Class Notes for 9-11 - Burlington Industries vs Ellerth •...

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Anna King HA 387 9.11.2007 Class Notes: 9.11.2007 Sex Discrimination Needed the conduct and the motivation Harassment o Gender harassment (severe or pervasive conduct that isn’t sexual) If you are an equal opportunity asshole, send it to HR, not lawyers o Sexual Harassment (has sexual conduct) Oncale Supreme Court says that they don’t want to talk about the conduct-just admit it’s really bad. Circuit Court says they are bound by Garcia (no such thing as same sexual harassment), even if they don’t agree Reject 5 th circuit where there could not be a case for same sex, sexual harassment Use 8 th circuit decision Key to sexual harassment is “because of sex” o Meaning you need conduct + motivation o So plaintiff must prove the motivation of sex o Motivated by the gender of the person This created the equal opportunity sexual harasser
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Unformatted text preview: Burlington Industries vs. Ellerth • Woman’s sexual conduct she alleged was about how the boss told her to tell him what she was wearing, or to loosen up a bit o Is this qpq or hwe? And why does this matter? o QPQ- company = liable o HWE Power (company liable) Knew or should have known (company not liable) o New standard: if there is a tangible loss then the company is liable “sleep with me or you’re fired and you get fired” (liable) “sleep with me or you’re fired and you don’t but go back to work (not liable) o Employer has to prove affirmative defense Step 1: exercise reasonable care to prevent and correct harassment (policy, training, 800 numbers, etc) Step 2: employee unreasonably failed to take advantage of what the employer offered...
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