Sexual harassment risk analysis checklist

The following series of questions can be used to help evaluate the risk associated with a charge of sexual harassment. It will guide you through the analysis used by the courts and the EEOC. Keep in mind that each case must be evaluated in light of its own factual context and that the courts look at the totality of circumstances. Any determination of legality is made on a case-by-case basis; nevertheless, all of these areas indicate potential risk that should be pursued or investigated further.

Is the conduct gender-based?

Is the conduct unwelcome?

• Was it solicited or initiated by the employee?

• Did the employee regard the conduct as undesirable and offensive?

Is the conduct discriminatory?

Quid pro quo

• Was submission to the conduct a term or condition of employment, either explicitly or implicitly?

• Was submission to, or rejection of, the conduct a basis for employment decisions?

Hostile environment

• Is the conduct severe and pervasive?

• Did the conduct unreasonably interfere with a person's work performance?

• Did the conduct create an intimidating, hostile, or offensive working environment?

• Did the complainant view the environment as hostile?

• Would a reasonable person in the same or similar circumstances find the challenged conduct sufficiently severe or pervasive to create a hostile environment?

Is the employer vicariously liable for supervisor harassment?

• Did the person who engaged in the harassment have immediate or successively higher authority over the employee?

• Was a tangible employment action taken against the victim as a result of the harassment?

• Did the employer exercise reasonable care to avoid the harassment and eliminate it when it might occur?

• Did the employee exercise reasonable care to take advantage of the employer's safeguards and otherwise prevent harm that could have been avoided?

Did the employer know or have reason to know about sexual harassment by a co- employee?

• Was the conduct reported?

• Did the employer, supervisor or agent observe the conduct, or were they in a position to observe it?

• Was the conduct discussed in the presence of the employer, supervisor or agent?

Does the employer maintain and communicate an active policy against harassment?

• What steps were taken to implement the policy?

• Is the grievance procedure reasonable?

Did the employer undertake immediate and appropriate corrective action to eliminate the sexual harassment?

• When was the corrective action undertaken?

• What corrective action was undertaken?

• Was the corrective action effective?

• Did the corrective action adversely affect the terms or conditions of the complainant's employment?