AB 1825 T S H

1
AB 1825 T RAINING
S EXUAL HARASSMENT
W HAT
IT IS .
H OW
TO PREVENT IT.
Presented
DON P HIN , E SQ.
2

California attorney since 1983 specializing in
employment practices litigation and prevention.

Developer of the HR That Works program,
acquired by THinkHR.

Author of seven books.

Editor of EPLiC published by IRMI.

Editor Compliance and Culture Newsletter.

Lives in Coronado, CA.

Married with three sons.
TODAY ’S P ROGRAM
3

AB 1825
requirements

Investigation

Remedies
Prevention strategies
and tools

Definition of Sexual
Harassment

Regulations and case
 Model scenario
law examples
Types of SH conduct  Quiz
with examples
 Questions and
answers
Complaint process
and other resources



1
4
WHAT IS SEXUAL
HARASSMENT?
5
F EDERAL S TATUTES AND CASES

1964 Civil Rights Act- protects against sex discrimination. Applies to
companies with 15+ employees or if engaged in interstate
commerce.

Catharine MacKinnon –feminist author and scholar. In 1979 wrote
"Sexual Harassment of Working Women"

EEOC Regulations- CFR Title 29 In 1980, the Equal Employment
Opportunity Commission (EEOC) issued regulations defining sexual
harassment and stating it was a form of sex discrimination prohibited
by the Civil Rights Act of 1964.

In 1986, the Supreme Court first ruled in Vinson v. Merit One Bank
that sexual harassment can be sex discrimination prohibited by Title
VII of the Civil Rights Act of 1964.
CALIFORNIA S TATUTES
6

1959 Fair Employment Practice Act signed by Gov. Pat
Brown

1970 Prohibition against sex discrimination added to
FEPA

1980 FEPA and Rumford Act (housing) combined
within FEHA

1983 Harassment and anti-retaliation added to FEHA

1993 Poster and pamphlet requirement added to
FEHA
2
CALIFORNIA S TATUTES CONT.
7
8

Fair Employment and Housing Act- applies to
every employer

California Code of Regulations

Enforced by Department of Fair Employment
and Housing (DFEH)

2005 AB 1825 passed requiring mandatory
supervisor training for companies with 50 +
employees

SB 292 new law says it does not have to be
motivated by sexual desire
CALIFORNIA CASE #1
Yanowitz v. L’Oreal (CA Supreme Ct
2005) discusses new guidelines around
retaliation. Employers have to guard
against retaliation- even for marginal
complaints.
9
YANOWITZ V. L’O REAL
CONT.
“We conclude that an employee's refusal to
follow a supervisor's order that she
reasonably believes to be discriminatory
constitutes protected activity under the
FEHA and that an employer may not
retaliate against an employee on the
basis of such conduct when the employer,
in light of all the circumstances, knows
that the employee believes the order to
be discriminatory, even when the employee
does not explicitly state to her
supervisor or employer that she believes
the order to be discriminatory.”
3
CALIFORNIA CASE #2
10
Miller v. Dept. of Corrections (CA Supreme Ct
2005) ruling that an employer can be sued for
sexual harassment for conveying a message
that the way to get ahead at work is to sleep
with the boss. For the EEOC's position on this
subject see
http://www.eeoc.gov/policy/docs/sexualfavo
r.html.
11
M ILLER V. D EPT. C ORRECTIONS
CONT.
1. An employee may establish an actionable claim of
sexual harassment under the FEHA by
demonstrating widespread sexual favoritism that
was severe or pervasive enough to alter his or her
working conditions and create a hostile work
environment. 2. Even though an employee’s
complaint to management does not specifically
include the words “sexual harassment” or “sexual
discrimination,” if the nature of the complaint is
such that management could reasonably believe the
employee was making a claim of sexual harassment
in violation of the FEHA, such a complaint
constitutes a “protected activity” under the FEHA.
CALIFORNIA CASE #3
12

