First Lecture for Module 9 (Employment Practices and Law)

welcome to this presentation covering sexual harassment let’s begin we have four topics that we’re going to talk about in this presentation the first is kind of an overview of kind of the history of sexual harassment and then we’re gonna talk about the two categories of sexual harassment that we recognize in the law the first is called quid pro quo the second is hostile work environment third we’re going to discuss how an employer becomes liable for sexual incidents that might happen in the workforce and how he the employer might avoid liability and finally we’ll talk about other ways outside of the title seven model that can cause liability to arise in a sexual harassment situation those can be tort claims and or criminal current claims so let’s begin what is sexual harassment this is an issue or a topic that has dramatically changed in our society in the last we’ll say 50 years but probably if you go before that even even in other ways behavior that was once not necessarily recognized as sexual harassment might be recognized today and so in certain respects there is less of this behavior on the other hands generally our culture has become more open and more expressive about personal sexual issues and so in some senses sexual harassment is probably become less common some since it’s become more common it’s evolved and it’s a phenomenon that changes with each new iteration of society but human nature human nature and so it’s not going away there’s no perfect fix that’s going to stop sexual harassment for occurring from occurring as long as we have a workforce that is diverse and so we’re going to see that continue to be an issue and HR managers and legal professionals who work in the area of HR law are going to contend with this and so it’s more a matter reducing and managing the risk than eliminating the risk the risk is never going to completely go away we’re going to always confront these issues it’s also important especially with this topic of sexual harassment that the individuals managing this be aware of where the current social moment is and we’ll see as we look at this a little more detail that people’s perspective on sexual harassment has gone through several generations of change so the law hasn’t so much changed that’s not so much of a factor in this but the people who would be in the jury pool have changed and the employees with whom you work and support and assist are going to be part of that changing value system and so it is important that HR managers and legal professionals know what the current perspective is on these issues and recognize as that as it evolves sexual harassment Trotta sexual harassment claims historically were not very common part of that is because this isn’t a claim that has been recognized forever it really only became generally recognized in a law in the 1980s well after the Civil Rights Act of 1964 was passed even then though was a fairly rare category I think in part because it was an embarrassing topic for a potential plaintiff to bring up also in many cases the person who had been subject to sexual harassment did not necessarily lose money as a result of it maybe he or she just left that place of employment and moved on to a different opportunity and so they may not have actually been out of work for a period of time so those are some reasons why it was less likely to kind of percolate into lawsuit in the 1980s and 1990s we did see an increase in this category and certainly corporations became more aware of the concern still though there weren’t a lot of cases that went too trial and one of the reasons was well one of the reasons was lack of damages as we talked about before and oftentimes these don’t result in termination situations although sometimes they do also there was a level of embarrassment all kind of both ends the plaintiff really didn’t want to go to trial and neither did the defendant and in those cases not surprisingly both sides figured out a way to settle it the textbook focuses on the defendants side the defendants desire to settle these cases and certainly that is the case

large corporations always won that are on say always but certainly in the majority cases want to settle really any type of employment dispute they’re so expensive for those corporations to handle I don’t really know if there’s so much of an embarrassment factor for the corporation certainly if it were a high-ranking person within the corporation there might be an embarrassment factor but it was a large corporation and the person who allegedly harassed isn’t a senior executive I don’t think embarrassment is usually the reason why the case is settled so Oh a quibble a little bit with with some of the the textbook comments but generally speaking certainly no corporation wants to be subject to bad publicity and there is certainly the possibility of sexual harassment cases that there be bad publicity as there is the potential for bad publicity in almost all of these types of cases we’ll talk more specifically later on probably in a second lecture but employer liability is going to turn on what the employer does it’s not doesn’t really usually turn it can turn but probably more commonly than not it’s not going to turn on what happened between the two employees that dynamic usually isn’t what causes the greatest liability for the employers we’ll explore what that what that missing component is when we get to a later part but I’m going to kind of tease you a little bit with that but it’s going to be how the employer has established standards and how the employer has enforced those standards again we’ll talk more about that going forward so the big case that are the first big case in this area was merit or savings this was the case in 1986 and in this case the US Supreme Court said yes sexual harassment is an actionable claim under Title 7 and it established not only was it an actionable claim under a quid pro quo basis probably that was already you need the law but a hostile work environment claim could be advanced under Meritor Savings we’ll talk about merit or savings in a little bit more detail in a minute but let’s just pause here and think about the issue what is a hostile work environment it’s when things are sexually charged and they make people very uncomfortable but there’s no rape there’s no you’ve got to date me or you’re not going to get the promotion there’s no you got to do this in order to get this it’s just a really uncomfortable working environment very it’s inappropriate obviously but there is no actual you’re being fired if you don’t do this type of thing so you can see how it doesn’t really fit in tightly with the whole title seven type claims because there really isn’t any direct adverse job action that’s happening we’ll talk about how the US Supreme Court addresses that issue in a few minutes but but that’s one of the reasons I guess that sexual harassment is kind of late to the party in terms of an a claim under a title 7 as we go through this chapter even long time.i sexual harassment be aware that we also have in addition to sexual harassment all the other categories of harassment racial harassment color harassment religious harassment age harassment disability harassment gender harassment more generally all of those are going to follow the same legal paradigm that we’re going to talk about with respect to sexual harassment so be sure as you’re hearing it to recognize this material has applicability beyond the sexual aspects even though the Meritor Savings case came up before the Anita Hilde Clarence Thomas situations certainly the Anita Hill Clarence Thomas situation was a watershed for sexual harassment I mean any of y’all perhaps don’t remember it this was a time when Clarence Thomas who eventually became a US Supreme Court justice and currently is a US Supreme Court justice he was going through his confirmation hearings and he is an african-american man and he had been previously the head actually the EEOC and while he was at the EEOC the Equal Opportunity Commission one of his colleagues I think she was a subordinate to him she was also an attorney so Anita Hill both Justice Thomas and Miss Hill were are African American they are both politically conservative individuals and they were both working for the EEOC as attorneys

