Legal Research: Resources for Reviewing Employment Policies on Harassment

With sexual harassment taking center stage in recent news, employers are reviewing sexual harassment policies and procedures in the workplace. Here are some useful resources and tips to get you started.

Sexual harassment allegations are repeatedly making today’s headlines, including with hashtags such as #Metoo and #Timesup, and as celebrity news, like the recent sentencing of Bill Cosby and the confirmation hearings of Judge Brett Kavanaugh. Harassment is being reported across institutions, from Hollywood to Washington, D.C., and the legal profession is not exempt.

The potential damage and disruption a harassment lawsuit can cause to a company’s reputation as well as to their finances has not gone unnoticed by employers. Companies and institutions are taking a renewed interest in reviewing their employer anti-harassment policies, revising their handbooks and manuals, and offering sensitivity training to staff and management.

This guide is an introduction to resources useful when researching compliance, employer liability, and harassment claims in the workplace. It includes links to free or cost-effective legal resources, such as federal and state laws, regulations, significant case law, secondary resources, forms, surveys, and statistics.

Wisconsin State Law Library Resources

State Bar members and their staff are eligible for a library card and may borrow materials from the Wisconsin State Law Library. There you will find links to research tools, including:

  • The guide, Harassment in the Workplace, with useful links to legal resources on harassment and sex discrimination.
  • The Articles & Journals and Legal Databases website, which contains links to tools for legal search and analysis, including scholarly law review articles using the powerhouse legal journal and periodical databases HeinOnline and Index to Legal Periodicals (ILP).
  • Tips and video tutorials on how to use these databases are included on the right side of the page, where you’ll find links to law review articles on sexual harassment.

Federal Law Resources and Regulations

Some Historic Cases – Research via Google Scholar

You can search for law review articles using Google Scholar. While it is not as powerful as a subscription-based service for legal research, Google Scholar provides some valuable citation and search features for free. See below for research tips.

· Meritor Savings Bank, FSB v. Vinson1, 1986, was the first Title VII case before the U.S. Supreme Court, which held that unwelcome advances create a hostile work environment.

· In Harris v. Forklift Systems, Inc.2, 1993, the Court expanded the definition of a hostile work environment.

· In Oncale v. Sundowner Offshore Services, Inc.3, 1998, the Court held that same-sex harassment is actionable under Title VII.

· In Burlington N.. & SFR CO. v. White4, 2006, the Court defined adverse employment action and established an affirmative defense where there is no adverse employment action.

· Faragher v. Boca Raton5 and Burlington Industries, Inc. v. Ellerth6, two 1998 cases and often held together, set a stringent standard of vicarious liability on the part of the employer.

Navigation Tips in Google Scholar

When researching cases on Google Scholar, look under the case summary for links to expand or refine your search. See this example:

  • To see cases that cite to your target case, select the “cited by” tab link below the case summary. In the example above, 477 U.S. 57 has been cited 11,406 times. On the left side of the screen, you can restrict by jurisdiction or by date.
  • To see cases similar to your target case, put the name of the judge in the menu box and select “related articles.” Although Google Scholar doesn’t use legal terminology in a field search, if you know that “related articles” will retrieve case law and not articles then you can use this link to search for case law relevant to your case.
  • For a Bluebook citation of the case, select the quotes icon under the case’s summary.

Books and Articles

  • Investigation of the Workplace Harassment Claim – A practical guidebook that includes information on conducting an investigation and the essentials of a harassment claim.
  • Litigating the Workplace Harassment Case – This book thoroughly covers litigation involving workplace harassment.
  • Harassment in the Workplace – This link provides a downloadable PDF of a white paper presented at the American Law Institute – American Bar Association continuing legal education seminar, July 29, 2004. This white paper is a solid overview of case law and elements of a claim, and includes a 50 state survey of discrimination and harassment laws. Although a bit dated, it can be updated with other resources available in this guide.

Organizational Resources

Useful Resources and Recent Surveys

Sample Policies

A good policy cuts down on harassment claims and shows that a company is respectful of its workforce.

Here are two examples:

Related Reading and CLE Seminars

Endnotes

1 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986).

2 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993).

3 523 U.S. 75, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998).

4 547 U.S., 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006).

5 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998).

6 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998).

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Editor’s note: This article republished with the author’s permission with first publication in the State Bar of Wisconsin News.

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