Lyle v. Warner Bros. TV Prods (CA Supreme
Ct. 2006) in a unique fact scenario, the Court ruled
constant sexual language was not improper. The plaintiff,
hired as a writer’s assistant for the “Friends” TV serial,
claimed the writers produced a hostile environment as a
result of frequent sexual banter. The Court, sidestepping
First Amendment issues, ruled no liability because she was
forewarned re the environment, because it was a natural
part of the writing process and that there was no disparate
treatment. Note: no comments were made specifically
about the plaintiff.
4
LYLE V. WARNER B ROS .
13
14
CONT.
1.
“Because the FEHA, like Title VII, is not a fault
based tort scheme, unlawful sexual harassment
can occur even when the harassers do not
realize the offensive nature of their conduct or
intend to harass the victim.”
2.
“…numerous court decisions have held
evidence of misogynous, demeaning, offensive,
obscene, sexually explicit and degrading words
and conduct in the workplace is relevant to
prove environmental sexual harassment.”
CALIFORNIA CASE #4
Sallie Mae Bradley v. California Department
of Corrections and Rehabilitation (California
Fifth Appellate District)
“CDC had duty to act immediately to stop the sexual harassment
…and to ensure that no harassment had occurred. Referring the
matter to a lengthy and complicated investigative process alone
is insufficient to comply with the protections mandated by the
FEHA when continued contact with the harasser leads to further
harassment.”
Failing to stop the harassment resulted in a verdict of $437,000
and attorney fees of $305,000.
15
D EFINITION OF
S EXUAL H ARASSMENT
The Fair Employment and Housing
Commission regulations define sexual
harassment as unwanted sexual
advances, or visual, verbal or physical
conduct of a sexual nature. This
definition includes many forms of
offensive behavior and includes
gender-based harassment of a person
of the same sex as the harasser.
5
L IST OF SH V IOLATIONS
16

Unwanted sexual advances

Offering employment benefits in exchange for
sexual favors (quid pro quo, meaning “this for that”)

Making or threatening reprisals after a negative
response to sexual advances

Visual conduct: leering, making sexual gestures,
displaying of suggestive objects or pictures, cartoon
or posters

Verbal conduct: making or using derogatory
comments, epithets, slurs, and jokes
L IST OF V IOLATIONS
CONT.
17
18

Verbal sexual advances or propositions

Verbal abuse of a sexual nature, graphic
verbal commentaries about an individual's
body, sexually degrading words used to
describe an individual, suggestive or
obscene letters, notes or invitations

Physical conduct: touching, assault,
impeding or blocking movements
A BUSIVE CONDUCT
“Abusive conduct” means conduct of an employer or
employee in the workplace, with malice, that a reasonable
person would find hostile, offensive, and unrelated to an
employer’s legitimate business interests. Abusive conduct
may include repeated infliction of verbal abuse, such as the
use of derogatory remarks, insults, and epithets, verbal or
physical conduct that a reasonable person would find
threatening, intimidating, or humiliating, or the gratuitous
sabotage or undermining of a person’s work performance. A
single act shall not constitute abusive conduct, unless
especially severe and egregious.
6
STATISTICS
19
20

Most women have experienced SH

Thousands of claims filed with EEOC (12,000) and DFEH (4000) annually

Half dismissed as “no reasonable cause”

Increase in claims by men v. women and same sex claims.

16 % by men per EEOC.

Average verdict $200,000. Settlement $75,000
M OST C OMMON C OMPLAINTS #1
An employee is fired or denied a job
or an employment benefit because
he/she refused to grant sexual favors
or because he/she complained about
harassment. Retaliation for
complaining about harassment is
illegal, even if it cannot be
demonstrated that the harassment
actually occurred.
21
M OST C OMMON C OMPLAINTS #2
An employee is exposed to an
offensive work environment.
Exposure to various kinds of
behavior or to unwanted
sexual advances alone may
constitute harassment.
7
22
M OST C OMMON C OMPLAINTS #3
An employee quits because he/she can no
longer tolerate an offensive work
environment, referred to as a "constructive
discharge" harassment case. If it is proven
that a reasonable person, under like
conditions, would resign to escape the
harassment, the employer may be held
responsible for the resignation as if the
employee had been discharged.
23
S EXUAL H ARASSMENT I S :
Unwelcomed sexual advances
Quid Pro Quo
Adverse Consequence
Hostile Environment
24
H OSTILE E NVIRONMENT
 Jokes, posters,
remarks
 Looks and gestures
 Favoritism
8
IT’S ABOUT POWER
25