miss Hill alleged that mr. Thomas engaged in many sexually sexual jokes sexual innuendos things like that she didn’t claim that he was propositioning her or totally threatening to fire her she refused to have a relationship with him or anything like that but basically what she was saying was it was a very sexually charged environment other co-workers disputed her version of the allegations so there was a and mr Thomas and self disputes there was a variety of perspectives being advanced and it was a fairly almost like a whodunit type of situation and he said she said there were people who felt very strongly that Miss Hill was telling the truth after all she shared mr. Thomas’s political views and so it was hard to see why she would be coming forward to sabotage his candidacy if it hadn’t really happened on the other hand many people felt that this was an attempt to present a stereotypical image of african-american men in this society that that that perspective obviously very offensive perspective that some people unfortunately had that african-american men would behave inappropriately in the work environment anyway that dynamic was also there so race was in the mix gender was in the mix politics was in the mix sex was in the mix there’s just so many different dynamics to the situation anyway eventually Justice Thomas was confirmed and he has continued to describe the behavior that he received as a high-tech lynching was the term that he used for how he was treated during that confirmation process miss Hill continues to present her version of events that she felt that everything that she said was accurate and was truthful and she stands by her testimony so you can go lots of different ways with that but it was definitely a watershed moment and because of the heightened attention that sex harassment got employers saw a dramatic increase in the number of complaints people who might not have identified what was happening to the more workplaces sexual harassment or perhaps even a problem suddenly were looking at that behavior in a different way so this was a big cultural moment for us where we were looking at it and saying wait we might have looked at it one way once and now we’re looking at the same issue in a different way we’ll see as we go a little bit farther and we’ll talk about this later on but we had the fella ger Faragher and Ellerth opinions in late 1990s that presented another part of that cultural paradigm this one wasn’t one that the general public was necessarily tuned into but it’s one that the corporate culture was was clued into prior to Faragher and Ellerth corporations might have had some sexual harassment training but it wasn’t a big deal after these two cases really an industry developed in the area of sexual harassment training and reporting and so definitely this impacted the cult the corporate workplace culture and we’ll talk more about that as we get to that section of the material despite the efforts or perhaps because of the efforts depending upon your perspective on these issues sexual harassment continues to be a very major issue in our culture it is one that seems to continue there seems to continue to be abuse happening in this area and most recently we have had another kind of iteration of the same same types of things that we saw in the Anita Hill Clarence Thomas situation but there are some differences this time for one thing we see this with the meat mewtwo movement in the Harvey Weinstein situation and we’ve seen it affect others too but Charlie Rose Matt Lauer many others I’m drawing a blank enough for other names but a big difference between this version and the one with the Nita Hill and Clarence Thomas is that while many people believe miss Hill many people also believed mr. Thomas

nowadays I would say that women are much more likely to be believed and in fact some people are concerned that simply being accused seems to in our culture now equate to you must be guilty if you’ve been accused that somehow or another it’s not believable that somebody would ever lie about something like this and so we we’ve kind of gone from never believe the victim to always believe the victim or the person who’s saying he or she’s a victim but this has raised the awareness of sexual harassment and it has also probably reminded us that it continues to be a major problem we haven’t seen legislative changes but certainly when these issues are out there in the culture it’s going to affect the jury pool and it’s going to affect the employees what their expectations are and as a result of the meeting movement there’s been a significant increase in the number of sexual harrassment complaints that are being filed so we are definitely seeing the evolution continue in this area and very likely will have another iteration of this because I mean the bottom line is human nature isn’t going to change we’re going to continue to these issues as long as we have work to do to perform ok so now we’re going to talk about the two flavors there are two categories of sexual harassment we have the quid pro quo and the hostile work environment most likely we will save employer liability and tort and criminal claims to another lecture so let’s can let’s continue and talk about what what what do we mean what we mean sexual harassment I’ve been throwing the term around but I haven’t really explained what it is and again defining what it is is a large part of the challenge what what race discrimination is pretty easy to define if you treat somebody differently because of his or her race that’s race discrimination you know religious discrimination is pretty easy to define if you treat someone different because of his or her religion that’s racial religious discrimination but we’re talking about sexual harassment I mean is saying hey that’s a pretty dress is that sexual harassment or my you look handsome with a beard is that sexual harassment where is the line and it’s not intuitive necessarily where that line would be and probably that line shifts as the culture shifts so it’s not static situation let’s first of all talk about what isn’t sexual harassment one thing that is not sexual harassment or consensual relationships now that they have to be truly consensual I mean if your boss says you want to date me by the way we’re going through layoffs and I certainly want people working with me who are supportive of me and my effort so one more time do you want to date me that would be an example if you say yes it might appear that it’s consensual but it’s really not consensual because implied in that is and if you don’t date me maybe you’ll be laid off but if it truly is consensual then it’s not forbidden and we’ll talk about that really comes under the idea of welcome this one of the things that makes something sexual harassment is that it’s not welcomed contact or communication between the individuals another thing that sexual harassment is is it’s not this kind of Puritan place where nobody ever cracks a joke or notices the genders of the people that they’re working with it is not a place to avoid a sexuality having compliments having casual comments about human sexual manners does not make an environment a case of sexual harassment has to actually be pretty pretty out there before it’s going to cross that line into sexual harassment you can have a lot of banter and you’re still not over that line now let me pause and say here that that’s the legal line but if you think about it most employers well so let’s imagine this is well let me know in sold Amish people let’s say this is the Amish line where there’s no no no skin is being shown there’s no dirty jokes there’s no dating in the workplace it’s like a Queen Victoria era work working environment just none of that comes up up here we have sexual harassment where it’s just absolutely unlawful behavior employers don’t want to have their policy B well we just have to make sure

that you know gosh we’re below the legal limit here they don’t want to be up here and why don’t they want to be up here well if they’re that close to the legal line there they’re allowing for lots of behavior that isn’t constructive I mean even if behavior isn’t sexual harassment does sexual banter in the workplace really help productivity I mean even if it’s not harassing even if everybody’s enjoying it it’s a distraction if people aren’t doing what they’re supposed to be doing and so employers usually set the bar much lower than the legal level and that way if somebody says well what gosh somebody did something at this level then the employer can say oh hey little save Bob did something at this all hey Bob you violated our policy you may not have violated the law but you violated our policy and so usually there’s a pretty significant divide between the two because the employer yes the employer wants to make sure that this line isn’t cross they want to have a nice comfort zone between the legal standard and what their standard is and they also don’t want there to be a lot of shenanigans in the workplace that aren’t constructive so what an employer says this is appropriate is usually going to be quite a bit more demanding than what the law provides obviously most sexual harassment situations take place between males and females but you do have the potential to have same-sex sexual harassment we’ll talk about that and that does not necessarily mean that there’s a sexual orientation issue although it can certainly a males can be harassed by other males or by females and certainly females can be harassed by other females or by males males are less likely to make claims of sexual harassment my guess is that it’s less frequent that males experience it number one and number two there also be some heightened level of embarrassment factor with a male who is subject to that we’ve talked before about this but I’m just gonna reiterate it one more time I’m sure I’ll see him four additional times sexual harassment is not covered by title seven there have been a couple of circuits which are federal courts the appellate level courts that have held that sexual harassment is implicitly covered in title seven when there’s a reference to sex and mainly the way that those courts have done is said that a stereotype that we associate with sex is that males are going to be attractive romantically to females and females will be romantically attracted to males that’s our stereotype and when people vary from the stereotype and fail to meet the norms that we have with that particular gender then that is an example that would be having a different sexual orientation being gay or lesbian in other words so because you aren’t meeting sexual stereotypes you could consider that to be a type of sex discrimination so a couple of circuits maybe three have agreed I think it’s to have agreed of that our circuit the Fifth Circuit has not agreed to that at all I would be very surprised if our first circuit were to take that step so if we see sexual orientation being included within title seven will happen most likely in one of two ways a legislative change by the Congress where and they will add sexual orientation as a protected category the other way would be for the US Supreme Court to interpret the term sex that is in title seven to include sexual orientation that could happen that would be somewhat surprising for it to happen because of some previous decisions usually the Supreme Court doesn’t like to kind of overturn its own precedent it has it has some flexibility it wouldn’t be absolutely inconsistent for it to do so but it’s unlikely I would say in my opinion for it to do so so I think the more likely path would be to see a legislative change by Congress but at this point that doesn’t seem to be on anybody’s top agenda so most likely for some significant period of time to come sexual orientation will not be a covered category under either state law or federal law let’s advance from here this is a case I’m not going to draw a little attention to it I was trying to show that just because a person just because sexual stuff is happening in the workforce does not mean that it’s sexual harassment in this case the boss

