Constitutional Law Education Project
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A Unit on Sexual Harassment

IMPLEMENTATION OF THE SEXUAL HARASSMENT UNIT:

“The Price of Harassment” A 10-day Plan

This unit guide is just that—a guide. Some classes go more quickly; others more slowly. Each class is anticipated to be 50 minutes. The unit begins with questions about the sensitive subject of sexual harassment and behavior, provides information through lecture and discussion, generates interest with some student-created short stories and a mock trial, and concludes with a video presentation of the famous case of Weeks v. Baker and McKenzie. This unit plan won an "Honorable Mention" from Court TV in lesson plan design.

DAY 1

Objective: Introduce concept of “Sexual Harassment”

Assignment: Teacher-led discussion to introduce sensitive subject area: Which behaviors are “flirting” and which are “harassment”? Put a working definition on overhead for discussion purposes. Identify the “elements” of sexual harassment and key terms (“hostile environment,” “quid pro quo,” “severe,” “pervasive,” etc.). Stress that the concept arises out of “sex discrimination” from Title VII of the Civil Rights Act of 1964. Only later have legislative attempts focused on the behaviors in order to remedy what the courts had been struggling since the 1970s to define.

Homework for the following day: Assign a fictional short story: “Where is the Line?” Some will be read anonymously the next day in class. One-to-two pages in length. No actual names or even identifiable people. Make the story one where the main character ends up having to say, “What do I do?”

DAY 2

Objective: Review what sexual harassment is. Determine what behaviors are actionable.

Assignment: Collect and read anonymously selected short stories from homework. Discuss with class whether “the line” between “flirting” (legal) and “hurting” (illegal) had been crossed. Then, discuss “what should happen next”? (e.g,. What should the character do? Who—if anyone—should the person talk to? What is a proper outcome for this situation?) Assign “Becoming a Sociologist” assignment; Set time frame: 3 days?

Homework for the following day: Work on “Becoming a Sociologist.” In this assignment we ask students to individually become “sociologists”—detached, unbiased (?) observers of social behaviors and interactions—and watch for at least 30 minutes a group of people (at school, or in a store, or on the street or playground, etc.) who are interacting. Describe the interactions. Be specific.

DAY 3

Objective: questionnaire and de-briefing

Assignment: Distribute and read “Says Who?” questionnaire; discuss and debate in class.

Display overheads of survey results

Homework for the following day: Work on ““Becoming a Sociologist”

DAY 4

Objective: Discuss and review the relevant law

Assignment: Lecture/ discuss “quid pro quo” and “hostile environment” actions. Overhead or PowerPoint presentation on definitions, examples, and court cases distinguishing quid pro quo and hostile environment cases. Update the current law.

Assign handouts for reading for tomorrow's jigsaw. The teacher has collected recent articles related to sexual harassment and distributes each student one for discussion next class.

Homework for the following day: Read articles for “Sexual Harassment jigsaw” in class tomorrow.

DAY 5

Objective: Jigsaw: students read articles then share insights

Assignment: “Sexual harassment Jigsaw”: students read assigned articles, discuss in small groups, then share insights in another group. Teacher reviews with class the main points at the end of class.

Homework for the following day: Complete “Becoming a Sociologist” for presentation tomorrow.

DAY 6

Objective: Present findings from “Becoming a Sociologist."

Assignment: Present findings from “Becoming a Sociologist.” What did we notice about human behavior? Be specific. Distribute mock trial assignments for Faragher.

Homework for the following day: Work on mock trial roles for Faragher

 

DAY 7

Objective: Prepare for mock trial

Assignment: Attorneys brief and work with witnesses while jurors review jigsaw articles with teacher.

Homework for the following day: Prepare for mock trial: Faragher v. City of Boca Raton.

DAY 8

Objective: introduce real trial concepts, rules of evidence, court procedures 

Assignment: Beth Ann Faragher, plaintiff v. City of Boca Raton [material available in Teacher’s Guide to Constitutional Law, by Rich Kitchens]

Homework for the following day: Review notes from first day of trial.

DAY 9

Objective: introduce real trial concepts, rules of evidence, court procedures

Assignment: Day Two of mock trial: Faragher continues and concludes. Jury should have some time to deliberate if we kept to the time requirements described in the student text, Constitutional Law. After jury deliberations, everyone should de-brief the mock trial: what “worked” and what “didn’t work”?

Homework for the following day: Essay on mock trial. Students are ALL (except for attorneys, who turn their notes in) to write a 1000-1500 word essay on: “How I would rule if I were on the Faragher v. Boca Raton jury…and why.”

