Sexual Harassment in Employment Law PDF

o Practical Significance ▪ If a male makes sexual comments or improperly ▪ Four-Fifths Rule - When the selection ratio touches another male. for one group (e.g., females) is less than 80%...

o Practical Significance ▪ If a male makes sexual comments or improperly ▪ Four-Fifths Rule - When the selection ratio touches another male. for one group (e.g., females) is less than 80% Negative to the Reasonable Person (four-fifths) of the selection ratio for another o Any pattern of behavior based on gender that causes group (e.g., males), adverse impact is said to an employee discomfort might constitute sexual exist. harassment. ▪ Percentages rather than raw numbers. ▪ 25 of 50 male applicants are hired, the hiring ORGANIZATIONAL LIABILITY FOR SEXUAL percentage is 50% - females must be at least HARASSMENT four-fifths (80%) of 50%. Thus,.50.80.40, Quid Pro Quo Harassment - organization will always (10:4). be liable. Hostile Environment Cases - can avoid liability. o “Exercised reasonable care to prevent and correct promptly any sexually harassing behavior”. CAN THE EMPLOYER PROVE THAT THE Preventing Sexual Harassment REQUIREMENT IS JOB RELATED? o Well-conceived policy regarding sexual I. Job Related harassment. The extent to which a test or measure taps a knowledge, o Communicated and enforced that policy. skill, ability, behavior, or other characteristic needed to o Must explain the types of harassment. successfully perform a job. o List of the names of the company officials to whom Valid Testing Procedures an employee should report. o Adverse impact may still be legal as long as the test Correcting Sexually Harassing Behavior is job related (valid) and as long as find other tests o Organization investigates the complaint quickly and that might be just as valid but have less adverse then promptly take any necessary action. impact. ▪ Physically separating the two parties or ▪ Uses a cognitive ability test to select limiting the amount of contact between them. employees – it predicts performance on the o Accused and the accuser must be given due process. job. o Results of the investigation must be communicated in writing to both parties. Exceptions o Severity of the punishment must match the severity o Bona Fide Seniority System of the violation. ▪ Has long-standing policy of promoting employees with the greatest seniority or laying off employees with the least seniority can FAMILY MEDICAL LEAVE ACT continue to do so. Entitles eligible employees (both male and female) to a o National Security minimum of 12 weeks of unpaid leave each year. ▪ Legal for an employer to discriminate against o Births, adoptions, or placement for foster care. a member of a particular national origin or o To care for a child, parent, or spouse with a serious other protected class when it is in the best health condition. interest of the nation’s security. o For employee’s own serious health condition that ▪ Ex. Russians prohibited from working in any makes him or her unable to perform the job. defense-related industry. President George W. Bush signed the National Defense o Veteran’s Preference Rights Authorization Act (2008) ▪ Most civil service jobs provide extra points on o Provide 26 weeks of unpaid leave for a spouse, son, tests for veterans of the armed forces. daughter, parent, or next of kin to care for a member ▪ Get five points added to their exam score. of the military. Organization must: o Continue the employees’ health-care coverage. TYPES OF HARASSMENT o Return to same or an equivalent position. I. Quid Pro Quo Employee must provide a doctor’s certification and give Granting of sexual favors is tied to such employment 30 days’ notice if the leave is foreseeable. decisions as promotions and salary increases. o Single incident is enough to constitute sexual harassment. AFFIRMATIVE ACTION A set of procedures designed to; eliminate unlawful II. Hostile Environment discrimination among applicants, remedy the results of A pattern of unwanted conduct related to gender that such prior discrimination, and prevent such interferes with an individual’s work performance. discrimination in the future. ▪ Comments, unwanted sexual or romantic advances, or the display of demeaning posters, I. Reasons for Affirmative Action Plans signs, or cartoons. Involuntary: Government Regulation Pattern of Behavior o Presidential Executive Order 11246 o Pattern of behavior rather than an isolated incident. ▪ Requires federal contractors and ▪ Coworker continually makes unwanted subcontractors with more than 50 employees romantic or sexual overtures or repeatedly to submit an annual EEO-1 Report and makes inappropriate remarks. requires federal contractors and subcontractors Based on Gender with at least one federal contract in excess of o Must be due to the sex of the employee. $50,000 to have formal affirmative action ▪ Female officers as “babes” or “honey” - based plans. on gender and demeaning to the female officers. ▪ Involve analyses of all major job groups.  ▪ Indicate which job groups have Prevent and tracked unproductive behavior and potential underrepresentations. legal problems or theft of trade secrets. ▪ Goals and plans for overcoming such Video surveillance is not an invasion of privacy video underrepresentations. surveillance is not an invasion of privacy. Involuntary: Court Order Can monitor their employees’ email or search their o Court finds a public agency guilty of not hiring or computer files. promoting enough members of a protected class. o Should tell employees that they are being monitored ▪ Order the agency to begin an affirmative and at the time of hire, get new employees to sign action program. consent forms agreeing to be monitored. Voluntary: Consent Decree o Discrimination complaint has been filed with a court, a public agency can “voluntarily” agree to an affirmative action plan. Voluntary: Desire to Be a Good Citizen o Develop affirmative action and diversity programs out of a desire to be good citizens. II. Affirmative Action Strategies Monitoring Hiring and Promotion Statistics o Monitor their hiring, placement, and promotion rates for men and women and minorities and nonminorities. Intentional Recruitment of Minority Applicants o Target underrepresented groups for more extensive recruitment. Identification and Removal of Employment Practices Working Against Minority Applicants and Employees o Identify and remove practices that might discourage minority applicants from applying to an organization, being promoted within an organization, or remaining with an organization. Preferential Hiring and Promotion of Minorities o Most controversial and misunderstood. o Minority applicants will be given preference over an equally qualified nonminority applicant. PRIVACY ISSUES Fourth Amendment o The amendment to the U.S. Constitution that protects against unreasonable search or seizure. o Has been ruled to cover such privacy issues as drug testing, locker and office searches, psychological testing, and electronic surveillance. Drug-Free Workplace Act o Requires federal contractors to maintain a drug-free workplace. I. Drug Testing Drug testing of current employees by a public agency must be based on “reasonable suspicion” and with “just cause”. o “Tips” that employees are using drug. o Accidents or discipline problems. o Actual observation of drug usage. o Physical symptoms of being under the influence. II. Office and Locker Searches Allowed under the law as long as they are reasonable and with cause. Allowing to place their own locks on lockers: removes the right of the organization to search the locker. III. Psychological Tests Illegal if its questions unnecessarily invade the privacy of an applicant. o Applicant’s level of emotional stability, interpersonal style, addiction potential, dependability, and socialization. IV. Surveillance