Finding the Facts - Disciplinary and Harassment Investigation

communicating a hostile message. The supervisor was sending the employee a harassing message by shunning her during staff meetings and reprimanding her in front of co-workers. In addition, acts of discrimination can provide evidentiary support for a harassment claim by establishing discriminatory animus. Consequently, discrimination and harassment claims can have overlapping evidence. 214 The California Court of Appeals held that evidence of sexual harassment of other employees, unknown to the victim, can be offered at trial to prove that a supervisor has a discriminatory or biased intent. Likewise, such evidence can be used to impeach a witness' [supervisor] credibility. 215

Q UID P RO Q UO H ARASSMENT Quid pro quo harassment occurs when submission to sexual conduct is explicitly or implicitly made a condition of a job, a job benefit, or the absence of a job detriment. It can include sexual propositions, unwarranted graphic discussion of sexual acts, or commentary on the employee’s body. Implicit conditioning of job benefits on submission to sexual conduct is more common but harder to detect than explicit quid pro quo harassment.

Factors to evaluate in determining whether quid pro quo harassment has actually occurred include:

 Whether the sexual conduct was unwelcome;

 Whether a reasonable person in the accuser’s position, who is the same gender as the accuser and has the same fundamental characteristics as the accuser, would have believed he/she was the subject of quid pro quo harassment;  Whether the accused harasser intended to subject the accuser to quid pro quo harassment; and  Whether there is a close connection between a discussion about job benefits and a request for sexual favors. 216 Case Studies Where a postal service night-shift supervisor, the only employee who knew sign language, requested oral sex from his deaf-mute subordinate right after discussing her request for a leave of absence, her attendance record, and her continued employment, the federal court found that the subordinate was subjected to quid pro quo harassment. 217 However, the Ninth Circuit rejected a female employee’s claim of quid pro quo harassment because the complainant failed to establish a connection between her supervisor’s sexual requests and her subsequent poor performance evaluations or other potential changes in employment status. The court also noted that the complainant failed to file a harassment claim with the employer until one year after the alleged misconduct, and failed to follow the employer’s handbook for claims of

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