Review the Sexual Harassment Tutorial found in the lecture. After viewing the Sexual Harassment Tutorial, completing the reading, and reviewing the lecture notes in conjunction with the TCO, answer the following questions about the tutorial scenario and facts.
1. Based upon the scenario, does the employee have a legally viable claim for quid pro quo sexual harassment and/or hostile environment sexual harassment? What is the likely outcome?
Based on Robert’s behavior and comments, Brittany was experiencing a hostile environment sexual harassment. Robert is a co-worker whose behavior is unwelcome and inappropriate; therefore creating a workplace that is intimidating, hostile, and/or offensive. His behavior was due to Brittany’s gender and physical attributes. She often witnessed him staring at the photo of her in her bathing suit and making lewd comments regarding her body. She requested he stop making comments because it made her uncomfortable.
Shortly after, she found that he scanned the photo to his computer. Upon confronting him again, Robert went to her supervisor complaining that she was not informing him of his messages in a timely manner, which was not true. After notifying Dwayne, her supervisor, of the problems she was having with Robert, Brittany experienced quid pro quo from Dwayne.
Dwayne informed Brittany she was traveling with him; she never was required to travel before. She stated she would prefer not to travel; but was told the travel was work related and they would be sharing the same room. He proceeded by telling her that he could promote her if she was willing to show him her amazing breasts while they were on travel. Brittany has a legitimate claim for both work environment sexual harassment and quid pro quo. Upon completion of a thorough investigation, disciplining or firing both Robert and Dwayne should be the first course of action. Additionally, the organization is accountable for the actions of their managers and should monetarily compensate Brittany.
2. Analyze the legal factors for the potential claim(s) in the context of the employee pursuing legal action against the employer.
The Supreme Court (Harris v Forklift) concluded that a hostile or abusive work environment can be determined only by looking at all the circumstances. According to established guidance, some factors could be part of the “circumstances” in a case. They include frequency of discriminatory conduct; severity of the conduct; whether it is physically threatening or humiliating or merely offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Brittany often witnessed Robert staring at the bikini photo and he actually took the photo to scan and make his computer screensaver (frequency and severity). Although Robert’s conduct was not necessarily physically threatening, it was humiliating and offensive.
After voicing her displeasure, Robert informed Brittany’s supervisor that she was not performing her duties in a timely manner. This upset Brittany therefore causing several missed workdays (work interference). These actions are clear violations of a hostile environment sexual harassment. EEOC determines sexual harassment to be unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.
In quid pro quo cases, an offense occurs if it pertains to conditions of the employee’s employment or institutes the foundation for employment decisions affecting the employee. Dwayne was in violation of quid pro quo rules by requesting Brittany to show him her amazing breasts in exchange for a promotion and move to a different division (basis for employment decisions). Upon declining his request, Brittany received a demotion to the mailroom and a reduction in pay.
3. Let’s shift gears. Using the same scenario, assume you are in the HR department of your organization and you were just presented with the scenario as an example used to explore policies and procedures that will avoid sexual harassment liability. Your boss has asked you to make preliminary suggestions (which will be presented to the legal counsel) regarding sexual harassment protocol that will avoid potential liability. What would your top five suggestions be and why?
The first suggestion would be for the organization to implement a clear and explicit sexual harassment policy. This information should be included in the employee handbook provided to everyone during their hire orientation. This will ensure everyone receives initial guidance concerning this sensitive issue as soon as they begin their employment with the organization. Everyone must understand that sexual harassment in the workplace is not acceptable and the company has a zero tolerance for such behavior. The second suggestion is to provide mandatory, separate training to employees and managers/supervisors.
Conducting this training will serve as a refresher to everyone to ensure they understand what is and is not considered sexual harassment and also what actions to take if they wish to file a complaint. For managers/supervisors, the annual training should consist of how to ensure they understand sexual harassment and how to deal with complaints.
The next suggestion would be to ensure sexual harassment claims receive serious consideration by all parties involved in the reporting processing. The employee should be comforted, not told to “get over it”. Employees deserve the commitment and due diligence of their organization in handling sensitive matters. Another suggestion would be for the organization to create a zero tolerance atmosphere for sexual harassment. This requires challenging employees immediately when they participate in activities that create an unacceptable workplace. Jokes, sneers, leers, teasing, and gestures are not acceptable. Last, the organization must thrive to keep the workplace friendly and open. This will instill a more pleasant and respectful atmosphere.
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