Strength = Power

Resources = Power

Knowledge = Power
IT’ S ABOUT SEX
26
Hormonal
Laws
27
drives
of attraction
%15-%20
of couples meet at work
Misusing
our energy
I T ’S A BOUT P ERCEPTION

Men are from Mars, Women are
from Venus

Funny to you, insulting to me

Respect peoples differences
9
I T ’S A BOUT S TUPIDITY
28
Some people just “don’t get
it” or don’t want to get it!
WHO G ETS H ARASSED ?
29

Anyone can be sexually harassed

Women to men

Same sex harassment
W HO HARASSES ?
30

Supervisors

Co-workers

Third Parties
10
THE “R EASONABLE
P ERSON ” S TANDARD
31
32

Not just your view point

Objective view point

Subjective view point

Hypersensitivity
W EIGHING
THE
C IRCUMSTANCES

Is it sexual?

Is it unwelcome?

Is it severe?

Is it frequent?
D OES IT I NTERFERE
W ITH THE J OB ?
33

Productivity

Promotions

Mind, body or spirit
11
34
P ROVOCATION AND CONSENT
 Behavior
 Dress
 Speech
35
36
D EFENSE THAT W ON ’T W ORK

“Boys will be boys”

“I didn’t mean anything by it”

“She asked for it”
E MPLOYER LIABILITY
An employer might avoid liability if the harasser is
a non-management employee, the employer had
no knowledge of the harassment, and there was a
program to prevent harassment. If the harasser is
a non-management employee, the employer may
avoid liability if the employer takes immediate
and appropriate corrective action to stop the
harassment once the employer learns about it.
Employers are strictly liable for harassment by
their supervisors or agents.
12
37
E MPLOYER L IABILITY, CONT.
Government Code section 12940, subdivision (k),
requires an entity to take "all reasonable steps to
prevent harassment from occurring." If an
employer has failed to take such preventative
measures, that employer can be held liable for the
harassment.
A victim may be entitled to monetary damages
even though no employment opportunity has
been denied and there is no actual loss of pay or
benefits.
P ERSONAL LIABILITY
38

The harasser can be held personally
liable for sexual harassment damages.

Also possibly for battery, assault,
intentional infliction of emotional
distress and other common law
“torts”.
TYPES OF DAMAGES
39

Loss of income

General damages for pain and suffering

Special damages for medical treatment,
retraining, etc.

Punitive damages

Attorneys fees and court costs

Remedial training, etc.
13
BAD FAITH CLAIMS
40
 Slander
and Defamation
 Attorneys
fees and costs
CONCLUSION RE W HAT IS
S EXUAL H ARASSMENT
41

SH will not be tolerated

It’s about respect and responsibility

It’s about productivity

It’s about the law
42
ARE THERE ANY
QUESTIONS ABOUT
WHAT SEXUAL
HARASSMENT IS?
14
P REVENTION S TRATEGIES
43

The best claim is the one never filed

Comply with posting and handout requirements

Educate and train on policies and law

Find out if there is a problem

Prompt and thorough investigation

Remedial action

Get professional advice
THE COMPANY P OLICY
44
45

Inform employees of the law

Inform employees of their rights to
complain internally and externally to EEOC
and DFEH

Alternate reporting channels, including 3rd
party “hotlines”

Zero Tolerance

Re-read your company policy now
THE “CULTURE OF S ILENCE ”
 “It
is not my job”
 “I don’t
know what to do”
 “I am afraid”
15
SPEAK UP!
46

Just say “no”

Speak to the harasser directly

File complaint internally with HR or
other person first

Cooperate with investigation

Preventing SH is everyone’s
responsibility!
47
THE COMPLIANCE S URVEY
48
F ILING A COMPLAINT

Ability to file with EEOC
www.eeoc.gov and DFEH
www.dfeh.ca.gov Also can be
found in the phone book.

