Guidelines For Hostile Work Environment Sexual Harassment – San Diego Employment Lawyer – 619.202.0264

This article will address the guidelines Courts rely upon in their analysis of hostile work environment sexual harassment. To find that an employer’s conduct has created a hostile work environment under Title VII, Plaintiff must show that the complained of conduct was “severe or pervasive” and that the environment could be both “objectively and subjectively” perceived as abusive or hostile. Federal sexual harassment case law explores each of these requirements.

The Elliott-Larsen Civil Rights Act specifically defines hostile work environment sexual harassment as “conduct or communication [that] has the purpose or effect of substantially interfering with an individual’s employment.” After establishing the sexual nature of the complained of conduct, a plaintiff making a hostile work environment sexual harassment claim must meet certain elements in order to establish a prima facie case. In Radtke v. Everett, the Supreme Court stated:

“there are five necessary elements to establish a prima facie case of a hostile work environment: (1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of sex; (3) the employee was subjected to unwelcome sexual conduct or communication; (4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and 5) respondeat superior.”

In reviewing each of these elements courts also rely on standard inquiries similar to those in federal law. Where federal case law requires a showing of “severe and pervasive” harassment, the law uses a query of “substantial interference”. Likewise, in judging a plaintiff’s perception of harassing conduct, courts have developed their own “objective reasonableness” standard.

The federal courts closely follow the guidelines issued by the Equal Employment Opportunity Commission (E.E.O.C.) in order to define hostile work environment sexual harassment. In the early case of Henson v. City of Dundee. the court established the importance of the E.E.O.C. guidelines saying that in pertinent part they provide that Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment.

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