Sexual Harassment

Sexual Harassment Report| HRM 320: Employment Law| Professor Myers-Nelson| Elsa Mendoza| 8/18/2013| | Define sexual harassment as the term is used legally. Sexual Harassment is the advance or request for sexual favors made by one employee to another that is not welcomed or consented to including touching, joking, commenting, or distributing material of a sexual nature that an employee has not consented to and finds offensive (Moran, p. 280). Explain how sexual harassment differs from gender discrimination.

Sex discrimination or gender discrimination constitutes treating someone, an applicant or employee, unfavorably because of that person’s sex (Sex-Based). Sexual harassment is a form of sex discrimination that involves the requests for sexual favors, unwelcome sexual advances, and other verbal and physical harassment of a sexual nature when the conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

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In this case, the victim and the harasser can be either a woman or a man and the victim and harasser can be the same sex (Facts). 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. Quid pro quo sexual harassment or vicarious liability is a situation in which a superior is demanding sexual favors from a subordinate in return for hiring, transferring, promoting, giving a raise, bonuses, lighter workload, etc.

Basically it means giving something in exchange for something else and the action will inflict direct economic harm on the employee (Moran, p. 277). For example, if a manager proposed to his secretary to go out on a date with him and in exchange he promised to give her a raise, this type of behavior would be considered quid pro quo sexual harassment. 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.

Hostile environment sexual harassment is intimidating and offensive sexual conduct perpetrated by a superior or co-worker against an employee. The hostile action must be severe and pervasive so as to interfere with the performance of the employee’s work. This can include touching, joking, commenting, and distributing material of a sexual nature (Moran, p. 278). For example, let’s say that John from accounting is constantly commenting to Amy, the secretary of the accounting department, how nice her breasts are and is constantly asking her out on date and Amy every time answers she is not interested and to please stop making those comments.

Amy decides to report the behavior because it has gotten to be too much for her and feels very uncomfortable in the office. John’s behavior has created a hostile work environment for Amy. List the factors which contribute to a determination of whether behavior is sexual harassment. In order for sexual harassment to exist six conditions must be met. 1. The victimized employee alleging the harassment must be a member of a protected class – man or woman. 2. The complaint must be gender related. 3.

The employee must not have consented to the sexual advances or participated in the hostile work environment. 4. The harassment must be based on sex. 5. The conduct complained of must have had a deleterious effect on the employee’s job. 6. The harassment must have occurred during the scope of employment (Moran, p. 275). Define the standard by which “unreasonable” behavior is determined. The standard by which unreasonable behavior is determined is the reasonable person standard. The reasonable person standard is the standard of behavior expected of a hypothetical “reasonable person” (Miller, p. 01). In other words, a reasonable person must believe that the conduct complained about must have substantially interfered with the harassed person’s ability to work or created an environment which was intimidating and offensive (Moran, p. 277). However, we must remember that what is reasonable will vary depending on the work environment. So what might be acceptable in a warehouse probably will not be acceptable in an office. Explain what situations are considered “severe or pervasive” and why these terms are important.

Severe or pervasive situations are important because these situations can severely alter the conditions of the victims work and it can create an abusive work environment (Miller, p. 657). These situations can sometimes lead to the victim’s resignation because the conduct can sometimes become so oppressive for the victim. Usually comments or jokes made to employees are not considered pervasive or severe unless they are constantly being made. Touching and distribution of material that is sexual in nature can however be severe or pervasive.

The conduct basically has to disturb the victim so much that it will interfere with the employee’s work or even result in his or her resignation. 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. ) Every company should have a valid written policy against sexual harassment and actually follow and implement it in order to not be held liable for sexual harassment if a lawsuit was to be filed against the company.

Companies are vicariously liable for their supervisors’ tangible employment actions that are made in return for sex with an inferior or inferior’s refusal to engage in sex. An affirmative defense can be raised by an employer that exercised reasonable care to guard and address sexual harassing behavior by implementing a procedure to for filing complaints and the victim failed to take advantage of it if there is an absence of a tangible employment action (Moran, p. 277).

