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Welcome!

Please use the QR code below to register for today’s presentation.

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Please text or visit the link:

In order to fully participate in today's presentation.

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Anti-Harassment Training (Sexual and Non-Sexual)

Dr. Latoya Hicks and Ms. Desiree Penaloza

The foregoing information is not intended to provide specific legal advice for any specific situation. Legal advice can be provided only in the course of an attorney-client relationship with reference to all the facts of a specific situation. The information, therefore, must not be relied on as a substitute for obtaining legal advice as it’s sole intent is for educational purposes and general information.

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True or False

HR doesn’t need to investigate if an employee complains that a co-worker texted offensive photos to their personal device outside of work hours.

Answer A for True or B for False

FALSE!

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True or False

If an employee repeatedly makes sexual jokes near their cubicle, and no one involved in the conversation complains, the company bears no responsibility.

Answer A for True or B for False

FALSE!

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True or False

HR may need to tell an individual if his or her physical gestures, such as tight hugging and shoulder massages, are making others uncomfortable.

Answer A for True or B for False

TRUE!

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True or False

If an employee willingly extended a friend request to his or her supervisor or co-worker on social media and becomes uncomfortable with the other person becoming too familiar, the worker shouldn’t report it to HR.

Answer A for True or B for False

FALSE!

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Training Learning and Objectives

Case Laws & Prohibited Federal Laws
Civil Rights, Anti-Harassment, Bullying, & Sexual Misconduct Policies
Harassment Types, Variations, & Bullying
Maryland’s Peace Order – Workplace Violence
Statistics, Sex Discrimination, & Sexual Harassment
Tangible Employment Actions & Non-Sexual Forms
Prevention & Employee Responsibilities
Mandatory Reporter, Retaliation & Reprisal
Reporting Avenues
Supervisor Responsibilities & Vicarious Liability
Employer Liability & Affirmative Defense

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Meritor Savings Bank v. Vinson (1986)

A female bank employee was allegedly subjected to sexual harassment by her male supervisor, including (1) public fondling, and (2) sexual demands, to which she allegedly submitted out of fear that she would otherwise lose her job.
Is this harassment?

YES!

Discrimination based on sex has created a hostile or abusive work environment without showing an economic effect on the plaintiff's employment.

*First recognition that hostile environment (non-sexual harassment) is actionable under Title VII.

A female bank employee was allegedly subjected to sexual harassment by her male supervisor, including (1) public fondling, and (2) sexual demands, to which she allegedly submitted out of fear that she would otherwise lose her job.

The supervisor denied that he had had any sexual relationship with the employee.

The district court rendered judgment in favor of the supervisor and the bank without resolving that factual issue, holding (1) that the employee had not made out a case of sexual discrimination because any relationship that might have existed had been voluntary and had never been made a condition of the employee's continued employment or advancement, and (2) that the bank could not be held liable for the supervisor's alleged actions because it had not received any notice about his supposed offensive conduct.

It was held that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment, without showing an economic effect on the plaintiff's employment.

The fact that sex-related conduct is "voluntary," in the sense that a plaintiff was not forced to participate against her will, is not a defense to a sexual harassment suit under Title VII, as the correct inquiry in such cases is whether the plaintiff had indicated by her conduct that the alleged sexual advances were unwelcome.

Lastly, the court held that employers are not always automatically liable for sexual harassment of employees by their supervisors.

If the attentions of respondent's supervisor were unwelcome, then respondent had a claim for sexual harassment on the basis of a hostile work environment, even if any sexual acts were voluntary.

Petitioner would be liable for the acts of its employee, if it could be found liable under general agency principles.

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Burlington Industries, Inc v. Ellerth (1998)

After working for Burlington Industries for 15 months, Kimberly B. Ellerth quit because she allegedly suffered sexual harassment by her supervisor.
She did not suffer any tangible retaliation and was promoted once.
Is this harassment?

YES!

The Court held that the employer was vicariously liable for any actionable hostile work environment created by the supervisor, who had authority over the employee, if it knew or should have known about the conduct and failed to stop it.