commented because the worker the the woman was dressed inappropriately she wore very short skirts and she her job was to be a receptionist and so the boss was saying look this these are too short you need to dress more professionally he never expressed any sexual interest she complained about the boss could criticizing her appearance after that happened her workload increased and the boss stopped talking to her then she was discharged she’s saying look I was discriminated against because of my gender but in fact though she wasn’t the court found that the workplace wasn’t hostile at all there was no quid pro quo behavior there was no hostile work environment because there was anything sexual going on here you don’t need to know the name of this course I’m just kind of offering it to show an example of not an unusual situation I mean not probably as common as others but not every time that there’s a discussion of something potentially sexual that necessarily means there’s a harassment situation it’s very appropriate for employers to enforce dress codes and to talk with somebody who is dressing inappropriately my bought my father this is beckoned I guess in the 80s remember one time he had to talk to he worked in an industrial situation and he had to talk to one of the women workers because she wasn’t wearing a bra and it was a kind of a physical job and so as a result she would sometimes be sweaty and it wasn’t modest because the sweat would she’d be wearing t-shirt in this way it would cause the shirt to follow her form and so it was not a modest situation and the co-workers were distracted by this aspect of her appearance and so my dad had a talk with her about you know you need to wear something underneath that t-shirt that won’t allow your physique to be so obvious I’m sure he was embarrassed by that conversation but it was absolutely appropriate and not anything wrong to have had that conversation but it was the better thing to do so don’t feel like you can’t talk about this dress code compliance with workers and somehow find yourself crossing the line now it’s probably a good idea if you are someone of the opposite gender for the person you’re talking with and you’re concerned about the revealing Ness of their clothes to have another person present for that conversation so you don’t have any potential that there be a misunderstanding about it so sexual harassment is a category of employment discrimination harassment is a subcategory if you imagine the universe and the employment discrimination sexual harassment is just one category in this larger universe let’s see how esc has described sexual harassment unwelcome sexual advances requests for sexual favors at other a verbal or physical conduct of a sexual nature constitute sexual harassment win so these behaviors are going to be sexual harassment if one of the following conditions are present you just need one so the first one is our quid pro quo before we get into quid pro quo there’s a couple of different ways of using this expression quid pro quo literally means this for that but sometimes people say tit for tat at and and did they don’t mean that in a coarse way I just mean this is an expression and English tit-for-tat and I’m not meaning it in any kind of salacious manner this for that quit tit-for-tat and you can see with the terminology or let’s kind of see what the definition the su is provided the conduct is my that may there is made either exclusively exclusively or explicitly this one this should be explicitly let me just made that change it’s illicit Lee or implicitly which means it’s implied a term recognition of employment so let me give you some examples date me and I’ll promote you have sex with me and you will be on the layoff list doctor obviously that’s very direct and explicit or but it can be implied and you can see that demonstrating the adverse employment actions pretty easy in that situation you’ll remember the prima facie case the employee has to establish four things

that he or she is a member of a protected group well of course gender is a protected group that he or she was qualified for the job well presumably they were qualified for their job that there was an adverse action something like a year to promote demotion termination failure to hide and that there was one other characteristic and certainly the quid pro quo aspect evidence could qualify for that fourth characteristic so quid pro quos pretty straightforward and as I think we all would have agreed that this was a category for sexual harassment earlier than this second category the second category though is probably the more importing category in that this is the more common allegation we see quid pro quo cases but they’re not as common as the hostile work environment so let’s consider the hostile work environment the conduct is unreasonable it interferes with job performance or creates a hostile or offensive working environment in this situation nobody’s asking anybody out on dates nobody’s threatening to fire them it’s just an environment that is very sexually charged and that because of the high level of discussions of sex or jokes or touching or things like that it has interfered with the ability of this worker to do his or her work so both are types of sexual harassment but you can see how they’re really going to look pretty different on the ground and so as we talk about these always keep in mind well what type of sexual harassment is the allegation in this case it’s important to know which type because we’ll see as we consider whether employer liability exists there’s very different answers we’ll have one answer if it’s category one it will have a very different answer if it’s category two so both forms have been adopted by courts they’re both considered unlawful sexual harassment under Title 7 and here’s maybe a bit more of definition about this let’s consider the quid pro quo sexual harassment sexual harassment which the harasser requests sexual activity from the victim in exchange for workplace benefits the good news for the plaintiff is that there’s usually some records of this there’s usually some emails you know oftentimes the harasser starts out more low-key hey you wanna grab some lunch ah pretty dress you’re wearing nice tie like that and escalates it maybe when he or she is getting the response or at least hoping to get the response testing the water so to speak and so there’s likely to be other witnesses or some increased telephone calls or text messages or things like that and so those cases are oftentimes relatively easy for the victim to present as hey here’s some evidence to support it may not have all of the evidence of every single interaction but may have enough evidence to show that there is a point of concern let’s consider the second category so this is so this is the first category number one this tracks with number one number two attraction number two this is hot sexual harassment on which the harasser creates an abusive offensive or intimidating environment for the victim while touching may be involved touching is not a requirement so hey you want a back massage that kind of stuff certainly it can filter over two quid pro quo more likely it’s in the hostile work environment situation if it’s just a background or something along those lines touching can be hostile work environment can be quid pro quo you don’t have to have touching in order to have a hostile work environment it’s oftentimes a more subtle situation there can be email trails and and cellphone trails and things along those lines but it can also be more likely verbal or visual type of things and so there isn’t always as much of a paper trail with a hostile work environment case as with a quid pro quo let’s consider a couple scenarios so Mary and Bob are part of the cheese production team at heath dairy all the team members share a harmonious work relationship however a calendar featuring a semi nude woman in a sexually suggestive pose on Bob’s desks makes very uncomfortable she asked Bob to remove it but Bob does not oblige insisting that he has been getting that same brand of calendar for five years and sees no need to replace it now to file and prevail in a sexual harassment

