Discrimination / Sexual Harassment Scenarios

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1 Discrimination / Sexual Harassment Scenarios

2 Scenario A Susan Smith is an undergraduate student in a lab. She is one of two females in the lab where there are 12 students. Some of her male classmates frequently engage in sexual banter at the beginning of each lab session. They often share stories about their sexual exploits, joke about their sexual expertise, and at times make sexually suggestive gestures. The Graduate TA also joins in. Susan is very upset and uncomfortable with this conduct and reports it to the Associate Dean of the Graduate School.

3 Is the behavior of Susan s male classmates and the GTA unwelcome? A. Yes B. No

4 Answer to Scenario A.1 Yes. Based upon the information in the example, it appears the conduct is unwelcome.

5 Is the conduct described above sexual harassment? A. Yes B. No

6 Answer to A.2 Probably, yes. To constitute sexual harassment, the conduct must not only be unwelcome, but it must also be severe and pervasive. The information contained in the example concerning the frequency and nature of the conduct suggests it is severe and pervasive.

7 Scenario B Assume the same facts as in Scenario A. In this scenario, however, the facts uncovered in the course of the investigation reveal that Susan has joined in the sexual banter and jokes in order to fit in with the students in the lab.

8 Is the conduct of Susan s classmates unwelcome to Susan? A. YES B. NO

9 Scenario B.1 Answer No. By joining in and participating in the conduct, Susan has demonstrated that the conduct is not unwelcome to her.

10 Scenario B.2 The other female student in the lab states that she has been subjected to this conduct by Susan and her classmates.

11 Has Susan sexually harassed her female classmate? A. YES B. NO

12 Scenario B.2 Answer Yes. The harasser can be the same sex as the victim, so Susan could be found to have sexually harassed her female classmate by joining in the described conduct with her male classmates.

13 Scenario C For the past couple of months, Maria, a new graduate assistant, has been subjected to hugging, fondling, and offensive comments about her curvaceous figure several times by Professor Letch, her advisor. She has repeatedly tried to communicate her discomfort with this behavior by gently pushing him away, talking about how angry her fiancée would be if he knew about it, and leaving the room when possible.

14 Has Maria communicated to Professor Letch that his conduct is unwelcome? A. Yes B. No

15 Answer to C Yes. Although a direct statement to the harasser that the conduct is offensive and unacceptable clearly puts the harasser on notice that the conduct is unwelcome, such a direct statement is NOT required. In this instance, Professor Letch should have interpreted Maria s statements and actions as expressing to him that his conduct is unwelcome. The conduct described was not only offensive to Maria, but it was of such a nature that an objective, reasonable person would find it to be offensive, severe and pervasive. Therefore, regardless of whether Professor Letch understood that his conduct was unwelcome and offensive, his conduct would be found to be sexual harassment.

16 Scenario D For the last several months, Professor Baretti has repeatedly made comments about Richard, her new graduate teaching assistant by commenting frequently on the physical characteristics of his body. She has frequently hugged him and patted him on the buttocks. Professor Baretti s comments and actions have been observed by other graduate teaching assistants, by Professor Baretti s department chair, and by students. One day Richard goes into his graduate advisor s office and tells the advisor about Professor Baretti s actions, but also tells the advisor that he is embarrassed and he does not want the advisor to tell anyone or do anything.

17 Who is required to report harassment? a) Professor Baretti s department Chair? b) Richard s graduate advisor? c) Richard s fellow graduate teaching assistants who observed the conduct? d) All but the students

18 Answer to D As a graduate teaching assistant, Richard is both an employee (Title VII) of the University and a student (Title IX); therefore, both Title VII and Title IX apply in this scenario. The Answer is d. a) Professor Baretti s Chair is a supervisor. Supervisors who have knowledge of sexual harassment must report it promptly. A supervisor s failure to report sexual harassment exposes the university to liability and may result in disciplinary action against the Chair. b) Under Title IX, the University is liable for harassment if it can be shown it was deliberately indifferent. Richard s graduate advisor s knowledge of the harassment will be imputed to the university; therefore, the advisor must report the harassment. c) Richard s fellow graduate teaching assistants are members of the University s faculty as instructors. As such, they have a professional and legal obligation under Title IX not to allow harassment in the educational environment; therefore, they must report the harassment. d) The students who observed the harassment are under no obligation to report it, however they may.

19 Scenario E Wanda, who is African-American, works in a storeroom. On Wanda s first day, one of the delivery men from a local distributing company, who is White, is very rude to her. Since them, this delivery man has attached negative jokes or cartoons about African- Americans to packages he leaves with Wanda.

20 What should Wanda do? Wanda should do nothing. The delivery man does not work for the university, so the university can t be held responsible for his conduct. A. True B. False

21 Answer to E.a False. Employers may be held responsible for harassment, even when the harasser is not an employee, if the employer knew about the harassment and did not act to correct the situation. The university could, for example, contact the delivery company to request a different delivery person to handle the company s package delivery.