After working for Burlington Industries for 15 months, Kimberly B. Ellerth quit because she allegedly suffered sexual harassment by her supervisor - Ted Slowik. Despite her refusals of Slowik's advances Ellerth did not suffer any tangible retaliation and was, in fact, promoted once. Moreover, while she remained silent about Slowik's conduct despite her knowledge of Burlington's policy against sexual harassment, Ellerth challenged Burlington claiming that the company forced her constructive discharge.

The Court held that the employer was vicariously liable for any actionable hostile work environment created by the supervisor, who had authority over the employee, if it knew or should have known about the conduct and failed to stop it. Because the supervisor took no tangible adverse employment action against the employee, the employer could raise an affirmative defense to liability or damages by asserting that it took reasonable care to prevent sexually harassing behavior and that the employee failed to take advantage of corrective opportunities provided by the employer.

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Faragher v. City of Boca Raton (1998)

Supervisors created a "sexually hostile atmosphere" at the beach by repeatedly subjecting Faragher and other female lifeguards to "uninvited and offensive touching," by making lewd remarks, and by speaking of women in offensive terms…"Date me or clean the toilets for a year.”
Is this harassment?

YES!

An employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of the plaintiff victim.

Beth Ann Faragher worked part time and during the summers as an ocean lifeguard for the Marine Safety Section of the Parks and Recreation Department of respondent, the City of Boca Raton, Florida.

Supervisors created a "sexually hostile atmosphere" at the beach by repeatedly subjecting Faragher and other female lifeguards to "uninvited and offensive touching," by making lewd remarks, and by speaking of women in offensive terms.

The complaint contained specific allegations that Terry once said that he would never promote a woman to the rank of lieutenant, and that Silverma had said to Faragher, "Date me or clean the toilets for a year."

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.

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Oncale v. Sundowner Offshore Services (1998)

Petitioner Oncale, employed as a roustabout on an eight-man oil platform crew, alleged that on several occasions, he had been forcibly subjected to humiliating sex-related actions against him by some male coworkers in the presence of the rest of the crew.
Is this harassment?

YES!

The Court held that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII.

Petitioner Oncale, employed as a roustabout on an eight-man oil platform crew, alleged that on several occasions, he had been forcibly subjected to humiliating sex-related actions against him by some male coworkers in the presence of the rest of the crew.
He further alleged that a male co-worker had physically assaulted him in a sexual manner and had threatened him with rape and after his complaints to supervisory personnel had produced no remedial action, he had quit his job in the belief that otherwise he would have been raped or forced to have sex.
Oncale filed a complaint against his former employer, respondent Sundowner Offshore Services, Inc., claiming that sexual harassment directed against him by respondent co-workers in their workplace constituted discrimination because of sex prohibited by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1)
This case presents the question whether workplace harassment can violate Title VII’s prohibition against “discrimination because of sex,” 42 U.S.C. § 2000e-2(a)(1), when the harasser and the harassed employee are of the same sex.
The Court held that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The Court averred that Title VII's prohibition of discrimination - because of sex - protects men as well as women. The Court posited that nothing in Title VII necessarily barred a claim of discrimination because of sex, merely because the plaintiff and the defendant, or the person charged with acting on behalf of the defendant, were of the same sex. The Court further held that harassing conduct need not be motivated by sexual desire to support an inference of employment discrimination on the basis of sex in violation of Title VII.

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Bostock v. Clayton County (2020)

In each of three cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender.
Is this harassment?

YES!

Discrimination against a person for being homosexual or transgender without discriminating against that individual based on sex.

In each of three cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender.

Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league.

Altitude Express fired Donald Zarda days after he mentioned being gay.

R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.”

Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964.

The Court of Appeals for the Eleventh Circuit held that Title VII did not prohibit employers from firing employees for being gay, and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed. The United States Supreme Court granted the petitions for certiorari to review the split in the Circuit Courts.

The United States States Court held that employers each violated Title VII of the Civil Rights Act of 1964 when they fired a long-time employee shortly after the employee revealed that he or she was homosexual or transgender because it was impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.

According to the Court, it made no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group.