Statute of limitations 300 days
with EEOC , 1 year with
DFEH…but don’t wait.
16
DFEH ON I NVESTIGATION
49
Fully and effectively investigate. The
investigation must be immediate,
thorough, objective and complete.
Anyone with information on the matter
should be interviewed. A determination
must be made and the results
communicated to the complainant, to
the alleged harasser, and, as
appropriate, to all others directly
concerned.
INVESTIGATE !
50

Don’t ignore, bury or deny

Be prompt and thorough

Don’t promise confidentiality

Communicate on a “need to
know” basis
COTRAN CASE
51

“Employers can obtain information anyway
they think best, always giving fair
opportunity to those who are parties in
the controversy for correcting or
contradicting any relevant statement
prejudicial to their view. ”

Flexibility and fairness are key.
17
52
E MPLOYEE COMPLAINT F ORM
53
I NVESTIGATION CHECKLIST
54
DFEH ON TAKING A CTION
If harassment is proven, there must be
prompt and effective remedial action. First,
appropriate action must be taken against
the harasser and communicated to the
complainant. Second, steps must be taken
to prevent further harassment. Third,
appropriate action must be taken to remedy
the complainant's loss, if any.
18
TAKE ACTION
55
56
57

Is it your system?

Stern warning

Discipline

Termination
P REVENT RETALIATION

Fastest growing claim

Guard against “negative filters”

Use an ombudsman
COMPENSATE VICTIMS
Paid time off
Counseling
Money
19
CONCLUSION
58

Send a message from the top

Educate and break past the culture of
silence
59

Investigate and take action

Discipline appropriately
MODEL CASE S CENARIO

Read the facts

Look at the issues raised. How would
you answer them?

