Lesson 06: Harassment in the Workplace
Reading Assignment
- Course Text: Chapter 9 pages 267-308, and Chapter 18 pages 626-628
Objectives
After successfully studying the assigned materials, you will be able to identify and to discuss:
- the elements of a claim of harassment
- liability for harassment by managers and supervisors
- affirmative defense to liability for acts of harassment by managers and supervisors
- liability for harassment by co-workers and third parties
- affirmative defenses to liability for harassment by co-workers and third parties
- the evolving definition of the workplace, including the times and locations when employers are liable for the acts of their employees
- best practices for investigation of alleged harassment
Narrative
Harassment in the workplace can take many forms. Typically it has been legally challenged under general antidiscrimination laws. That is, there are not laws specifically designed to prohibit harassment. However, courts have recognized that harassment might constitute discrimination if it can be proved that the harassment occurred because of a "protected class" characteristic.
Where that is the case, courts review the details surrounding alleged harassment with an eye toward whether the actions were severe or pervasive enough to be illegal. They review the allegation of a hostile work environment through the eye of a "reasonable person."
As practitioners it becomes clear that the perception of employees in the workplace may not be as precise as the review of a judge. That is, the perception of an employee may be that he or she is being harassed. Whether the actions rise to the level of illegal harassment or not, the workplace is being disrupted. And it typically falls to the human resource professional to attend to the issue. Once again, understanding the law and the interpretation of the courts can assist in defining the issue and identifying how best to improve the workplace environment.
In more recent years human resource professionals have recognized actions in the workplace that do not constitute illegal discrimination/harassment but are disruptive nonetheless. The term "bullying" is being discussed at national meetings, featured in various publications, and identified by numerous consultants. Employers may even issue "civility" statements or initiate "respect" campaigns. Strategizing a plan for keeping the workplace civil and welcoming to all employees or "rebalancing" a workplace that has not been civil usually requires knowledge of organizational dynamics and strong training approaches. Identifying recruitment and interview techniques that identify candidates who will support a civil, welcoming environment for all employees is equally important.
Lesson 06 Assignments
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Complete the Lesson 06 Activity.
Answer the following THREE questions.
Charlie is the Executive Director of the Minneapolis Zoo. Since accepting this position in 2005, Charlie surrounded himself with a gang of his relatives and childhood friends, including Patty, who Charlie hired in 2006.
The Minneapolis zoo is closed from October through May. During the off-season, the lions, tigers and bears are not the only things acting like animals. Charlie and the other members of the staff, including Sally, Marcie, and Franklin, fill their days with practical jokes and lewd conduct, including rude, vulgar and obscene humor. In addition, Pig-Pen, an outside vendor hired to clean the elephant dung, routinely leaves pornographic pictures in the elephant enclosure. When Charlie, Patty and the others find these pictures, they hang them in the "elephant house" where they only could be viewed by staff members and the elephants themselves.
The atmosphere during the winter of 2012 was particularly offensive, as this cast of characters formed a book club. In November 2012, the book club read and discussed Fifty Shades of Grey. During the November meeting of the book club, which Charlie held on company time, Franklin engaged in extensive discussion regarding his sexual "conquests". Charlie and other staff members laughed and "high-fived" Franklin following his stories. Patty then discussed sex acts that she performed on her husband. In response, Charlie asked Patty if she would be willing to do a "live show" with other members of the staff. Patty immediately told Charlie that, even for him, this comment crossed the line.
After this incident, Charlie, who also is an amateur cartoonist, began posting cartoon depictions in the staff lunchroom of Patty engaged in sexual acts. In addition, Charlie and the other members of the staff started referring to Patty as "Promiscuous Patty". After Charlie's "live show" comment, Patty withdrew from the book club and avoided any rude, vulgar or obscene discussion.
After three straight months of Charlie's cartoons and being called Promiscuous Patty, in late February 2013, Patty resigned from her position at the zoo. Shortly thereafter, Patty filed a charge of sexual harassment with the Equal Employment Opportunity Commission detailing each incident of alleged harassment, including the individuals who were present for the alleged conduct.
The zoo has policies in place designed to prevent and to prohibit all forms of unlawful harassment, including harassment on the basis of sex. Upon receipt of the charge, the zoo immediately retained an outside investigator who interviewed Charlie regarding the allegations. Charlie denied the alleged conduct. Based on the "he-said/she-said", the zoo closed its investigation. Even though the zoo did not uncover any evidence to corroborate Patty's allegations, out of an abundance of caution, the zoo conducted wide-spread training on its anti-harassment policies and then closed its investigation.
- Analyze whether Patty can establish a prima facie case of harassment. Cite at least one case from the book in your response.
- Analyze whether the affirmative defense to supervisor/manager is available to the zoo. Cite at least one case from the book in your response.
- Analyze the adequacy of the investigation and remedial measures AFTER Patty filed the EEOC charge.
- Turn in your Seminar Paper Topic.
This is the end of Lesson 06. Check your syllabus for the timeframe for Lesson 07.