A statutory violation would occur if an employer intentionally relied in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status required an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalized an employee for being homosexual or transgender also violated Title VII.

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Trivia

What is the one of the first federal anti-discrimination laws that addressed wage differences based on gender?

Equal Pay Act of 1963

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Federal Laws That Prohibit and Provide Protection Against Harassment

Title VII of the Civil Rights Act of 1964
The Americans Disability Act of 1990
The Equal Pay Act of 1963
The Civil Rights Act of 1991
Genetic Information Nondiscrimination Act (GINA)
The Immigration Reform and Control Act
The Age Discrimination in Employment Act
Uniformed Services Employment and Reemployment Rights Act

Title VII of the Civil Rights Act of 1964 covers all private employers, state and local governments, and educational institutions that employ 15 or more individuals. It prohibits intentional discrimination and practices because of a person’s race, color, religion, sex (including sexual orientation and gender identity or expression), pregnancy or national origin.
The ADA as amended protects individuals with disabilities and those regarded as having disabilities.
The Equal Pay Act of 1963 protects men and women who perform substantially equal work in the same establishment from sex-based discrimination.
The Civil Rights Act of 1991 To amend the Civil Rights Act of 1964 to strengthen and improve Federal civil rights laws, to provide for damages in cases of intentional employment discrimination, to clarify provisions regarding disparate impact actions, and for other purposes.
Genetic Information Nondiscrimination Act (GINA) prohibits employers from discriminating against employees in hiring, firing or any other terms and conditions of employment based on a worker’s genetic information
The Immigration Reform and Control Act establishes penalties for employers that knowingly hire undocumented individuals, and it prohibits employment discrimination on the basis of national origin or citizenship.
The ADEA protects individuals who are ages 40 and older.
USERRA prohibits employers from discriminating against employees or applicants for employment on the basis of their military status or military obligations

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Title VII of the Civil Rights Act of 1964

CODE OF FEDERAL REGULATIONS

7 CFR, Subpart A § 15.3, (c) Title VII (employment)

�“Where a primary objective of the Federal financial assistance is to provide employment then the recipients employment practices are subjected… on the grounds of race, color, or national origin to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program or activity… the provisions shall apply to the employment practices of the recipient or other persons…. ”

Prohibits employment discrimination based on race, color, religion, sex, or national origin.

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Maryland State Government Article, Title 20

State Government Article §20-601, Annotated Code of Maryland –

Authorizes the Maryland Commission on Civil Rights to investigate complaints of alleged unlawful harassment, including sexual harassment, so long as the employer has at least 1 employee.

Includes “an individual working as independent contractor for an employer” SGA, §20-601(c)(2)(ii)

Harassment includes harassment based on race, color, religion, ancestry, or national origin, sex, age, marital status, sexual orientation, gender identity, or disability, and retains its judicially determined meaning, except to the extent it is expressly or impliedly changed in this subtitle. §20-601(h)

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Title IX of the Education Amendments of 1972

Prohibits sex (including pregnancy, sexual orientation, and gender identity) discrimination in any education program or activity receiving federal financial assistance.

CODE OF FEDERAL REGULATIONS

7 CFR Subpart D - Discrimination on the Basis of Sex in Education Programs or Activities Prohibited

“ No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

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USDA Civil Rights Policy

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USDA Anti-Harassment Policy Statement

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UMD Non-Discrimination Policy and Procedures

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AGNR’s Equal Employment Opportunity and Program Access Policy

AGNR as a recipient of Federal financial assistance, will take every effort to ensure program participants, beneficiaries and recipients without regards to their race, color, national origin, age and disability statuses.

Such actions shall include an individual’s employment status, but not limited to, promotion, demotion, transfers, terminations and or layoffs, recruitment and its advertisement, training selection, pay and other forms of compensation.

