Sexual Harassment

In June of 1998, the 1997 term of the Supreme Court ended and included decisions on four cases that added clarification to the issue of sexual harassment. In Burlington Industries, Inc. v. Ellerth, the Court found the case had been correctly classified as a hostile work environment suit, and as such Ellerth had to show "severe or pervasive conduct" by her manager. The standard of "pervasive" conduct has been used by the Supreme Court in other hostile work environment cases. Whereas a quid pro quo case may stem from a single incident, a hostile work environment generally develops over time with repeated affronts.

To some degree, the 1998 Supreme Court cases also defined employer liability. In Burlington Industries, the Court outlined the defense that employers seeking to avoid liability in hostile work environment cases can use: first, the employer must have used "reasonable care to prevent and correct promptly any sexually harassing behavior"; second, the employee seeking relief and/or damages "unreasonably failed" to utilize policies and procedures in place by the employer designed to thwart or correct the situation. Faragher v. Boca Raton provided a wake up call to large employers. The Court held that an employer's failure to establish policies against sexual harassment and methods for investigation and correction, as well its failure to communicate these policies to employees, can result in the employer's liability for the offensive behavior of its supervisors.

Another landmark Supreme Court case of 1998 decided whether "same sex" cases are protected under the 1964 Civil Rights Act. Oncale v. Sundowner Offshore Services Incorporated et al. dealt with a male employee who alleged that other males, a supervisor and coworkers, regularly humiliated him using methods of a sexual nature that included belittling him, physically grabbing him, and even warning him that he could be raped. After the employee reported these incidents to supervisors, the company failed to take corrective action. The resulting Supreme Court decision was clear: an employee may seek damages from his employers, even if the employee perpetuating the sexual harassment is of the same sex.

Sexual harassment is also prohibited in all federally funded schools under Title IX of the Education Amendments of 1972. The law protects both males and females. Schools are required by federal law to have a policy prohibiting sexual discrimination, including sexual harassment. Schools are also required to inform students, faculty, and other employees, as well as parents, of this policy. As with sexual harassment as defined in the workplace, similar categories of quid pro quo and hostile work environment apply here. An example of quid pro quo harassment occurs when a faculty member or coach makes sex a condition for passing a class or getting on a team. The hostile work environment applies when the student is subjected to "unwelcome" conduct constituting sexually harassing behavior. The conduct is considered "pervasive" if the behavior has been repetitive and creates an environment that the student finds hostile, intimidating, or even abusive.

If sexual harassment occurs in an academic setting, the party alleging the harassment must report the incident(s) to authorities within the school system who have the power to remedy the situation. In Gebser et al. v. Lago Vista Independent School District, the Court held that a student could not recover damages for sexual harassment since school officials were never notified of the alleged harassment, and therefore had no opportunity to correct the situation.

Sexual Harassment in the U.S. Military

Sexual discrimination including sexual harassment is also prohibited in all branches of the military. In 1994, then Secretary of Defense William Perry created the military's own version of the EEOC, the Defense Equal Opportunity Council Task Force on Discrimination and Sexual Harassment (DEOC). The Council was established to investigate the system used by the military to register complaints and to suggest means of improving the procedures. A 1995 survey conducted by the Department of Defense showed that the percentage of women in the military reporting unwelcome and uninvited sexual advances dropped slightly between 1988 and 1995. The respondents of the survey consisted of both male and female members of the U.S. Navy, Army, Marines, and Air Force.

Sexual harassment in the military can be even more invasive in the victim's life than sexual harassment in nonmilitary workplaces. Not only do the offenders work in close proximity to their victims, they may live nearby as well. Additionally, a superior in the military may have greater power to influence one's current life and future position, and legally a person cannot resign from his or her position in the military. These factors, coupled with the level of trust that must be cultivated between an officer and his or her trainees, provides a superior who abuses his or her power ample leverage in creating sexually harassing situations.

In spite of the Defense Department's attempt to prevent sexual harassment, in a 1996 military court martial, 32-year-old Army Staff Sergeant Delmar Simpson was found guilty of raping six female trainees at Maryland's Aberdeen Proving Ground. The allegations of sexual abuse at Aberdeen exposed a pervasive problem in the army. In addition to Simpson, ten other sergeants and one captain at Aberdeen were charged with counts ranging from rape to adultery to obstructing justice. The incidents at the Aberdeen Proving Ground revealed that sexual discrimination, including sexual harassment, was a problem within all ranks, genders, and racial groups. Togo West, Jr., then Secretary of the Army, acknowledged that sexual harassment within the army persisted. Army Chief of Staff General Dennis Reimer told Phil Ponce of PBS that he viewed the misconduct found at Aberdeen as "a leadership failure." An editorial by Harry Summer, Jr., of the Los Angeles Times succinctly described the corruption of trust involved in the Aberdeen incidents: "For a young woman to be sexually assaulted by her drill sergeant is like being molested by her father."

Prevention and Remedies for Sexual Harassment

It is well-established that sexual harassment arises from power-related issues rather than issues of a sexual nature. Whether the setting is the workplace, an educational institution, or a military facility, the law is clear and unequivocal: sexual harassment will not be permitted.

EEOC regulations include guidelines for employers on how to recognize, prevent, and educate employees regarding sexual harassment. In addition, EEOC regulations provide instruction on how to institute procedures within organizations to investigate and resolve issues from within. Many organizations have policies that inform employees, students, military personnel, and others who may be affected by sexual harassment of methods for dealing with harassers and detail the proper procedures necessary after initial steps fail. In a business setting, internal complaints may be filed with the proper authorities and mediation or arbitration may be used. Complaints may be filed with the EEOC or the state or local agency responsible for fair employment practices (FEP). Law suits may result from unresolved issues or in cases where the damages are severe.

Courts may enjoin employers to halt improper behavior in hostile environment cases. Attorney fees can also be awarded. In addition, if an employee quits his or her job because of sexual harassment, the employer may be liable for compensation due to lost wages. In 1998, many companies had affirmative action policies including the prohibition of sexual harassment, in compliance with EEOC guidelines, to raise awareness of the nature of sexual harassment in the workplace and to discourage employees in supervisory roles from creating hostile environments. Employers today seek to reduce their liability from lawsuits by indicating the inappropriateness of this behavior, even among employees. Continued vigilance against sexual harassment in the work place, the educational system, and the military, with the goal of ultimately eliminating sexual harassment, is an ongoing war, with some of the battles left undecided.