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Buffalo Journal of Gender, Law & Social Policy

First Page

1

Document Type

Article

Abstract

This paper examines the significant weight that courts accord proof of especially "severe" conduct in hostile work environment sexual harassment cases. Such conduct is often found by courts to satisfy the "severe or pervasive" test established by the Supreme Court in Harris v. Forklift Systems, Inc., even if the plaintiff does not present proof that the harassing conduct occurred with great frequency.' Part I provides an introduction to the Supreme Court's hostile work environment jurisprudence and the origins of the severe or pervasive test. Part II begins the exploration into the disjunctive nature of the severe or pervasive test. Part II(a) examines instances when egregious verbal harassment has been found to satisfy the severe or pervasive test, despite the infrequency of such harassment. Part II(b) focuses on the severity of different types of physical harassment-harassment that involves the touching of the victim by the harasser. Part II(c) examines the role of implicit and explicit threats of physical harm in the severity calculus. Part III explores two types of "severe" conduct that are specific to high-risk professions. Part 111(a) examines the severity of refusals to provide backup in such professions, while Part III(b) considers conduct that serves to diminish employees' authority and undermine cohesiveness in a way that some courts have found to pose a threat to the safety of the victims of the harassment and others.

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