The overarching goal of the AGNR College Action Plan is not to develop new content regarding sexual misconduct prevention, but to reinforce the messaging by the University regarding sexual assault prevention. As members of the campus community, it is hoped that all AGNR faculty, staff and students will be exposed in multiple ways to information about sexual misconduct prevention, University resources for reporting and addressing sexual assault and will be required to complete online compliance driven training administered by the Office of Civil Rights and Sexual Misconduct (OCRSM). Realistically, however, messaging from the University does not always suffice to inform individuals of their rights, responsibilities and campus resources. Because of the seriousness of this issue, this plan outlines the methods that we will use to promote and strengthen the University’s messaging regarding sexual assault prevention. By doing so, AGNR will disseminate existing information as well as encourage participation in activities that foster a culture that is not tolerant of any form of sexual misconduct. The strategies that comprise our AGNR College Action plan are described in more detail below and are complementary to what is offered or required by the University at large. Ultimately, in addition to simply being more informed, we want our AGNR faculty, staff and students to become leaders on sexual assault and misconduct prevention among their peers.

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1. Questions

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What is Workplace Harassment?

Harassment refers to behavior which is personally offensive, impairs morale and interferes with the work effectiveness of employees.

Abuse of power over another.

“An employer can be held liable even if there was no knowledge of the harassing behavior.”

Harassment refers to behavior which is personally offensive, impairs morale and interferes with the work effectiveness of employees
Harassment is usually an issue of one person’s abuse of power over another
In 1998, the Supreme Court ruled that “An employer can be held liable even if there was no knowledge of the harassing behavior”

In May, McDonald's was hit with 23 new gender-based discrimination and sexual harassment complaints. Complaints included allegations of inappropriate touching, indecent exposure, lewd comments and requests for sex, as well as retaliation for reporting such conduct. The incidents are alleged to have occurred at corporate and franchise stores in 20 cities, according to NPR. It was the third time in three years that the fast-food franchise faced allegations "of rampant sexual harassment of female employees by male co-workers and managers.”

An Employer/Supervisor is required to provide a safe and hostile-free work environment in compliance with applicable law

Harassment is a form of discrimination related to one or more legally protected personal characteristics of an employee

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Examples of Prohibited Types of Harassment/ Discrimination

Age
National Origin/Ancestry
Disability
Sexual
Gender & Gender Stereotyping
Race/Color

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Variations of Harassment

Sexual Harassment may occur in and under a variety of circumstances:

Peer to Peer harassment
Subordinate harassment of a supervisor
Men can be sexually harassed
Same sex harassment
Third party harassment
Offenders can be: Supervisors, co-workers, vendors, and/or customers

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Workplace Bullying

What does it look like? Is it harassment?

Bullying may be direct or indirect
Social Media: Using social media (i.e., Facebook) to bully others at work (even if not written on workplace property) is considered bullying!

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Some Signs of Bullying:

Being left out from work-related social events
Being given the “silent treatment”
Not being given the praise you thought you deserved
Being treated rudely or disrespectfully
Others responding slowly to requests that were important to you
Being yelled or shouted at

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USM VII-8.05 – Policy on Professional Conduct and Workplace Bullying

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Maryland’s Peace Order – Workplace Violence

Protects against violence or the threat of violence against workers.

It can occur in or outside the workplace and can range from threats and verbal abuse to physical assaults and homicide – one of the leading causes of job-related deaths.

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EEOC Maryland Statistic - 2021 EEOC Charge Receipts

The number for total charges reflects the number of individual charge filings. Because individuals often file charges claiming multiple types of discrimination, the number of total charges for any given fiscal year will be less than the total of the ten types of discrimination listed. https://www.eeoc.gov/statistics/enforcement/charges-by-state/MD

In 2021, 1819 total charges relating to harassment were filed.

Further researchers found that:

Most employers react punitively toward people who file formal sexual harassment charges
68% of sexual harassment charges include an allegation of employer retaliation, this rate is highest for black women
64% of sexual harassment charges are associated with job loss, and this rate is highest for white women and white men

https://www.umass.edu/employmentequity/employers-responses-sexual-harassment

The Center for Equal Employment Equity at the University of Massachusetts, Amherst has found that about 5 million employees are sexually harassed at work every year and that the overwhelming majority (99.8%) of people who experiences sexual harassment at work never file formal charges. Additionally, of those who file formal charges, very few – the study estimates less than 1,500 per year – go to court.