claim Mary must prove that the calendar creates a hostile or abusive work environment so we can see that Mary if she’s going to be successful at all her only shot is going to be with a hostile work environment because Bob hasn’t made any requests for sexual activity with Mary nor has he suggested any kind of workplace benefit it sounds like primary and Babur peers co-workers and so probably Bob doesn’t even have the ability to fire Mary or promote Mary or something like that I would say that a single picture of a semi nude woman in a sexually suggestive pose is very unlikely to qualify as sexual harassment hostile working environment type claim but certainly this could be one fact of many and so this would be maybe one piece of evidence that could advance Mary’s claim but she’s frankly gonna need more under these circumstances to make a legal claim now if I were the HR manager in and Heath Derry would and Mary comes to me and says I’m really weirded out by this whole poster thing am I going to go by Bob’s office and see some scantily clad person in a picture am I telling him that’s not okay make it go away of course I am what’s the benefit to having this picture if he wants to put it in the drawer you know of his desk maybe that’s okay with me I guess but I’m not I’m there’s no upside for the employer for saying uh Bob can keep it I mean how is that helping productivity it’s giving Mary some ammunition for a claim it’s probably a source of distraction for Bob and perhaps other people in the working environment so the fact that it’s probably not a hostile work environment successful hostile work environment claim doesn’t mean in the employer on a second episode as I draw memories so I guess you’re out of luck no perfectly fine for the employer to have a much lower bar before it that it takes action on and in fact not only is it appropriate it’s a very logical step for the employer to take let’s consider the next scenario Mary’s a partner in a law firm and she shows special interest in Bob a new associate in the law firm associate is a term for a new attorney who is going to work at the law firm for a few years in the hopes of making partner very frequently makes sexual overtones to Bob and expects him frequently made sexual overtones felled and expected him to get physically intimate with her if he wanted to be a senior attorney in the firm however Bob’s refusal prompted Mary to tell him that he was not suitable to be a senior attorney and she she also started treating him badly in front of other employees unable to bear the harassment any longer bob quits his job and filed a complaint with the EEOC for sexual harassment the law firm would be strictly not liable for sexual harassment because Mary’s a supervisor the supervisors actions are considered those of the employer so this is this one was category 2 hostile work environment but this would be a quid pro quo Mary said have sex with me to get this promotion Bob didn’t and now bob has filed the claim now Mary actually had the power to actually do what she’s threatening she had the power to either help him get to that next step or impede his progress and so just like if Mary had discriminated against somebody because of their race or their religion Mary’s actions would implicate the employer the employer would be liable as well as Mary but in this case it’s sexual harassment is same same situation bob is being denied a promotion so Mary’s actions as a supervisor are imputed to the employer under that respondeat superior vicarious liability idea that we’ve discussed before so unfortunately for Mary and the employer Bob probably has a pretty good claim if he isn’t made senior attorney and even I guess he’s quit so even otherwise he’s probably got a good claim Meritor Savings we’ve already talked about this case a little bit this is a big one this was really the first one or the first US Supreme Court case that talked about hostile work environment sexual harassment so the question that the case was looking at what was above before we going further you need to know Meritor Savings you don’t need to know Vinson you just need to know this part of the name Meritor Savings you know it’s holding and here you can see is very brief summary the holding loss I had in the case and it’s significant to employment law and of course here we’re talking about the fact that this is

establishing hostile work environment sexual harassment and so this is the first time that we know for sure that it is covered in this situation the plaintiff was sexually harassed by her supervisor she claimed that he forced her to have sex many times and actually raped her and exposed her set himself to her very according to her allegations a very very abusive situation she never complained about it and US Supreme Court said it sounds like it might be a quid pro quo case but even if we look at it as a hostile work environment case and it said that an employer can be liable for hostile environment sexual harassment claim by a supervisor even if the employer was unaware of the conduct I remember I said she never complained she never reported the harassment to anyone well the merit or saving or assuming the Supreme Court is saying when it’s a supervisor who’s doing the harassing there isn’t the requirement that the employer be notified because the supervisor knows because I mean if it’s true that he or she’s really harassing then obviously he knows he’s doing it and he represents the employer for this from the end of the respondeat superior theory the court also note the guidelines issued by the EEOC specify that sexual harassment when two non-economic injury was a form of sexual discrimination prohibited by Title 7 so it’s easy when somebody’s fired hey I refuse to have sex with Bob I was fired well there’s an economic injury there I’m out of work I’m losing my paycheck but many hostile work environment cases the person is not obviously out any money they’re still working on the assembly line they’re just miserable they’re still getting their paychecks so the injury is non-economic the Court recognizes that plaintiffs could establish violations of Title 7 by proving the discrimination based on sex has created a hostile or abusive work environment so it does that we don’t need an economic injury in order to establish a hostile work environment claim so here’s a contrast between quid pro quo and hostile work environment so here’s kind of the definition workplace benefit promised or withheld from this should be from victim and I apologize from victim by harasser in exchange for sexual act sexual activity by the victim and of course what the sexual activity is doesn’t have to be actual sex it could be we go on a date with me will you kiss me will you perform this act that might fall short of actual sexual intercourse as we noted before often times there’s going to be some kind of evidentiary trail maybe paper trail maybe electronic trail and let’s contrast that with the hostile work environment what does the victim need to prove in order to establish a hostile work environment well here she needs to prove that the behavior was unwanted more likely it’s described as unwelcome obvious if the victim is participating freely without the contact there is no hostile environment I mean the employer might not be happy that the invite employment environment is so sexually charged but if nobody’s disliking it it’s not hostile in addition the behavior has to be directed toward the victims gender we’ll talk a little bit more about what we mean by this in a second it also has to create so usually has to create a hostile or abusive work environment and this we’re really getting at is it sufficiently severe and/or pervasive the workplace is not supposed to be you know Miss Manners finishing school where everybody behaves just so appropriately they left their pinky when they’re drinking their coffee and they wear white gloves and they would you know never wear white after Memorial Day or whatever the thing is yeah this is not an etiquette society it’s a rough-and-tumble industrial environment in some cases and so the fact that there’s some some salty language some sexual comments that in and of itself is not going to cross the line in most cases it really needs to permeate the environment and really be a severe or pervasive and another requirement to establish this hostile

