. • Ensure that Brown does not supervise anyone. • Discharge Brown.

39. What actions should be taken with respect to Casenas? • Thank her for coming forward. • Tell her that Brown has been instructed not to contact her. • Tell her that Brown has been reprimanded. • Ensure that she would never have to see him again. • Give her a 1% raise. • Give her a promotion.

40. A few more issues • Casenas did not want to attend a training program in LA because Brown would be there. • She remained unhappy because Brown received “only a letter and nothing more,” but she refused to meet with HR and her management to talk about her concerns, preferring to communicate only in writing. • She was afraid of retaliation, stating: “It is obvious that I will never be made a manager and that my career is essentially over.”

41. Resources • Sexual Harassment Officer • Pamela Thomason, x63417 • Department Management • Staff and Faculty Counseling Center, x40245 • www.sexualharassment.ucla.edu

42. A staff member? A student? A faculty member? Staff Affirmative Action, x50751 or relevant HR Office Dean of Students Office, x53871 Sexual Harassment and Title IX Officer, x63417 Who is the alleged harasser?

43. Why Not Handle It Yourself? • Most managers and supervisors see harassment claims only rarely and so have little experience. • If you talk to the alleged discriminator you can make matters worse, triggering retaliation, or giving him a chance to “get his story straight.” • You might not learn of other facts that should influence your decision making.

44. Take disciplinary action • If you learn of conduct that constitutes sexual harassment, you must take disciplinary action. • Once it is severe or pervasive enough to constitute discrimination, it is not enough that the conduct stops. • At minimum, the harasser must be advised in strong terms that the conduct is wrong and that further discipline will be imposed if it is repeated. • In many circumstances, much stronger action must be taken.

45. Follow Up • The victim may have useful suggestions. • You may end up preventing further harassment. • If it turns out that the remedy was inadequate, you might learn about it before the complaint turns into a lawsuit. • You might prevent a constructive discharge. • You might deter others from engaging in harassment. • You communicate a seriousness of purpose.