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2. Questions

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What is Consent?

Consent is knowing, voluntary and clear permission by word or action, to engage in mutually agreed upon sexual activity.
Consent can be withdrawn at any time during a sexual activity by expressed word or action.
Consent to some activity cannot be presumed consent to other activity.

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What is Sex Discrimination?

Sexual misconduct: sexual violence, rape, domestic and dating violence, stalking, sexual intimidation, sexual exploitation, sexual harassment, etc.

Sex discrimination: not of sexual nature but sex based, i.e., pregnancy, hiring and promotion, etc.

Sexual orientation.

Gender identity and expression.

Other forms of conduct such as but not limited to verbal, written, electronic, physical of a sexual nature which can affect an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile or offensive work environment.

The EEOC says sexual harassment can occur in a variety of circumstances, including the following:

The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.

The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker or a nonemployee.

The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

Unlawful sexual harassment may occur without economic injury to or discharge of the victim.

The harasser's conduct must be unwelcome.

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What is Sexual Harassment?

Unwelcome, sexual or gender-based verbal, written or physical conduct.

Effectively denying a person equal access to education, social and/or residential programs of the College or reasonably interferes with, denies or limits employment opportunities.

Other forms of conduct such as but not limited to verbal, written, electronic, physical of a sexual nature which can affect an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile or offensive work environment.

The EEOC says sexual harassment can occur in a variety of circumstances, including the following:

The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.

The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker or a nonemployee.

The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

Unlawful sexual harassment may occur without economic injury to or discharge of the victim.

The harasser's conduct must be unwelcome.

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Forms of Sexual Harassment

Quid Pro Quo Harassment

Submission is made explicitly or implicitly a term or condition of employment.

(Tangible Employment Action)

“This for That”

Submission or rejection of conduct used as a basis for employment decisions affecting the employee.
Example – A supervisor requesting sexual favors as a condition for hiring, promotion, advancement, or opportunities.

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Harassment Resulting in a Tangible Employment Action (TEA)

A management official’s harassment that results a significant change in an individual’s employment status (e.g., hiring, firing, promotion, failure to promote, demotion, undesirable reassignment).

Only management officials or other individuals designated to perform supervisory functions (e. g., scheduling, approving vacation, evaluating performance) can commit this type of harassment.

An organization is automatically liable for this type of harassment regardless of whether upper management had knowledge of it.

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Tangible Employment Actions

A significant change in the employment status.
Examples include hiring, firing, promotion, demotion, undesirable reassignment, a decisions causing a significant change in benefits, compensation decisions, and work assignment.
Tangible Employment Action can only be caused by a supervisor or other person acting with authority of the Employer.
An employer is always liable for harassment by a supervisor that culminates in Tangible Employment Action.

Remember that individual liability can also exist!

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Forms of Sexual Harassment

Hostile Work Environment:

Speech or conduct that is severe and/or pervasive enough to create an abusive or hostile work environment.
In addition to speech and/or conduct, covers explicit or suggestive items that are e-mailed, texted, electronically provided or displayed in the workplace that interfere with job performance or that create an abusive or hostile work environment.

Example: Employee C is whistling at and intentionally touching themselves in a sexual nature when Employee D passes by.

Hostile work environment harassment arises when speech or conduct is so severe and pervasive it that creates an intimidating or demeaning environment or situation that negatively affects a person's job performance. Unlike quid pro quo harassment, this type of harassment can be perpetrated by anyone in the work environment, including a peer, supervisor, subordinate, vendor, customer or contractor. Hostile work environment situations are not as easy to recognize, given that an individual comment or occurrence may not be severe, demeaning behavior may occur that is not based on sex, and there may be long periods between offensive incidents. Examples of conduct that might create a hostile work environment include inappropriate touching, sexual jokes or comments, repeated requests for dates and a work environment where offensive pictures are displayed.

In addition to speech and/or conduct, hostile work environment covers explicit or suggestive items that are e-mailed, texted, electronically provided or displayed in the workplace that interfere with job performance or that create an abusive or hostile work environment.