22 What should Wanda do? Wanda should tell the delivery man that his behavior is offensive, and that it must stop immediately. A. True B. False

23 Answer to E.b True. Although Wanda is not legally required to confront the delivery man, she should, if she feels comfortable, ask the delivery man to stop harassing her. Wanda should also report the delivery man s conduct to her supervisor or any other supervisor in that they are responsible to report the situation.

24 What should Wanda do? Wanda should tell her supervisor or any other supervisor about the delivery man s conduct. A. True B. False

25 Answer to E.c True. Even if Wanda does not ask the delivery man to stop harassing her, she should report the harassment to the university immediately (to a supervisor). Once the university knows Wanda is being harassed because of her race, it has a responsibility to correct the situation and protect her from further harassment. By addressing the harassment with both the delivery man and her employer, Wanda maximizes her opportunity to resolve the situation quickly.

26 Scenario F Tim and Angel work together in a research lab. Angel is the Coordinator of the lab in that she arranges work hours. They recently broke up after dating for several months. Angel begins following Tim at work and begs him to give her another chance. When Tim refuses, Angel changes Tim s schedule so she won t have to work with him. As a result, Tim s hours are cut by 1/3.

27 Is Angel s behavior sexual harassment? a. Yes. It was illegal for Angel to reduce Tim s hours because he refused to date her. Angel also should have stopped asking Tim out after they broke up. b. No. Angel s behavior is not sexual harassment because Angel has not kissed or hugged or made sexually explicit comments to Tim. Angel reasonably tried to stay away from Tim after he refused to give her another change. c. No. Angel s behavior is not sexual harassment because she and Tim used to date. It is impossible for people who used to be in a relationship to sexually harass each other. d. No. Angel s behavior is not sexual harassment because only women can be sexually harassed.

28 Answer to F A is correct. Once Tim told Angel that he no longer wanted to date her, Angel should not have continued to ask him out or otherwise harass him. In addition, it was illegal for Angel to reduce Tim s hours because he refused to date her, even if Angel made the schedule change so they could avoid each other. B is incorrect. Sexual harassment can be based on verbal remarks even if there is no physical touching. Plus, a manager cannot make a negative decision about your job, such as cutting your hours or reducing your pay, because you refuse to date him or her. C is incorrect. Angel s behavior is sexual in nature and Tim has made it clear to Angel that her advances are no longer welcome. Angel s behavior is sexual harassment. D is incorrect. Federal law protects both men and women from sexual harassment.

29 Scenario G Jorge, a Honduran citizen living in the United States, accepted a summer job with a landscaping company. On his first day, Jorge broke a lawn mower, prompting the customer to yell at him. The customer called Jorge stupid and complained that foreign kids like Jorge were stealing jobs from hard-working Americans. Jorge did not see the customer again during the rest of the summer.

30 Is the customer s treatment of Jorge illegal harassment? a. No. Because the customer does not work for the landscaping company, the company cannot be held legally responsible for the customer s conduct. b. No. Although the customer s conduct was offensive and was directed at Jorge because of his national origin, it was not sufficiently severe (serious) or pervasive (frequent) to establish a harassment claim. c. No. Because Jorge is not an American citizen, he is not protected by U.S. employment discrimination laws. d. Yes. It is illegal to harass someone at work for any reason.

31 Answer to G A is incorrect. An employer may be held responsible when its employees are harassed by a customer if the employer knew or should have known about the harassment and did not act to correct the situation. B is correct. For workplace harassment to be illegal the conduct must either be very serious or it has to occur frequently. One instance of harassing conduct is generally not illegal, unless the conduct is very serious, such as a physical assault. C is incorrect. Persons who are not citizens of the Unites States are protected by the U.S. employment discrimination laws while they are working in the United States for an employer covered by these laws. D is incorrect. Not all workplace harassment is illegal. In this case, the customer yelled at Jorge on only one occasion, and no severe conduct such as a physical assault was involved.

32 Scenario H Jeanette, a graduate student, was offered a parttime job as a waitress at a local restaurant. At the end of her interview, she mentioned that she was pregnant, but that she was perfectly capable of performing her duties as a waitress. When Jeanette called to get her start date, the manager said he had hired someone else. He said he was afraid that Jeanette would hurt her baby carrying heavy trays of food and that the customers might not like having a pregnant woman waiting on them. He invited her to reapply after she had her baby.

33 Is the manager s decision illegal? a. No. The manager did not discriminate against Jeanette because he invited her to reapply after she gave birth, and refused to hire her only out of concern for the health and safety of Jeanette and her baby. b. Yes. The manager discriminated against Jeanette when he refused to hire her because she is pregnant. c. C. No. The manager can legally decide not to hire Jeanette because restaurant customers may not want pregnant servers. d. Yes. Once the manager offered Jeanette the job, he had no right to change his mind and hire someone else.

