Hostile Work Environment Sexual Harassment

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This situation arises when an employee is subjected to sexual innuendos, unwelcome advances, or offensive gender-related language that is severe enough from the angle of a reasonable individual of similar gender as the offended employee.

Hostile work environment sexual harassment must be severe enough to change the conditions of the employment of the offended employee and also create an environment that is abusive. A single situation of sexual harassment in the context of work environment may be sufficient if the behavior is severe enough, but recurring occasions increase the prevalence of the events in a manner that makes a reasonable person to regard the conduct as sexually harassing as a result of its continuous reoccurrence (Mink, 2000).

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An employee can claim that there is a hostile work environment even if the harassment is not directed to him/her especially if the harassment affects the working environment of the complainant. Therefore, an employee claim that there is a hostile work environment if he/she has witnessed the harassing conduct and that conduct was pervasive or severe enough to be regarded as harassment by a reasonable person who has necessary characteristics (e.g., race, gender, age) as the complaining employee

Though supervisor’s favoritism towards an employee with whom he/she is having a sexual affair does not amount to sexual harassment of other employees, continuous favoritism constitutes a hostile environment if the management depict sexual affairs as a way of climbing the ranks within the organization

Case example: The Friends case

The hit TV sitcom Friends may be associated with the popular catchy “I’ll be There for You” music song, one of the comedic on-liners, and the continuous relationship narrative of Ross and Rachel. This is one of the TV shows that hit the sexual harassment arena in California in 2006 through the case of Lyle v. Warner Bros Television Productions in the California Supreme. In this case, an assistant to a female writer filed a case against a male comedy writer for sexual harassment. The case centered on whether the conduct of the male writer, which included sexual discussions, sexual antics, lewd and graphic gestures such as pantomiming of masturbation amounted to a hostile work environment which was abusive by sex

For there to be a hostile environment, the element of sexual harassment should be pervasive or severe from the viewpoint of a reasonable person with similar fundamental faces of the plaintiff

In the above case, the California Supreme court found out that the sexual behavior of the writer was not severe or pervasive enough since the sexual behavior was neither to the plaintiff nor other women in the workplace and since the Friends production was a creative place of work that focused on producing scripts for a sexually-themed comedy show. In their ruling, the judges of the California Supreme Court said that since the derogatory statements never involved the plaintiff, she had no obligation to set forth particular facts where a reasonable trier could consider the conduct ‘permeated’ her working environment and was ‘destructive and pervasive.’

To determine whether behavior permeated the claimed victim’s work environment and was destructive and pervasive, the trier of fact must consider all the circumstances surrounding the case. In the Friend’s case, the Supreme Court found out that the conduct of the writer never constituted unlawful harassment and was “neither unreasonable nor surprising from a creative position.” The court reiterated that common sense and proper sensibility to social context would allow the court and the juries to differentiate between the roughhousing or teasing and the behavior which a reasonable person in the position of a plaintiff would find severely abusive or hostile (Coukos, 2011).

Similarly, whether the sexual behavior will infiltrate a victim’s workplace and be destructive and pervasive depends on the kind of job hold by the victim. For instance, if the explicit sexual conduct of the writers in Friends, like pantomiming of masturbation and telling graphic sexual stories, happened at daily meetings of an accounting firm over a long period, it may be regarded as pervasive and destructive. On the contrary, if a female bartender is working at a strip club, and is daily exposed to graphic sexual behavior, the social context would show that the conduct is destructive and pervasive does not necessarily create an unfriendly work environment.

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Harassment should be based on Gender

For one to prove that a victim has been harassed as a result of his or her sex, the victim must prove that he or she was treated differently as a result of his or her sex. When sexual insinuations or gender-related speech, i.e., crude language, sex talk in the workplace, or loutish language, are directed towards an employee or his or her gender in general, this conduct amounts to work environment sexual harassment it is adequately severe or pervasive (Coukos, 2011).

This does not mean that the harasser should from different sex than the harassed. Both the Supreme Court of the United States and California found out that harassment in the place of work can infringe the law against discrimination as a result of sex when both the harassed and the harasser are of similar sex.

The hostile Work environment should be gender-based and doesn’t necessarily need to be sexual.

Hostile work environment does not necessarily need to be language based or conduct of a sexual nature. What is important here is that there is a hostile work environment as a result of the sex of the victim. For example, id a female employee is harassed at her workplace because her supervisor does not like women; the harassment as a result of supervisor’s behavior creates a hostile work environment, which then allows an employee to have a lawsuit (Achampong, 2009).

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Case study: Yelling in the Workplace

Yelling and screaming to a female employee at their places of work constitutes sexual harassment that is enforceable if the screamer yells more frequently or forcefully at female employees than that of the male employees and in a way that has some adverse effects on women employees than it affects men in their places of work. The existence of such non-sexual behavior can lead to sexual harassment in the form of a hostile working environment, as seen in the case of EEOC/Christopher v. National Education Association by the Ninth Circuit of the United States of Appeal in 2005.

According to this case, three women went to court to sue their employer for sex-related work environment as a result of the conduct of their supervisor, Thomas Harvey. In most instances, Harvey screamed and yelled at his employees with little or no provocation. The shouting was mostly disrespectful and in public, and the court found out that it was an intimidation to female employees.  These cases between Harvey and employees were not different, but rather created a generic atmosphere full of intimidation in the place of work, causing women to cry, feel panicked and threatened physically, avoid contact with Harvey, and even to the extent of avoiding submitting overtime hours for fear of intimidating Harvey. They only had an option of calling the police and finally resign.