work environment is that it has to unreasonably interfere with the victims ability to do his or her job so let’s say that the only person who tends to crack these jokes travels most of the time and he or she’s only in the office once one day a month well it’s hard to argue that unless this person is super offensive that that’s going to unreasonably interfere with the victims ability to do his or her job so you have to consider their totality how much contact is there how frequent is the sexual banter or whatever going on and so it’s it’s you have to be able to point to things in the victim in the victims performance that are suffering if the victim is an all-star worker and continues to be an all-star worker it’s going to be hard to argue that they have found that their work performance is unreasonably interfered with now again that’s the legal standard for the victim to win the case but the employer isn’t going to want to wait to address the problem until people’s job performance are diminishing that would be stupid for the employer so again the legal bar to establish this is pretty high you got asked some pretty darn good evidence to be able to successfully claim sexual harassment but the embargoing to want to enforce it’s going to be significantly lower they want to stop it when it’s about to cross this line so really in my experience employers really don’t want sexual comments or any windows in the workplace really at all and so the the bar is pretty removed from where the legal line is and employers are perfectly able to enforce the the lower line I mean it goes back to that employment it will so let’s say that and let’s go back to our story here in this situation Bob with these semi nude pictures and let’s say I’m the HR person I called Bob and I would say Bob you know these pictures that’s just not appropriate it’s not conducive to a professional work environment and I’m going to fire you because you had these pictures you that would be perfectly lawful for the employer to do the employer can say you can fire anyone for any reason now if you know Teresa and the work environment has a semi nude picture of a man and a sexually suggestive pose then the employer can’t fire Bob and not fire Teresa but if the employer has a very conservative approach on these issues it can fire whomever at once there’s no kind of reverse sexual harassment idea and there’s no particular rights that the alleged harasser has to some kind of due process protection under the law they can’t be terminated if the behavior isn’t really egregious the most employers probably wouldn’t fire under these circumstances because it doesn’t seem like it’s really a severe situation if Bob’s a good worker tell them to remove the picture tell them not to call it not to do anything close to that line again and go about document the situation and go about your business but it certainly would be okay for the employer to go ahead and dismiss Bob assuming that the employer has consistently dismissed people for this level of sexual behavior in the workplace Equus has to affect negatively a condition term condition of victims employment this is that third element of the prima facie case so let’s talk about the unwelcome requirement oops here we go it is an absolute requirement if the victim welcomes the behavior then guess what it’s not harassment but the victim isn’t required to say Bob I find your comments and welcome know so whenever one is engaging in sexual banter one shouldn’t assume that just because the other person isn’t objecting that they necessarily appreciate the banter it’s socially uncomfortable in many cases for somebody to say wait a second I don’t really appreciate those types of jokes and the fact that they don’t say that doesn’t mean that the the person making the jokes can just assume that they’re

welcome a better course of action is number one not to go into the sexual arena and all but if you do for whatever reason to say hey you know I I heard this off-color joke the other day would you mind if I told it and then maybe after you tell the don’t see I almost write it offend you with that joke did I cuz if I did out I won’t tell you those kind of jokes in the future if he for some reason you needed to go there and that would be the appropriate way of handling those situations – to get that agreement that it wasn’t unwelcome let’s consider this scenario so Bob interest in an intimate relationship with the soup rosemary was genuine at the beginning but he loses interest after a while so after Bob communicates to Mary he doesn’t want to see her anymore he she stops pursuing their own magical relationship sometime after that Bob and Mary have a profession falling out Bob cannot successfully assert that the behavior that occurred during his relationship marries evidence of sexual harassment because it was welcomed at the time that had occurred so Bob and Mary dated they broke up Mary didn’t retaliate against Bob so Bob isn’t going to have a successful claim now of course there can be evidentiary issues I mean Bob my history might change he might say well I never was interested in dating Mary it really wasn’t genuine interest but I felt she would fire me if I didn’t date her or Bob might say well yeah I willingly dated her but when I lost interest in Mary sure i’m retaliating so even though in this fact scenario as I’ve presented it yes Mary doesn’t have any exposure now that is the employer Bob’s testimony can be a wild card in these situations and that’s one of the reasons why employers prefer for especially when it within a reporting relationship that they’re not be dating we’ll talk more about this topic later on in this presentation so severe and pervasive let’s go back to that one this is it has to be sufficiently severe or pervasive in order for it to be sexual harassment and this is usually the sticking point we have to decide or the eatery ultimately has to decide whether it is so severe and so pervasive to amount to an unreasonable interference with an employee’s ability to perform usually a single occurrence is not going to be at that level because again workplaces don’t have to be Miss Manners boarding schools but a single event can cross the line certainly for example a rape across line but things significantly short of that across the line so it’s it it a one or two bad answers can meet the qualification for severe pervasive or lots and lots of relatively small and I can cross that line or some combination of those things so you either need it to be really severe or pretty pervasive or some combination of those we’re going to talk about Harris the forklift systems in a bit but the important one important idea to get out of that case is that there doesn’t have to be psychological damage to the victim in order to be able to be successful in a sexual harassment claims we’re not talking about a mental health issue necessarily although sometimes that can play a role that the person who’s been subject to sexual harassment is experiencing you know depression or anxiety or year or something along those lines certainly that can be evidence and it can be powerful evidence but the person again doesn’t need a psychiatric diagnosis to be able to advance under a hostile work environment theory so let’s consider what is going to point us towards that the existence of a hostile or abusive work environment well of course one is going to be the frequency the pervasiveness also its severity so we need to I mean ideally if you’re the plaintiff you want to have both of these but if you have if you you need to have at least one of these I guess for sexual harassment claims in the case of rape the plaintiff does not need to show that the offending activity was sufficiently severe and/or pervasive if it was egregious enough the one time it occurred so again really extreme situations even if they occur once can cross the line into a hostile work environment circumstance certainly the

standard of whether conduct is abusive should be that of a reasonable person in the plaintiff situation the reasonable person standard is something we’ve talked about before and let me just flag a couple of terms it’s an objective standard so it’s not focusing in the case of hairs it’s not focusing on miss Harris’s perspective her quirks her individual level of sensitivity it’s not focusing upon the alleged harasser z’ perspective his particular experiences and his understanding of the situation I like to think of it as kind of the fly on the wall the disinterested person who observed the whole situation doesn’t have any dog in the fight doesn’t have any agenda what he or she have looked anything said miss Mikasa work environment to me now obviously everybody thinks of himself or herself as a reasonable person and we all know people who aren’t reasonable people right I mean that’s so we’re not talking about a particular person this is a standard in the law where it’s kind of the average person’s I&E so it wouldn’t be you know the will say be the Amish person who’s lived his or her entire life on a farm in Lancaster County Pennsylvania that person though a person might be absolutely reasonable doesn’t meet the kind of average idea that we have in our society that person might be shocked by lots of things that frankly the average US citizen in the 21st century wouldn’t be that surprised by on the other hand the the average employee at you know Hooters or Twin Peaks or a pornographic website would probably have a much more a higher expect the line is much higher and things that the average person would find offensive they might be later they had no big deal I’m immune to being shocked in that and so it’s the average for the society and so it’s going to change over time what might shock people and one generation won’t necessarily shock people another generation there has been some move out there for some courts to adopt a reasonable victim standard the textbook talks about this a little bit more than I think it’s really happening the reasonable person standard is not really not the reasonable harasser standard and it’s not the reasonable victims designed to be apart from either the victim or the harasser and so it’s designed to be objective but as soon as you are looking at it through the lens of one person you can see how some of the objectivity is going away now certainly courts who have used a reasonable victim standard don’t focus on the particular personality of the victim but try to imagine that reasonable person plopped into the situation that that victim is in and that’s actually the standard that is used in Harris it is a reasonable person in the plaintiffs particular circumstances but of course to label that person as a victim is kind of begging the question right I mean the whole issue is whether this person is a victim or not so this is kind of a loaded approach and I would say it’s not one that we would likely see in the Fifth Circuit or in Texas State Courts right now I would say that a reasonable person the plaintiff standard is so the plaintiffs position is a standard that we’ve seen this US Supreme Court give us more than once and would be the direction that we would expect I think most courts in our state to adopt and use and so here’s a description about these two standards as I said before this is the more unusual approach so the reasonable person standard is viewing the harassing active from the perspective of a reasonable person in society at large regional victim is viewing the harassing behavior from the perspective of a reasonable person experiencing the harassing activity including gender specific sociological cultural and other factors so again he almost becomes perhaps a reasonable woman’s standard which of course is only half the population so it’s not that complete reasonable person standard which in theory covers us all so it’s a little bit of a less common standard and one that is probably not as useful in our particular part of the country of course if you move to different part of the country it’s possible this perspective might be widely-accepted well here’s the actual kind of case brief about Harris versus forklift systems and we can see that we