DAY 10

Objective: Video on the San Francisco trial of Rena Weeks v. Baker and McKenzie

Assignment: Watch video and complete worksheet/ assignment on “The Price of Harassment: Weeks v. Baker and McKenzie. The video is available from Court TV. It is the landmark trial of a legal secretary who worked at the world’s biggest law firm briefly, was hassled (the jury said harassed) by her supervising lawyer, and won a huge jury verdict (which the judge later reduced by half).

Homework for the following day: Complete worksheet on Weeks to submit tomorrow.


SEXUAL HARASSMENT LAWS IN THE CALIFORNIA STATUTES

 

Civil Code § 51.9.

(a)    A person is liable in a cause of action for sexual harassment under this section when the plaintiff proves all of the following elements:

(1)   There is a business, service, or professional relationship between the plaintiff and defendant. Such a relationship may exist between a plaintiff and a person, including, but not limited to, any of the following persons:

(A)  Physician, psychotherapist, or dentist. For purposes of this section, "psychotherapist" has the same meaning as set forth in paragraph (1) of subdivision (c) of Section 728 of the Business and Professions Code.

(B)  Attorney, holder of a master's degree in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial planner loan officer, collection service, building contractor, or escrow loan officer.

(C)  Executor, trustee, or administrator.

(D)  Landlord or property manager.

(E)   Teacher.

(F)   A relationship that is substantially similar to any of the above.

(2)   The defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or ofa hostile nature based on gender, that were unwelcome and pervasive or severe.

(3)   There is an inability by the plaintiff to easily terminate the relationship.

(4)   The plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of the conduct described in paragraph (2).

(b)   In an action pursuant to this section, damages shall be awarded as provided by subdivision (b) of Section 52.

(c)    Nothing in this section shall be construed to limit application of any other remedies or rights provided under the law.

(d)   The definition of sexual harassment and the standards for determining liability set forth in this section shall be limited to determining liability only with regard to a cause of action brought under this section.

Education Code § 212.5. "Sexual harassment" means unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting, under any of the following conditions:

(a)    Submission to the conduct is explicitly or implicitly made a term or a condition of an individual's employment, academic status, or progress.

(b)   Submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual.

(c)    The conduct has the purpose or effect of having a negative impact upon the individual's work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment.

(d)   Submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution.

Education Code § 231.5.

(a)    It is the policy of the State of California, pursuant to Section 200, that all persons, regardless of their sex, should enjoy freedom from discrimination of any kind in the educational institutions of the state. The purpose of this section is to provide notification of the prohibition against sexual harassment as a form of sexual discrimination and to provide notification of available remedies.

(b)   Each educational institution in the State of California shall have a written policy on sexual harassment. It is the intent of the Legislature that each educational institution in this state include this policy in its regular policy statement rather than distribute an additional written document.

(c)    The educational institution's written policy on sexual harassment shall include information on where to obtain the specific rules and procedures for reporting charges of sexual harassment and for pursuing available remedies.

(d)   A copy of the educational institution's written policy on sexual harassment shall be displayed in a prominent location in the main administrative building or other area of the campus or school site. "Prominent location" means that location, or those locations, in the main administrative building or other area where notices regarding the institution's rules, regulations, procedures, and standards of conduct are posted.

(e)    A copy of the educational institution's written policy on sexual harassment, as it pertains to students, shall be provided as part of any orientation program conducted for new students at the beginning of each quarter, semester, or summer session, as applicable.

(f)     A copy of the educational institution's written policy on sexual harassment shall be provided for each faculty member, all members of the administrative staff, and all members of the support staff at the beginning of the first quarter or semester of the school year, or at the time that there is a new employee hired.

(g)    A copy of the educational institution's written policy on sexual harassment shall appear in any publication of the institution that sets forth the comprehensive rules, regulations, procedures, and standards of conduct for the institution.

Education Code § 48900.2. In addition to the reasons specified in Section 48900, a pupil may be suspended from school or recommended for expulsion if the superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has committed sexual harassment as defined in Section 212.5. For the purposes of this chapter, the conduct described in Section212.5 must be considered by a reasonable person of the same gender as the victim to be sufficiently severe or pervasive to have a negative impact upon the individual's academic performance or to create an intimidating, hostile, or offensive educational environment. This section shall not apply to pupils enrolled in kindergarten and grades 1 to 3, inclusive.

Education Code § 66262.5. "Sexual harassment" has the same meaning as defined in Section 212.5.

