Recognizing and Understanding the Risks of Prohibited Discrimination, Harassment, and Retaliation

1
Recognizing and Understanding the Risks of
Prohibited Discrimination, Harassment, and
Retaliation

• A Few Basics

2
Prohibited Discrimination and Harassment What
Is It?

• Unwelcome conduct based on a protected category
  (under law or WL policy) that is a term or
  condition of employment or participation in
  education programs.

3
 Unwelcome

• To be "unwelcome" the conduct must not be
  solicited or invited, and the complainant must
  have regarded the conduct as undesirable or
  offensive.
• Voluntary participation/lack of coercion is not
  dispositive neither is a contemporaneous
  complaint or protest necessary.

4
 What Categories Are Protected by Law or WL
Policy?

• Federal and Virginia law prohibit harassment or
  other discrimination on the basis of any of the
  following categories sex, race, national or
  ethnic origin, religion, disability, age, and
  veterans status.
• Washington and Lee University has gone beyond the
  legally mandated protected categories to include
  sexual orientation in its prohibited
  discrimination and harassment policy.

5
What Type of Conduct is Sex-Based Conduct?

• Conduct of a sexual nature (sexual advances,
  request for sexual favors, and other visual,
  verbal, or physical conduct of a sexual nature)
  OR
• Conduct directed toward an individual because of
  that individual's sex (e.g., gender
  humiliation). 

6
What about Same-Sex Conduct?

• Harassing conduct can be, but need not be,
  motivated by sexual desire to support an
  inference of discrimination "on the basis of
  sex.
• E.g., female victim being harassed in such
  sex-specific and derogatory terms by another
  woman to make it clear that the harasser had a
  general hostility to women in the workplace.
• Same-sex cases require careful consideration of
  the social context in which the behavior
  occurred.

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Conduct That Could Be Sexual Harassment If
Unwelcome

• Lewd remarks or whistlesPersistent physical
  contact/romantic pursuitHumor or insult of a
  sexual natureObscene messages and sexual
  discussionsRating sexual attributes and
  attractivenessSexually suggestive
  gesturesSexual misuse or abuse of powerSubtle
  or overt pressure for sexual favorsDeliberate
  gender humiliation or intimidationStalkingSexual
  assault

8
Term or Condition of Employment or Education

• In this first step of a liability analysis,
  whether protected discrimination or harassment
  took place, two forms of judicially recognized
  harassment are relevant.

9
Quid Pro Quo Harassment

• Involves submission to the unwelcome conduct as
  an expressed or implied condition for receiving
  an academic or employment benefit or evidence
  that refusal to submit to such unwelcome conduct
  resulted in a tangible academic or employment
  detriment (not simply threat of detriment).
• E.g., impact on grades or graduation, hiring,
  firing, promotion, compensation, or reassignment
  to a substantially different, inferior position.
• Primarily sexual harassment cases.

10
Hostile Environment Harassment

• Situation presented when unwelcome conduct
  unreasonably interferes with an individual's
  academic or work performance or creates an
  intimidating or hostile academic or work
  environment, even without tangible or economic
  consequences.
• The critical inquiry in a hostile environment
  case is whether the conduct was sufficiently
  "severe or pervasive" to create an abusive
  academic or work environment. 

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 Look at the Totality of Circumstances

• Relevant Factors
• Age and relationship of parties Location of
  conduct Frequency/severity/duration of
  conduct Nature and context of incident(s) Verbal
  or physical threats involved Trivial or
  patently offensive comments? Number of
  individuals involved Specific impact on
  work/education Relationship of subject matter to
  course (if classroom conduct)

12
 Severe and Pervasive Standard

• Unless conduct is egregious, a single or isolated
  incident of offensive conduct generally does not
  create a hostile environment. Generally requires
  a pattern of offensive conduct. Federal law does
  not attempt to purge the work or academic
  environment of all offensive language or conduct.
• In contrast, in quid pro quo cases, a single
  incident will constitute harassment if it is
  linked to the granting or denial of academic or
  employment benefits. 

