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Balancing the Power Dynamic in the Therapeutic Relationship

Section 13
Balancing Power, Sexual Harassment, and Legal Issues:
Do you know where the line is?

Question 13 | Test | Table of Contents

This 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.

Sexual 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.

The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.

The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
The harasser’s conduct must be unwelcome.

It 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.

When 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.

Burlington Industries v. Ellerth, and Faragher v. City of Boca Raton
Justice Kennedy, “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.
The article above contains foundational information. Articles below contain optional updates.

QUESTION 13
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 Test.

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