A presentation for Human Resource professionals and business owners on harassment. Will be presenting this at a seminar tomorrow at the Crowne Plaza in White Plains.

1. Sexual, Racial and Other
Forms of Harassment
Fundamentals of Employment Law
Dr. Greg Chartier, The Office of GJ Chartier
914-548-1689, greg@hrinfo4u.com
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2. Introduction
 Greg Chartier
◦ 914-548-1689
◦ greg@hrinfo4u.com
◦ www.linkedin.com/gregchartier
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3. Why are we conducting this
program?
 Basic objectives when dealing with the
issue of harassment:
◦ The ultimate goal is to prevent occurrences of
harassment.
◦ We need to encourage employees to report
incidents
◦ Shield the company from liability and legal
action
◦ Help you and your employees do a better job
providing services to the company.
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4. • Classification of people as male or female
• Biological and physiological characteristics that
define men and women
Sex
• Socially constructed
roles, behaviors, activities, and attributes that a
given society considers appropriate for men and
women
• Also, the perception by others of a person’s
appearance, behavior, or physical characteristics
Gender
• If birth-assigned sex and internal sense of gender
identity do not match
• Tendencies to vary from culturally conventional
gender roles
Transgender
• Country of one’s birth or of one's ancestors' birth—
even those that no longer exist
• May be interchanged with “ethnicity,” although an
“ethnic group” can refer to religion or color as well
as country of one’s ancestry
National
origin
Terminology
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5. National Origin
• Because of
individual’s, or
his/her
ancestor’s, place of
origin or because
individual has
physical, cultural, or
linguistic
characteristics of a
national origin group
Race
• Because individual
is of a certain race
or because of
personal
characteristics
associated with race
Color
• Because of skin
color
Discrimination

6. Legal Framework
 Title VII of the Civil Rights Act of 1964
◦ Prohibits discrimination against protected classes.
◦ Makes it unlawful to deny employment
opportunities, training, or career advancement to protected
classes.
◦ As amended, prohibits discrimination because of
pregnancy, childbirth, or related conditions.
◦ Prohibits sexual harassment.
◦ Defines harassment and discrimination
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7. Legal Framework
 Protected Characteristics:
◦ Race, color, creed, age, national
origin, alienage or citizenship status, gender
(including gender identity), sexual
orientation, disability (or perceived
disability), marital status, partnership
status, arrest or conviction records, genetic
predisposition, military status, status as the
victim of domestic violence, stalking or sex
crimes.
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8. What is Harassment?
 Harassment is a wide range of offensive
behaviors. It is usually intended to disturb
or upset someone and it is usually
repetitive.
 Legally, it is intentional behavior that is
threatening or disturbing.
 While some kinds of harassment seems to
be simple, it is all unacceptable behavior.
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9. Types of Harassment
 Bullying. Physical or psychological
harassing behavior directed at one
individual by one or a group of people.
 Psychological harassment.
Humiliating, intimidating or abusive
behavior..
 Racial harassment. Targeting an
individual because of their race or
ethnicity. Can include words, deeds and
actions directed at the individual.
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10. Types of Harassment
 Stalking. Intruding on someone’s privacy
by following or through surveillance when
the victim fears for her safety.
 Hazing. Persecute deliberately in a
calculated, planned way as part of an
initiation rite.
 Electronic harassment or cyber
stalking. Using electronics to stalk or
follow.
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11. What’s Discrimination?
 Prejudicial treatment of someone due to
their membership in a certain group.
Actual behavior towards an individual or
group through excluding or restricting
them from opportunities.
 You do not need to be “harmed” in order
to be discriminated against.
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12. Types of Discrimination
 Disparate treatment
◦ Treating protected classes differently than other employees
or evaluating them by different standards. Intentional
discrimination.
 Adverse or disparate impact
◦ Applying rules that have a negative effect on protected
classes to all employees. Accidental discrimination.
 Perpetuating past discrimination.
◦ Using employee referral programs that maintain racial
inequity.
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13. What is Sexual Harassment?
 Legal Definition:
◦ Unwelcome sexual advances, requests for
sexual favors, verbal or physical conduct of a
sexual nature, when:
 A term of employment
 Basis for employment decisions
 Creating a “hostile” environment
◦ Sexual harassment is not about sex, it’s about
power.
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14. Sexual Harassment
Employee must
give in to sexual
demands and
forfeit an
economic benefit
(job or raise).
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Quid pro
quo
Hostile
environment
Sexual or discriminatory
conduct creates a
threatening or abusive
work environment.

