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Chapter 19 - Hostile Work Environment Claims
19.200 BASIC ELEMENTS OF A
HOSTILE WORK ENVIRONMENT CLAIM
19.310 General principles
19.311 Punitive action not required
19.312 Mixed response by employer to harassing incidents normally results in jury
19.320 Employer's knowledge of harassment
19.321 Employer must have knowledge of harassment
19.321.10 Employer must have knowledge that harassment was for a
19.321.20 Employer cannot be expected to know about all harassment
19.321.30 Employer has certain duties even in absence of knowledge of
19.322 When does employer have actual knowledge of harassment?
19.322.10 Actual knowledge based on member of management witnessing
harassment or receiving report thereof
19.322.20 Actual knowledge based on fact that harassment was reported
to designated company representative
19.322.30 Supervisor with knowledge of harassment must report
19.323 When does employer have constructive knowledge of harassment?
19.324 How must harassment be reported?
19.324.10 Must harassment be reported to designated company
19.324.20 Notice does not have to come from the victim
19.324.30 No duty to report harassment if effort will be futile
19.330 Harassment by supervisor / vicarious liability
19.331 Ellerth / Faragher tangible employment action standard
19.331.10 5th Circuit tries to ignore Ellerth / Faragher
19.331.20 Whether harasser is a supervisor
19.331.21 Apparent authority
19.331.22 What if supervisory responsibilities are divided
amongst several persons?
19.331.30 Definition of tangible employment action
19.331.31 Plaintiff not required to prove express demand of:
"provide sex or else"
19.331.32 Comparison to "adverse employment action"
19.331.40 Whether plaintiff has been subjected to a tangible
19.331.41 Victim avoids adverse action (or advances) by
engaging in sex acts
19.331.42 Constructive discharge
19.331.50 Tangible employment action must be related to the
19.332 Ellerth / Faragher alter ego standard
19.340 Harassment by supervisor / direct liability
19.350 Harassment by co-worker
19.351 Liability is based on employer's negligence
19.351.10 "Co-worker" may be a supervisor who does not meet the
Ellerth / Faragher definition of supervisor
19.352 Employer's duty to take prompt, corrective action reasonably calculated
to end harassment
19.352.10 Employer's duty is a two-step process
19.352.30 Remedial measures must dissuade others as well as the
19.352.40 Transferring victim to less desirable location as corrective
19.352.50 Whether employer's investigation was reasonable?
19.352.60 Employer may have failed to take corrective action even
though the harasser was a different person each time
19.353 Whether or not harassment has ended?
19.353.10 Employee's duty to advise employer if corrective action is
19.354 Specific cases of co-worker harassment
19.355 Employer's duty regarding protection of employees who are minors
19.360 Harassment by third party
19.361 Liability is based on employer's negligence
19.411 Overview of employer's defense
19.411.10 Employer bears burden of proof
19.412 Employer's reasonable care
19.412.10 Failure to identify person to whom complaints can be made
19.413 Employee's duty to complain or avoid harm
19.413.10 Failure to complain due to fear of retaliation
19.414 Does employer have to establish both prongs of affirmative defense in
single incident cases?
19.500 HARASSMENT CLAIMS BY
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