What steps would you take?
60
TAKE THE SEXUAL
HARASSMENT QUIZ
20
QUESTIONS ??
61
 Ask
‘em now
 Speak
to HR
 don@hrthatworks.com
 Or
call (800) 234-3304 x1
21
• Changes in the policies or practices of the
involved employer
• Back pay or promotion
• Hiring or reinstatement
• Fines or damages for emotional distress
from each employer or person found to have
violated the law
If the Commission finds that discrimination has occurred, it can order remedies including:
DFEH serves as a neutral fact-finder and attempts to
help the parties voluntarily resolve disputes.
If DFEH finds sufficient evidence to establish that discrimination occurred and settlement efforts fail, the
Department may file a formal accusation. The accusation will lead to either a public hearing before the Fair
Employment and Housing Commission or a lawsuit
filed by DFEH on behalf of the complaining party.
Employees or job applicants who believe that they
have been sexually harassed may file a complaint of
discrimination with DFEH within one year of the
harassment.
Filing a Complaint
• once aware of any harassment, the employer
took immediate and appropriate corrective
action to stop the harassment.
• there was a program to prevent harassment; and
• the employer had no knowledge of the
harassment;
such as a lead, supervisor, manager or agent;
DFEH-185 (11/07)
State of California
Department of Fair Employment & Housing
In accordance with the California Government Code and
ADA requirements, this publication can be made available
in Braille, large print, computer disk, or tape cassette as
a disability-related reasonable accommodation for an
individual with a disability. To discuss how to receive a copy
of this publication in an alternative format, please contact
DFEH at the numbers above.
For more information, contact DFEH toll free at
(800) 884-1684
Sacramento area & out-of-state at (916) 478-7200
TTY number at (800) 700-2320
or visit our Web site at www.dfeh.ca.gov
For more information, see publication DFEH-159
“Guide for Complainants and Respondents.”
Employees can also pursue the matter through
a private lawsuit in civil court after a complaint
has been filed with DFEH and a Right-to-Sue
Notice has been issued.
many forms of offensive behavior.
The definition of sexual harassment includes
• Physical touching or assault, as well as
impeding or blocking movements
• Sexual comments including graphic comments about an individual’s body; sexually degrading words used to describe an
individual; or suggestive or obscene letters,
notes, or invitations
• Making or using derogatory comments,
epithets, slurs, or jokes
• Leering; making sexual gestures; or
displaying sexually suggestive objects,
pictures, cartoons, or posters
• Actual or threatened retaliation
• Offering employment benefits in
exchange for sexual favors
• Unwanted sexual advances
The Fair Employment and Housing Act (FEHA)
defines sexual harassment as harassment
based on sex or of a sexual nature; gender
harassment; and harassment based on pregnancy, childbirth, or related medical conditions.
The definition of sexual harassment includes
many forms of offensive behavior, including
harassment of a person of the same gender
as the harasser. The following is a partial list of
types of sexual harassment:
The Facts About Sexual Harassment
Sexual Harassment
Department of Fair Employment and Housing
• Take prompt and effective corrective
action if the harassment allegations are
proven. The employer must take appropriate action to stop the harassment and ensure it will not continue. The employer
must also communicate to the com-
• Fully and effectively investigate. The investigation must be thorough, objective, and
complete. Anyone with information regarding the matter should be interviewed.
A determination must be made and the results communicated to the complainant,
to the alleged harasser and, as appropriate,
to all others directly concerned.
• Fully inform the complainant of
his/her rights and any obligations to secure those rights.
• Develop and implement a sexual harassment prevention policy with a procedure
for employees to make complaints and
for the employer to investigate complaints.
Policies should include provisions to:
• Take all reasonable steps to prevent
discrimination and harassment from
occurring. If harassment does occur,
take effective action to stop any further
harassment and to correct any effects
of the harassment.
All employers must take the following actions
against harassment:
Employers’ Obligations
• Employers who do business in California and
employ 50 or more part-time or full-time
employees must provide at least two hours of
sexual harassment training every two years
to each supervisory employee and to all new
supervisory employees within six months of
their assumption of a supervisory position.
• All employees should be made aware of the
seriousness of violations of the sexual harassment
policy and must be cautioned against using peer
pressure to discourage harassment victims
from complaining.
• Distribute an information sheet on sexual
harassment to all employees. An employer may
either distribute this pamphlet (DFEH 185)
or develop an equivalent document that meets
the requirements of Government Code section
12950(b). This pamphlet may be duplicated in
any quantity. However, this pamphlet is
not to be used in place of a sexual harassment
prevention policy, which all employers are
required to have.
• Post the Department of Fair Employment and
Housing (DFEH) employment poster (DFEH
