19.200 BASIC ELEMENTS OF A HOSTILE WORK ENVIRONMENT CLAIM
19.300 STANDARD FOR EMPLOYER LIABILITY
19.400 EMPLOYER'S AFFIRMATIVE DEFENSE IN SUPERVISORY HARASSMENT CASES
19.500 HARASSMENT CLAIMS BY STATUTE
19.600 REQUIREMENTS OF ANTI-HARASSMENT POLICY
19.200 BASIC ELEMENTS OF A HOSTILE WORK ENVIRONMENT CLAIM
19.210 Basic elements of claim by circuit
19.211 Not a workplace civility code
19.212 No requirement of psychological injury
19.221 Managerial employees protected as well
19.231 Evidence of victim's sexual behavior at work
19.232 Can a minor "welcome" sexual advances?
19.240 Harassment because of membership in protected group
19.242 Harassment based upon sexual orientation
19.243 Harassment based upon gender stereotyping
19.243.10 Gender stereotyping is
not a means of
asserting a
sexual orientation claim
19.244 Equal opportunity harasser
19.245 Whether facially neutral conduct can
be considered
"because
of" membership in protected group?
19.246 Harassment does not have to be sexual
in nature to
be "because of sex"
19.247 Harassment that is sexual in nature may not be
because of gender
19.248 Harassment based on reasons other than gender
19.248.10 Harassment based on failed relationship
19.248.20 Offensive conduct in retaliation for a
complaint of
sexual harassment should be
pursued as a retaliation
claim
19.250 Harassment must affect a term, condition or privilege of
employment
19.251 Severe or pervasive standard
19.251.10 Inability to perform job
19.251.20 One type of hostility can exacerbate
another type
19.251.40 Consideration of discrete acts
19.251.50 Conduct occurring outside the workplace
can be
considered
19.251.60 Conduct must be severe or pervasive
19.251.70 Rude behavior, alone, is usually insufficient
19.251.80 Conduct not directed at plaintiff can
be
considered
19.252 Conduct must objectively constitute harassment
19.252.10 Reasonable person
standard or reasonable
member of
the specific protected group?
19.252.20 Even acts going beyond
occasional vulgar
banter may not be
sufficient
19.253 Conduct must subjectively constitute harassment
19.253.10 To satisfy subjective
standard, plaintiff
must know of
the harassment
19.254 What qualifies as severe?
19.254.10 Single act qualifying as severe
19.254.40 Particular fact patterns qualifying
as
severe
19.254.41 Three sexual propositions by
company
president in one
meeting
19.255 What qualifies as pervasive?
19.255.10 Plaintiff need not remember specifics
of
each incident
19.256 Court must consider totality of circumstances
19.256.10 Second-hand comments
19.256.20 Prior intimate relationship between the
parties
19.256.30 If plaintiff is only suing for harassment by a
supervisor,
then the court does not
consider evidence of
harassment by
co-workers
19.257 Consideration of social context in which offensive
conduct occurs
19.257.20 District Attorney's office
19.257.30 Nursing home -
harassment by elderly or
mentally
disabled
19.258 Particular fact patterns
19.258.10 Circuit overview of recent decisions
19.258.20 Two back rubs by supervisor
19.258.30 Consensual relationship with boss that
continued after
plaintiff left the employer
is not a hostile work
environment
19.258.40 Occasional jokes and teasing
19.300 STANDARD FOR EMPLOYER LIABILITY
19.311 Punitive action not required
19.312
Mixed response by employer to
harassing incidents
normally results in jury question
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 prohibited reason
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
harassment
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 harassment
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
representative?
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
19.331.22 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
employment action?
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 harassment
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
19.352.20 [Reserved]
19.352.30 Remedial measures must dissuade others
as well as
the harasser
19.352.40 Transferring victim to
less desirable
location as
corrective action
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 not working
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
19.400 EMPLOYER'S AFFIRMATIVE DEFENSE IN SUPERVISORY HARASSMENT CASES
19.410 No tangible employment action
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 STATUTE
19.511 Whether harassment claim is cognizable under the
ADEA?
19.520 ADA and Rehabilitation Act
19.521 "Solely" because of disability
requirement under the
Rehabilitation
Act
19.531 Standard of harassment claim against individual
19.542 Pregnancy
19.550 Retaliation
19.600 REQUIREMENTS OF ANTI-HARASSMENT POLICY