Employment Discrimination Law - Final
exam
What laws does Sexual Harassment (in either form) violate?
Title VII - federal law - it is form of sex discrimination
NJ - the NJLAD - form of sex disxriminaiton
Sexual Harassment (general definition)
Must have:
1) unwelcome behavior that is either
a) sexual in nature OR
b) based on Gender
Note: does not have to be sexual in nature so long as it is directed at someone because
of their sex.
2) The behavior must:
a) either the terms or conditions of employment (a tangible employment action)
b) create a hostile or offensive work environment
Tangible Employment Action
significant change in employment status:
1) hiring
2) firing
3) failing to promote
4) reassign employee
5) don't give raise or bonus
6) not getting good work assignments
What are the 2 types of sexual harassment
1) Quid Pro Quo
2) Hostile Work Environment Sexual Harassment
Quid Pro Quo Sexual Harassment
A form of sex discrimination whereby a supervisor makes unwanted sexual advances to
a subordinate employee in exchange for a change in terms or conditions of employment
Elements to Prove Quid Pro Quo Harassment
1) Requests for sexual favors by a heterosexual member of the opposite sex or a
homosexual member of the same sex.
2) The employee's refusal to honor that request
3) An adverse employment decision or loss of tangible job benefit
4) Evidence of a causal relation between the refusal and the adverse action.
What evidence can be used to prove Quid Pro Quo Sexual Harassment?
1) Direct Evidence
2) McDonnel Douglas analysis
*** Initial burden on plaintiff to show prima facie case: For example:
a) Plaintiff member of protected class
b) Circumstantial evidence showing a temporal proximity of the refusal and the adverse
employment action, evidence of a comparator who acquiesced and did not suffer
adverse action or received positive action.
,*** Then burden will shift to defendant to assert a legitimate nondiscriminatory reason
for the adverse employment action
***Then burden shifts back to plaintiff to prove the reason asserted by the defendant
was a pretext.
Hostile Environment Sexual Harassment
A form of sex discrimination where unwanted (unwelcome) conduct (comments,
touching, posters etc.) that is either severe OR pervasive creates a hostile or offensive
working environment. The behaviors may be committed by one or more of the following:
supervisors, coworkers, clients, customers.
If an employee unwilling acquiesces to the demand for sexual favors or if the
supervisor's threat of adverse employment action is never acted upon is this
Quid Pro Quo Sexual Harassment?
NO - but this may still be an illegal form of sex discrimination - hostile work environment
harassment.
What does it mean for the behavior to be unwelcome in a Sexual Harassment
Case? Who has the burden of proof?
The plaintiff has the burden of establishing unwelcomeness
ii. Burden is met by showing:
1) Prior or contemporaneous objection to the conduct OR
2) Prompt subsequent complaint about the conduct.
3) Evidence of unwelcomeness is vast, not easy to generalize. Fact specific to each
case.
Is sexual harassment exclusively a male vs. female situation?
No - can be male on male, female on female, just needs to be based on sex
In order for the harassment to be illegal, must it be "sexual" in nature?
NO - it simply needs to be based upon a person's sex. For example If a supervisor is
dating a subordinate and favoring that employee. The other employees can sue for
sexual discrimination because they are not being treated the same even though there is
no "sexual" issue with the woman suing?
Can a person sue for hostile environment harassment if is it not based on sex?
YES - can sue based upon one of the other protected categories - race, religion, age
etc. Follow basically the same analysis as with hostile environment sexual harassment.
Can harassment be based on incidents that do not occur at work or when
employees are "off work?"
YES. If the conduct occurs at a work related event - e.g. an office party, work retreat,
work conference. If it is related to work but happens outside of work it is illegal
harassing conduct.
LEHMAN V. TOYS R US (NJ 1993)
Hostile Environment Sexual Harassment
HOSTILE ENVIRONMENT SEXUAL HARASSMENT case under the NJLAD
FACTS: Supervisor harassing other employees, touching, comments etc. Then starts to
harass plaintiff making comments and touching her. She complains to HR and to higher
up boss. They do nothing. She eventually leaves - can't handle working at company any
more.
ISSUES:
1) How does a female state a claim for hostile environment sexual harassment?
, 2) what is the employer's (company) legal responsibility for a supervisor's sexual
harassment of an employee?
LEHMAN (Hostile Environment Sexual Harassment - NJ) - Sets out elements in NJ
to provide Hostile Work Environment Case.
