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Employment Law (Mgmt 445)

Employment Law (Mgmt 445). Sexual Harassment (Chapter 8); Affinity Orientation Discrimination (Chapter 9, pages 492-94 only) Professor Charles H. Smith Spring 2011. Introduction.

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Employment Law (Mgmt 445)

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  1. Employment Law (Mgmt 445)

    Sexual Harassment (Chapter 8); Affinity Orientation Discrimination (Chapter 9, pages 492-94 only) Professor Charles H. Smith Spring 2011
  2. Introduction Review and discuss in small groups the examples set forth on pages 399-400 and 402-03 as well as Exhibit 8.1 (page 401). To quote the authors on page 403: “Can you think of a good reason an employer would watch millions of hard-earned dollars go out of business’s coffers for such unnecessary, avoidable, and totally useless actions?” Please note that you cannot get insurance coverage for sexual harassment since it is “willful” conduct (Coit Drapery Cleaners v. Sequoia Ins. Co., 14 Cal.App.4th 1595 (1993)).
  3. Quid Pro Quo Sexual Harassment The employer (perpetrator) demands that the employee (victim) provide something of a sexual nature in exchange for a job-related benefit. In other words, the employer makes something of a sexual nature (instead of merit, seniority, etc.) a condition of getting a job-related benefit. Can be based on one incident though can also be based on a series of events.
  4. Quid Pro Quo Sexual Harassment cont. Examples of “something of a sexual nature” can include a sex act, date, disrobing, etc. Examples of “job-related benefit” can include getting or keeping the job, getting a promotion, preference in granting requested assignments, vacation time or work conditions, etc.
  5. Quid Pro Quo Sexual Harassment cont. Case studies Burlington Industries, Inc. v. Ellerth (pages 435-36). Bryson v. Chicago State University (pages 440-42).
  6. Hostile Environment Sexual Harassment The employer (perpetrater) creates a sexually abusive, offensive or intimidating environment for the employee (victim). The hostile environment, in order to be actionable, is ordinarily based on a series of events as opposed to one incident.
  7. Hostile Environment Sexual Harassment cont. Examples of what is a hostile environment include Display of pornographic pictures at the workplace. Repeated comments, jokes and/or touching of a sexual nature. Sexual favoritism – disparate treatment of an employee based on sex (Miller case in Exhibit 8.8 (page 414)).
  8. Hostile Environment Sexual Harassment cont. Examples of what is not a hostile environment include Screenwriters’ sexually-themed “brainstorming” sessions before which employee warned (“Friends” case). Isolated comments, jokes and/or touching of a sexual nature (Chapter-End Questions 3, 5, 6 and 7).
  9. Hostile Environment Sexual Harassment cont. Case studies Meritor Savings Bank, FSB v. Vinson (pages 442-43). Ross v. Double Diamond, Inc. (pages 445-46). Ellison v. Brady (pages 446-48). Andrews v. City of Philadelphia (pages 449-50).
  10. “Unwelcome” Conduct Element of Sexual Harassment In order for a sexual harassment case to prevail, the employee must show that the employer’s conduct was “unwelcome” since consensual (“welcome”) conduct cannot be the basis for a sexual harassment case.
  11. “Unwelcome” Conduct Element of Sexual Harassment cont. Whether conduct is “unwelcome” can be hard to prove - what if the employee does not object or actually participates in or approve of subject conduct, such as Employee’s participation in sexually-themed conversations. “Consenting adults” defense. Provocative clothing = consent? Case study – McLean v. Satellite Technology Services, Inc. (pages 443-44).
  12. Employer’s Liability for Another’s Sexual Harassment In this PowerPoint presentation, generic reference has been made to “employer” as the perpetrator of sexual harassment. However, the employer may not be the perpetrator (or may not even be a person such as a corporation). What should be the employer’s liability for sexual harassment committed by a supervisor, co-worker, vendor or customer?
  13. Employer’s Liability for Another’s Sexual Harassment cont. One way for an employer to avoid or limit sexual harassment liability is to publish a detailed policy reflecting the law. Example – Exhibit 8.6 (pages 409-13).
  14. Employer’s Liability for Another’s Sexual Harassment cont. Case studies Blakey v. Continental Airlines, Inc. (pages 450-51). Faragher v. City of Boca Raton (pages 451-52). Pennsylvania State Police v. Suders (pages 454-55). Robinson v. Jacksonville Shipyards, Inc. (pages 456-57).
  15. Nontraditional Forms of Sexual Harassment Traditionally, the scenario of a sexual harassment case was a male employer harassing a female employee. However, the courts have made it clear that sexual harassment can also be a woman harassing a man and same-sex harassment.
  16. Nontraditional Forms of Sexual Harassment cont. What obstacles (legal or otherwise) could an employee face while attempting to prove sexual harassment in these nontraditional forms? Case study - Oncale v. Sundowner Offshore Services, Inc. (pages 492-94).
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