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Common Forms of Sexual Harassment

Verbal
Non-Verbal
Physical
Environmental

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Who Can Commit Sexual Harassment?

Employees at all levels

A Management Official
A Co-Worker

Customers, vendors and non-employees
Members of the same or opposite sex.

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Importance to Prevention

Engaging in, condoning or not reporting sexual harassment is in direct conflict with our values.
Ensure that employees know about and have access to confidential reporting channels through they can report cases of sexual harassment.
Employees are expected to maintain a productive environment that is free from harassing or disruptive activity.
The most important part of our corporate values is to ensure all employees are treated with respect and dignity.
Liability for the employer may be under federal or state law or civil litigation.

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Employee’s Responsibilities to Prevention

Avoid behavior that may be misconstrued as possible harassment.
Avoid sexual jokes, comments, and e-mails.
Respect a person’s indication that your conduct or attention is not welcome.
Not invade another individual’s personal space.
Not touch anyone without their permission.
Clearly inform those engaging inappropriate sexual or non-sexual orientated behavior that they find it objectionable.
Seek assistance promptly if they are the target of or observe severe or repeated instances of behavior that they believe qualify as harassment.

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3. Questions

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Who is a Mandatory Reporter?

A “Mandatory Reporter” (Responsible University Employee, “RUE”) includes any employee who:

Has the authority to take action to address the harassment.
Has the duty to report harassment or other types of misconduct to appropriate officials.
Someone a student or employee could reasonably believe has this authority or responsibility.
Faculty, Supervisors, and Staff with an authority to, are Mandatory Reporters.

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Who is liable for Harassment?

The Organization/Employer
Supervisors
Employees

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Retaliation

Any adverse action taken against an individual for:

Alleging harassment or discrimination,
Supporting a reporting party, or
Assisting in providing information relevant to a claim of harassment or discrimination (e.g., serving as a witness).

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Reprisal

Any adverse treatment taken against an individual:

Based upon retaliatory motive and likely to deter charging parties or others from engaging in protected activity.

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Case Scenario #1

A customer service employee (Kiwi) made sexual advances towards other customer service representatives. Plum, one of the alleged harassed customer service representative’s, reported to the company that they were being harassed by another employee. Despite their complaints, the company failed to take prompt, remedial action to stop the conduct.

Who is the Complainant?
Who is/are the Respondent?
What type of Harassment? Physical, Verbal, or Both?
What theory of Harassment can be used? Quid Pro Quo, Hostile Work Environment, or both?

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Case Scenario #2

Two people – one supervisor (Apple), one employee (Pear) – are in a consensual sexual relationship. The supervisor feels like the employee is losing interest in the relationship, so Apple threatens to fire Pear, the employee, if the relationship ends.

Who is the Complainant?
Who is/are the Respondent?
What type of Harassment? Physical, Verbal, or Both?
What theory of Harassment can be used? Quid Pro Quo, Hostile Work Environment, or both?

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Case Scenario #3

A Supervisor notice that several employees routinely chat before meetings and shifts in the employee lounge. During these conversations, they tell sexual jokes and make comments about friends of the opposite sex. Although the conversations can be heard, no one has complained.

What kind of harassment? (Quid Pro Quo, Hostile Work Environment, or both)
Is it retaliation?
Is there liability?
What should be done in this situation?

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Case Scenario #4

Cherry and Lemon work together. They are friendly towards each other, but Cherry seems to find ways to touch Lemon whenever they are around each other – bumping into and brushing up against them, touching their arm, etc.. Even though Lemon tries to ignore it, they cannot. Lemon tells Cherry that they do not like to be touched and it bothers them. Cherry apologizes and has not touched Lemon since.

What kind of harassment? (Quid Pro Quo, Hostile Work Environment, or both)
Is it retaliation?
Is there liability?
What should be done in this situation?

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Case Scenario #5

Peach, a newly hired forklift operator at a large construction company, tells the supervisor that several employees made comments about certain parts of Peach’s body and how they are “enjoying the scenery.” The supervisor responds by telling Peach, “if you are going to be sensitive, you will be fired.” A few days later, Peach informs the supervisor of another incident of several employees making comments about Peach’s body. The supervisor fires Peach for being too sensitive.

