A

B

C

D

E

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H

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TREATISE INDEX "H"

Table of contents for this page
Harassment
Hawaii
Hearing
Heart
HIV positive / AIDS
Hostile work environment
Household chores

 

Harassment

• See, "Hostile work environment" (this page)

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Hawaii

• Interaction between federal employment discrimination law and Hawaii state law - 23.013

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Hearing

• Hearing or deafness (cases addressing particular medical impairments) - 13.251.16

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Heart

• Heart condition as a direct threat to health or safety under the ADA - 13.364.33

• Pacemaker (cases addressing particular medical impairments) - 13.251.17.20

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HIV positive / AIDS

• AIDS / HIV positive (cases addressing particular medical impairments) - 13.251.01

• HIV-positive as a direct threat to health or safety under the ADA - 13.364.34

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Hostile work environment

• ADA and Rehabilitation Act, harassment claims based on disability - 19.520

• ADEA, whether harassment claim is cognizable under the ADEA? - 19.511

• Basic elements of a claim by circuit - 19.210

• Civility code, not a workplace civility code - 19.211

• Employer investigation, whether employer's investigation was reasonable? - 19.352.50

• Employer liability

  • Co-worker harassment

    • Co-worker harassment, liability is based on employer's negligence - 19.351

    • "Co-worker" may be a supervisor who does not meet the Ellerth/Faragher definition of supervisor - 19.351.10

    • Employee's duty to advise employer if corrective action is not working - 19.353.10

    • Employer's duty to take prompt, corrective action reasonably calculated to end harassment - 19.352

    • Employer's duty is a two-step process - 19.352.10

    • Whether or not harassment has ended? - 19.353

  • Corrective action, employer may have failed to take corrective action even though the harasser was a different person each time - 19.352.60

  • Corrective action, transferring victim to less desirable location as corrective action - 19.352.40

  • Ellerth / Faragher affirmative defense

    • Burden of proof, employer bears burden of proof - 19.411.10

    • Employee's duty to complain or avoid harm - 19.413

    • Employee's failure to complain due to fear of retaliation - 19.413.10

    • Employer's failure to identify person to whom complaints can be made (as relevant on issue of reasonable care) - 19.412.10

    • Employer's reasonable care 19.412

    • Overview of Ellerth / Faragher affirmative defense - 19.411

    • Single incident of harassment cases, does employer have to establish both prongs of affirmative defense in single incident cases? - 19.414

  • Ellerth/Faragher alter ego standard - 19.332

  • Knowledge, employer must have knowledge of harassment - 19.321

    • Actual knowledge based on fact that harassment was reported to designated company representative - 19.322.20

    • Actual knowledge based on member of management witnessing harassment or receiving report thereof - 19.322.10

    • Company representative, must harassment be reported to designated company representative? - 19.324.10

    • Constructive knowledge, when does employer have constructive knowledge of harassment? - 19.323

    • Employer has certain duties even in absence of knowledge of harassment - 19.321.30

    • Employer must have knowledge that harassment was for a prohibited reason - 19.321.10

    • Futile, no duty to report harassment if effort will be futile - 19.324.30

    • Knowledge, employer cannot be expected to know about all harassment - 19.321.20

    • Victim, notice does not have to come from the victim - 19.324.20

  • Minors, employer's duty regarding protection of employees who are minors - 19.355

  • Mixed response by employer to harassing incidents normally results in jury question - 19.312

  • Punitive action not required as a remedial measure - 19.311

  • Remedial measures must dissuade others as well as the harasser - 19.352.30

  • Supervisor, whether harasser is a supervisor - 19.331.20

    • Apparent authority - 19.331.21

    • What if supervisory responsibilities are divided amongst several persons? - 19.331.22

  • Tangible employment action, Ellerth/Faragher tangible employment action standard - 19.331

    • Comparison to "adverse employment action" - 19.331.32

    • Constructive discharge (as a tangible employment action) - 19.331.42

    • Definition of tangible employment action - 19.331.30

      • Plaintiff not required to prove express demand of: "provide sex or else" - 19.331.31

    • 5th Circuit tries to ignore Ellerth/Faragher - 19.331.10

    • Tangible employment action must be related to the harassment - 19.331.50

    • Victim avoids adverse action or advances (has an tangible employment action occurred) - 19.331.41