are now in the late 1990s so we’re a little over ten years from the time of Merit or savings and now the issue is must sexual harassment seriously affected employees psychological well-being in order to create an abusive environment that violates itis up the short answer is no you are responsible for now in this case we’re not going to go through the facts of the case so don’t worry about that you need to know its name its significance and it’s holding so here’s our holding if the environment would be reason would reasonably be perceived so this is reasonable perception reasonable person standard it’s an objective standard and is perceived which is a subjective standard so now we’re getting into Harris’s head as hostile or abusive there is no need for it to be psychologically injurious in order for there to be a valid title seven claim so we have to would that fly on the wall have viewed it as hostile or abusive and did terrace in fact view it as hostile or offensive we need both of those to be present well having just one either Harris being offended or that fly-on-the-wall being offended isn’t going to be adequate but Harris doesn’t have to be some kind of psychologically ill person as a result of the situation so Harris that decision broadened the categories of hostile work environment cases that were going to be successful now we’re going to talk about on colleague we’ll talk about more about on Kali in the sexual orientation section but on colleague kind of straddles both areas it’s an interesting case we’re not going to dive in too much into the facts but on Kali was a subject to same-sex sexual harassment but it was not necessarily same-sex sexual her that was caused by a sexual attraction that while some of the things that on Kalle was put through were a sexual meaning or had sexual content they wore offends the category of hazing that this was a an all-male kind of macho environment and so they have some hazing rituals that were I guess intended to be somewhat demeaning to the person coming on board and they had a sexual component to it anyway on Kalle sued about this and he’s saying look I was the victim of same-sex sexual harassment I’m not saying that the men who did this to me were sexually attracted to me I’m just saying I had a sexual component and I didn’t care for it didn’t like it and feel like I’m the victim and the court said yeah on Colley you can sometimes be successful in these types of cases a same-sex sexual harassment this the court thought so so they opened up this camera so this is yet one more expansion of the sexual harassment universe same-sex sexual harassment is a recognized claim so let’s consider a few scenarios Bob look at the first one here Bob occasionally compliments his secretary when he arrives the office saying things like Mary you look nice today or that’s a pretty dress obviously these are very appropriate things to say there’s nothing in the world wrong with that Mary would not have any claim for sexual harassment they could even be more edgy they could be things like Mary your legs look nice in that dress or something like that without really even being close to the line these are universally fine improv and I wouldn’t recommend you go any farther but there would be lots of opportunity to go farther before you would be in the area of a hostile work environment sexual harassment let’s consider the next scenario Bob is being asked for sexual favors by his boss Mary she would force him to meet her outside work and he touch him inappropriately she even promised him a promotion if he agreed to be sexually intimate with her Bob reluctantly succumbed to Mary’s demands and got a promotion when he refused to engage in further socializing with Mary she fired him yes under these circumstances Bob can absolutely prove quid pro quo sexual harassment Mary and the employer are going to be on the hook for Bob’s claim under these circumstances and obviously if Bob had resisted from the beginning and Mary had denied him the promotion or fired him then Bob could have had a claim at that point as well Bob and Mary work in the

claims department of an insurance company on Mary’s birthday Bob stops by her cubicle and gives her a cupcake with a heart and the frosting and asks her on a date Mary having never spoken to Bob before finds his actions strange and declines his offer Bob does not make any more advances but Mary finds him creepy whenever she sees him in the office Mary does not have a claim of sexual harassment because her claim would be based upon one isolated incident that is not serious enough to warrant undue concern you you have to ask once before you know whether it’s unwelcome or not and so you always get I guess that first bite of the Apple so to speak now if Bob had continued to ask Mary out after she said now that’s when it becomes potentially unwelcome it sounds like they’re peers so even a second or third invitation is probably okay and part of its gonna turn on how she declined I mean if she declined saying oh I’m busy that weekend or I’m I don’t think I want to this week or whatever then Bob might think oh well she’s still open to going out with me she just doesn’t want to go out with me on this particular date on the other hand if Mary says Bob I’m just not interested in dating you please don’t ask me again and he continues at that point then that’s going to more more quickly become an unwanted sexual potentially hostile work environment situation let’s talk about when there’s been a change to the welcome this component so if sexual activity started out as consensual you may recall we had that Centauri originally where there was a consensual relationship and one employee calls a halt to it and the sexual activity continues it can become sexual harassment at the time the activity is no longer consensual so going back to this scenario we may recall that bob says nope don’t want to continue on then that is the moment that it becomes unwelcome now it’s probably fairly reasonable for Mary to assume it’s continuing to be welcomed I mean it’s probably not necessary let’s say they’re dating for a while find it necessary every time before she touches his hand to hold this hand that she says now Bob let me supervisor are you okay if I hold Aryan or Bob you know I’m your supervisor is it still okay that I rub your back if they’re on an ongoing relationship that would be you know estranged and that kind of conversation but certainly when he communicates either directly or indirectly that he’s no longer interested then that’s the time for Mary to back off or at least to clearly ask the question and accept whatever that answer might be Mary dated Bob her supervisor for three months when she told Bob that she did not want to see him anymore he became obsessed with her he started emailing her dropping by her house and stalking her after work Bob gave Mary a poor review and eventually she was fired under these circumstances Mary does how they claim for sexual harassment it’s not the point up to this point is irrelevant to the sexual harassment claim it doesn’t strengthen Mary’s claim it doesn’t make it weaker it’s when she says I don’t want it anymore everything that happened after that is what is important so let’s talk about on Kali I kind of gave you an idea about it before but let’s get it a little bit more formally so where now this is actually an older cases is back to the year that we had merit or savings so we do need a notes name on Kalle versus sundown offshore services and so what does the issue does title 7 applied to same-sex sexual harassment and the answer is yes the court held that harassment is a type of discrimination based upon a protected characteristic and does not extend to non recognized ground such as a person sexual orientation you may recall I said earlier that there were two ways that we could see sexual orientation being cut become a covered category under Title 7 one would be for the Congress to have revised or to change the statute to include this category the other would be for the US Supreme Court to expand that definition of sex to include sexual orientation one of the reasons why that’s an unlikely solution or approach to this issue is that we have cases like on Kalle where the US Supreme Court seems to have already kind of answered the question now there’s a way around that if the US Supreme Court really did decide to include sexual orientation as

