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Sexual Harassment

Further Readings

Sexual harassment is one form of sexual discrimination prohibited under federal law. Title VII of the 1964 Civil Rights Act protects employees from sexualharassment in the workplace and established the Equal Employment OpportunityCommission (EEOC). The EEOC's 1980 regulations defined sexual harassment andpronounced it as one aspect of sexual discrimination protected under the Civil Rights Act of 1964. EEOC guidelines define sexual harassment:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

The distinction that the EEOC's guidelines make between two specific types ofsexual harassment, as shown above, are often referred to in the first instance as "quid pro quo" and the second as "hostile working environment." An example of sexual harassment that would be considered "quid pro quo" is when a superior in an employment situation seeks sex in exchange for a pay raise, promotion, positive performance review, or even the continuance of employment asbefore. The conditions attributed to a "hostile working environment" occur when a supervisor, coworker, or client repeatedly acts in an intimidating or hostile manner thereby creating an environment that causes an employee much anxiety. Conduct may include unwelcome flirting, invitations of a sexual nature,the exhibition of pictures of a sexual nature, and use of demeaning language. In this scenario, an employee's salary may not be involved. For one of theabove mentioned reasons, the employee's work environment has become poisonedby the offensive behavior.
In determining whether or not sexual harassment has occurred, the question ofwhether or not the conduct was "unwelcome" is a key issue. If sexual harassment has been found to have occurred, the determination of which type of sexual harassment must be made. If the case is considered "actionable," an individual alleging the sexual harassment can seek legal action. Remedies for sexualharassment cases vary, ranging from filing charges with the EEOC to instituting cases in state and federal courts, including the U.S. Supreme Court.
History of Legislation
Cases dealing with issues of sexual harassment are a twentieth century phenomena. Prior to the Civil Rights Act of 1964, no legislation protected individuals on the basis of sex. Ironically, the clause making discrimination illegalon the basis of sex was added to the bill by Southern conservatives in the legislature in an attempt to defeat it. The idea was to add a clause protecting individuals from discrimination on the basis of their gender, which they believed so outrageous that the entire bill would fail. In its original form, the Civil Rights Act of 1964 prohibited discrimination on the basis of "race,color, religion, or national origin" only. To their chagrin, the bill passedthe legislature. President Lyndon Johnson so fervently wanted the legislationenacted into law that he signed it without raising any issue with the amendment prohibiting against discrimination based on sex.
Although the Civil Rights Act of 1964 made discrimination on the basis of sexillegal, initially the act did little to stem abuses. The EEOC was established as a result of its passage, but the first head of the agency who was entrusted with enforcing the act regarded the provisions prohibiting sexual discrimination as something of a joke. Finally in 1980, after considerable pressurefrom women's groups, the EEOC, under the direction of Eleanor Holmes Norton,released regulations outlining what constituted sexual harassment. At that time, the EEOC declared that sexual harassment was indeed a form of sexual discrimination, and consequently, individuals were protected against such conduct under the Civil Rights Act.
Judicial Precedent Set by U.S. Supreme Court
After 1980, a few states passed their own statutes prohibiting sexual harassment on the job. Although a lower court case decided in 1976 supported the idea of sexual harassment as an illegal form of sex discrimination in Williams v. Saxbe, it was not until 1986 that the U.S. Supreme Court addressed the issue. A precedent was sent on 19 June 1986 when the Supreme Court unanimously affirmed what the lower federal courts had held since 1976: sexual harassment in the workplace is illegal and protected under Title VII of the CivilRights Act. The 1986 case involving Meritor Savings Bank v. Vinson became a legal turning point for cases dealing with sexual harassment. Moreover,even though the Court was not legally required to do, the Court used the EEOC's regulations against discrimination from which the sexual harassment prohibition originated to decide sexual harassment issues.
Decisions made after 1986 by state courts and the U.S. Supreme Court furtherclarified what constituted sexual harassment under the Civil Rights Act. In some instances, employees found protection and remedies under state laws. A 1991 Florida case, Robinson v. Jacksonville Shipyards, Inc., supported the idea that the display of pictures of a sexual nature at work constituted aform of sexual harassment.
Bill Passed Allowing Damages for Victims of Sexual Harassment
The Senate's confirmation hearings on Clarence Thomas' appointment to the Supreme Court in 1991, during which Anita Hill testified that she had been sexually harassed by Thomas, brought the issue to the forefront once again. With pressure from women's groups, a bill once again went before Congress which would allow for compensatory and punitive damages in cases of sexual harassment.President Bush had vetoed a similar bill in 1990. Partially because of the political heat raised during the Thomas hearings, Congress passed the measure,and President Bush signed the 1991 Civil Rights Act into law. This act provides for damages in cases where sexual harassment is found, although as a compromise measure, limits of $50,000 to $300,000 were set, depending on the number of employees in the company involved.
The November 1993 case of Harris v. Forklift was an important unanimous affirmation by the Supreme Court of its earlier decision of Meritor Savings Bank v. Vinson. In Harris, the Court upheld the standard previously applied in Meritor Savings Bank: "To be actionable as `abusive work environment' harassment, conduct need not `seriously affect psychologicalwell being' or lead the plaintiff to `suffer injury.'" In Harris, theCourt decided that the woman who complained of numerous sexually based remarks and unwelcome "sexual innuendoes" from the president of the company couldindeed seek relief from sexual harassment in spite of the fact that she appeared unharmed psychologically.
1997 U.S. Supreme Court Adds Clarification
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 suchEllerth had to show "severe or pervasive conduct" by her manager. The standard of "pervasive" conduct has been used by the Supreme Court in other hostilework environment cases. Whereas a quid pro quo case may stem from a single incident, a hostile work environment generally develops over time with repeatedaffronts.
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 placeby the employer designed to thwart or correct the situation. Faragher v. Boca Raton provided a wake up call to large employers. The Court held thatan 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" casesare 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 isof the same sex.
Federal Prohibitions Against Sexually Motivated Harassment in Schools
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 toinform 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 behaviorhas 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 systemwho have the power to remedy the situation. In Gebser et al. v. Lago VistaIndependent School District, the Court held that a student could not recover damages for sexual harassment since school officials were never notifiedof 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 Councilwas 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 themilitary reporting unwelcome and uninvited sexual advances dropped slightlybetween 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 fromhis 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, ina 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 ofStaff 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 oftrust involved in the Aberdeen incidents: "For a young woman to be sexuallyassaulted 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 maybe affected by sexual harassment of methods for dealing with harassers and detail the proper procedures necessary after initial steps fail. In a businesssetting, 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). Lawsuits may result from unresolved issues or in cases where the damages are severe.
Courts may enjoin employers to halt improper behavior in hostile environmentcases. 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 actionpolicies including the prohibition of sexual harassment, in compliance with EEOC guidelines, to raise awareness of the nature of sexual harassment in theworkplace 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 sexualharassment, is an ongoing war, with some of the battles left undecided.

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