• Equal opportunity harasser - 19.244

• Facially neutral conduct, whether facially neutral conduct can be considered "because of" membership in protected group? - 19.245

• Failed relationship, whether harassment based on failed relationship is "because of sex" - 19.248.10

• 42 U.S.C. § 1981 (hostile work environment claims under this statute) - 19.530

  • Method of proof similar to Title VII - 16.312

  • Standard of harassment claim against individual - 19.531

• Gender stereotyping, harassment based upon gender stereotyping - 19.243

• Gender stereotyping is not a means of asserting a sexual orientation claim - 19.243.10

• Harassment based on disability (cognizability of claim) - 13.128

• Harassment because of membership in protected group - 19.240

• Harassment or retaliation claim, offensive conduct in retaliation for a complaint of sexual harassment should be pursued as a retaliation claim - 19.248.20

• Harassment unwelcome - 19.230

• Hostile work environment claims predicated on disparate impact - 5.219.10

• Inmates (as harassers) - 19.362

• Managerial employees protected as well - 19.221

• Minor, can a minor "welcome" sexual advances? - 19.232

• Particular fact patterns

  • Circuit overview of recent decisions - 19.258.10

  • Consensual relationship with boss that continued after plaintiff left the employer is not a hostile work environment - 19.258.30

  • Occasional jokes and teasing - 19.258.40

  • Two back rubs by supervisor - 19.258.20

• Psychological injury, no requirement of psychological injury - 19.212

• Race or color harassment - 19.543

• Racial epithets - 19.543.10

• Rehabilitation Act and ADA, harassment claims based on disability - 19.520

  • "Solely" because of disability requirement under the Rehabilitation Act as it pertains to harassment claims - 19.521

• Religious harassment - 19.544

• Same-sex harassment - 19.241

• Severe or pervasive standard - 19.251

  • Conduct must be severe or pervasive (as opposed to severe and pervasive) - 19.251.60

  • Conduct not directed at plaintiff can be considered - 19.251.80

  • Conduct occurring outside the workplace can be considered - 19.251.50

  • Co-worker harassment, if plaintiff is only suing for harassment by a supervisor, then the court does not consider evidence of harassment by co-workers - 19.256.30

  • Discrete acts, consideration of discrete acts - 19.251.40

  • Factual question - 19.251.30

  • Objective standard, conduct must objectively constitute harassment - 19.252

    • Reasonable person standard or reasonable member of the specific protected group? - 19.252.10

  • One type of hostility can exacerbate another type - 19.251.20

  • Pervasive standard, plaintiff need not remember specifics of each incident - 19.255.10

  • Physical contact - 19.254.30

  • Plaintiff does not have to establish an inability to perform his or her job - 19.251.10

  • Prior intimate relationship between the parties (as a factor to be considered) - 19.256.20

  • Racial slurs - 19.254.20

  • Rude behavior, alone, is usually insufficient - 19.251.70

  • Second-hand comments - 19.256.10

  • Sexual propositions, three sexual propositions by company president in one meeting - 19.254.41

  • Single act qualifying as severe - 19.254.10

  • Social context, consideration of social context in which offensive conduct occurs - 19.257

    • Construction site - 19.257.10

    • District Attorney's office - 19.257.20

    • Nursing home - harassment by elderly or mentally disabled - 19.257.30

    • Prisons - 19.257.40

    • Schools - 19.257.50

  • Subjective standard, conduct must subjectively constitute harassment - 19.253

    • To satisfy subjective standard, plaintiff must know of the harassment - 19.253.10

  • Totality of circumstances, court must consider totality of circumstances - 19.256

  • Vulgar banter, even acts going beyond occasional vulgar banter may not be sufficient - 19.252.20

• Sexual behavior, evidence of victim's sexual behavior at work (on issue of whether harassment was unwelcome) - 19.231

• Sexual harassment cases - 19.545

• "Sexual in nature," harassment does not have to be sexual in nature to be "because of sex" - 19.246

• "Sexual in nature," harassment that is sexual in nature may not be because of gender - 19.247

• Sexual orientation, harassment based upon sexual orientation - 19.242

• Third party (harassment by), liability is based on employer's negligence - 19.361

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Household chores

• Household chores as a major life activity - 13.223.13

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