Why do Managers and Supervisors Need to Know about Sexual Harassment?

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Why do Managers and Supervisors Need to Know
about Sexual Harassment?

• If a manager or supervisor engages in sexual
  harassment, the Commonwealth faces automatic
  liability.
• If a manager or supervisor fails to stop sexual
  harassment, the Commonwealth also faces legal
  trouble.

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Why do Managers and Supervisors Need to Know
about Sexual Harassment?

• The law has made clear that the task of
  preventing and eliminating sexual harassment in
  the workplace, and ultimately protecting an
  employer from liability, falls directly upon
  managers and supervisors.

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Steps Managers andSupervisors MustFollow to
Preventand to ResolveSexual HarassmentComplaint
s in theWorkplace
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Steps Managers and Supervisors Must Take

• Understand what sexual harassment is.
• Refrain from inappropriate behavior at all times.
• Communicate the agencys strong policy against
  sexual harassment.

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Steps Managers and Supervisors Must Take

• Monitor the work environment and require
  employees to conform their behavior.
• Respond appropriately to sexual harassment
  complaints.
• Resort concerns or complaints of sexual
  harassment or other inappropriate conduct.

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Steps Managers and Supervisors Must Take

• Take every complaint seriously.
• Act immediately to stop harassment.
• Ensure that retaliation does not occur.
• Do not let the person who brought the complaint
  walk away frustrated.

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• Report concerns or complaints of sexual
  harassment or other inappropriate conduct to the
  right people. Do not attempt to resolve a sexual
  harassment problem alone.

8

• Respond appropriately to sexual harassment
  complaints. Follow and enforce he agencys
  internal complaint procedure that encourages
  employees to come forward with allegations of
  sexual harassment. Make all complaints as
  confidential as possible, but never agree to keep
  a complaint secret.

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The Key Laws

• Title VII of the Civil Rights Act of 1964.
• The Civil Rights Act of 1991
• 300,000 in compensatory damages
• 250,000 in punitive damages

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What Is Sexual Harassment?
Working Definition
Any Conduct of a sexual nature, explicit or
implicit, that is unwelcome.
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Types of Sexual Harassment
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Quid Pro Quo

• Quid pro quo harassment is unwelcome sexual
  conduct (sexual advances, requests for sexual
  favors, and other verbal or physical conduct of a
  sexual nature) when

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Quid Pro Quo

• Submission to the conduct is made either
  explicitly or implicitly a term or condition of
  employment or
• Submission to or rejection of the conduct is used
  as a basis for employment decisions affecting the
  person.

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ONLY SUPERVISORS OR MEMBERS OF MANAGEMENT WITH
AUTHORITY TO AFFECT AN EMPLOYEES WORKING
CONDITIONS CAN ENGAGE IN QUID PRO QUO.
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Sexually Offensive and hostile Work Environment

• Hostile environment is unwelcome sexual or gender
  based conduct which is sufficiently egregious or
  pervasive that

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Sexually Offensive and Hostile Work Environment

• Has the effect of creating an intimidating,
  hostile, or offensive work environment or
• Has the effect of unreasonably interfering with a
  persons ability to perform his/her job.

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HOSTILE ENVIRONMENT HARASSESSERS CAN BE
MANAGEMENT PERSONNEL, CO-WORKERS, CUSTOMERS OR
OTHER NON-EMPLOYEES.
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Gender Abusive Behavior

• Non-sexual, gender-based conduct can create a
  hostile work environment. Such gender-based
  conduct can take the form of abusive written or
  graphic material sexist slurs, name-calling, etc.

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Sexual Favoritism can be either quid pro quo
and/or hostile
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• The courts have ruled that where employment
  opportunities or benefits are granted because of
  an individual(s) submission to the employers
  sexual advances or requests for sexual favors,
  the employer my be liable for unlawful sex
  discrimination against other persons who were
  qualified for but denied that employment
  opportunity or benefit.

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When is Conduct Unwelcome?

• Sexual harassment involves conduct that is
  unwelcome. If an employee welcomes the conduct in
  question, there is no violation of the law.
  Sexual or gender-based conduct in the workplace
  is unwelcome when

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When Is ConductUnwelcome?

• An employee does not solicit or initiate the
  conduct and
• The employee regards the conduct as undesirable
  and offensive.

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What if an employee waitsbefore complaining?

• Just because an employee does not immediately
  complain about sexual or gender-based conduct
  does not necessarily mean the employee welcomed
  the conduct. Many victims of sexual harassment
  fear retaliation if they complain, which may
  explain a delay in opposing the conduct. If there
  is a time lapse between the offensive conduct and
  a complaint, management must determine if there
  are good reasons why the employee did not come
  forward immediately.