What kind of harassment? (Quid Pro Quo, Hostile Work Environment, or both)
Is it retaliation?
Is there liability?
What should be done in this situation?

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Reporting

U.S. Department of Agriculture

Office of the Assistant Secretary for Civil Rights

1400 Independence Avenue, SW

Washington, D.C. 20250-9410

Email: program.intake@usda.gov

U.S. Department of Education

Office for Civil Rights

400 Maryland Avenue SW

Washington, D.C 20202

Email: OCR@ed.gov

Title IX, Office of Civil Rights & Sexual Misconduct, UMD

3101 Susquehanna Hall/4200 Lehigh Road College Park, MD 20742

Email: titleixcoordinator@umd.edu

Maryland Human Affairs Commission

44 N Potomac St # 202,

Hagerstown, MD 21740

Email: mccr@maryland.gov

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Supervisors Stand By……

Before you leave, please do not forget to complete the registration using the QR Code or Sign-In sheet.

Please text “Leave” to ACR923.

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Supervisors Stand By……

Brief intermission…. 10 minutes

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Who is a “Supervisor”?

An individual qualifies as an employee’s supervisor if:

The individual has authority to undertake or recommend tangible employment decisions affecting the employee; or
The individual has authority to direct the employee’s daily work activities.

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Your Responsibilities as Supervisors

Know and comply with Anti-Harassment policies and procedures.
Immediately report to the Assistant Director of Compliance any complaint that you receive from your employees or incidents that you witness involving other supervisors’ employees.
Monitor workplace behavior, enforce respect.
Treat all complaints seriously and confidentially. Do not ignore

any allegation.

Interrupt the discrimination, respond to allegations immediately;

be sensitive but impartial.

Take appropriate corrective action, follow-up and remedy the effects of the discrimination.
Prevent its re-occurrence.
Ensure no retaliation.
Document your actions.

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Your Responsibilities as Supervisors (cont.)

Demonstrate your willingness to hear and objectively discuss complaints.
Inform the employee that you must report all complaints to HR.
Tell the employee that confidentiality will be respected as much as possible but cannot be assured in order to investigate fully and properly.

If the harassment does not result in a tangible employment action, the employer may still be liable unless it proves both of the following:

It exercised reasonable care to prevent and promptly correct any harassment.
The employee unreasonably failed to take advantage of the company’s complaint or corrective policy and procedures.

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Your Responsibilities as Supervisors (cont.)

When handling harassment complaints from your employees:

Do not object if an employee prefers to or actually does bypass the standard chain of command.

Liability:

Many state nondiscrimination laws define “employer” to include individual supervisors, managers or officials.
Increasingly these company individuals face an individual liability risk because many suits contain state law claims.

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Arises from the relationship between parties (i.e. supervisor and employer) rather than from fault. It means responsibility is imposed on one party (i.e. the employer) because of actions committed by another (i.e. the supervisor).
An employer is not, however, responsible for actions taken by his employee which are not within the scope of his employment.
The primary element of vicarious liability that must be proven is:
The agreement the employee entered into as a condition of employment required the employee to work under the authority of the employer and the actions of the employee to have fallen within the scope of his employment at the time of the incident.

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Employer Liability: Direct and Non-Direct Supervisor

A violation of a Federal law or a constitutional deprivation; and

The supervisor directed the action giving rise to the violation, had knowledge of the action, or consented, agreed, or acquiesced to the violation, knew that the subordinate was engaged in a violation of federal law or a deprivation of constitutional rights….

An employer also may be subject to vicarious liability for harassment by a supervisor who does not have actual authority over the employee

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Affirmative Defense

Affirmative defense is a legal term that pertains to a defendant’s response to being accused of a certain crime. When an affirmative defense is used, the defendant is basically admitting he committed the crime of which he is accused, but is offering an explanation or justification for the incident. When successful, an affirmative defense can help reduce the defendant’s legal liability.

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4. Questions

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