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Compliance Newsletter--September 2008
Sexual Harassment Prevention:
Tackling the Armadillo
by Riley Harvill, Ph.D.
Sexual harassment prevention is like tackling an armadillo which, for those of you who have never had the privilege, is something akin to tackling a motorized football. You can get close to one of the odd-looking little creatures—real close—but as soon as you grasp it, the darn thing jumps straight up in the air and bounces off in wild and unpredictable directions.
This is what happened in 2005 in a case known as EEOC/Christopher v. National Educ. Ass’n, ____ F.3d ____, 2005 WL 2106164 (9th Cir. 2005), that reversed a U.S. District Court of Alaska decision holding that alleged sexual harassment could not constitute a violation of Title VII’s prohibition on sex discrimination without evidence that the harassment is “because of sex.”
Historically, sexual harassment had to be sexual in nature, and had to contain sexual epithets or offensive and explicit references to women’s bodies and sexual conduct. In other words, the behavior had to be based upon the recipient’s gender. The Christopher ruling broadens the scope of discriminatory conduct. Rather than requiring plaintiffs to prove that a co-worker’s or employer’s conduct is “of a sexual nature,” a plaintiff can now present a triable issue by demonstrating that women subjectively experience the effects of workplace conduct differently than do men. The specific wording is: harassing workplace conduct directed at female employees may violate Title VII even in the absence of direct evidence that the harassing conduct or the intent that produced it was “Because of Sex.”
Because of this new subjective standard pertaining to the presence of a hostile environment, the decision leaves employers with uncertainty, but now must be mindful that previously “benign” workplace outbursts may constitute unlawful discrimination and/or sexual harassment. Plaintiffs now have a legitimate course of action when they perceive that behavior is abusive or “bullying” whether or not the intent of the behavior is discriminatory.
What does this mean?
When it comes to sexual harassment, It means that the armadillo is as slippery as ever. Employers should now institute stronger workplace policies prohibiting even angry or threatening outbursts and must denote swifter responses to rude, overbearing, obnoxious, loud, vulgar, or unprofessional workplace conduct.
Contact us to find out what you should be doing to limit your liability. We have a number of solutions involving web-based training, classroom training, one-on-one interventions, and webinars.
At any time, feel free to call us for a no cost consultation at 214/363-6780.
Sexual Harassment Quiz
How's your knowledge of sexual harassment? Take this quiz and find out.
True or False
- Sexual harassment means bothering someone in a sexual manner.
- Sexual harassment is a civil offense.
- Sexual harassment doesn't exist within a consensual relationship.
- Sexual harassment can occur anytime, anywhere and between any two people.
- It is the employer who is held liable for the acts of it's supervisors.
- The organization is held liable upon having knowledge that a hostile environment exists.
- Sexual harassment is comprised of unwanted acts--with sexual undertones--that are discriminatory due to the fact that they are based upon the victim's gender.
Click here for answers