kind of a subcategory of sex they could say this is dicta they could say well we didn’t really need to reach a ruling in on Kali about sexual orientation and so therefore it’s not a binding authority of this court so it’s not the u.s report wouldn’t be precluded from that interpretation but this would be one of the reasons to the US Supreme Court would be unlikely to do so it’s more likely especially since this is a statute not the US Constitution it’s more likely at the US Supreme Court in my opinion would wait for the Congress to act and follow the lead of the Congress under those circumstances so sexual harassment which is a type of discrimination doesn’t matter whether it’s motivated by sexual desire or the lack of sexual desire it’s actionable so long as it places its victim and an objectively disadvantageous working environment regardless of the victims gender so again the focus isn’t on whether somebody wanted to have sex or was romantically attracted the other person it’s the issue is whether it has to do with the person’s gender so it was motivated by gender and the victim is put in an ad disadvantageous position so there are three situations that the court acknowledged could be the basis for a sexual harassment claim first as the harasser is motivated by sexual desire this is what we usually think of as a sexual harassment case but I would say probably 95% of sexual harassment cases fall into this category another category could be the harasser just generally motivated by a dislike of the opposite gender or at least a dislike of the opposite gender under these circumstances for example imagine a workforce may be a berry may macho stereotypical environment that you know may be traditionally only men have been in a woman or some group of women joined that work environment the men themselves are heterosexual they you know like women they’ve got wives and mothers and things like that but they don’t want to work with women in this environment and so they might be very hostile to those women and that would be a sex harassment situation even though there may not be any sexual attraction any dirty jokes any touching it could just be hostile like you know sabotaging the work or things along those lines so that’s the second category the third category is the harasser Street one sex differently from the from the other within a mixed sex workplace so the bottom line is with on Kalle it’s pretty difficult to prove same-sex harassment it’s much more easy to prove opposite sex harassment then or or same-sex harassment when the harasser is gay or lesbian because he or she was really motivated by sexual desire that wouldn’t be hard to prove I mean that the paradigm would be the same that we saw in any other types of cases okay so let’s consider this scenario John is an openly gay man he constantly teaches his co-worker Paul telling Paul at Paul should go ahead and come out of the closet John has even publicly commented upon how sexually attractive Paul is the Paul is worn John against making such comments so it appears that John is romantically sexually attracted to Paul and he is engaging in a hostile work environment under these circumstances Paul would not have a difficulty advancing a sexual harassment case even though he and John are both males as you can see the snare it’s irrelevant whether Paul is gay or straight he can be the victim of sexual harassment either way so that’s not his sexual orientation is not relevant okay so let’s drill down a little bit about what we mean when we talk about sexual harassment and this is especially this is going to transfer this logic is going to transfer to the race and the age and the disability and their religion categories as well so the sexual element does not need does not need not always be present to encase it to constitute sexual harassment in other words the focus may be on gender and not upon sex or sexual attraction so here’s an example of what I’m getting it when a female employee is repeatedly verbally harassed about doing men’s work taking away the job a man should have or

simply inappropriately working in a traditionally male job that behavior will constitute sexual harassment that would be the case even if the workers don’t have any sexual attraction for the woman aren’t making sexual jokes aren’t touching the woman aren’t doing any of those traditional sexual harassment things it could even be women who heterosexual women who are making these comments to to the female employee so you can see those situations it’s like a gender not so much sex so we could change it to when a african-american employees repeatedly verbally harassed about doing white people’s work or taking away the job a white person should have or inappropriate or simply inappropriately working in a traditional white job or it could be you know a Muslim employee working a traditional job held by Christians or you can see so it’s really not you could really change any category in here not just female and have that same logic apply obviously we’re talking about anti female animus in this situation negative feelings about women or women working in a particular environment and again this would be the same thing that we would see in a racial harassment situation anti-asian animus or an anti african-american animus or you know an anti-muslim animus or whatever the category might be so in situations in which the harasser is abusive to both genders so we have as it’s referred to as an equal opportunity abuser and in that situation if if Bob is the boss and he’s a jerk to everyone who works for him be they male or female then there is no claim I’m not I’m obviously the HR department ought to address the situation Bob because it’s going to result in high turnover and loss of efficiency bad morale but there’s no legal claim associated with that but if the facts are a little different there Kent I’ll claim can arise so let’s say Bob is a jerk to all of his employees but the way that he’s a jerk is different and he’s a jerk to we’ll say the win employees by using sex specific derogatory terms so if the negative comments are have a gender component to them then that could be a sexual harassment situation similarly you could have a bob could be a harasser and he has will say African American Caucasian workers he’s offensive to both he’s rude to both but he uses a racially charged language and so under those circumstances now whomever he’s used to racially charged language towards would have a racial harassment claim potentially let’s consider our scenario Bob the manager of a consulting firm invariably yells at all of his employees calling him stupid useless etc when he shouts at his female staff members he usually uses an additional word such as you stupid fill in the blank or another obscene reference specific to the gender marry a subordinate who is fed up with Bob’s behavior decides to file a complaint with the EEOC Mary perhaps can prevail on a hostile environment sexual harassment claim because Bob’s hostility does have a component specifically directed at women and again if we were to change these two racial epithets or religious epithets and Mary were a member of that racial group or religious group then Mary could assert a religious harassment or racial harassment claiming Mary worked as the only female security guard among other male guards so traditionally male role she was verbally harassed by her colleagues because she did a man’s job they would sometimes hide her badge and keys grease her uniform and break open and wreck her locker Mary complained to her supervisor who acquired a fee the men had never touched her she said no so the supervisor said I can’t do anything under these circumstances Mary does have a claim for sexual harassment because she’s being harassed because of her gender even though there’s no sexual component to the harassment marry Bob and Mary both line workers for utility company had been working together for almost two years so their peers and they’re working in a traditional male occupation Bob frequently tells Mary that the job is called lying man and not lying woman and thus it’s not a woman’s job he plays practical jokes on her such as hiding some of her tools and sabotaging