HOLDING: AN EMPLOYEE STATES A CASE FOR HOSTILE ENVIORNMENT
SEXUAL HARASSMENT BY SHOWING:
1) discriminatory conduct
2) that a "reasonable" person "of the same sex" in the "plaintiff's position" would
consider (reasonable woman standard) - NOTE: If under Title VII - standard is still
"Reasonable Person"
3) sufficiently severe OR pervasive
4) to alter the conditions of employment by creating an intimidating, hostile, or offensive
working environment.
Can a single incident be enough to prove hostile environment sexual
harassment?
YES - standard is "severe OR pervasive" - if 1 incident is so egregious - will also look at
context comment was made in.
What is the Reasonable Woman Standard?
Established in the Lehman Case (NJ Supreme court case) - for Hostile Environment
Sexual Harassment. It is an objective standard - what would a person in the protected
category feel about the conduct? Would they think it is offensive. In the Lehman case -
since the plaintiff was a woman - standard is the Reasonable "Woman" standard
Does the Reasonable Woman standard apply in hostile environment cases under
Title VII (the federal law)?
NO - the Reasonable Woman standard was developed under the NJ Law Against
Discrimination - other states may have adopted the standard but under Title VII (the
federal law) standard is the Reasonable "Person" - this is broader than the Reasonable
Woman - as it asks what all reasonable people would feel - even though someone in a
particular protected category might feel more offended than the reasonable person.
In a Hostile Environment Sexual Harassment Claim - does their have to be
economic loss (monetary, benefits etc.) to show an adverse employment action
took place?
No - the negative impact to the workplace is the adverse employment action
Is an employer (the company) responsible when an employee has proven a case
of hostile work environment harassment by their supervisor?
Yes - the employer (company) is strictly (automatically) liable.
What type of damages is an employer (company) responsible for when a
supervisor is found guilty of hostile environment sexual harassment against an
employee?
1) They are "strictly liable" (automatically) for equitable damages (reinstatement, back
pay, front pay)
2) They may also be "vicariously" liable under agency principles for compensatory
damages (e.g. pain and suffering).
3) The employer will NOT be liable for punitive damages unless the harassment was
authorized, participated in, or ratified by the employer. (i.e. upper management actually
participated in the harassment or was willfully indifferent to it).
exam
What laws does Sexual Harassment (in either form) violate?
Title VII - federal law - it is form of sex discrimination
NJ - the NJLAD - form of sex disxriminaiton
Sexual Harassment (general definition)
Must have:
1) unwelcome behavior that is either
a) sexual in nature OR
b) based on Gender
Note: does not have to be sexual in nature so long as it is directed at someone because
of their sex.
2) The behavior must:
a) either the terms or conditions of employment (a tangible employment action)
b) create a hostile or offensive work environment
Tangible Employment Action
significant change in employment status:
1) hiring
2) firing
3) failing to promote
4) reassign employee
5) don't give raise or bonus
6) not getting good work assignments
What are the 2 types of sexual harassment
1) Quid Pro Quo
2) Hostile Work Environment Sexual Harassment
Quid Pro Quo Sexual Harassment
A form of sex discrimination whereby a supervisor makes unwanted sexual advances to
a subordinate employee in exchange for a change in terms or conditions of employment
Elements to Prove Quid Pro Quo Harassment
1) Requests for sexual favors by a heterosexual member of the opposite sex or a
homosexual member of the same sex.
2) The employee's refusal to honor that request
3) An adverse employment decision or loss of tangible job benefit
4) Evidence of a causal relation between the refusal and the adverse action.
What evidence can be used to prove Quid Pro Quo Sexual Harassment?
1) Direct Evidence
2) McDonnel Douglas analysis
*** Initial burden on plaintiff to show prima facie case: For example:
a) Plaintiff member of protected class
b) Circumstantial evidence showing a temporal proximity of the refusal and the adverse
employment action, evidence of a comparator who acquiesced and did not suffer
adverse action or received positive action.
,*** Then burden will shift to defendant to assert a legitimate nondiscriminatory reason
for the adverse employment action
***Then burden shifts back to plaintiff to prove the reason asserted by the defendant
was a pretext.
Hostile Environment Sexual Harassment
A form of sex discrimination where unwanted (unwelcome) conduct (comments,
touching, posters etc.) that is either severe OR pervasive creates a hostile or offensive
working environment. The behaviors may be committed by one or more of the following:
supervisors, coworkers, clients, customers.