- 162) in the workplace (available through the
DFEH publications line [916] 478-7201 or
Web site).
plainant that action has been taken to stop the
harassment from recurring. Finally, appropriate
steps must be taken to remedy the complainant’s
damages, if any.
the perpetration of acts of hate violence.
• the harasser is not in a position of authority,
An employer might avoid liability if
In addition, if an employer knows or should have
known that a non-employee (e.g. client or customer) has sexually harassed an employee, applicant, or
person providing services for the employer and fails
to take immediate and appropriate corrective action, the employer may be held liable for the actions
of the non-employee.
Additionally, the law requires employers to take
“all reasonable steps to prevent harassment from
occurring.” If an employer has failed to take such
preventive measures, that employer can be held liable for the harassment. A victim may be entitled to
damages, even though no employment opportunity
has been denied and there is no actual loss of pay or
benefits.
All employers, regardless of the number of employees,
are covered by the harassment section of the FEHA.
Employers are generally liable for harassment by
their supervisors or agents. Harassers, including both
supervisory and non-supervisory personnel, may be
held personally liable for harassing an employee or
coworker or for aiding and abetting harassment.
Employer Liability
• A program to eliminate sexual harassment from
the workplace is not only required by law, but is
the most practical way for an employer
to avoid or limit liability if harassment should
occur despite preventive efforts.
California from unlawful discrimination in employment, housing and public accommodations, and from
The mission of the Department of Fair Employment and Housing is to protect the people of
Sexual Harassment Seminar
Model Case Scenario
Dear Margot,
I have been in Public Relations for the past 6 years after graduating from college. I
was fortunate to get a position a year ago with one of the top national PR firms
with a very prestigious clientele. My job is to manage several accounts, but I have
one huge account that is our bread and butter in this office and here is where things
start getting sticky.
The head of marketing for that client keeps hitting on me. At first, it started as
flirting a little at business lunches, and I didn’t pay much attention. As a matter of
fact I was somewhat complimented that an older man was so interested in what I
had to say. But now he is much more assertive and keeps trying to move our
business meetings to evening dinners. Even though I am giving him the ‘no sale’
signals, I can see he won’t give up. I am petrified that I may lose this account,
because he always baits me that other firms keep pitching his company but as long
as our business relationship moves in the right direction, he will be satisfied
sticking with our firm.
I have mentioned this to my boss Cindy who is a woman in the Washington D.C.
office and she blows it off like that stuff comes with the territory, and I need to
learn how to handle it.
I am very uncomfortable about this especially since I am scheduled to accompany
my client to a trade show out of town, and he has hinted to expect more than just
handling the PR event. What can I do? I don’t want to lose the account, for one
thing, as part of my compensation I receive a significant bonus based on the
amount of revenue this client spends, and yet I don’t want to be pressured into
something that I don’t want to do. Not only my job but other jobs could be at stake
if we lose this account. I am a nervous wreck and can’t even sleep thinking about
this upcoming trade show. Help! Thanks, Joan
Questions:
1. What is the first thing you do with Joan?
2. What if Joan refuses to go to the trade show?
3. What do you say to Cindy?
4. Could Joan quit and claim constructive discharge?
© 2014 www.hrthatworks.com
SEXUAL HARASSMENT TRAINING
Employee Review Quiz
1.
Sexual harassment is a fault-based scheme and there is no liability where the harasser
does not realize the offensive nature of their conduct or there is no intent to harass the
victim.
a.
True
b.
False
2.
Nationwide, less than 2% of all sexual harassment claims are filed by men.
a.
True
b.
False
3.
A victim of sexual harassment may be entitled to monetary damages even though no
employment opportunity was denied and there was no actual loss of pay or benefits.
a.
True
b.
False
4.
A person who is “hyper-sensitive” and overreacts to any statement made about them does
not have a case under the “reasonable person standard”.
a.
True
b.
False
5.
When investigating a claim of sexual harassment, the legislature and courts have
recommended that the employer interview:
a.
At least the harasser and the accused
b.
The harasser, the accused and at least two witnesses.
c.
“Anyone with information on the matter,” no matter how many people that is.
6.
Employees that gather around the water cooler to tell dirty jokes and discuss sexual
exploits, salacious celebrity gossip or last night’s rerun of Sex and the City may generate
sexual harassment claims.
a.
True
b.
False
7.
An employer may raise as an affirmative defense the fact that an employee unreasonably
failed to take advantage of preventative or corrective opportunities provided by the
employer to avoid the harm.
a.
True
b.
False
8.
Which of the following comments can be considered sexual harassment?
a.
“Your ass looks great" (to a man or a woman)
b.