A well written policy can help a company to not be held liable for any possible suits that may be brought against it if the company correctly complies with the policy. Case: Beth Ann Faragher vs. City of Boca Raton 524 U. S. 775 (U. S. Supreme Court 1998) A. Beth Ann Faragher worked part time and during summers as a lifeguard for the Marine Safety Section of the Parks and Recreation Department of respondent for the City of Boca Raton, Florida between 1985 and 1990. While working there, Faragher’s supervisors, Terry and Silverman, made lewd remarks and spoke offensively about women.

In 1986, the City adopted a sexual harassment policy which all departments received except the Marine Safety department. Terry repeated touched the female employees without their wanting, and would put his arm around her as well as put his hand on her buttocks. He also made demeaning comments about women and about Faragher’s shape. Silverman once tackled Faragher and stated that if it wasn’t for physical characteristics he found unattractive, he would have had sexual relations with her.

He also made vulgar references about women and sexual actions, commented on the bodies of the female bodyguards and some beachgoers. In addition he told female lifeguards twice that he would like to have sex with them. Faragher never complained to management about Terry or Silverman. However, before Faragher resigned, a former lifeguard, Nancy Ewanchew, wrote to Richard Bender, the City’s Personnel Director, telling him that Terry and Silverman had harassed her and other female lifeguards. After an investigation, the City found that both Terry and Silverman had acted inappropriately and reprimanded them. B.

The issue of the case is whether an employer is vicariously liable for a supervisor’s creation of a hostile work environment where the employer was unaware of the conduct. C. The decision of the District Court was that the conduct of Terry and Silverman was discriminatory harassment sufficient to alter the conditions of Faragher’s employment and create an abusive work environment. However, the Eleventh Circuit of the Court of Appeals reversed the judgment and ruled that Terry and Silverman were not acting within the scope of their employment when they engaged in the harassment. At the end though, the U. S.

Supreme Court ruled that the City of Boca Raton was liable for the sexual harassment committed against Beth Ann Faragher because the city failed to inform the supervisors about the sexual harassment policy and to train them accordingly. D. Ultimately, I agree with the U. S. Supreme Court’s decision that the city was liable for the sexual harassment committed against Faragher because even if the City did not know that the harassment was going on it is their responsibility as employers to supervise and ensure that their management of all departments has all the tools and training they need to successfully perform their duties.

The City failed to inform and train the management of Marine Safety Department and cannot be used as an excuse to be acquitted of the claims. It was a mistake made on the City’s part and it is only fair that they pay for their inability to inform and train all management and be held liable for Terry and Silverman’s actions. Appendix: Sexual Harassment Policy Outline * Define sexual harassment: I think it is important that all employees now what sexual harassment is and by including this section we can inform them of what it is and it will be more difficult for them to deny that they had no clue that they did not know what sexual harassment consisted of. * Describe what actions could be considered as sexual harassment: Sometimes some actions will be more offensive to some while they might be considered nothing to others. By including this section it will make employees more knowledgeable about what actions they could make and be taken the wrong way by some coworkers.

It will be a way of protecting them from making mistakes that could have serious consequences for them. * Describe the workshops and counseling services available: I think it is important to provide employees with extra resources to be better informed and get the help they might need. * Describe the procedure to report harassment actions including who it can be reported to: Every employee should know their right to report any sexual harassment action, to whom they can report it to, and be ensured that there will be no adverse actions taken towards them. Describe how the investigation of the incidents will be handled and what it will consist of and who will handle it: I think it is important for employees to know how their reported claims will be investigated because this way they will be more confident when reporting any actions done towards them. * Describe the consequences if the allegations are found to be true: By informing employees of the consequences that will be taken against them if they commit sexual harassment, this will most likely deter them from committing actions like this.

Resources Miller, R. , Jentz, G. (2012). Business Law Today: Comprehensive. 9th Edition. [VitalSource Bookshelf]. Moran, J. J. (2011). Employment Law for DeVry University, 5th edition. [VitalSource Bookshelf]. U. S. EEOC. (2009). Facts about Sexual Harassment. Retrieved from http://www. eeoc. gov/eeoc/ publications/fs-sex. cfm. U. S. EEOC. (2010). Sex-Based Discrimination. Retrieved from http://www. eeoc. gov/laws /types/sex. cfm.