Sexual Harassment
2
Types
Quid Pro Quo + Hostile Environment
1
Standard
Severe OR pervasive
0
Single Incident
Can suffice if severe enough
two doctrines · two liability rules
The Liability Seesaw
QPQ tips the seesaw to strict liability — no defense available. Hostile environment leaves the seesaw balanced — Faragher/Ellerth defense may apply.
how to read this
- › The seesaw tilts toward the side carrying liability weight. QPQ's side hits the ground — no defense.
- › HE's side stays lifted IF the employer has a real policy AND the employee unreasonably failed to use it.
- › Single severe incident can land on either side depending on whether a tangible action followed.
The Cases That Built the Doctrine
Meritor v. Vinson
Hostile environment IS sex discrimination
Faragher / Ellerth
Affirmative defense framework for HE without tangible action
Oncale v. Sundowner
Same-sex harassment is actionable
Bostock v. Clayton County
SO + GI fall under sex discrimination
Exam Traps
Quid Pro Quo requires SUPERVISOR action
Coworkers cannot do quid pro quo because they cannot offer tangible employment actions. The exam tests this category.
Standard is "severe OR pervasive"
Not "severe AND pervasive." One severe incident or many lesser ones can both create a hostile environment.
Faragher/Ellerth defense unavailable with tangible action
When the supervisor takes a tangible employment action, employer is strictly liable. The defense exists only for hostile environment without tangible action.
Bostock confirmed SO and GI coverage
Same-sex harassment (Oncale, 1998) and SO/GI harassment (Bostock, 2020) are both actionable under Title VII.
Coworker QPQ does not exist
Quid pro quo is supervisor-only because only supervisors can offer tangible employment actions.
Severe OR pervasive
One severe incident OR many smaller ones. The standard is disjunctive, not conjunctive.
Manager tells server she gets the promotion if she goes on a date. She refuses. He gives the promotion to someone else. Tangible employment action. Strict employer liability.
Manager makes daily sexual jokes. Other servers join. Targeted server complains. Nothing happens. Employer can use Faragher/Ellerth defense ONLY if it had a real policy AND the server unreasonably failed to use it.
Manager grabs a server inappropriately. One incident, but severe enough to alter conditions of employment. Hostile environment without a pattern.
Witnessing ongoing harassment of others can create hostile environment for the witness. Not just direct targets.
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