13
  Two-Part Viewpoint Test

• Consider the perspective of the complainant and
  the perspective of a reasonable person. Would a
  reasonable person in the complainant's position
  have felt harassed and did the complainant feel
  harassed?
• Psychological injury not required.

14
 Some Harassment Myths

• Harassment requires a bad intent on the part of
  the harasser.
• If parties have been involved consensually,
  subsequent conduct cannot be considered sexual
  harassment.
• Liability is limited to conduct by supervisors
  and managers, not visitor or student-to-student
  harassment, because the University cannot control
  those relationships.

15
Prohibited Retaliation What Is It?

• Retaliation in any form against a complainant,
  witness, or other participant in a complaint
  process.
• Examples could include threats, intimidation,
  lowered grades or evaluations, demotion,
  discharge.
• Retaliation is a separate policy violation and
  will be disciplined separately.

16
Prohibited Retaliation Who can be in violation?

• Individuals
• Groups and organizations

17
How Serious is the Legal Risk?

• Potential for significant damages to the
  University under civil rights laws for employee
  or student discrimination, harassment, or
  retaliation, including compensatory and punitive
  damages. Potential for numerous state law
  damages claims, as well, against university and
  individual harasser.
• As CAIR resources and designated officers, you
  can act to minimize this risk to the University.

18
 When Is University Liable for
Discrimination/Harassment?

• Harassment of a student by another student
  University liable if officials actually knew of
  severe and pervasive harassment but were
  deliberately indifferent to it.
• Precisely what type of official must have
  knowledge in order to trigger liability is in
  question. Knowledge by faculty, staff, or
  administrators with significant responsibility
  for student affairs, or by CAIR resources or
  designated officers, likely would trigger
  liability if deliberately indifferent. 

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• Harassment of a student by faculty or other
  university employee University liable if an
  official with authority to address and correct
  the alleged harassment actually knew of the
  situation, failed to respond to it, and showed
  deliberate indifference.
• At WL, this certainly would include all
  designated officers, and other high-level
  administrators and department heads. It could
  also include CAIR resources and student activity
  supervisors and advisors.  

20

• Harassment of an employee by a co-worker,
  student, or other third party University liable
  if officials knew or should have known of the
  harassment and did not take prompt and reasonable
  action to end it.

21

• Harassment of an employee (including student
  workers) by a supervisor University absolutely
  liable if harassing supervisor takes tangible
  employment action against harassed employee.
• University will be liable even without knowledge
  or a tangible employment action unless it can
  show that (1) University used reasonable care to
  prevent and promptly correct the harassment and
  (2) employee did not act reasonably to prevent
  harassment and to seek help through Universitys
  preventive and remedial policy and
  procedures.  

22
Can Harasser be Individually Liable?

• Even though the federal courts have ruled that
  individual harassers are not individually liable
  for their harassment under the relevant federal
  laws, these individuals remain subject to
  potential individual liability under state law
  (e.g., assault, battery, infliction of emotional
  distress, etc.) in each of the above scenarios. 

23
  Some Dos

• Follow the policy and procedures.
• Encourage reporting of perceived harassment! If
  a complainant decides not to pursue a complaint,
  document acknowledgement that complainant was
  advised of procedures available.
• Take all complaints seriously and handle
  promptly.
• Make a careful and thorough record, in
  consultation with Head CAIR and General Counsel.
• Communicate on a limited need-to-know basis.
• Follow up to be sure harassment has stopped.

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 Some Donts

• Don't adopt a "don't ask, don't tell" policy.
• Dont take a "boys will be boys" or its just
  harmless teasing attitude.
• Don't suggest complainants just ignore it.
• Dont delay once aware of a problem.
• Dont make quick judgments or act biased.
• Dont breach appropriate confidentiality.
• Dont hesitate to assess credibility.
• Dont assume it couldnt happen at WL.