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What if an employeeagrees to supervisoradvances?

• Even if an employee consents to the sexual
  advances of a supervisor, the sexual conduct can
  still be unwelcome. An employee may voluntarily
  participate in unwelcome sexual conduct because
  the employee fears losing his or her job if the
  sexual advances are rejected.

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What Makes a Work Environment Hostile?

• A work environment is considered hostile when
  sexual behavior is severe or pervasive enough to
  alter the victims employment conditions and
  create an abusive work environment.

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Key factors managementshould consider include

• The nature of the conduct (physical, verbal, or
  both)
• The identify of the perpetrator(s) (supervisor,
  coworker, or non-employee)
• Whether the conduct was physically threatening or
  humiliating, or a mere offensive comment
• The frequency, severity and pervasiveness of the
  conduct

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Key factors managementshould consider include

• The context(s) in which the conduct occurred
• Weather the conduct was unwelcome (uninvited by
  and offensive to the victim) and
• Weather the conduct un reasonably interfered with
  an employees work performance.

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Management can properly address all inappropriate
conduct that may lead to a claim of sexual
harassment by asking the following questions.
????
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If the answer to any of these questions is no,
appropriate action should be taken to stop the
behavior.

• Would you want the same thing said or done in
  front of your spouse, sibling, child or parent?
• Would you normally say or do the same thing to a
  mother of your own sex? (for male/female
  harassment)

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If the answer to any of these questions is no,
appropriate action should be taken to stop the
behavior

• Did it need to be said or done at all?
• Did it serve any useful business purpose?
• Would you want to be seen on the six oclock news
  saying or doing it?

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Why Manager-Subordinate Romances Can Be Dangerous

• Sexual play at work can create a hostile
  environment.
• Harassment can follow the break-up of an affair.
• Take all manager-subordinate
• romances seriously.

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Vicarious Liability forHarassment
byManagers/Supervisors
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What is vicarious liability?

• Vicarious liability means that an employer will
  be automatically liable for the wrongdoing of
  others, regardless of fault. If a manager engages
  in sexual harassment and takes an employment
  action against the victim (e.g., the victim is
  fired, demoted, or reassigned), the employer is
  automatically liable for the harassment.

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If a manager or supervisor engages in sexual
harassment, but the victim does not suffer an
employment action, the employer may be able to
escape liability if it can prove that
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Vicarious Liability

• They exercised reasonable care to prevent and
  correct promptly any sexually harassing behavior,
  and
• The victim unreasonably failed to take advantage
  of any preventative or corrective opportunities
  provided by the employer or to avoid harm
  otherwise.

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The employers reasonable care.

• Reasonableness generally requires an employer to
  have an anti-harassment policy with an effective
  complaint procedure that allows an employee to
  bypass his or her supervisor in reporting sexual
  harassment. Also important to the reasonableness
  inquiry is weather managers and supervisors are
  trained in sexual harassment and monitored for
  EEO-compliance.

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The employees reasonable care.

• Unless it would be unreasonable to do so, an
  employee must use the employers complaint
  procedure or otherwise bring sexual harassment to
  the employers attention.

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Liability for failing to Stop Co-Worker and
Non-employee Harassment

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Liability

• Employers can be held responsible for unwelcome
  sexual or gender based conduct by fellow
  employees that creates a hostile work
  environment. The EEOC and courts will ask two
  basic questions when determining whether an
  employer is liable for sexual harassment by
  coworkers

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Liability

• Did the employer know or should it have known
  that harassment was taking place?
• Did the employer take any action or stop the
  harassment?

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Lack of a Harassment Policy

• An employer that does not establish and
  distribute a clear policy against sexual
  harassment and provide a reasonable avenue for
  victims to complain to someone with authority to
  investigate and remedy the problem may be held
  liable for coworker sexual harassment regardless
  of whether it knew of the conduct

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What Can Sexual Harassment Cost the Employer?

• Lost working time and low morale
• Harm to employers reputation
• court orders and damages under Title VII

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Damages under state law

• The biggest potential cost for states comes form
  lawsuits filed by sexual harassment victims under
  state law.

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Assault and battery

• The supervisor approached and touched the
  employee without her permission.
• These stressful encounters have made the employee
  unable to have sex with her husband.

Loss of consortium
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The employee was forced to be in the supervisors
office and could not avoid the unwelcome advances.
False imprisonment
Wrongful discharge

• The actions in not stopping the harassment forced
  the employee to quit her job.

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Invasion of privacy

• The supervisors questions about the employees
  sex life were an unreasonable intrusion into her
  personal life.

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The supervisor continued to ask the employee for
dates when he knew she was not interested and
that the advances upset her.
Intentional infliction of emotional distress
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Office of Equal EmploymentServices