Special Situations in Sexual Harassment

Constructive Discharge

When an employee alleges that they were forced to quit their job rather the employer terminating the employee, it is called a “constructive discharge” case.  The court will look at both the employee’s decision to leave and any precipitating conduct by the employer.  According to the Supreme Court case of Pennsylvania State Police v. Suders, the employee would have to show that working conditions were so intolerable that a reasonable person would have felt compelled to resign.

Same Sex/Sexual Orientation Harassment:  Gender Stereotyping

In Kay v. Independence Blue Cross, the Third Circuit Court dealt with a case involving a gay Plaintiff who brought suit against the Defendant alleging that the workers had harassed him for not being manly enough and claiming that this violated sex stereotyping.  The case against the Defendant failed because the Court held that the harassing conduct against Kay was based upon his sexual orientation rather than any sexual stereotyping.

Title VII does not specifically prohibit discrimination based upon sexual orientation, a trend has emerged whereby the Court has recognized that some forms of sexual harassment may be actionable as gender discrimination, that is discrimination “because of [the employee’s] sex.”  In the Supreme Court case of Price Waterhouse v. Hopkins, the Court said that a valid gender discrimination claim may lie where the employer bases its adverse employment action taken against the employee on gender stereotyping and failure to conform to gender norms.  In Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services, Inc., there was the rise of the theory that harassment based upon sexual orientation is a form of gender harassment because it punishes the failure to conform to gender stereotypes in appearance, conduct, or even choice of romantic partners.

Affiliation Discrimination

Perhaps, you are not the one that’s been sexually harassed, but have made the complaint to a supervisor and/or human resources on behalf of someone that was or is being harassed.  In response, the employer has taken some negative or adverse action against you for supporting the individual that’s been harassed, who is too fearful to tell anyone.  You have rights in this situation.

Ratings and Reviews

10.0Dennis M. Moskal
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