However analyzing the phenomenon of sexual harassment through the narrow prism of ‘unwanted sexual behavior’ would highly limit our understanding of the concept.
The Indian judicial experience with sexual harassment started with the case of Vishaka v.
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In a case ideally suited to teach how not to handle a sexual harassment situation, , 267 F.3d 1183 (11th Cir. 2001), a restaurant employer managed to do just about everything as wrongly as it could be done, and in so doing showed how important common sense is in the area of employee relations. A restaurant's manager and a subordinate employee, a female server, carried on a consensual relationship for a while, but then the subordinate broke off the relationship. Thereafter, the manager refused to work with her, but still sought encounters with her, brushing up against the server on several occasions in a sexual way, threatening to hurt her and her child, and on the final occasion confronting her in the office and propositioning her. They argued for about a quarter of an hour, after which the server was able to leave, but when she later went to her car, he followed her out and prevented her from closing her car door, while begging her to reconsider the breakup. On the following day, the manager asked the server whether she would report his behavior, which she did, telling the general manager, a second manager, and a regional manager. She even requested a transfer.
Criminal Defenses In a criminal case, you may have other defenses
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The Commission ruled that neither of the employer's two stated reasons for firing the claimant were grounds for disqualifying her from unemployment benefits. The employer had no firsthand evidence to prove that the claimant circulated a petition to get rid of the alleged harasser, so that charge went nowhere. The charge of failing to report sexual harassment directly to the president was unsuccessful for several reasons.
Most women will experience sexual harassment in their lives, ..
also, one spectacular case of incredibly bad judgment involved an employer which fired the plaintiff, a waitress, after she complained of sexual harassment by a cook. The employer reasoned that it was easier to replace a waitress than a cook. Needless to say, the employer lost.
The orientation of the Act seems to encourage this understanding.
It used to be that an employer that did not know about acts of harassment committed by its workers would be protected from liability as long as it acted quickly to deal with the problem as soon as it found out what had happened. That view has changed over the years to make an employer strictly liable for the acts of its managers and other supervisory personnel. Now, in order to escape liability for a manager's or supervisor's harassment against an employee, an employer needs to show not only that it took prompt and effective action once it learned of the harassment, but also that its policy discourages acts of harassment, makes it clear that such conduct is outside the scope of employment of any employee, encourages reporting of such acts, and provides an effective way of dealing with the allegations. An effective policy and effective enforcement of the policy can help an employer escape liability in case of a lawsuit. Courts are in agreement that a policy for resolving sexual harassment complaints is ineffective if the one making the complaint has to first go through the alleged harasser to do it.
Harassment in the Workplace - Wisconsin State Law Library
In another interesting case, an employer was held liable for harassing actions committed by some of its male employees toward a female employee. They had made unwelcome sexual advances and remarks toward her. A lower court had ruled that she could not have been offended by such conduct, since she had once posed nude for a motorcycle magazine. The appeal court reversed that ruling, reasoning that since the female employee considered the male workers' conduct unwelcome, and since a reasonable woman would have considered such conduct offensive, it made the employer liable. This is only one of several rulings that make it clear that courts apply what is known as a "reasonable woman" standard, which differs from the reasonable person standard in that if a woman is the victim of the harassment, what matters is what a reasonable woman in such a position would think of the conduct in question.