Chapter 19 - Hostile Work Environment Claims

Table of Contents	Treatise	Search	Apps Home
View Legal Apps for iPhone^®/iPad^®	Garland's Digest Treatise on employment discrimination law online since 1997		Sign up for Legal Apps Newsletter
x


Disclaimer: The Treatise is based upon federal appellate court decisions from 1996 to 2008. We are currently in the process of updating the Treatise. Until that update is complete, it is possible that certain cases cited in the Treatise may no longer represent current law. ------------------------- Chapter 19 - Hostile Work Environment Claims Overview 19.100 INTRODUCTION 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 Detail 19.100 INTRODUCTION [TOP] 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 19.220 Protected group 19.221 Managerial employees protected as well 19.230 Harassment unwelcome 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 19.241 Same-sex harassment 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 19.251.30 Factual question 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 19.254.20 Racial slurs 19.254.30 Physical contact 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 19.257.10 Construction site 19.257.20 District Attorney's office 19.257.30 Nursing home - harassment by elderly or mentally disabled 19.257.40 Prisons 19.257.50 Schools 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 [TOP] 19.300 STANDARD FOR EMPLOYER LIABILITY 19.310 General principles 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 5^th 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 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 19.362 Inmates [TOP] 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? [TOP] 19.500 HARASSMENT CLAIMS BY STATUTE 19.510 ADEA 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 19.530 42 U.S.C. § 1981 19.531 Standard of harassment claim against individual 19.540 Title VII 19.541 National origin 19.541.10 "English only" rule 19.542 Pregnancy 19.543 Race or color 19.543.10 Racial epithets 19.544 Religion 19.545 Sex 19.550 Retaliation [TOP] 19.600 REQUIREMENTS OF ANTI-HARASSMENT POLICY [TOP]


Table of Contents	Treatise	Contact Us	Privacy
© 2011 Garland's Digest Apple, the Apple logo, iPad, iPhone, iTouch, and iTunes are trademarks of Apple Inc., registered in the U.S. and other countries.

, iPad, iPhone, iTouch, and iTunes are trademarks of Apple Inc., registered in the U.S. and other countries.