her truck he asked her when she plans on getting pregnant and staying at home to take care of her children and gives her copies of help wanted ads for secretarial and waitress jobs such behavior has kept Mary disturbed at work if Mary complains about Bob’s conduct he will likely be found of committed sexual harassment against married because harassment based upon Mary’s gender and it unreasonably interfering mayor’s ability to her job so obviously maybe these cases turn on a he-said she-said scenario are we gonna believe and if your job and as the legal professional is the HR professional you’ll be interviewing people and in most of these cases the stories don’t completely jibe with one another oftentimes they’re called he-said she-said situation so who are you gonna believe how are you going to evaluate the situation and so here are some things that the OSI suggests and consider yes the first thing to say is that you shouldn’t always believe the person who’s making the complaint and you shouldn’t always believe the person who is allegedly harassing the truth sometimes is a little bit of both sometimes one is completely trying to choose and then see others completely telling the truth so you should go into it with an open mind about where the truth may lie one could be inherent plausibility you know there are some times you’ll hear allegations that just don’t make sense well I did no one ever see that happen if it was happening all the time or you know so you have to consider did that make sense under the circumstances consider the details of the story and see how they flow together the demeanor the person bringing the complaint and the person is responding to the complaint what about their body language the the level of detail they have the motive to falsify you know if this is an employee who is under no disciplinary pressure who you know is doing a fine job and doesn’t have anything on on his or her record hard to see exactly what that person’s getting out of making this allegation on the other hand that this person is about to be terminated because of job poor job performance I mean it could be the decline in job performance was due to the harassment so you certain certainly shouldn’t assume that there isn’t any fire with the smoke but it’s also giving that person a motive hey I need to come up with something I’m going to be fired is there corroboration or other people able to say yeah I saw something I thought that was strange when they happen or I thought she liked it but it did happen a lot or whatever the thing might be emails other facts of me can be corroborated to a video maybe things along those lines and then pastor Eckert has this person have been accused of this type of behavior in the past has this person made other complaints along these lines things to consider in the background and these are just kind of good common-sense things to consider I mean reaching that determination the key is to keep an open mind and not to come in with any particular assumptions one thing that’s important when you’re doing the investigations is to keep the the list of people who know about it to an absolute minimum this is important for lots of reasons one is that the person making the complaint is oftentimes well actually both parties are oftentimes very embarrassed they want as few people to know about this as possible but that’s true whether they’re telling the truth or they’re lying in most cases and so we want to respect the privacy of the individuals no matter who’s telling the truth also if you keep it quiet then when people come in and interview with you you’re less likely to be hearing a rehash of what some else’s testimony you might be you’re more likely to get you know the straight scoop of this person’s recollection so witness testimony is gonna be less altered by having heard the same so I heard Bob tell me this but Sally told me this and Theresa told me this and Larry told me this you want to keep the testimony pure what this person has actually said so you want to keep it definitely on a need-to-know basis and for the most part your witnesses only don’t really need to know anything you’re asking them questions now certainly the questions that you ask are going to probably paint them a bit of a picture but if they don’t need to be interviewed they don’t need to know anything about it if it ends up that you need to terminate somebody you certainly don’t tell people why you’re terminating them if it’s necessary in the workplace you might say this person is no longer an hour employee but many times that’s not even necessary to say and so you

don’t want to say this person is guilty sexual harassment as a result of sexual harassment investigations it’s not uncommon for the HR person to discover that the environment the culture in the workplace was inappropriate maybe sexually charged under those circumstances is pretty common for the the HR department to say let’s retrain everybody in our policies to a reminder and so that can be one way responding to it and certainly if and in places why are we being retrained the HR person can say well it’s it’s periodic that we do these retrain retraining or we became aware there might be some some concerns in the department there’s lots of different ways of handling it but you don’t want to say well we’re going through this retraining because Theresa made a complaint that would be a good plan a love contract and that the the textbook author liked this idea and spent kind of a useful amount of time on this idea this isn’t something in my practice that I dealt with so I don’t really think they’re that I can see the utility the idea is that by having both parties sign this that it’s going to protect the employer because it’s obvious if they’re both signing it then it’s a welcomed relationship and you’re explaining to both parties hey when it ceases to become a welcomed relationship you need to let somebody know and so I can see that it could provide the employer with a bit of cover a little bit of protection I also think it’s a very kind of artificial way of handling these types of scenarios some employers prohibit dating relationships within an organization that’s one approach the upside with that is that probably there’s less dating and so in some sense there is less inappropriate behavior but the reality is that there’s probably going to be at least some continued dating it’s just going to be under cover and so in that sense it sounds more difficult to sort through and figure out what was welcome what was not welcomed because no one was able to be public about it and so if one person was pressuring another person to have some kind of romantic or sexual relationship the fact that these relationships were prohibited anyway adds a layer of uncertainty to the whole relationship so there there are you I I can understand an employer from have anything like I understand employer permitting them some allow co-workers to date but not supervisor subordinate relationships the important thing I think is that the employer have a policy about this and that that policy be communicated to the workers and that it be consistently applied so what are we looking for we talk about it if you decide to do something like a love contract obviously the way that it would work would be typically this would being a subordinate period type of situation the superior would likely raise this with HR and say hey I am thinking about dating or about to date you know the subordinate but I want to make sure everything is consensual and aboveboard and I’m required to report this to HR so HR would prepare a document that would explain or reiterate hey both people are during this walk on a welcome basis they both want to be in this relationship if it changes further either party the party should let the other person know if the other person doesn’t seem to accept that decision then the party who no longer wants participate needs to contact HR so that it’s clear and that the whole complaint procedure is specified very clearly it is designed to control the risk factors that the employer has it can be useful but I wouldn’t say that it completely protects an employer so it’s kind of just one tool that an employer might want to use when there’s a power differential when your boss you’re dating your boss and then you just said you don’t want to date your boss but your boss will they still wants to date you I don’t know that a love contract is going to necessarily persuade that person that they can just go to HR and somehow the problem is all going to be magically fixed so if I’m not sure that it’s

completely solving the problem either I don’t know that it really reflects human nature I don’t know that it really reflects it’s really would not completely solve the problem though it might reduce the risk somewhat let’s consider a scenario so Mary is a management assistant at the bank she’s involved romantic relationship with Bob who’s a senior person at the bank though the relationship to Mary and Bob is very strong Bob is concerned that he and the bank might be accused of sexual harassment at some point in the future okay now you know I’m gonna stop here and say if Bob is really thinking this I’m not sure the relation soup is so very strong but that’s just me okay the director of HR recommends above a merry silent love contract though it may not be a perfect solution to liability for sexual harassment this contract may restate the voluntary nation relationship finisher marry the decisions regarding employment will not be influenced by the end of their relationship now one thing I will say about the love contract I would recommend you not call it the luck effect because that’s a really stupid name for it maybe a dating contract or something along those lines some other name than love contract but again it could provide some level of protection almost like a premarital premarital or a premarital agreement or something when premarital agreements are more binding than the soft contract thing would be so at this point we have completed our first two topics we’ve done an introduction to sexual harassment kind of giving that a little bit of history and we’ve talked about the two categories of sexual harassment quid-pro-quo and hostile work environment in our next lecture we’ll cover in more detail the employer liability aspects as well as tort and criminal claims that sometimes arise in the context of sexual harassment as always if you have questions about the material that we’ve covered today please feel free to reach out to me my email is C groover at Colin dye edu or better yet come by my office hour so we can talk in more detail I’d be delighted to explore these ideas and more more detail with you if you would like so and also be sure to watch the next lecture I thank you for your attention and I hope you have a wonderful day you