34 Answers to H A is incorrect. It is illegal for the manager to refuse to hire Jeanette solely because she is pregnant. It does not matter whether the manager s decision was based on concern that Jeanette s baby may be harmed. B is correct. As long as Jeanette can perform her duties as a waitress, the manager cannot deny her the job just because she is pregnant. C is incorrect because customer preferences do not justify discrimination. D is incorrect. The laws enforced by EEOC do not prevent the manager from deciding to hire someone else, as long as he did not base his decision on Jeanette s pregnancy (or on some other characteristic covered by the anti-discrimination laws, such as her gender or race).

35 Scenario I Sam recently began working as a Researcher in a university lab. He does not get along with an older staff employee (age 45) who works part-time. At one departmental meeting, Sam gave the older employee a cane as a joke. On another occasion, Sam told the older employee to take the afternoon off and go home to take a nap. Sam regularly refers to this older employee as Grandma. After several months, Sam suggests to his supervisor to fire the older employee because he thinks that they should hire someone younger. Sam believes a younger employee will relate better to the students in the department.

36 Is this conduct illegal? A. Yes. Federal law protects workers age 40 or older from job discrimination and harassment based on their age. B. No. The federal age discrimination law does not apply to research or university lab facilities, so it is not illegal for Sam to fire the older employee. C. No. As a researcher and one with hiring authority in his lab, Sam has the authority to make decisions about hiring and firing employees. D. No. Sam did not discriminate against the older employee because it is important for university that works with predominantly young students to hire workers who are closer to the age of the students.

37 Answers to I A is correct. It is unlawful to discriminate against or harass employees who are 40 or older because of their age. B is incorrect. It is illegal for managers, supervisors and co-workers, to discriminate against or harass older employees (age 40 and above) because of their age. C is incorrect. Although Sam may be responsible for making decisions about who to hire and fire, it is against the law for him to fire someone age 40 or older because he thinks the person is too old. D is incorrect. There is no indication that the older employee cannot perform her job, including helping students. Sam does not have any complaints about the older employee s performance. Sam s decision appears to be based on stereotypes about older workers and, therefore, is a violation of federal law.

38 Scenario J Daniel filed a charge of discrimination against the university he worked for last year with the Equal Employment Opportunity Commission (EEOC). As part of the investigation, an EEOC investigator spoke to one of Daniel s former co-workers, Brian, who also now works elsewhere, who agreed that the Chair treated Daniel unfairly. As a result of the EEOC investigation, the Dean called both Daniel and Brian at home and reprimanded them for talking to the EEOC. The Dean also stated that he gave them negative references on recent job reference requests. Prior to the EEOC investigation, the department Chair and Dean had no complaints about Daniel or Brian s job performance.

39 Did the Dean (the supervisor) violate the law? A. Yes. The Dean illegally retaliated against Daniel by giving him a negative reference because he filed a charge of discrimination with the EEOC. It was also illegal for the supervisor to give Brian a negative reference because Brian participated in the EEOC investigation. B. No. It was reasonable for the Dean to reprimand Daniel and Brian and give them negative references because the EEOC investigation was disruptive to the department. C. No. The Dean did not violate the law because he called Daniel and Brian at their homes, and not at work. D. No. Federal law only protects current employees from discrimination. Because Daniel and Brian were no longer employed by the company when they spoke to the EEOC, it was not illegal for the Dean to reprimand them and give them negative references.

40 Answers to J B is incorrect. It is illegal for the supervisor to harass or treat Daniel differently because he filed a charge of employment discrimination with the EEOC. Brian is also protected from harassment or different treatment because he spoke to an EEOC investigator. This is true even if the EEOC concludes that there was no discrimination. C is incorrect. It is illegal for the supervisor to harass or treat Daniel and Brian differently because they filed a charge of discrimination or participated in an investigation of discrimination. The fact that the supervisor (Dean) contacted them at home is not relevant.

41 Answers to J - continued D is incorrect. Federal law protects applicants, employees, and former employees from retaliation. Therefore, it was illegal for the supervisor (Dean) to harass Daniel and Brian and give them negative references for filing a discrimination charge and assisting in an investigation of employment discrimination, even though they were no longer employed by the university / company.

42 Answers to J - continued A is correct. You are protected from retaliation, or being punished, treated differently, or harassed, for complaining about job discrimination, filing a charge of discrimination, or cooperating with an investigation about discrimination. This is true even if it turns out that the conduct you complained about to the EEOC was not illegal.

43 Final thoughts To end discrimination and harassment in our educational community it will take the cooperation and assistance of everyone!

44 For more information: Office of Institutional Equity 308 Administration Building Houghton, MI Director Jill M. Hodges, Ph.D.

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