Education Code § 66281.5. (a) It is the policy of the State of California, pursuant to Section 66251, that all persons, regardless of their sex, should enjoy freedom from discrimination of any kind in the postsecondary educational institution of the state. The purpose of this section is to provide notification of the prohibition against sexual harassment as a form of sexual discrimination and to provide notification of available remedies. (b) Each postsecondary educational institution in the State of California shall have a written policy on sexual harassment. It is the intent of the Legislature that each educational institution in this state include this policy in its regular policy statement rather than distribute an additional written document. (c) The postsecondary educational institution's written policy on sexual harassment shall include information on where to obtain the specific rules and procedures for reporting charges of sexual harassment and for pursuing available remedies. (d) A copy of the postsecondary educational institution's written policy on sexual harassment shall be displayed in a prominent location in the main administrative building or other area of the campus or school site. "Prominent location" means that location, or those locations, in the main administrative building or other area where notices regarding the institution's rules, regulations, procedures, and standards of conduct are posted. (e) A copy of the postsecondary educational institution's written policy on sexual harassment, as it pertains to students, shall be provided as part of any orientation program conducted for new students at the beginning of each quarter, semester, or summer session, as applicable. (f) A copy of the postsecondary educational institution's written policy on sexual harassment shall be provided for each faculty member, all members of the administrative staff, and all members of the support staff at the beginning of the first quarter or semester of the school year, or at the time that there is a new employee hired. (g) A copy of the postsecondary educational institution's written policy on sexual harassment shall appear in any publication of the institution that sets forth the comprehensive rules, regulations, procedures, and standards of conduct for the institution.


Unemployment Code § 1256.7. An individual shall be deemed to have left his or her most recent work with good cause if the director finds that he or she leaves employment because of sexual harassment, provided the individual has taken reasonable steps to preserve the working relationship. No steps shall be required if the director finds it would have been futile. For purposes of this subdivision, unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature constitutes sexual harassment when any of the following occur:

(1)   Submission to the conduct is made either explicitly or implicitly a term or condition of an individual's employment.

(2)   Submission to or rejection of the conduct by an individual is used as the basis for employment decisions affecting the individual.

(3)   The conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. Findings of fact and law by the director shall not collaterally estop adjudication of the issue of sexual harassment in another forum.


Government Code § 12950. In addition to employer responsibilities set forth in subdivisions (h) and (i) of Section 12940 and in rules adopted by the department and the commission, every employer shall act to ensure a workplace free of sexual harassment by implementing the following minimum requirements: (a) The department shall amend its current poster on discrimination in employment to include information relating to the illegality of sexual harassment. This amended poster shall be distributed to employers when the supply of the current poster is exhausted. One copy of the amended poster shall be provided by the department to an employer upon request. The amended poster shall be available at each office of the department, and shall be mailed if the request includes a self-addressed envelope with postage affixed. Multiple copies of the amended poster shall be obtained through the Office of Documents and Publications of the Department of General Services. Each employer shall post the amended poster in a prominent and accessible location in the workplace. (b) Each employer shall obtain from the department its information sheet on sexual harassment, which the department shall make available to employers for reproduction and distribution to employees. One copy of the information sheet shall be provided by the department to an employer upon request. The information sheets shall be available at each office of the department, and shall be mailed if the request includes a self-addressed envelope with postage affixed. Multiple copies of the information sheet shall be obtained through the Office of Documents and Publications of the Department of General Services. Each employer shall distribute this information sheet to its employees, unless the employer provides equivalent information to its employees that contains, at a minimum, components on the following: (1) The illegality of sexual harassment. (2) The definition of sexual harassment under applicable state and federal law. (3) A description of sexual harassment, utilizing examples. (4) The internal complaint process of the employer available to the employee. (5) The legal remedies and complaint process available through the department and the commission. (6) Directions on how to contact the department and the commission. (7) The protection against retaliation provided by Section 7287.8of Title 2 of the California Code of Regulations for opposing the practices prohibited by this article or for filing a complaint with, or otherwise participating in an investigation, proceeding, or hearing conducted by, the department or the commission. (c) The information sheet or information required to be distributed to employees pursuant to subdivision (b) shall be delivered in a manner that ensures distribution to each employee, such as including the information sheet or information with an employee's pay. (d) Notwithstanding subdivisions (h) and (i) of Section 12940, a claim that the information sheet or information required to be distributed pursuant to this section did not reach a particular individual or individuals shall not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employer's compliance with this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant. (e) If an employer violates the requirements of this section, the commission shall issue an order requiring the employer to comply with these requirements.

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