discussion of boundaries would not be complete without a discussion of legal issues
arising when boundaries are violated. We have mainly focused on the issues of
sexual abuse regarding the power imbalance. But what about the vague but much
legally defined area of sexual harassment? Could a client of yours claim sexual
harassment by you based upon a misconstrued remark or gesture? For this reason
I feel it is important to finish this course with some clarification of legal
issues. Use this section as a yardstick and think of a client you are treating
or have treated who has the potential to take legal action.
harassment can occur in a variety of circumstances, including but not limited
to the following:
The victim as well as the harasser may be a woman
or a man. The victim does not have to be of the opposite sex.
harasser can be the victims supervisor, an agent of the employer, a
supervisor in another area, a co-worker, or a non-employee.
does not have to be the person harassed but could be anyone affected by the
Unlawful sexual harassment may occur without
economic injury to or discharge of the victim.
The harassers conduct must be unwelcome.
is helpful for the victim to directly inform the harasser that the conduct is
unwelcome and must stop. The victim should use any employer complaint mechanism
or grievance system available.
investigating allegations of sexual harassment, EEOC looks at the whole record:
the circumstances, such as the nature of the sexual advances, and the context
in which the alleged incidents occurred. A determination on the allegations is
made from the facts on a case-by-case basis.
Industries v. Ellerth, and Faragher v. City of Boca Raton
An employer is subject to vicarious liability to a victimized employee for
an actionable hostile environment created by a supervisor with immediate (or successively
higher) authority over the employee. When no tangible employment action
is taken, an employer may raise an affirmative defense by showing it exercised
reasonable care to prevent or correct promptly any sexually harassing behavior
and that the employee unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the employer or to avoid harm otherwise.
- Blair, Druhan V. Severe or Pervasive: An Analysis of Who, What, and Where Matters When Determining Sexual Harassment. Vanderbilt Law Review. Jan2013, Vol. 66 Issue 1, p355-397.
According to the EEOC who else can be included in a sexual harassment
lawsuit besides the person harassed? To select and enter your answer go to .