If an employee unwilling acquiesces to the demand for sexual favors or if the
supervisor's threat of adverse employment action is never acted upon is this
Quid Pro Quo Sexual Harassment?
NO - but this may still be an illegal form of sex discrimination - hostile work environment
harassment.
What does it mean for the behavior to be unwelcome in a Sexual Harassment
Case? Who has the burden of proof?
The plaintiff has the burden of establishing unwelcomeness
ii. Burden is met by showing:
1) Prior or contemporaneous objection to the conduct OR
2) Prompt subsequent complaint about the conduct.
3) Evidence of unwelcomeness is vast, not easy to generalize. Fact specific to each
case.
Is sexual harassment exclusively a male vs. female situation?
No - can be male on male, female on female, just needs to be based on sex
In order for the harassment to be illegal, must it be "sexual" in nature?
NO - it simply needs to be based upon a person's sex. For example If a supervisor is
dating a subordinate and favoring that employee. The other employees can sue for
sexual discrimination because they are not being treated the same even though there is
no "sexual" issue with the woman suing?
Can a person sue for hostile environment harassment if is it not based on sex?
YES - can sue based upon one of the other protected categories - race, religion, age
etc. Follow basically the same analysis as with hostile environment sexual harassment.
Can harassment be based on incidents that do not occur at work or when
employees are "off work?"
YES. If the conduct occurs at a work related event - e.g. an office party, work retreat,
work conference. If it is related to work but happens outside of work it is illegal
harassing conduct.
LEHMAN V. TOYS R US (NJ 1993)
Hostile Environment Sexual Harassment
HOSTILE ENVIRONMENT SEXUAL HARASSMENT case under the NJLAD
FACTS: Supervisor harassing other employees, touching, comments etc. Then starts to
harass plaintiff making comments and touching her. She complains to HR and to higher
up boss. They do nothing. She eventually leaves - can't handle working at company any
more.
ISSUES:
1) How does a female state a claim for hostile environment sexual harassment?
, 2) what is the employer's (company) legal responsibility for a supervisor's sexual
harassment of an employee?
LEHMAN (Hostile Environment Sexual Harassment - NJ) - Sets out elements in NJ
to provide Hostile Work Environment Case.
HOLDING: AN EMPLOYEE STATES A CASE FOR HOSTILE ENVIORNMENT
SEXUAL HARASSMENT BY SHOWING:
1) discriminatory conduct
2) that a "reasonable" person "of the same sex" in the "plaintiff's position" would
consider (reasonable woman standard) - NOTE: If under Title VII - standard is still
"Reasonable Person"
3) sufficiently severe OR pervasive
4) to alter the conditions of employment by creating an intimidating, hostile, or offensive
working environment.
Can a single incident be enough to prove hostile environment sexual
harassment?
YES - standard is "severe OR pervasive" - if 1 incident is so egregious - will also look at
context comment was made in.
What is the Reasonable Woman Standard?
Established in the Lehman Case (NJ Supreme court case) - for Hostile Environment
Sexual Harassment. It is an objective standard - what would a person in the protected
category feel about the conduct? Would they think it is offensive. In the Lehman case -
since the plaintiff was a woman - standard is the Reasonable "Woman" standard
Does the Reasonable Woman standard apply in hostile environment cases under
Title VII (the federal law)?
NO - the Reasonable Woman standard was developed under the NJ Law Against
Discrimination - other states may have adopted the standard but under Title VII (the
federal law) standard is the Reasonable "Person" - this is broader than the Reasonable
Woman - as it asks what all reasonable people would feel - even though someone in a
particular protected category might feel more offended than the reasonable person.
In a Hostile Environment Sexual Harassment Claim - does their have to be
economic loss (monetary, benefits etc.) to show an adverse employment action
took place?
No - the negative impact to the workplace is the adverse employment action
Is an employer (the company) responsible when an employee has proven a case
of hostile work environment harassment by their supervisor?
Yes - the employer (company) is strictly (automatically) liable.
What type of damages is an employer (company) responsible for when a
supervisor is found guilty of hostile environment sexual harassment against an
employee?
1) They are "strictly liable" (automatically) for equitable damages (reinstatement, back
pay, front pay)
2) They may also be "vicariously" liable under agency principles for compensatory
damages (e.g. pain and suffering).
3) The employer will NOT be liable for punitive damages unless the harassment was
authorized, participated in, or ratified by the employer. (i.e. upper management actually
participated in the harassment or was willfully indifferent to it).