The court established that whichever the motive of the harassment, the critical question is whether the behavior of the harasser hurt women than men. According to this case, it was ascertained that harasser’s behavior had adverse effects on women than men since his threatening behavior was severely made to women than men.

Garcia v. Los Banos Unified School District is in support of the findings of EEOC/Christopher v. National Education Association that non-sexual behavior that includes yelling amounts to sexual harassment if women are more often extremely exposed to the conduct more than men. In Garcia, the supervisor of the plaintiff raised his voice and used vulgarity with nearly everybody in the workplace, both women, and men. Nonetheless, the female plaintiff was exposed to this conduct more intensely and more often than men, and the manner in which the supervisor treated the plaintiff was severely abusive, as different from joking or bantering in tone

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According to the Garcia court, workplace conduct does not need the involvement sexual desire for conduct to be regarded as hostile work environment sexual harassment. It can be sufficient to gauge how the purported harasser handled members of both sexes in a workplace with s mixed-sex, and to prove that one of the sexes was adversely treated.

Adequately Severe or Pervasive

In a situation where there has been a lawsuit regarding hostile work environment, the harassment suffered by an individual must be severe or pervasive to change one’s employment and create abusive and a hostile environment. There exists no clear line rule that stipulates what conduct is severe or pervasive enough to amount to a hostile work environment. There exists some level of uncertainty in this section of the law, and both the personal facts of a case of a victim and the court which is heard affects whether the suffered misconduct amounts to illegal sexual harassment (Mink, 2000).

Though there is no clear line test in ascertaining whether harassing behavior is sufficiently severe or pervasive, the case law provides us with some guidelines as to what conduct amounts to unlawful hostile work environment sexual harassment.

Sufficiently severe

According to Mink (2000), for a sexual harassment to be adequately severe to create hostile work environment sexual environment, it has to contain egregious and offensive conduct. Severity largely depends on the threatening and gravity or obnoxious nature of the harassing conduct

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Threatening or offensive touching behavior makes up a conduct that is severe enough to create a hostile environment. The ruling of California Supreme Court in the Friends Case stated that if any harassment is not “severe in the extreme,” some incidences of harassments must have occurred to create a hostile environment. The Court found out that for a harassment incident to be sufficiently severe, it should have “egregious conduct similar to physical assault or threat thereof.”

Whether offensive touching is to be regarded as severe merely depends on how extreme and offensive the touching is. For instance, rape, one of the threatening and most offensive kinds of touching, will be regarded as sufficiently severe. On the contrary, slightly offensive touching, such as touching the alleged victim’s arms or hair, will most likely not to be considered as sufficiently severe to create a hostile work environment. In most instances, there is no clear-cut, and this is left for the judge or a jury to decide on whether certain harassment suffered by a victim can sufficiently enough to create a hostile work environment (Coukos, 2011).

Sufficiently Pervasive

Harassment can be regarded as sufficiently pervasive if it infuses the workplace and changes the working condition of a victim to create abusively and a hostile working environment. From the summary of the case held in the California Supreme Court in Friend’s case, it was held that an employee cannot fully recover from the harassment that is sporadic, isolated, occasional, or trivial; rather the employee needs to show a resolute pattern of harassment of a generalized, repeated, or routine nature.

For instance, if your boss requests you for a date many times in some months, even after turning down his requests to each invitation, this may not be considered as sufficiently pervasive. Even though such romantic invitations may be offensive and causes you feel awkward, such conduct is not so intrusive and repetitive that permeated your place of work, creating the abusive and destructive environment.

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On the contrary, if your supervisor is looking at you in a threatening you in a way, propositioning you at work, and talking plainly about sexual things he or she imagines you doing, this form of arrangement infuses your working environment and creates abusive and destructive environment (Achampong, 2009).

Conclusion

Hostile work environment sexual harassment must be severe enough to change the conditions of the employment of the offended employee and also create an environment that is abusive. A single situation of sexual harassment in the context of work environment may be sufficient if the behavior is severe enough, but recurring occasions increase the prevalence of the events in a manner that makes a reasonable person to regard the conduct as sexually harassing as a result of its continuous reoccurrence

For one to prove that a victim has been harassed as a result of his or her sex, the victim must prove that he or she was treated differently as a result of his or her sex. When sexual insinuations or gender-related speech, i.e., crude language, sex talk in the workplace, or loutish language, are directed towards an employee or his or her gender in general, this conduct amounts to work environment sexual harassment it is adequately severe or pervasive.

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Did you like this sample?
  1. Achampong, F. (2009). Workplace Sexual Harassment Law: Principles, Landmark Developments, and Framework for Effective Risk Management. Greenwood Publishing Group.
  2. Coukos, P. (2011). Hostile Environment? The Development of Sexual Harassment Law in the United States 1971-1991. Chicaco Press.
  3. Crouch, M. A. (2001). Thinking about Sexual Harassment: A Guide for the Perplexed. Oxford University Press.
  4. Mink, G. (2000). Hostile Environment: The Political Betrayal of Sexually Harassed Women. Cornell University Press.
  5. Lyle v. Warner Brothers Television Productions- case text
  6. EEOC/Christopher v. National Education Association- case text
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