Facts P worked as a manager and company president often insulted her because of her gender and often made her target of unwanted sexual innuendos. When confronted said he was joking.” D asserted that the harassment had to rise to the level of “only severe psychological injury. Court Violation of T7 because of HWE No need for harm to victim’s psychological well-being [A HWE]… can and often detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. long as the environment would reasonably be perceived as hostile or “so abusive, these is no need for it also to be psychologically injurious.” Psychological harm may be taken into account but it is only one factor Employer Liability for Discriminatory Harassment (HWE Context) Vicarious Liability: Harassment by Supervisors Vicarious Liability Test (Burlington) If tangible employment action (TEA) by a supervisor (immediate or higher) then NO DEFENSE POSSIBLE TEA Is… Hiring, firing, failing to promote, demotion, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits Why? Supervisor acting AS the employer TEA becomes the action of the employer b/c injury not have been inflicted absent the agency relation Knowledge is presumed when action is taken. Supervisors would notice and have the ability to do something. Affirmative Defense (Burlington) IF NO tangible employment action taken Subject to proof by a preponderance of the evidence Burden of proof on the employer Two elements That the employer exercised reasonable care to prevent and correct promptly any SH behavior AND Evidence that SH Policy Disseminated, Understandable, Effective Effectiveness key who the complaints go to? Usually – to go to supervisor but often supervisor is harassing or they don’t want to go to them. Must be another person to go to (example: HR) Mechanisms depend on Employment circumstances Including known vulnerabilities Capabilities of the class of employees in question (Understandable) Not automatic that burden reached Generally must allow anonymous complaints and respect anonymity throughout the process Implementation SH training program Must take affirmative steps to investigate and take corrective action That the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Failure to use employer’s complaint procedure
Facts P worked as a manager and company president often insulted her because of her gender and often made her target of unwanted sexual innuendos. When confronted said he was “only joking.” D asserted that the harassment had to rise to the level of severe psychological injury. Court Violation of T7 because of HWE No need for harm to victim’s psychological well-being [A HWE]… can and often detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. “so long as the environment would reasonably be perceived as hostile or abusive, these is no need for it also to be psychologically injurious.” Psychological harm may be taken into account but it is only one factor Employer Liability for Discriminatory Harassment (HWE Context) Vicarious Liability: Harassment by Supervisors Vicarious Liability Test (Burlington) If tangible employment action (TEA) by a supervisor (immediate or higher) then NO DEFENSE POSSIBLE TEA Is… Hiring, firing, failing to promote, demotion, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits Why? Supervisor acting AS the employer TEA becomes the action of the employer b/c injury not have been inflicted absent the agency relation Knowledge is presumed when action is taken. Supervisors would notice and have the ability to do something. Affirmative Defense IF NO tangible employment action taken (Burlington) Subject to proof by a preponderance of the evidence Burden of proof on the employer Two elements That the employer exercised reasonable care to prevent and correct promptly any SH behavior AND Evidence that SH Policy Disseminated, Understandable, Effective Effectiveness key – who the complaints go to? Usually to go to supervisor but often supervisor is harassing or they don’t want to go to them. Must be another person to go to (example: HR) Mechanisms depend on Employment circumstances Including known vulnerabilities Capabilities of the class of employees in question (Understandable) Not automatic that burden reached Generally must allow anonymous complaints and respect anonymity throughout the process Implementation SH training program Must take affirmative steps to investigate and take corrective action That the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Failure to use employer’s complaint procedure
Employment%20Discrimination%20-%20Selmi%20-%20Fall%202010.docx