“You've been out sick a lot lately. You're not pregnant, are you?”
c.
“Why are you in such a bad mood today? PMS?”
d.
All of the above
1
9.
In order to succeed on a claim for “hostile environment” sexual harassment, a worker
must demonstrate that the harassment caused them to suffer serious psychological injury.
a.
True
b.
False
10.
The behavior of the alleged victim is relevant to the determination of whether and
employee has a successful sexual harassment claim.
a.
True
b.
False
11.
Marcy’s boss Bob often approaches her workstation and tells her sexually explicit jokes.
Marcy does not personally consider Bob’s conduct offensive, but other “reasonable”
person certainly would. Can Marcy state a claim for sexual harassment?
a.
Yes
b.
No
12.
Carla works with Marcy and Bob, and sits in the workstation next to Marcy. Although
Bob directs his conversation to Marcy, Carla can easily overhear the sexually explicit
jokes. She finds them offensive and becomes uncomfortable whenever she sees Bob
approach Marcy’s desk. Carla has asked Bob to stop, but he has ignored her request. Can
Carla state a claim for sexual harassment?
a.
Yes
b.
No
13.
Bob, who owns a small printing company is sued by his former receptionist Tina, who
claims she was harassed by a fellow employee. Bob knew nothing about this before the
lawsuit was filed. Can Bob's company be held liable for any damages awarded to Tina?
a.
Yes
b.
No
14.
A harasser can be which of the following?
a.
Supervisor
b.
Co-worker
c.
Customer
d.
Contract employee
e.
All of the above
15.
Conduct considered to be sexual harassment can come in which of the following forms?
a.
Physical touching
b.
Letters and gifts
c.
Posters and calendars
d.
E-mail
e.
All of the above
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SEXUAL HARASSMENT TRAINING
Employee Review Quiz
ANSWER KEY
1.
B
In the case of Lisle v. Warner Brothers, the court stated that “because the FEHA,
like Title VII, is not a fault-based tort scheme, unlawful sexual harassment can
occur even when the harassers do not realize the offensive nature of their conduct
or intent to harass the victim.”
2.
B
According to recent EEOC statistics, approximately 16% of all sexual harassment
claims are filed by men. These claims are filed against both men and women
engaging in the harassment.
3.
A
The very fact they had to suffer from the act of sexual harassment is enough to
award monetary damages. An employee does not have to quit or be fired in order
to state a claim.
4.
B
In order to file a successful claim, the claimant must be “reasonable” from both an
objective and subjective standpoint. Generally, if the conduct is not severe or
pervasive, it does not amount to sexual harassment.
5.
C
Anyone with information on the matter should be interviewed. Remember to ask
about facts, documents, and witnesses. The failure to interview anyone with
information may constitute an investigation that is not deemed “thorough” under
the law.
6.
A
If someone takes offense to the sexual banter it would be wise not to continue it
for fear of creating a “hostile environment claim.”
7.
A
An employer can raise as an affirmative defense that the employee failed to take
advantage of preventative or corrective opportunities provided by the employer to
avoid the harm. One reason it is so important to publicize the policies.
8.
D
These are some of the stupid things people say. Many individuals, courts and
juries will differ on whether or not these statements alone may constitute sexual
harassment. The point is, there are no hard and fast guidelines. Sexual harassment
is viewed from a “reasonable person” standard, and is open to wide interpretation.
9.
B
In a U.S. Supreme Court case, the court ruled that it was not necessary for a
plaintiff to claim serious psychological injury to support a sexual harassment
claim.
10.
A
The answer is true. The victim’s behavior is viewed from a “reasonable person
standard.” For example, if a claimant “overreacts” to an item that she considers to
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be sexually hostile, she cannot claim discrimination if it is “unreasonable” for her
to do so.
11.
B
Marcy cannot claim sexual harassment because she was not offended by Bob’s
conduct.
12.
A
The fact that Bob’s conversation was intended solely for Marcy does not insulate
the company from a claim by Carla, who was offended by the conduct. This is
known as hostile environment harassment.
13.
B
Companies are generally not responsible for sexual harassment by a co-worker, if
they did not know about it. The company’s exposure is greatly dependant on its
proactive efforts to prevent harassment in the first place and how it deals with any
complaints made. For example, the EEOC states The Commission’s long-standing
guidance on employer liability for harassment by co-workers remains in effect—
an employer is liable if it knew or should have known of the misconduct, unless it
can show that it took immediate and appropriate corrective action. 29 C.F.R. §
1604.11(d).
14.
E
Sexual harassers come in all forms, shapes and sizes. For example, a company
which allows it’s customers or vendors to constantly flirt with the receptionist,
despite her having expressed her discomfort with the activity, can open itself up to
a sexual harassment claim.
15.
E
Sexual harassment can come in many forms. The only issue is whether or not it is
considered to be offensive, severe, pervasive, etc., by a “reasonable person”
standard.
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