15. What is Sexual Harassment?
 Elements of Sexual Harassment
◦ Quid Pro Quo (this for that)
 Conditioning job benefits or employment on
submission to sexual demands by a supervisor is
always and everyday sexual harassment.
 In all cases of quid pro quo harassment, the
employer is responsible for allowing the
harassment to take place, even if we didn’t know
about it.
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16. Quid Pro Quo Harassment
 Faragher v. City of Boca Raton (1998)
◦ A female lifeguard worked for the city for 10
years. She alleged that she and other females
were subject to harassment from their
supervisors. There was a policy in place, but
the supervisors had never seen it.
◦ The court distinguished between harassment
that results in tangible employment action and
harassment that does not.
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17. Vicarious Liability
 Employers are liable for discriminatory
actions by their employees.
 Employers must intervene and end
harassment through intervention or
discipline.
 Employees should utilize preventive and
corrective action opportunities.
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18. What is Sexual Harassment?
 Elements of Sexual Harassment
◦ Hostile Work Environment
 Unwelcome sexual advances, requests for
sexual favors and other verbal or physical
conduct can create an environment that is
“hostile.”
 Not every sexual joke or romantic invitation will
be sexual harassment. It depends on some
conditions:
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19. What is Sexual Harassment?
 Unwelcomeness: A consensual relationship
cannot lead to sexual harassment.
 Advances must be unwelcome and this
unwelcomeness must be communicated, in
some way.
 A supervisor’s preferential treatment of an
employee does not create
harassment, except in California.
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20. Unwelcomeness
 Koster v. Chase Manhattan Bank
◦ Employee begins consensual, sexual
relationship with boss. She is promoted and
given larger increases. Her boss is transferred
and her new boss realizes she is not qualified
to do job she is in. She receives disciplinary
action and resigns. Sues, stating sexual
harassment.
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21. Reasonable Woman Standard
 Harris v. Forklift Systems (1993)
 Reasonable Woman Standard. What
would a “reasonable woman” find hostile
in the workplace?
 This means that, harassment is in the
“eye of the beholder” not in the harasser.
◦ “I didn’t mean anything by it” doesn’t count.
◦ “I didn’t intend it to be harassing” doesn’t
count.
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22. What are we responsible for?
 We will always be responsible for sexual
harassment that we knew about and did
not take prompt and effective action.
◦ “I don’t want anyone to know.”
 Even if we didn’t know about it, it is our
responsibility to watch and report
inappropriate behavior when we see it.
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23. What are we responsible for?
 Hostile environment depends on two
possibilities:
◦ Knew or should have known. Actual knowledge
(seen, heard, told) or constructive knowledge
(environmental harassment). Centerfolds.
◦ Failure to take remedial action. Generally, we
may not be responsible if we take prompt and
appropriate remedial action.
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24. Fairness Issues
 Reverse discrimination. Temporary preference to
protected classes in order to correct the inequities of
the past. Often used in colleges to select applicants.
 Quota vs. merit hiring. Generally not allowed as it is
basically discriminatory.
 Bona fide occupational qualification. Carefully
scrutinized and limited in nature.
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25. Fairness Issues
 Regents of the University of California v. Bakke
(1978). Colleges and universities can legitimately
consider race as one of the factors in the
admissions process.
 Grutter v. Bollinger and Gratz v. Bollinger
(2003). Justified the use of race in university
admissions as long as it is “narrowly” tailored.
 Taxman v. Board of Education Piscataway
(1993). “A nonremedial affirmative action plan
cannot form the basis for deviating from Title
VII.”
 Ricci v. DeStefano (2009).
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26. Fraternization
 What is Fraternization?
 Behavior that crosses the
line, legally, morally and professionally.
 We use it to explain
inappropriate, unprofessional, unethical or
unacceptable behavior.
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27. Fraternization
 We keep ourselves separate in order to
maintain our integrity and the ability to
perform our job.
 Relations and activities that are forbidden
include:
◦ Romantic or sexual relations with our
customers
◦ Gambling
◦ Business relationships with our customers
◦ Excessive familiarity with our customers
◦ Disrespect of authority
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28. EEOC’s Strategic Enforcement Plan
 Eliminating barriers in recruitment and
hiring.
◦ Target class-based practices that discriminate
against racial, ethnic and religious
groups, older workers, women and people with
disabilities.
 Protecting immigrant, migrant and other
vulnerable workers.
◦ Target disparate pay, job
segregation, harassment, trafficking and
discriminatory policies affecting vulnerable
workers.
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29. EEOC’s Strategic Enforcement Plan
 Addressing emerging and developing
issues.
◦ Target emerging issues;
gay, lesbian, transgender issues, demographic
changes, new legislation.
 Enforcing equal pay laws.
◦ Target compensation systems that discriminate
based on gender.
◦ Lily Ledbetter Fair Pay Act (2009), creates a
rolling or open time frame for filing wage
discrimination claims.
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30. National Labor Relations Board
 Banner Health System (2012).
◦ Using a “blanket” approach of “maintaining and
applying a rule prohibiting employees from
discussing ongoing investigations of employee
misconduct” interfered with Section 7 Rights.
◦ Employer’s “generalized concern with
protecting the integrity of investigations is
insufficient to outweigh Section 7 Rights.”
◦ Can still conduct investigations “to the extent
possible.”
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31. National Labor Relations Board
 Ensure references to harassment are
focused on types of harassment
prohibited by anti-discrimination laws.
 A policy that prohibits all forms of
harassing, annoying or disrespectful
language and conduct is too broad.
 Employees have the right to oppose
employer policies but have no right to do
so in a “menacing manner.”
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32. Questions/Comments?
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